Day on Torts

Defendant doctor can be compelled to testify regarding standard of care of co-defendant nurse he supervises; Minor on Tenncare Has Right to Sue for Medical Expenses

Where defendant doctor was the supervising physician for defendant nurse midwife, the Court of Appeals ruled that he could be compelled to testify regarding his “expert opinion about the care and treatment provided by” the nurse. And, perhaps more importantly, the court also ruled that a minor on TennCare has a right to recover medical expenses. Also discussed: what changes to testimony can be made on an errata sheet.

In Borngne v. Chattanooga-Hamilton County Hospital Authority, No. E2020-00158-COA-R3-CV (Tenn. Ct. App. July 1, 2021), plaintiff mother brought this HCLA suit based on injuries to her minor daughter during birth. Plaintiff, who was full term in her pregnancy, was admitted to the hospital and labor was induced. Plaintiff was at risk for preeclampsia, and her labor was managed by defendant nurse-midwife Mercer. Plaintiff pushed for one hour and forty-eight minutes, but the baby made no progress and the fetal heart monitoring strip showed concerning signs. Nurse Mercer called her supervisor defendant Dr. Seeber, who arrived 45 minutes later and ordered a c-section be performed as soon as possible. When plaintiff child was born, she was not breathing and was diagnosed with permanent brain damage due to lack of oxygen, as well as “severely debilitating injuries.”

Plaintiff filed this suit, naming several parties as defendants. Before trial, Dr. Seeber moved for summary judgment on the claims of direct negligence against him, which the trial court granted, meaning the only claims remaining against him were those of vicarious lability for the alleged negligence of Nurse Mercer. The case was eventually tried before a jury, and the jury returned a verdict for defendants. The trial court denied plaintiff’s motion for a new trial, and plaintiff then filed this appeal.

There were four issues on appeal. The first issue surrounded Nurse Mercer’s deposition. After she reviewed her deposition, she “submitted an errata sheet making 24 changes to her testimony and explaining the reasons for the changes.” Some of these changes were minor or corrected times she misspoke, but others were substantive, including “alterations of Nurse Mercer’s interpretations of the fetal heart monitoring strip.” Plaintiff argued that the “trial court erred in failing to quash, suppress, or strike Nurse Mercer’s errata sheet testimony,” but the Court of Appeals disagreed.

Tennessee Rule of Civil Procedure 30.05 provides the basis for making changes to a deposition and states in part: “Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.” The Court noted that no Tennessee appellate court had yet considered whether substantive changes were allowed under this Rule, but noted that federal cases interpreting the similar federal rules were persuasive. Looking to federal opinions, the Court pointed out that there is a split of authority, including within the Sixth Circuit, regarding whether such substantive changes are allowed. Taking that background along with the language of the Tennessee rule, the Court reasoned that substantive changes are allowed in Tennessee, explaining:

We conclude that the Trial Court did not err in allowing the substantive changes to Nurse Mercer’s testimony, for several reasons. First, and most importantly, the plain and clear language of Tenn. R. Civ. P. 30.05 expressly allows ‘any changes in form or substance which the witness desires to make…’ …Our goal is to ascertain and give effect to the Supreme Court’s intent in promulgating the rules without unduly restricting or expanding its coverage beyond its intended scope. …The plain meaning of the word ‘any’ is clear. …If we were to apply Rule 30.05 as Plaintiff suggests, we would effectively be rewriting it from saying ‘any changes in substance are allowed’ to ‘some, but not all, changes are allowed.’ While we understand the concerns expressed by Plaintiff, the language of Rule 30.05 is clear and unambiguous, and it is not the role of this Court to rewrite the Rule.

In addition, the Court pointed out the “safeguards allowed by the Trial Court in this case to temper the legitimate concern that a deponent may try to change his or her prior testimony as a tactical strategy rather than as a correction of a legitimate error.” In this case, the trial court kept the “original answers [as] part of the record as admissible proof,” allowed Nurse Mercer’s deposition to be reconvened, and allowed plaintiff “to cross-examine Nurse Mercer at trial about the errata sheet changes.” Based on the Rule and the “circumstances presented in this case, the Court affirmed the trial court’s decision to allow Nurse Mercer’s deposition changes via errata sheet.

The second issue concerned the trial court’s conditions on the testimony of Dr. Sammer, who was a treating physician plaintiff sought to use as a witness. Plaintiff planned to have Dr. Sammer, who had previously worked for defendant, testify as to “diagnosis opinions [formed] as part of her care and treatment” of minor plaintiff, but the Court was not made aware of these opinions until December 31st preceding a February 5th trial. The trial court “determined that allowing Dr. Sammer’s unvetted, previously unreported opinions against her former employer during a jury trial would be overly oppressive,” and because Dr. Sammers had moved to Texas, it tried various ways to engage in either a discovery deposition or a McDaniel hearing before the trial. Dr. Sammers filed a motion to quash her deposition subpoena in a Texas court, and when that motion was denied, she “voluntarily and unilaterally chose not to testify at trial, rather than have her previously unreported opinions adverse to her former employer be properly vetted.”

Plaintiff argued on appeal that the trial court imposed “onerous and burdensome conditions on the testimony of Dr. Sammers,” but the Court of Appeals disagreed. The Court found that the record supported the trial court’s statement that it had “bent over backwards to avoid excluding Dr. Sammer,” and that Dr. Sammer had gone “to extensive lengths to avoid testifying[.]” Accordingly, the trial court did not impose any onerous or overly burdensome restrictions on Dr. Sammer.

The third issue in this case was a major one—“whether the trial court erred in refusing to compel Dr. Seeber to answer questions regarding his expert opinion about the care and treatment provided by Nurse Mercer to Plaintiff pursuant to Lewis v. Brooks”—an issue on which the Court of Appeals ultimately sided with plaintiff. During his deposition, Dr. Seeber refused to answer questions regarding his expectation of Nurse Mercer in the given factual scenario. Dr. Seeber and his counsel relied on Lewis v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001) for the proposition that Dr. Seeber “was not required to answer a question that calls for an opinion that asks him to comment on the actions of other healthcare providers and does not involve his own actions[.]” The trial court agreed with defendants that Lewis applied here and that Dr. Seeber could not be “compelled to provide testimony as an expert against his will.”

The Court of Appeals, however, differentiated this case from Lewis. Unlike Lewis, Dr. Seeber was being asked to opine about a nurse for whom he was the supervisor. The Court pointed out that the Court of Appeals had previously ruled in Waterman v. Damp, 2006 WL 2872432 (Tenn. Ct. App. Oct. 9, 2006) that “medical experts alleged to have injured a patient by their own direct casual negligence may be compelled to answer questions as to whether their conduct conformed to the applicable standard of care.” (internal citations omitted). The Court reasoned:

This is not a scenario featuring co-defendant healthcare providers on an equal footing and at arm’s length from one another. It is undisputed that Dr. Seeber was Nurse Mercer’s supervising physician. As such, Nurse Mercer was not simply ‘another healthcare provider’ in relation to Dr. Seeber; she was in a subordinate role. In our judgment, the holding of Lewis does not extend to circumstances such as these. The ramifications of such an extension would ripple beyond health care liability lawsuits; it could be applied to any field involving expert defendants in a supervisor and supervisee relationship. The results could be absurd and unjust. …Compelling Dr. Seeber to testify regarding the conduct of his supervisee would not wrongfully force him to yield up ‘the product of his brain’ in contravention of Lewis… Instead, it would be more akin to compelling him to testify as to his own conduct, …as it is Nurse Mercer’s conduct as Dr. Seeber’s supervisee that gives rise to his liability, if any. …It would represent an unwarranted extension of Lewis to hold that a supervisor who is an ‘expert’ is permitted to choose to testify or not to testify as to certain actions of her own supervisee, including whether the supervisee’s actions complied with the acceptable standard of care.

(internal citations omitted). The Court ruled that this was reversible error, and therefore reversed the trial court on this issue and remanded for a new trial.

Finally, plaintiff argued that the trial court wrongly excluded proof of minor plaintiff’s pre-majority medical expenses, and the Court of Appeals agreed. Here, plaintiff minor was a TennCare member, and TennCare had “asserted its statutory right of reimbursement” against her. Because the minor was liable to a subrogation claim, and because the expenses “were not and would not be paid by a parent,” plaintiff should have been allowed to “put on proof of her pre-majority medical expenses incurred because of the alleged negligence of her tortfeasors.”

Judge Kristi Davis wrote a partial dissent here, dissenting on the issue of whether Dr. Seeber could be compelled to testify as to Nurse Mercer’s alleged deviation from the standard of care. Judge Davis wrote that this case fell within Lewis, as Dr. Seeber was not at the hospital when the alleged negligence occurred and had no “more knowledge or insight than any other medical expert who might be called upon to review the documents in Plaintiff’s chart and provide an opinion as to whether Nurse Mercer complied with the standard of care.”

The issue of compelling the doctor to testify as to the standard of care of the nurse he supervised is a big one, with this holding recognizing an exception to previous law. If this holding stands, it could impact all cases where both the conduct of a doctor and a healthcare professional he or she supervises (such as a nurse practitioner) is at issue.

NOTE: This opinion was released 7 months after oral arguments in this case.

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