The Court of Appeals of Tennessee at Knoxville (“Tennessee Appellate Court”) filed an opinion on August 7, 2017 that overturned a defense verdict in a medical malpractice case involving a woman suffering an unforeseen allergic reaction to a medication she received during labor that resulted in severe brain damage suffered by her newborn, holding that the trial court erred in allowing the previously undisclosed testimony of the hospital’s nurses and the defense expert witness.
The pregnant woman who was in labor went to the hospital in June 2009 to give birth. Per normal protocol, the woman was given Ampicillin by the hospital nurses. The woman had an unforeseen allergic reaction to the Ampicillin that affected her baby; the woman gave birth to her baby a few hours later. The baby suffered a brain injury resulting in developmental delays and cerebral palsy.
The child’s mother filed a Tennessee medical malpractice lawsuit on his behalf in 2012 against the physician involved with the delivery and the hospital, alleging that the physician breached the standard of care by failing to administer epinephrine when the woman experienced the reaction to the Ampicillin and that the hospital’s nurses breached the standard of care by failing to monitor and document the woman’s blood pressure readings when she had the reaction to the Ampicillin.
The nurses were deposed pre-trial during which they testified that they did not have any independent recollection of the events that were documented in the woman’s medical records. One of the nurses testified during her deposition when asked if she had any way to determine what the woman’s blood pressure was during the time between the two blood pressure readings taken by the fetal monitor, which is when the woman experienced the reaction to the Ampicillin, “The only way to determine that would be if we did a manual blood pressure … If I had done [a manual blood pressure], I would have documented it.” The nurse testified during her deposition that she could not recall anyone taking any other blood pressure readings.
During the Tennessee medical malpractice trial, the same nurse testified that she and the other nurses had been shown some photographs during a pre-trial meeting with the hospital’s defense attorney after her deposition and that these photographs caused her to recall that blood pressures were being taken by a Dinamap machine that was monitoring the woman’s blood pressure (the medical records contained no readings taken by a Dinamap machine; the medical chart showed two blood pressure readings documented by a fetal monitor that were taken approximately a half an hour apart, along with a blood pressure reading written in by the defendant physician that was apparently taken between the two readings taken by the fetal monitor).
The defense failed to disclose to the plaintiff before trial that it would offer the nurses’ testimony that was new and different from their deposition testimony. By the time during the trial that the plaintiff became aware of the new and different testimony, the plaintiff was unable to recall his expert nursing witness. The plaintiff moved for a mistrial, which the trial court denied. Following the ten-day Tennessee medical malpractice trial, the jury returned a defense verdict, finding that the defendant physician was not negligent and that the nurses employed by the defendant hospital were not negligent. The plaintiff filed a motion for new trial, which the trial court denied. The plaintiff appealed.
Tennessee Appellate Court Decision
The plaintiff argued on appeal that he was severely prejudiced by the new evidence offered by the nurses and that the defendant hospital had a duty pursuant to Tenn. R. Civ. P. 37.03 to supplement and disclose to the plaintiff the new testimony prior to trial.
Rule 37.03 provides, in pertinent part: “A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed … ”
The defendant hospital argued that it had no duty to supplement discovery because its nurses were not parties to the Tennessee medical malpractice lawsuit (Tenn. R. Civ. P. 26.05 provides, in pertinent part: “A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows: … (2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which the party (A) knows that the response was incorrect when made; or (B) knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.”)
The Tennessee Appellate Court stated that the fact that the nurses were not individually named as defendants in the Tennessee medical malpractice lawsuit is not dispositive of the issue of whether the defendant hospital had a duty to supplement with regard to its employee nurses’ testimony: there is no dispute that the defendant hospital is a party to the lawsuit and there is no question that the defendant hospital, as a party, had a duty to supplement its prior responses — the defendant hospital was sued due to the alleged actions or inactions of its employee nurses.
The Tennessee Appellate Court held that although the nurses were not named individually as defendants, the defendant hospital had a duty to supplement pursuant to Rule 26.05 when it learned that its employee nurses had not only new but different testimony to offer. The nurses were not some third party witnesses with no connection to the defendant hospital. Instead, the nurses are the defendant hospital’s employees whose conduct is attributed to and gives rise to the defendant hospital’s liability, if any, in this Tennessee medical malpractice lawsuit.
The Tennessee Appellate Court vacated the trial court’s judgment and remanded the case for a new trial.
Source Collier v. Roussis, No. E2016-01591-COA-R3-CV
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