Judith Steele v. Columbia Health Care ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 19, 2002 Session
JUDITH ANN STEELE, ET AL. v. COLUMBIA/HCA HEALTH CARE
CORPORATION, ET AL.
Direct Appeal from the Circuit Court for Weakley County
No. 3327 William B. Acree, Jr., Judge
No. W2001-01692-COA-R3-CV - Filed May 13, 2002
This is a medical malpractice case. Plaintiff’s husband, Mr. Steele, arrived at Defendant’s
emergency room complaining of chest pains. An EKG illustrated that he was suffering a heart
attack. Mr. Steele underwent subsequent treatments and an additional EKG. The second EKG was
abnormal, and Dr. Urankar, a physician at Defendant’s emergency room decided to administer tPA,
a “clot busting” drug. While Dr. Urankar was preparing to administer the tPA, Mr. Steele’s
condition significantly worsened, and he eventually died. At trial, Plaintiff introduced expert
testimony from Dr. Carr regarding the applicable standard of care and causation. Defendant objected
to portions of Dr. Carr’s testimony. The jury awarded Plaintiff damages, and Defendant appeals,
citing error in Dr. Carr’s testimony. We affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD, J., joined.
Thomas Pinckney, Nashville, Tennessee, for the appellants, Hospital Corporation of Tennessee d/b/a
Columbia Volunteer General Hospital and Nancy Urankar, M.D.
T. J. Emison, Jr., Alamo, Tennessee, for the appellee, Judith Ann Steele.
OPINION
On August 8, 1996, Paul Steele and his friend, Tommy Akin, had lunch together. After
lunch, Mr. Steele decided to help Mr. Akin move some furniture into Mr. Akin’s daughter’s
apartment. While moving the furniture, Mr. Steele began to experience chest pains. The pain
persisted, so Mr. Akin drove Mr. Steele to the emergency room at Columbia Volunteer General
Hospital in Martin, Tennessee.
Shortly before 2:00 p.m., Mr. Steele arrived at Volunteer. Soon after Mr. Steele’s arrival,
Marcia Huffstetler, R.N., received a call that Mr. Steele was in the triage area. Ms. Huffstetler
recorded the time of the call as 2:14 p.m. When Ms. Huffstetler reached the triage room, Mr. Steele
was pale, sweating profusely, and complaining of pain in the center of his chest. Ms. Huffstetler then
guided Mr. Steele to a treatment area in the emergency room. Immediately thereafter, Ms.
Huffstetler phoned for an electrocardiogram (EKG), lab work, and a chest x-ray. The EKG was
completed at 2:16 p.m. and was abnormal. Mr. Steele rated his chest pain at 5 on a 1 to 10 scale.
At approximately 2:20 p.m., Dr. Nancy Urankar arrived at the treatment room. Dr. Urankar
examined Mr. Steele and read the EKG. After Dr. Urankar’s examination of Mr. Steel, she ordered
that he be given aspirin and nitroglycerine, which he received at 2:30 p.m. The nitroglycerine and
aspirin relieved Mr. Steele’s chest pain somewhat, and at 2:35, he reported a pain level of 3.
At 2:50 p.m., Mr. Steele reported a pain level of 2-3 to Ms. Huffstetler. This report was
followed by another dose of nitroglycerine. This second administration of nitroglycerine caused Mr.
Steele’s pain to subside, and at approximately 3:00 p.m., he told Dr. Urankar that he was fine. This
physical state did not last, however, and at 3:02 p.m., Mr. Steele reported a pain level of 2-3. Dr.
Urankar ordered another EKG. The second EKG was very much like the initial EKG; therefore, Dr.
Urankar concluded that Mr. Steele was indeed having a heart attack.
Dr. Urankar decided to administer tissue plasminosen activator, or tPA, a drug used to
dissolve blood clots. Dr. Urankar obtained a consent form and at 3:20 p.m., went to Mr. Steele’s
room to administer the tPA. While Dr. Urankar was discussing the risks associated with tPA, Mr.
Steele became light headed and lost consciousness. A heart monitor suggested that Mr. Steele went
into ventricular fibrillation and Dr. Urankar called a cardiac arrest code.
Dr. Urankar and the medical staff began resuscitation efforts immediately. The resuscitation
efforts were initially successful; Mr. Steele had a good pulse and a blood pressure at 3:45 p.m.
Minutes later, Mr. Steele could move his legs. Dr. Urankar called Dr. Kenneth Carr, the doctor on
call for the emergency department, to aid in admitting Mr. Steele into the hospital. While Dr. Carr
was arranging for Mr. Steele’s transfer, Mr. Steele again went into ventricular fibrillation. Dr. Carr
led the subsequent resuscitation attempt, but Mr. Steele would never recover. At 4:20 p.m., Mr.
Steele was pronounced dead.
Ms. Judith Ann Steele sued Columbia/HCA Health Care Corporation, Columbia Volunteer
General Hospital, and Dr. Urankar under the theory of negligence.1 After a five day trial, the jury
found in favor of Ms. Steele, awarding her $800,000 in damages. Volunteer and Dr. Urankar appeal
the verdict, raising the following issues, as we perceive them, for our review:
I. Did the trial court err in admitting the expert testimony of Dr. Kenneth
Carr?
1
Colum bia/H CA Health Care C orporatio n w as dism issed w ithou t prejudice p rior to th e trial.
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II. If this Court determines that the trial court erred in admitting the
testimony of Dr. Kenneth Carr, should this Court direct a verdict in
favor of the defendants by finding that Ms. Steele failed to prove Dr.
Urankar violated the standard of acceptable practice in Martin,
Tennessee or similar communities or that the alleged delay in giving
Mr. Steele tPA caused his death?
Medical malpractice claims are governed by section 29-26-115 of the Tennessee Code.
Moon v. St. Thomas Hosp., 983 S.W.2d 225, 229 (Tenn. 1998). According to this section, the
plaintiff in a medical malpractice action has the burden of proving the standard of care, the
defendant’s breach of the standard of care, and causation.2 Id. Normally, expert testimony is
required to prove each of these elements. Tenn. Code Ann. § 29-26-115(b) (Supp. 2001); Moon,
983 S.W.2d at 229; White v. Vanderbilt University, 21 S.W.3d 215, 226 n.11 (Tenn. Ct. App. 1999).
Volunteer’s appeal chiefly concerns the testimony of Dr. Carr. In their first issue, Volunteer
asserts the trial court erred by admitting, over Volunteer’s objection, Dr. Carr’s testimony. First,
Volunteer contends that the court erred in admitting Dr. Carr’s testimony regarding the “standard
of acceptable practice for emergency medicine in Martin, Tennessee or a similar community.”
Second, Volunteer contends that the court erred in admitting Dr. Carr’s testimony regarding
causation. We will address each of Volunteer’s arguments in turn.
Volunteer asserts that Dr. Carr’s testimony failed to comply with the law in Tennessee with
respect to the requisite standard of care because Dr. Carr “based his testimony on what he would
have done if he had been the physician treating plaintiff.” Volunteer contends that Dr. Carr did not
testify that he was “familiar with the standard of acceptable professional practice in Martin or similar
communities” as mandated by section 29-26-115(a)(1) of the Tennessee Code. Indeed, this Court
stated in Jennings v. Case, 10 S.W.3d 625, 632 (Tenn. Ct. App. 1999), that “[i]t is well settled that
the testimony of a physician as to what he would do or his opinion of what should have been done
does not prove the standard of care.” Testimony by a physician as to what he or she would have
done in a particular situation is inadmissible to prove the standard of care because it is “incapable
of being disproved by anyone else.” Id. at 632 n.3.
2
Specifically, section 29-26-115 of the Tennessee Code provides the following:
(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by
subsection (b):
(1) The recognized standard of acceptable professional practice in the profession and the
specialty thereof, if any, that the defendant practices in the comm unity in which the defendant
practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the d efendan t acted with less than or failed to act with ordinary and reasonable care
in accordance with such standard; and
(3) As a proxim ate resu lt of the defendant’s negligent act or omission, the plaintiff suffered
injuries which would not otherwise have occurred.
Ten n. Co de A nn. § 29-26-115 (Sup p. 20 01).
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Before we reach the merits of the issue raised by Volunteer, however, Ms. Steele asserts that
Volunteer failed to comply with the Tennessee Rules of Civil Procedure and the Tennessee Rules
of Appellate Procedure regarding this issue, and thus, the issue is not properly before this Court. In
Volunteer’s motion for a new trial, they asserted that the verdict was contrary to the weight of the
evidence at trial. Volunteer supplemented this motion with additional grounds for a new trial. In
that motion, Volunteer stated the following three grounds:
(A) the Court incorrectly failed to exclude Dr. Kenneth Carr’s testimony regarding
the causation of Steele’s death. Dr. Carr’s testimony on this point was not based on
a reasonable degree of medical certainty. It was based on lost chance of survival.
(B) plaintiff’s expert proof was also deficient in the following: (1) neither of
plaintiff’s experts testified that he was familiar with the acceptable standards of
professional practice for physicians practicing emergency medicine in Martin,
Tennessee, or in a similar community August 1996; (2) neither of plaintiff’s experts
stated his causation opinions to a reasonable degree of medical certainty;
....
(C) only in the event that the Court should not grant a new trial based on the
evidentiary issues raised above, the Court should exercise its role as thirteenth juror,
independently weigh the evidence, and order a new trial because the weight of the
evidence is contrary to the jury’s verdict.
Finally, in Volunteer’s memorandum to support their motion for a new trial, regarding part (B)
above, Volunteer stated that “[t]he Court should order a new trial in this action because plaintiff
failed to present expert medical testimony sufficient to prevail as a matter of law.”
It appears in part (B) of Volunteer’s supplemental motion that they are challenging the legal
sufficiency of Ms. Steele’s evidence regarding standard of care and causation, not the admissibility
or overall weight of Dr. Carr’s testimony. The question of whether evidence is sufficient to support
a jury verdict is tested by a motion for a directed verdict, and in order for the trial court to consider
the sufficiency of the evidence in a post trial motion, the moving party must have made a motion for
a directed verdict at the conclusion of all of the proof. Tenn. R. Civ. P. 50.01 & 50.02; Cortez v.
Alutech, Inc., 941 S.W.2d 891, 894 (Tenn. Ct. App. 1996). Similarly, in order for this Court to
review the sufficiency of the evidence on appeal, the motion for a directed verdict must have been
made at the conclusion of all of the proof and renewed in a post judgment motion following the
jury’s verdict. Cortez, 941 S.W.2d at 894; See also Robert Banks, Jr. & June F. Entman, Tennessee
Civil Procedure §§ 12-1(a) - 12-1(d) (1999) (discussing Rules 50.01 and 50.02 of the Tennessee
Rules of Civil Procedure).
In contrast, a motion for a new trial is utilized to correct alleged errors the court made during
trial. Saffles v. Harvey Motor Co., 780 S.W.2d 727, 728 (Tenn. Ct. App. 1989). A motion for a
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new trial provides the trial judge the opportunity to “consider or reconsider alleged errors committed
during the course of trial or other matters affecting the jury or the verdict.” Cortez, 941 S.W.2d at
894. Additionally, a motion for a new trial is of significant importance in appellate procedure. Rule
3(e) of the Tennessee Rules of Appellate Procedure states as follows:
[I]n all cases tried by a jury, no issue presented for review shall be predicated upon
error in the admission or exclusion of evidence, jury instructions granted or refused,
misconduct of jurors, parties or counsel, or other action committed or occurring
during the trial of the case, or other ground upon which a new trial is sought, unless
the same was specifically stated in a motion for a new trial; otherwise such issues
will be treated as waived.
In part (B) of Volunteer’s supplement to their motion for a new trial, they are asserting that
a new trial is warranted because Ms. Steele’s evidence as to the standard of care to be utilized at
Volunteer’s emergency room and as to whether Dr. Urankar’s alleged negligent act caused Mr.
Steele’s death is insufficient to support the jury’s verdict.3 Volunteer states that Ms. Steele offered
no other expert proof on these issues other than the testimony of Dr. Carr and Dr. Walker. If the trial
court agreed with Volunteer’s post trial motion and determined the expert proof as to these issues
proffered by Ms. Steele was insufficient, Volunteer would be entitled to a directed verdict by the trial
court. There would not be a need for a new trial. Because Volunteer did not move for a directed
verdict at the conclusion of all the proof, they could not effectively move for a directed verdict after
learning of the jury’s decision by attempting to couch that motion within a motion for a new trial.
It follows that, on appeal, we cannot consider the sufficiency of Ms. Steele’s evidence
regarding the standard of care if no motion for a directed verdict was made by Volunteer at the
conclusion of the proof. Further, we cannot address the admissibility of Ms. Steele’s evidence
regarding the applicable standard of care. In Volunteer’s motion for a new trial, they failed to assert
error in the trial judge’s admission of Dr. Carr’s expert testimony regarding the standard of care. As
this case is before this Court as the result of a jury trial, Rule 3(e) of the Tennessee Rules of
Appellate procedure applies. Because the motion for a new trial does not raise the issue of the
admissibility of Dr. Carr’s testimony concerning standard of care, we cannot consider it on appeal.
The motion for a new trial is only concerned with the sufficiency of Ms. Steele’s standard of care
evidence, which must first be tested in a motion for a directed verdict. Accordingly, Volunteer’s
concerns regarding Dr. Carr’s testimony on the applicable standard of care are not properly before
this Court and are, pursuant to Rule 3(e) of the Tennessee Rules of Appellate Procedure, waived.
3
The fact that Vo lunteer too k issue w ith the trial judge’s admission of the causation testimony in part (A) of
the supplemented motion, and then questioned the sufficiency of the causation testimony in part (B) of the mo tion, is
illustrative of Volunteer’s desire to have the trial court and this Court on appeal examine the sufficiency of M s. Steele’s
evidence regarding the applicable standard of care. Volunteer’s only argum ent regarding the standard of care w as in
part (B ) of the sup plem ented mo tion.
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Even if we were to consider whether Dr. Carr’s testimony should have been admitted by the
trial court to establish the standard of care in this case, Volunteer’s argument would fail. On the
direct examination of Dr. Carr, he offered the following testimony:
Q. Dr. Carr, I’m going to ask you that question again. I want you to tell us
what your opinion is, your medical opinion, given Mr. Steele’s symptoms, his age,
and that electrocardiogram, what, if anything, did the accepted standard of medical
professional practice in Martin, Tennessee, and similar communities require Dr.
Urankar to do for him when she sees that EKG?
A. This is not a situation with which I am unfamiliar. Let me remind you
that I am an emergency room physician and have worked many high-volume
emergency rooms. This is not something foreign to me. But if I were the emergency
room physician - -
Mr. Pinckney: Objection.
The trial court excused the jury while Mr. Pinckney presented his objection.
Mr. Pinckney: Yes, sir. The witness has never said that he knows what the
standard of acceptable professional practice is. The question, as was phrased, already
implies that he knows what it is. But, more importantly, when the witness answers
the question, he tells what he knows, what he does, what he would do, and that’s
inappropriate, because the standard, as you know, is the standard of acceptable
professional practice in this community and in similar communities.
Thereafter, Mr. Emison rephrased his question and Dr. Carr answered as follows:
If I didn’t take the action I’m proposing, whether I were in Millington, Fort
Campbell, Lourdes Paducah, Jackson hospitals, I would be fired. I wouldn’t have a
job. I don’t know how to defend not giving this patient tPA. My mind doesn’t go
there. I do not know how, with this 14:16 tracing in twenty seconds, I wouldn’t have
ordered tPA by 14:17. I don’t know any other emergency room physicians who
would not have done that. A forty-nine-year-old male in a drenching sweat, pressing
retrostrernal chest pain, and this EKG, that’s the end of the story. tPA, he gets.
The court overruled the objection and allowed the jury to return to the courtroom. Mr. Emison asked
the question again to Mr. Carr and the following transpired:
A. Well, it isn’t any different whether I work in Martin, or Jackson,
Dyersburg, Memphis, Fort Campbell, Paducah. A forty-nine-year-old male with
pressing retrostrernal chest pain, with a drenching sweat, comes to an emergency
room with this EKG, he gets tPA, and that’s the end of the story.
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Q. Dr. Carr, was he given tPA?
A. No.
Q. Dr. Carr, when would the accepted standard of medical practice require
him to get that tPA after the EKG?
A. You want it as soon as possible. We try to do that within two hours. It
is effective up to six hours, perhaps. Beyond six hours, somewhat of a gray zone.
Beyond twelve hours, it’s too late, is what most people believe. But the bottom line
is that as soon as the clinical presentation and this EKG are done, there are no more
entertained diagnoses, there is no time to send the patient down the hallway for a half
an hour or an hour of x-rays, there is no time to have blood drawn, and the labs and
tests run. A forty-nine-year-old male, acute chest pain, drenching sweat, and inferior
infarction, if this is 14:16 and 20 seconds, in the time it takes you to, say, give tPA
by protocol, that’s what that process has been in place since I’ve been in Martin and
we’ve had tPA.
We find no error in the trial court’s admission of the above testimony. When Dr. Carr stated
that “it isn’t any different whether I work in Martin, or Jackson, Dyersburg, Memphis, Fort
Campbell, Paducah,” he was not testifying to what he personally would have done. Further, we find
the following testimony by Dr. Carr illustrative of his knowledge of the applicable standard of care:
A forty-nine-year-old male, acute chest pain, drenching sweat, and inferior infarction,
if this is 14:16 and 20 seconds, in the time it takes you to, say, give tPA by protocol,
that’s what that process has been in place since I’ve been in Martin and we’ve had
tPA.
The above testimony illustrates that Dr. Carr is familiar with the standard of acceptable medical
practice in Martin and similar communities as required by section 29-26-115(a)(1) of the Tennessee
Code. Additionally, Dr. Carr adequately described the standard when he stated that a patient with
the symptoms and an EKG similar to Mr. Steele’s should get tPA as soon as possible. This is
evidence of the standard of care to be utilized in Martin and similar communities. Accordingly, the
trial court did not err in admitting Dr. Carr’s testimony regarding the standard of acceptable medical
practice in Martin and in similar communities.
Volunteer’s second argument regarding Dr. Carr’s testimony concerns causation. Volunteer
contends that Dr. Carr failed to testify within a reasonable degree of medical certainty that Dr.
Urankar’s negligence caused the death of Mr. Steele. Specifically, Volunteer argues that,
considering Dr. Carr’s testimony in its entirety, Dr. Carr only testified that Mr. Steele lost an
opportunity to survive and nothing more.
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In Kilpatrick v. Bryant, 868 S.W.2d 594,602 (Tenn. 1993), the supreme court stated that
“proof of causation equating to a ‘possibility,’ a ‘might have,’ ‘may have,’ ‘could have,’ is not
sufficient, as a matter of law to establish the required nexus between the plaintiff’s injury and the
defendant’s tortious conduct by a preponderance of the evidence in a medical malpractice case.”
Additionally, the court stated that “[c]ausation in fact is a matter of probability, not possibility, and
in a medical malpractice case, such must be shown to a reasonable degree of medical certainty.” Id.
(citing White v. Methodist Hosp. South, 844 S.W.2d 642, 648-49 (Tenn. Ct. App. 1992)).
Accordingly, the court stated that in Tennessee, a plaintiff must prove that the physician’s negligence
more likely than not was the cause in fact of the injury. Id. This requirement mandates that a
plaintiff must have had a greater than fifty percent chance of recovering absent the physician’s
negligence. Id.; see also Volz v. Ledes, 895 S.W.2d 677, 679 (Tenn. 1995).
In the present case, it follows that Ms. Steele had the burden to prove that Dr. Urankar’s
failure to timely administer tPA to Mr. Steele more probably than not caused Mr. Steele’s death. On
direct examination, Dr. Carr testified as follows:
Q. Dr. Carr, do you have an opinion that if Mr. Steele had received the tPA,
whether it is more likely than not he would have lived?
A. Yes.
Q. What is that opinion?
A. That he would have done better. That the complications that came are
complications we see from myocardial infarctions, and that those – the reason – the
whole reason we’re using tPA and the reason we’re getting people to emergency
rooms as promptly as we are these days is to prevent catastrophes from this type of
insult.
Q. Do you have a medical opinion about whether it would have been more
likely than not he would have lived?
A. Yes.
Q. What is that?
A. That he would have done better.
Q. Do you think he would have lived?
A. Yes, I think so.
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The preceding was the extent of Dr. Carr’s testimony regarding causation on direct
examination. The cross examination of Dr. Carr was, as both parties candidly admit, rather heated.
(Oral argument). At the outset, Volunteer questioned Dr. Carr about his deposition testimony where
Dr. Carr stated that Mr. Steele had “a far better chance of [living]” had he received tPA at 2:17 p.m.
In the same deposition, after Volunteer asked Dr. Carr whether Mr. Steele would have lived, Dr. Carr
replied, “I’m not God, and I don’t know whether he would have lived or not, but he was deprived
of the opportunity to live.” Volunteer asked Dr. Carr to explain the deposition testimony. Dr. Carr
responded, “[a] lost opportunity, more likely to survive. It’s the same. He lost his opportunity . .
. to survive. You see those as very different things. I see them as the same.” Mr. Pinckney
immediately objected to this testimony, stating that it was not acceptable under Tennessee law.
Further, Mr. Pinckney requested that the court find Dr. Carr incompetent to render an opinion
regarding causation. The court agreed that the testimony did not comply with the law regarding
causation in Tennessee. The court, however, overruled the objection as to the overall ability of Dr.
Carr to testify regarding causation, citing a desire to hear the testimony as a whole. The court stated
that it would consider the testimony again at its conclusion.
The remainder of Mr. Pinckney’s cross examination of Dr. Carr as to causation involved Mr.
Pinckney’s efforts to elicit testimony from Dr. Carr regarding the inconsistencies in Dr. Carr’s
deposition and trial testimony. The record provides the following excerpt:
Q. So, you don’t know whether he would have lived or not, to a reasonable
degree of medical certainty, do you, sir?
A. That’s where the words come in. I think he would have lived. I think this
man was salvageable. Yes, I do, Mr. Pinckney, think he was a life that could have
been saved with the technology we had in 1996. Because of the manner in which he
was treated, that did not happen.
Q. Why didn’t you tell me that when I took your deposition, sir, when I asked
you the question, “Would he have lived, Dr. Carr.” And you told me, “I’m not God,
and I don’t know whether he would have lived or not[.]”?
A. . . . . That deposition must have gone on for three hours. And toward the
end of it, maybe I wasn’t on my best of behaviors and best of answerings. But, to
me, this is a very cut-and-dried case, Mr. Pinckney, in which I don’t think Mr. Steele
got acceptable care in Weakley County, or any other county. And if he had had [sic]
it, I do believe he would still be alive and helping his family today.
Thereafter, the court, in response to another objection regarding the causation testimony of Dr. Carr,
stated that the testimony was “responsive” and that “the point has been well made to the jury, and
the jury understands the inconsistencies in the testimony.” The court again noted Mr. Pinckney’s
objection regarding causation and took no further action on the matter.
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From our review of the record, in addition to the testimony detailed above, we find no error
in the trial court’s decision to admit Dr. Carr’s testimony regarding the cause of Mr. Steele’s death.
Dr. Carr established that Mr. Steele would have lived had Dr. Urankar followed the acceptable
standard of medical care in Martin and similar communities. The testimony was far from ideal, and
Dr. Carr’s stated concern of attorneys being “experts in words” and “wordsmiths” affected the tone
and substance of his testimony on cross examination. Nevertheless, Dr. Carr’s testimony had the
certainty required in order for a jury to determine that Dr. Urankar’s negligence caused Mr. Steele’s
death. Dr. Carr’s overall testimony adequately demonstrated, more likely than not, that Dr. Urankar
caused Mr. Steele’s death by failing to timely administer tPA.
Accordingly, we affirm the decision of the trial court. Costs of this appeal are taxed to
Hospital Corporation of Tennessee, d/b/a Columbia Volunteer General Hospital, Dr. Nancy Urankar,
and their sureties, for which execution may issue if necessary.
___________________________________
DAVID R. FARMER, JUDGE
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