ELIZABETH A. POPICK
Session May 4, 2016
from the Circuit Court for Davidson County No. 09C1329 Thomas
W. Brothers, Judge
plaintiff filed this health care liability action against the
defendant hospital after the death of her husband, alleging
that his death was the result of negligent medical treatment.
The jury returned a verdict in favor of the defendant. On
appeal, the plaintiff argues that the trial court committed
reversible error in: (1) excluding certain email messages as
hearsay; (2) overruling her objections to defense
counsel's cross-examination of a witness; (3) failing to
instruct the jury to ignore statements made by defense
counsel in closing argument; (4) refusing a request for a
special jury instruction; and (5) declining to change the
special verdict form. Discerning no reversible error, we
affirm the decision of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Jones and Patrick Shea Callahan, Cookeville, Tennessee, for
the appellant, Elizabeth A. Popick.
E. Anderson and Sara F. Reynolds, Nashville, Tennessee, for
the appellee, Vanderbilt University.
Neal McBrayer, J., delivered the opinion of the court, in
which Andy J. Bennett and Thomas R. Frierson, II, JJ.,
NEAL McBRAYER, JUDGE
Factual and Procedural Background
January 17, 2008, Mr. Joshua Popick fell over twenty feet
while working on a roof. Mr. Popick suffered critical
injuries, including multiple broken bones, a bruised kidney,
a lung contusion, and extensive internal bleeding. His
injuries necessitated a month-long stay in the trauma
intensive care unit at Vanderbilt University Medical Center
("Vanderbilt"). Vanderbilt discharged Mr. Popick to
a rehabilitation facility in mid-February 2008, but he
returned to Vanderbilt several times over the ensuing months
for additional treatment. After his death on June 18, 2008,
his wife, as his widow and the administrator of his estate,
filed this health care liability action against Vanderbilt,
alleging Mr. Popick's doctors were negligent in treating
his injuries and that such negligence caused his death.
admission to Vanderbilt, Mr. Popick was immediately
intubated and placed on a ventilator because he was
in respiratory distress. Due to the severity of Mr.
Popick's chest and lung injuries, he received high
pressure ventilation to ensure he received an adequate amount
of oxygen. His physicians knew that Mr. Popick needed
multiple surgeries and long-term respiratory support. Because
extended time on a ventilator entailed a high risk of serious
complications, his physicians decided that Mr. Popick would
benefit from a tracheostomy. Once the physicians were able to
safely lower Mr. Popick's ventilator pressure, he was
scheduled for a tracheostomy.
days after admission, Dr. Chad Johnson, a surgical resident,
and Dr. Nathan Mowery, his supervising physician, prepared
Mr. Popick for a percutaneous tracheostomy, a bedside
procedure. However, after encountering difficulties in
performing the procedure, Dr. Mowery decided that it would be
safer to transfer Mr. Popick to an operating room. Dr. Mowery
performed a successful open tracheostomy approximately
fifteen minutes later.
Popick's tracheostomy tube was removed after his
discharge from Vanderbilt. Although he initially reported no
breathing difficulties, on March 30, 2008, Mr. Popick was
re-admitted to Vanderbilt after experiencing increasing
shortness of breath. A CT scan of Mr. Popick's neck
performed on March 30 showed that part of his airway had
narrowed. Dr. Brian Burkey, an otolaryngologist, diagnosed
him with subglottic stenosis, a narrowing of the airway below
the vocal cords.
stabilize the airway, Dr. Burkey performed another open
tracheostomy on April 3, 2008. During the procedure, Dr.
Burkey noted a near total narrowing of the subglottic
tracheal region. The narrowing began directly below the
cricoid cartilage and extended downward approximately two
centimeters. Dr. Burkey also found extensive cartilage
growth, which needed to be removed in a subsequent surgery.
April 18, 2008, Dr. Burkey operated again and this time
removed the damaged section of Mr. Popick's trachea,
including the additional cartilage. Dr. Burkey noted that Mr.
Popick had developed dense scar tissue from both the April 3
tracheostomy and his original tracheostomy in January. On
April 22, Mr. Popick returned to the operating room for Dr.
Burkey to repair an air leak that had developed where Dr.
Burkey had reattached his healthy tracheal tissue.
Mr. Popick continued to experience breathing difficulties
caused by the development of granulation tissue in the area of
the reattachment. Dr. Burkey removed accumulated granulation
tissue that was partially blocking Mr. Popick's airway on
both May 21 and June 3 and, on June 3, also applied
medication to the area in an attempt to prevent regrowth.
16, 2008, Mr. Popick had a routine appointment with Dr.
Burkey to evaluate his condition. After an examination, Dr.
Burkey recommended another surgery to remove the accumulated
granulation tissue. Surgery was scheduled for June 19, but
sadly, the day before, Mr. Popick collapsed at home while
eating breakfast and died.
April 21, 2009, Mrs. Popick filed this health care liability
action against Vanderbilt in the Circuit Court for Davidson
County, Tennessee. Her complaint alleged that Mr.
Popick's doctors deviated from the standard of care in
the placement and management of his January tracheostomy and
by failing to admit him to the hospital on June 16 to monitor
his condition until the scheduled surgery on June 19. After
an extended period of discovery, the case was tried before a
jury from February 23 to March 3, 2015.
Proof at Trial
January 23 Tracheostomy
Popick claimed that, during the aborted bedside tracheostomy
attempt, her husband's doctors negligently fractured his
cricoid cartilage, which caused the narrowing of his airway.
The procedure note in Mr. Popick's medical records
erroneously described an uncomplicated, completed percutanous
tracheostomy. According to the note, after Mr. Popick was
sedated, the physician made an incision over the trachea and
bluntly dissected through the underlying tissue to the
midline of the pre-tracheal space. "Using a [sic] Open
technique technique [sic], " the physician made a small
hole in the trachea into which he placed a guide wire and a
series of dilators which he used to expand the hole to the
necessary size. Then, a "#9 Shiley un-fenestrated cuffed
[e]xtra long tracheostomy tube was inserted." The guide
wire and dilator were replaced with the inner cannula, and
the tracheostomy tube was connected to the ventilator. As a
final step, the physician confirmed that the tracheostomy was
properly placed and functioning.
trial, Vanderbilt maintained that the procedure note was
inaccurate and did not describe what actually
occurred during the bedside attempt. Dr. Nathan Mowery
testified that, during the bedside attempt, the surgical
resident made a longitudinal incision over the trachea and,
using a blunt instrument, pushed the underlying tissue aside
until he could see the tracheal space. At that point, the
resident attempted to find the physical landmarks that guide
the proper placement of the tracheostomy tube. Because the
resident could not find the landmarks, Dr. Mowery decided to
transfer Mr. Popick to the operating room where he could
better visualize the trachea before proceeding. According to
Dr. Mowery, no needle, guide wire, dilators, or tube was
inserted into Mr. Popick's trachea at his bedside.
Chad Johnson, the surgical resident involved in Mr.
Popick's bedside tracheostomy, created the procedure
note. He testified that, although he had no independent
memory of the procedure or creating the note, he was familiar
with the process and could explain how the incorrect note
probably occurred. He explained that the note was a byproduct
of Vanderbilt's electronic medical record system. The
system in use at that time contained templates for physicians
to use when documenting procedures. For any given procedure,
the resident chose the appropriate template and selected
answers to the questions from the drop down menu. The system
then "auto-populated" the note with prearranged
to Dr. Johnson, residents commonly started a procedure note
before actually beginning the procedure. For example, before
starting the bedside tracheostomy, he would have selected the
template and checked the appropriate boxes for the diagnosis,
the consent form, the pre-sedation evaluation, the site
preparation, the necessary medications, the location of the
planned incision, and the procedure technique.
2008, Vanderbilt physicians used the "modified Seldinger
technique" for bedside tracheostomies. In the operating
room, physicians used an "open" technique. In Mr.
Popick's case, Dr. Johnson explained that, before the
procedure was performed, he would have chosen "modified
Seldinger" as the technique. When he made that
selection, the system automatically entered all the steps of
the technique in the description section of the note. He
would have finished the procedure note after Mr. Popick
received his tracheostomy in the operating room. At that
time, he assumed he chose "other" for the technique
and typed in "open technique." The electronic
system then incorporated "open technique" into the
previously prepared description of the modified Seldinger
Johnson admitted that he did not remove the incorrect
language before he attested to the accuracy of the note. In
his opinion, the description contained in the procedure note
became less important after Mr. Popick was transferred to the
operating room because the note's function changed from a
procedure note to a brief operative note. According to Dr.
Johnson, a brief operative note served as a placeholder in
the medical record alerting physicians that Mr. Popick was
receiving a tracheostomy; the details of the procedure both
at the bedside and in the operating room were contained in
Dr. Mowery's operative report.
Dr. Mowery completed Mr. Popick's tracheostomy procedure
in the operating room, he dictated a detailed operative
report for the medical record. In the report, Dr. Mowery
described the relevant physical findings. Mr. Popick
"already had a previous longitudinal incision that had
been made just moments before on the floor" in an
attempt to perform the bedside tracheostomy. Mr. Popick's
neck was "extremely short but thick" and
"pushed the trachea approximately 4 cm below the skin
level." Mr. Popick's thyroid isthmus was also
unusually high and obscured the tracheal rings. Therefore,
"[g]iven the thyroid location, a tracheostomy in the
second ring space was not possible without" surgically
moving the thyroid isthmus.
Mowery tied the isthmus out of the way and then placed
"a tracheal hook in the cricoid cartilage to pull it
proximally" to further increase visibility. Using the
open technique, Dr. Mowery successfully placed the
tracheostomy in the second inner tracheal space. Dr. Mowery
testified that his operative report accurately described what
occurred at the bedside and in the operating room. Dr. Mowery
further opined that he and his staff complied with the
standard of care in the placement of Mr. Popick's
expert witnesses testified that the standard of care for a
non-emergency tracheostomy, like Mr. Popick's, is to
place the guide wire, dilators and tracheostomy tube between
the second and third tracheal rings. If the instruments or
the tube are inserted too high in the trachea, the cricoid
cartilage, which is located at the top of the trachea, can
fracture and cause narrowing of the airway.
Mr. Popick was admitted to Vanderbilt with a normal airway,
as evidenced by a January CT scan, a subsequent CT scan in
March revealed narrowing directly below the cricoid
cartilage. Plaintiffs experts opined that it was more likely
than not that during the bedside procedure, the physicians
attempted to place the dilators too high in the trachea and
fractured the cricoid cartilage.
Franz Wippold, a neuroradiologist, testified that the March
30 CT scan showed an obvious break in the front portion of
Mr. Popick's cricoid cartilage and the formation of a
bone callus, or calcium, in the same area. According to Dr.
Wippold, the CT scan also revealed new soft tissue growth
that was most likely related to the fracture. He explained
that the presence of bone callus and new soft tissue meant
that the fracture was probably several weeks old and the body
had begun the healing process. Dr. Wippold reviewed portions
of Mr. Popick's medical records and determined that the
only traumatic event that could explain his fracture was the
Wippold admitted, under cross-examination, that the stenosis
and extra cartilage seen in Mr. Popick were recognized risks
of a tracheostomy. But Dr. Wippold also testified that a
fractured cricoid cartilage was not a recognized risk of
intubation or a tracheostomy.
Paul Spring, an otolaryngologist, agreed that the March CT
scan showed a fractured cricoid cartilage. He explained that
the process of trying to heal the fracture caused the
narrowing of Mr. Popick's airway. The healing process
resulted in soft tissue growth that blocked almost 25 to 30
percent of the airway. According to Dr. Spring, the only
explanation in the medical record for the fracture was
negligent placement of the tracheostomy tube during the
aborted bedside procedure.
James Reibel, also an otolaryngologist, conceded that
stenosis was a recognized complication of a non-negligent
tracheostomy but opined that Mr. Popick's stenosis
resulted from Vanderbilt's negligence based on the
evidence of a fractured cricoid cartilage. In his medical
opinion, the only explanation for Mr. Popick's fracture
was that the doctors attempting the bedside tracheostomy
inserted their instruments too high in the trachea.
John Ross, the Vanderbilt neuroradiologist who originally
reviewed the March CT scan, testified that the CT scan did
not indicate a fracture. In his opinion, the white spot that
appeared on the March CT scan on or near the anterior portion
of the cricoid cartilage represented calcification caused by
the patient's medical care. Dr. Ross explained that
cutting into the airway and inserting a tube is considered
trauma or injury to the trachea. The body's natural
reaction to such an injury was inflammation and
calcification. When asked to specify an exact cause of the
calcification, Dr. Ross provided a list of possibilities, all
under the umbrella of the medical care Mr. Popick received at
expert witness, Dr. Harold Pillsbury, testified that Mr.
Popick's stenosis was caused by his necessary respiratory
care. Dr. Pillsbury explained that when a patient is on high
pressure ventilation, the cuff at the end of the endotracheal
tube rubs against the lining of the airway and over time some
of that protective lining disappears. The movement of the
cuff at the end of a tracheostomy tube engenders a similar
phenomenon. Once Mr. Popick's airway was inflamed from
the tubes, his body attempted to heal itself, and the
resulting accumulation of scar tissue caused the narrowing.
Pillsbury agreed that surgery on the airway is always
traumatic, even without negligence. In his opinion, although
the white spot on the CT scan probably resulted from the
tracheostomy, the spot did not evidence a fracture or
Vanderbilt expert witness, Dr. Jeffrey Bumpous, opined that
the cause of Mr. Popick's stenosis was his time on the
ventilator coupled with his tracheostomy. According to Dr.
Bumpous, stenosis is a recognized risk of both procedures. He
testified that both the endotracheal and the tracheostomy
tubes naturally moved and caused abrasion of the lining of
the trachea, which led to the body generating scar tissue. In
his opinion, Mr. Popick showed signs of having an extremely
active inflammatory response.
Bumpous did not believe that Mr. Popick's cricoid
cartilage had been fractured. In his experience, cricoid
cartilage tended to break in two places, and the fractures
were generally caused by a "high-velocity type of
trauma." He found it significant that Dr. Mowery was
able to lift the cricoid with a hook during the open
tracheostomy. According to Dr. Bumpous, Dr. Mowery would have
been unable to use the hook successfully if the cricoid were
fractured. While Dr. Bumpous acknowledged that a fractured