The opinion
KIMBERLY ROSS, )
)
Plaintiff/Appellant, )
) Appeal No.
v. ) M1999-02644-COA-R3-CV
)
VANDERBILT UNIVERSITY ) Davidson Circuit
MEDICAL CENTER, ) No. 95C-1770
)
Defendant/Appellee. )
FILED
February 18, 2000
COURT OF APPEALS OF TENNESSEE
Cecil Crowson, Jr.
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE THOMAS W. BROTHERS, JUDGE
JOE BEDNARZ, SR.
JOE BEDNARZ, JR.
Bednarz & Bednarz
Suite 1400, Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219
ATTORNEYS FOR PLAINTIFF/APPELLANT
STEVEN E. ANDERSON
ANNE E. S. HAMER
Bass, Berry & Sims
2700 First American Center
Nashville, Tennessee 37238-2700
ATTORNEYS FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
The issues in this case are based upon the trial court’s charge to the jury
involving the sudden emergency doctrine. On appeal, we find no error in the
jury instructions. Accordingly, we affirm the decision of the trial court in all
respects.
I. Facts
This case began with a minor injury which brought Plaintiff, Kimberly
Ross, to the emergency room at Defendant, Vanderbilt University Medical
Center. In June of 1994, Plaintiff visited Defendant’s emergency room after
having cut her finger with a knife. After determining that Plaintiff’s wound
required suturing, Dr. Lisa Morgan injected Plaintiff’s finger with Lidocaine in
order to numb it. Almost immediately thereafter, Plaintiff, who was lying on a
gurney, complained that she felt ill and her arm jerked up and her eyes rolled
back in her head. Dr. Morgan testified that she walked about four feet across the
room toward the door, yelled for help, and then returned at which point
Plaintiff’s body began to jerk. Dr. Morgan put her body over Plaintiff’s body.
Despite Dr. Morgan’s actions, Plaintiff fell off the gurney on which she lay and
onto the floor head first. Dr. Morgan remembered it taking only a couple of
seconds before other medical staff arrived too late to help her keep Plaintiff from
falling. After Plaintiff fell, she was stabilized by Dr. Morgan along with Dr. Seth
Wright, the attending physician on duty, and other emergency department staff
members.
Dr. Wright subsequently diagnosed Plaintiff as having suffered from
a vasovagal reaction which occurs when a person’s blood pressure abruptly
lowers. Vasovagal reactions are often accompanied by a fainting episode and
can, if a person faints, be accompanied by jerking movements that resemble
seizures. In his deposition testimony entered at trial, Dr. Wright explained the
vasovagal reaction as a stress phenomenon and gave as typical examples a
medical student falling over at the sight of his or her first autopsy and a person
standing up suddenly after lying down for a week. He said that a vasovagal
reaction can occur for no reason at all even while someone is standing in line at
the grocery store. He stated that, though he saw a lot of hospital patients and
visitors grow faint, a fainting episode is “really uncommon” for someone who is
lying on a stretcher. Moreover, only ten to thirty percent of those that faint
during a vasovagal reaction also experience convulsions.
Following her fall in Defendant’s emergency room, Plaintiff
experienced changes in personality and problems with her memory and dexterity.
She was eventually diagnosed with a traumatic brain injury as a result of her fall
in the emergency room. A year after the accident, Plaintiff filed a lawsuit
alleging medical malpractice and medical battery. Defendant never filed a
written answer. However, prior to trial, defense counsel stated that Defendant
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would not be relying on any affirmative defenses. This case went to trial on both
the claims of medical malpractice and battery. Following Plaintiff’s proof, the
trial court dismissed the battery claim upon Defendant’s Motion for Directed
Verdict.
Regarding the medical malpractice claim, Defendant offered the proof
of Dr. Don Hasty, a board certified emergency room physician who had practiced
at Baptist Hospital in Nashville for the past 28 years. He opined that Dr. Morgan
had complied with the standard of care in treating Plaintiff. He emphasized how
unlikely it would be for a vasovagal reaction, or a fainting spell, to be
accompanied by seizure-like activity. He stated that he had seen this occur no
more than five or six times in his career. Dr. Hasty concluded that it was
appropriate for Dr. Morgan to walk three of four steps away to obtain help for
two reasons: first, Dr. Morgan was significantly outweighed by the patient and,
second, the patient appeared to be developing seizure-like activity which often
requires more than one person to keep a patient on a gurney. He explained that
it would not have been easy for Dr. Morgan to put up the bed rails and that the
damage would likely have been done by the time she could get them up.
The deposition testimony of Dr. Seth Wright was read into evidence at
trial. Dr. Wright’s duties at Vanderbilt included practicing emergency medicine,
teaching emergency medicine and serving as Director of Research of the
Emergency Department. With regard to Dr. Morgan’s treatment of Plaintiff, Dr.
Wright opined that Dr. Morgan complied with the standard of care and stated that
he would not have acted in any different way. It was his position that appropriate
precaution to avoid seizure-like activity was taken prior to suturing Plaintiff. In
light of Plaintiff’s response to being injected, Dr. Wright felt that Dr. Morgan
acted appropriately by calling for help immediately and attempting to protect the
patient.
Plaintiff’s expert, Dr. Richard Karsh, testified that he currently worked
as a diagnostic radiologist but that he had experience and board certification in
pediatric cardiology. He had not worked as a designated emergency room
physician since 1981 when he moonlighted in an emergency room. He felt
qualified as an expert in this case because his opinions were not those involving
detailed aspects of emergency medical care but rather the aspects of overall
patient treatment within the scope of an emergency room in which he did have
personal experience.
Dr. Karsh agreed that Plaintiff had experienced a vasovagal reaction to
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the needle stick. It was Dr. Karsh’s opinion that “Dr. Morgan violated the
acceptable standards of care by leaving the bedside when the patient was clearly
losing consciousness and at significant risk of falling off the gurney. And that
is leaving the patient, even ever so briefly, without making an effort to raise the
bed rails which more than likely would have prevented her from falling off the
gurney had the bed rails been successfully raised.” Dr. Karsh did not think that
Dr. Morgan should have put up the bed rails before suturing Plaintiff because her
reaction, an unusual one, would not have been anticipated. He agreed that
raising the bed rails could possibly take twenty seconds. When asked whether
Dr. Morgan was faced with a sudden or unexpected emergency, Dr. Karsh
responded, “[a]bsolutely.” He also agreed that she was faced with “a snap
judgment decision as to what to do.”
At the close of the proof, the trial court charged the jury in relevant part
as follows:
In performing professional services for a patient, a
physician has the duty to have that degree of learning and
skill ordinarily possessed by physicians of good standing,
practicing in the same or similar community and under
similar circumstances and must use reasonable care to avoid
causing injury to the patient.
A physician has the duty to use the care and skill
ordinarily exercised in similar cases by reputable members of
the physician’s profession practicing in the same or a similar
community under similar circumstances. A physician’s best
judgment must be used with reasonable diligence in the
exercise of skill and the application of the physician’s
learning, in an effort to accomplish the purpose for which the
physician is employed.
A physician who is a specialist in a particular field or
practices a particular specialty has the duty to possess and
exercise that degree of skill, care, and learning ordinarily
possessed and exercised in similar cases by members in good
standing of the physician’s profession who specialize in the
same field and practice in the same or similar locality.
In addition, the court granted Defendant’s request to charge the jury with the
Sudden Emergency Doctrine. Over Plaintiff’s objections, the judge charged the
jury as follows:
A physician who is faced with a sudden or unexpected
emergency that calls for immediate action is not expected to
use the same accuracy of judgement as a physician acting
under normal circumstances who has time to think and reflect
before acting. A physician faced with a sudden emergency
is required to act as a reasonable careful physician placed in
a similar position. A sudden emergency, however, will not
excuse the actions of a physician whose own negligence
created the emergency.
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If you find there was a sudden emergency that was not
caused by any fault of the physician whose actions you are
judging, you must consider this factor in determining and
comparing fault.
The jury returned a verdict in favor of Defendant finding that Dr. Lisa Morgan
did not deviate from the recognized standard of acceptable professional practice
for her profession and specialty in this community in her treatment of Plaintiff.
II. ISSUES
A.
The main issue in this case is brought about by the ongoing effort of
our courts to resolve certain pre-McIntyre doctrines in accord with a system of
comparative fault. Specifically at issue is the sudden emergency doctrine which
has been addressed by the supreme court on two occasions since the adoption of
comparative fault. First, in Eaton v. McClain, 891 S.W.2d 587 (Tenn. 1994), the
court took the opportunity to provide trial courts with some guidance as to how
to apportion fault between parties. In so doing, the court stated, as dicta, that
“[t]he policy considerations underlying . . . the doctrine of contributory
negligence . . . have been implicitly subsumed by our decision in McIntyre and
should also impact the jury’s apportionment of fault between the parties in an
appropriate case.” Id. at 592. The court proceeded to say that “[i]n summary,
the percentage of fault assigned to each party should be dependent upon all the
circumstances of the case, including such factors as: . . . the existence of a
sudden emergency requiring a hasty decision.” Id.
Again, in McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995), the sudden
emergency doctrine was addressed and was, this time, actually at issue in a case
involving an automobile accident. The defendant, the administrator of the
decedent’s estate, alleged that the accident was an unavoidable consequence of
a sudden emergency created when the decedent suffered a seizure while driving.
The court of appeals had upheld the trial court’s grant of summary judgment
reasoning “that the case fell within the ‘established principles in this state that
an automobile accident resulting from an unavoidable sudden emergency, such
as an epileptic seizure, negates negligence.’ ” Id. at 152. The supreme court
vacated the award of summary judgment holding that “[t]he doctrine no longer
constitutes a defense as a matter of law but, if at issue, must be considered as a
factor in the total comparative fault analysis. Accordingly, the doctrine of
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sudden emergency does not negate defendant's liability in the case before us as
a matter of law.” Id. at 157. In so holding, the court quoted Eaton stating that
“[t]he sudden emergency doctrine . . . has now been subsumed into Tennessee's
comparative fault scheme.” Id. (citations omitted).
Plaintiff relies on these cases to support her contention that the trial
court erred by charging sudden emergency in a situation where Defendant never
alleged comparative fault. In other words, Plaintiff is asserting that in a context
where comparative fault is not at issue, the sudden emergency doctrine is
abolished. To the extent that Plaintiff is relying on Eaton and McCall to support
her position that the sudden emergency doctrine does not come into play unless
a plaintiff is allegedly at some fault, we disagree with Plaintiff’s interpretation
of these cases.
The sudden emergency doctrine “recognizes that a person confronted
with a sudden or unexpected emergency which calls for immediate action is not
expected to exercise the same accuracy of judgment as one acting under normal
circumstances who has time for reflection and thought before acting.” McCall,
913 S.W.2d at 157 (citations omitted). In the past, this doctrine has been
presented by plaintiffs who were confronted with sudden emergencies as the
basis for relieving them from the harsh consequences of contributory negligence.
Irvin v. City of Kingsport, 602 S.W.2d 495 (Tenn. Ct. App. 1980); see also
Kowalski v. Eldridge, 765 S.W.2d 746 (Tenn. Ct. App. 1988) (considering and
reversing a trial court’s holding that the plaintiff was excused from his
negligence due to the sudden emergency doctrine after concluding that there was
no sudden emergency in this case). In addition, the doctrine has been relied upon
by defendants confronted with sudden emergencies in an effort to defend on the
issue of their negligence. McCall, 913 S.W.2d at 157; London v. Stepp, 56
Tenn. App. 161, 405 S.W.2d 598, 609 (1965).
As articulated in Eaton and McCall, the adoption of a comparative fault
scheme modifies the way that the sudden emergency doctrine operates as applied
to both plaintiffs and defendants seeking to rely on the doctrine. Specifically
with regard to plaintiffs, the doctrine is no longer needed as an exception to
contributory negligence to ameliorate the plaintiff’s claim. Rather, the
circumstances taken into account by this doctrine are now some of many
considerations to be addressed when assessing relative degrees of fault. Eaton,
891 S.W.2d at 592.
As for defendants, prior to McIntyre, the sudden emergency doctrine
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constituted a defense as a matter of law if properly established by the defendant.
McCall, 913 S.W.2d at 157 (“[t]he doctrine no longer constitutes a defense as a
matter of law”). Now, it is only a factor in the total fault analysis. Id. This is
true in a comparative fault analysis when both parties are allegedly at fault. It is
likewise true when the analysis is only of the defendant’s fault because, as in the
case at bar, there has been no allegation that the plaintiff was at fault.
We acknowledge that there is confusing language in McCall upon
which Plaintiff could rely in maintaining that the sudden emergency doctrine
does not come into play unless a plaintiff is allegedly at some fault. Specifically,
the court stated “[t]he doctrine no longer constitutes a defense as a matter of law
but, if at issue, must be considered as a factor in the total comparative fault
analysis.” Id. (emphasis added). However, the court cannot have intended to
hold that the doctrine is only applicable in a comparative fault situation
particularly in light of the fact that McCall does not involve a comparative fault
situation: only the defendant was allegedly at fault in McCall. We therefore
hold that the trial court did not err by charging the sudden emergency doctrine
in a situation where Defendant had not alleged comparative fault.
B.
Likewise, we disagree with Plaintiff’s claim that the trial court charged
the jury with an instruction which provided Defendant with a defense as a matter
of law. As established above, such a jury instruction would be improper under
McCall. However, Defendant never argued that the sudden emergency doctrine
constituted a complete bar to recovery, and the trial court’s instruction certainly
cannot be interpreted that way. The trial court’s jury charge was as follows:
A physician who is faced with a sudden or unexpected
emergency that calls for immediate action is not expected to
use the same accuracy of judgment as a physician acting
under normal circumstances. . .
If you find there was a sudden emergency that was not
caused by any fault of the physician whose actions you are
judging, you must consider the factor in determining and
comparing fault.
This instruction in no way communicates that a sudden emergency operates as
a complete defense to a claim. Rather, in keeping with McCall, this charge
indicates that a sudden emergency is but one factor that must be considered in the
jury’s determination of the fault of a party, here Defendant.
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C.
In her next argument, Plaintiff argues that the sudden emergency
doctrine is not applicable in a medical malpractice case to lower the standard of
acceptable professional practice required of an emergency room physician. It is
Plaintiff’s position that the circumstances underlying the sudden emergency
doctrine are already taken into account due to the fact that Dr. Morgan was
practicing emergency medicine in an emergency room setting. Thus, Plaintiff
complains that the sudden emergency instruction in the case operates to excuse
Dr. Morgan’s lack of the requisite training, skill and judgment.
The standard of care in a malpractice action is defined in part as “[t]he
recognized standard of acceptable professional practice in the profession and the
specialty thereof, if any, that the defendant practices.” Tenn. Code Ann. §
29-26-115(a)(1). In emergency medicine, “[t]he specialist . . . is trained in
problems commonly encountered in emergency departments.” Dan J.
Tennenhouse, Attorneys Medical Deskbook 3D § 7.8 (1993). “[M]ost emergency
rooms . . . treat[] a broad range of medical conditions, from life-threatening
trauma, to chest pain, to routine health evaluations.” Erik J. Olson, No Room at
the Inn: A Snapshot of an American Emergency Room, 46 Stan. L. Rev. 449, 453
(1994).
The underlying concept of negligence is an expectation that people
exhibit reasonably prudent conduct in light of all their circumstances. See
Dooley v. Everett, 805 S.W.2d 380, 384 (Tenn. Ct. App. 1990) (citing Dixon v.
Lobenstein, 175 Tenn. 105, 132 S.W.2d 215 (1939)); Grady v. Bryant, 506
S.W.2d 159, 161 (Tenn. Ct. App. 1973). As those circumstances differ, so does
reasonably prudent conduct. The sudden emergency “doctrine recognizes that
when an actor is faced with a sudden and unexpected circumstance which leaves
little or no time for thought, deliberation or consideration, or causes the actor to
be reasonably so disturbed that the actor must make a speedy decision without
weighing alternative courses of conduct, the actor may not be negligent if the
actions taken are reasonable and prudent in the emergency context.” Rivera v.
New York City Transit Auth., 569 N.E.2d 432, 434 (N.Y. 1991). While care in
an emergency room may involve circumstances that require physicians to make
immediate decisions without time for deliberation, it often does not. Indeed,
“[i]n a 1991 internal study [of the emergency room at a 665-bed nonprofit
community hospital in Southern California], the emergency room administrators
found that 14 percent of all emergency room visits involved emergency
conditions--medical complaints requiring immediate evaluation or treatment by
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a physician.” Erik J. Olson, No Room at the Inn: A Snapshot of an American
Emergency Room, 46 Stan. L. Rev. 449, 453 (1994).
The problem with Plaintiff’s argument is that it assumes that the
practice of emergency medicine necessarily involves sudden and unexpected
circumstances which leave no time for thought, deliberation or consideration.
Plaintiff’s own medical situation disproves her argument: she came to
Defendant’s emergency room with a cut finger, the treatment of which apparently
did not require that a doctor make a speedy decision without weighing alternative
courses of conduct. Once in Defendant’s emergency room, the emergency that
justified the sudden emergency instruction was not Plaintiff’s cut finger, but her
vasovagal reaction to being given a shot. There was testimony that Plaintiff’s
reaction was both sudden and unexpected. The circumstance that underlies the
sudden emergency doctrine, the existence of a sudden or unexpected emergency
which calls for immediate action, was only present because Plaintiff experienced
the vasovagal reaction. We therefore find that, under the appropriate facts, the
sudden emergency doctrine may and should be applied in the assessment of the
fault of an emergency room doctor.
D.
Finally, we address the factual question of whether or not there was a
sudden emergency in this case. Factual findings of a jury in a civil action shall
be set aside only if there is no material evidence to support the verdict. Tenn. R.
App. P 13(d). “Appellate courts do not re-weigh the evidence when a party
challenges the evidentiary support for a verdict.” Smith County v. Eatherly, 820
S.W.2d 366, 369 (Tenn. Ct. App.1991). Rather, “[t]his Court on appeal is
required to take the strongest legitimate view of the evidence favoring the
prevailing party, discard all contrary evidence, allow all reasonable inferences
to uphold the jury's verdict and set aside the jury verdict only when there is no
material evidence to support it.” Witter v. Nesbit, 878 S.W.2d 116, 121 (Tenn.
Ct. App. 1993).
We find that there is material evidence that Dr. Morgan was faced with
a sudden emergency. Both Dr. Hasty and Dr. Wright testified at length that,
while seizures do occur in the emergency room, it is highly unusual for a patient
to suffer seizure-like activity from a vasovagal reaction. Dr. Wright added that
such a reaction is even more unlikely to occur with someone who is lying down.
Even Plaintiff’s expert, Dr. Karsh, agreed that Dr. Morgan could not have
anticipated such an unusual seizure-like activity and did nothing negligent to
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cause Plaintiff’s reaction. Dr. Karsh specifically agreed that Dr. Morgan was
faced with a sudden and unexpected emergency and forced to make a “snap
judgment decision.” In light of the overwhelming amount of testimony
indicating that Dr. Morgan was faced with a sudden emergency, we find that the
trial court was correct to instruct the jury with this doctrine.
III. Conclusion
The principles underlying the sudden emergency doctrine must be
considered by triers of fact who are assessing the fault of either defendants,
plaintiffs, or both. This is true when those charged with fault are staff members
in an emergency room setting who are “confronted with a sudden or unexpected
emergency which calls for immediate action.” In this case, there was abundant
evidence of such a sudden and unexpected emergency calling for immediate
action. We therefore affirm the trial court in all respects.
_______________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
_______________________________________
WILLIAM C. KOCH, JR., JUDGE
_______________________________________
PATRICIA J. COTTRELL, JUDGE
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