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Popick v. Vanderbilt University

Court of Appeals of Tennessee, Nashville

March 13, 2017


          Session May 4, 2016

         Appeal from the Circuit Court for Davidson County No. 09C1329 Thomas W. Brothers, Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Jon E. Jones and Patrick Shea Callahan, Cookeville, Tennessee, for the appellant, Elizabeth A. Popick.

          Steven E. Anderson and Sara F. Reynolds, Nashville, Tennessee, for the appellee, Vanderbilt University.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Andy J. Bennett and Thomas R. Frierson, II, JJ., joined.



         I. Factual and Procedural Background

         On 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.

         Upon admission to Vanderbilt, Mr. Popick was immediately intubated[1] 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.[2] Once the physicians were able to safely lower Mr. Popick's ventilator pressure, he was scheduled for a tracheostomy.

         Seven 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.

         Mr. 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.

         To 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[3] and extended downward approximately two centimeters. Dr. Burkey also found extensive cartilage growth, which needed to be removed in a subsequent surgery.

         On 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.

         Subsequently, Mr. Popick continued to experience breathing difficulties caused by the development of granulation tissue[4] 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.

         On June 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.

         On 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.

         A. Proof at Trial

         1. The January 23 Tracheostomy

         Mrs. 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.

         At trial, Vanderbilt maintained that the procedure note was inaccurate[5] 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.

         Dr. 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 wording.

         According 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.

          In 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 technique.

         Dr. 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.

         After 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.

         Dr. 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 tracheostomy.

         2. Causation Testimony

         Plaintiff'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.

         Although 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.

         Dr. 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 tracheostomy.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         Dr. 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 Vanderbilt.

         Vanderbilt's 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.

         Dr. 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 negligence.

         Another 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.

         Dr. 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 ...

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