Session March 23, 2017
Appeal
from the Circuit Court for Washington County No. 30591 Jean
A. Stanley, Judge
This is
a medical malpractice action[1] in which the plaintiff filed suit
against the hospital and her physicians following the death
of her newborn son hours after his delivery. The case
proceeded to a jury trial. The jury found in favor of the
defendants. Following the denial of post-trial motions, the
plaintiff appeals, claiming the trial court erred in
excluding testimony and when it gave a jury instruction on
the sudden emergency doctrine. We reverse and remand for a
new trial.
Tenn.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court
Mark
T. Hurt, Abingdon, Virginia, for the appellant, Brittany
Nicole VanDyke.
Charles T. Herndon, IV, Elizabeth M. Hutton, and Stephanie E.
Stuart, Johnson City, Tennessee, for the appellees, Medical
Education Assistance Corporation, Brooke Elliott Foulk, M.D.,
and Howard Ernest Herrell, M.D.
Frank
H. Anderson, Jr., Johnson City, Tennessee, for the appellee,
Mountain States Health Alliance d/b/a Johnson City Medical
Center.
John
W. McClarty, J., delivered the opinion of the Court, in which
Charles D. Susano, Jr. and Thomas R. Frierson, JJ., joined.
OPINION
JOHN
W. McCLARTY, JUDGE
I.
BACKGROUND
On
February 24, 2011, Brittany Nicole VanDyke
("Plaintiff") presented to Clinch Valley Medical
Center ("Clinch Valley") in Richlands, Virginia
with signs of premature labor. At that time, Plaintiff was 24
weeks pregnant with dichorionic diamniotic twins,
[2]Kayleigh ("Baby A") and Kadan
("Baby B"). Plaintiff's obstetrician arranged
for her transport to Mountain States Health Alliance d/b/a
Johnson City Medical Center ("JCMC") in Tennessee
due to the prematurity of the twins. Plaintiff was given
antibiotics to treat any infections that may have caused
labor or could cause further complications, steroids to aid
in the development of the babies' lungs, and magnesium to
slow labor prior to transport. Following her arrival at JCMC,
Plaintiff was given pain medication and additional doses of
antibiotics and magnesium.[3]
The
next morning, on February 25, 2011, Plaintiff was taken to
the operating room for the impending delivery of her twins.
Brooke Elliott Foulk, M.D., who was employed by Medical
Education Assistance Corporation d/b/a University Physicians
Practice Group ("Physicians Group"), served as the
attending physician and was assisted by fourth-year
residents, Jami Nicole Goodwin, M.D. and Rebecca C. Hobbs,
[4]
M.D. Dr. Goodwin delivered Baby A vaginally without incident.
Baby A was then attended to by other physicians and
transferred to the neonatal intensive care unit
("NICU").
Dr.
Foulk then turned her attention to Baby B, who had settled
into a transverse or sideways position. Dr. Foulk manually
rotated him to a head-down orientation in the birth canal,
and labor continued. The fetal monitor later indicated a drop
in Baby B's heart rate, necessitating prompt delivery as
a result of bradycardia.[5] Dr. Foulk instructed the delivery team
to page Howard Ernest Herrell, M.D., [6] also employed by Physicians
Group. He arrived moments later. Drs. Foulk and Herrell
assessed the situation and then proceeded to attempt an
operative vaginal delivery by forceps.[7] Dr. Herrell
placed the first blade without incident. He then proceeded to
place the second blade while Dr. Foulk held the first. Dr.
Herrell met resistance and retracted the second blade before
attempting placement a second time. When his second attempt
also proved unsuccessful, he retracted both blades. The
delivery team then prepared for cesarean section.
Approximately
five minutes later, Drs. Foulk and Goodwin delivered Baby B,
who had sustained a skull fracture and a scalp avulsion,
meaning that his scalp was no longer attached but was hanging
loose from the rear of his skull. Baby B was then attended to
by other physicians and transferred to the NICU. He died
hours later. The immediate cause of death was listed as
"hemorrhagic shock"[8] with underlying causes listed as
"scalp avulsion with skull fracture" and
"birth trauma." William Devoe, M.D., the attending
pediatrician who initially treated Baby B, later confirmed
that hemorrhagic shock was a "major contributing
factor" to Baby B's death.
On
February 22, 2012, Plaintiff provided pre-suit notice of a
potential suit against JCMC, Physicians Group, and Drs. Foulk
and Herrell (collectively
"Defendants").[9] On June 22, 2012, Plaintiff filed a
complaint, with an attached certificate of good faith,
against Defendants, alleging medical malpractice, wrongful
death, and loss of consortium. Plaintiff essentially claimed
that had the defendant physicians acted in a medically
reasonable manner when the fetal monitor indicated
bradycardia, they would have proceeded with an emergency
cesarean section and avoided the catastrophic skull and scalp
injuries that caused Baby B's death. Physicians Group, on
behalf of Drs. Foulk and Herrell, denied wrongdoing and
claimed that the defendant physicians conformed to the
standard of care for physicians in their specialty of
obstetrics and exercised the degree of skill and care
ordinarily possessed and exercised by physicians of good
standing throughout the labor and delivery of the twins.
Physicians Group further claimed that the physicians did not
proximately cause harm or injury by any alleged errors or
omissions.
Likewise,
JCMC denied wrongdoing and further claimed that it was not
vicariously liable for the actions of Drs. Foulk and Herrell,
who were not hospital employees. JCMC also alleged its
employees or agents complied with the applicable standard of
care throughout the labor and delivery of the twins. JCMC
later filed a motion for summary judgment, citing numerous
forms signed by Plaintiff indicating her understanding that
the physicians practicing at JCMC were not employed by JCMC.
One such form provided, in pertinent part, as follows:
RELATIONSHIP BETWEEN HOSPITAL AND PHYSICIANS/ALLIED HEALTH
PROFESSIONALS: I have been informed and understand that the
treating physicians . . . are not employees or agents,
express or implied, in any manner of the hospital, but are
independent practitioners having permission to practice at
the hospital and make medical decisions as clinically
determined by them.
As such, I have been informed and understand that I may be
treated in the Emergency Department or the hospital by any
physician or health professional of my choice who may have
clinical privileges to practice at this hospital. That
physician or allied health professional, and not the
hospital, will be responsible for directing the patient's
care and shall exercise their own independent medical
judgment during my care and the hospital does not control
their treatment decisions.
Plaintiff
responded, in pertinent part, by claiming that genuine issues
of material fact remained regarding whether she received
meaningful notice of the relationship between the hospital
and defendant physicians under the circumstances presented
and whether she had an adequate opportunity to make an
informed choice. The court ultimately denied summary
judgment, finding that there was
evidence creating genuine issues of material fact as to
whether: 1) JCMC held itself out to the public as providing
medical services; 2) [Plaintiff] looked to JCMC rather than
to individual healthcare providers at JCMC, including [the
defendant physicians], to perform those services for her and
her twins; and 3) [Plaintiff] accepted those services in the
reasonable belief that the services were being provided by
JCMC or its employees. While the Court finds that there was
evidence that JCMC provided written notice to [Plaintiff]
disavowing the existence of any employment or agency
relationship with any physicians who would be treating her,
the Court also finds that there are genuine issues of
material fact as to whether that written notice constituted
meaningful notice to [Plaintiff] in the circumstances in
light of the evidence in the parties' submissions . . . .
Defendants
filed a motion in limine before trial seeking to exclude
testimony elicited during the depositions of Drs. Goodwin and
Hobbs. The testimony at issue concerned an approximate
30-second discussion between Drs. Foulk, Goodwin, and Hobbs
in which Drs. Goodwin and Hobbs suggested that an emergency
cesarean section was warranted. This discussion occurred
prior to Dr. Herrell's arrival and the decision to
proceed with delivery by forceps. The trial court excluded
the testimony, finding that Drs. Goodwin and Hobbs were not
qualified to give standard of care opinion testimony because
they were not licensed physicians at the time. Further, the
court granted Defendants' request to include a jury
instruction on the "sudden emergency" doctrine.
The
case then proceeded to a six-day jury trial, commencing on
August 25, 2015, during which the jury was presented with a
"battle of the experts." John Mercer Thorp, Jr.,
M.D., a professor of obstetrics and gynecology at the
University of North Carolina's School of Medicine, opined
that an emergency cesarean section was indicated at the time
of bradycardia and that the decision to attempt an operative
delivery by forceps and the actual attempt of delivery by
forceps was a breach of the applicable standard of care due
to Baby B's positioning in the birth canal, his
prematurity, and the fact that Plaintiff was no longer fully
dilated following delivery of Baby A. He believed Baby B died
as a direct result of the injuries sustained during the
attempted delivery by forceps. He further claimed that
bradycardia was not an unexpected occurrence as evidenced by
the fact that Plaintiff was taken to the operating room prior
to delivery. He noted that the proper resources, including
anesthesia, were readily available in the room to conduct a
cesarean section because such an occurrence was anticipated.
He agreed that neurological damage could occur within eight
to ten minutes of bradycardia but claimed that the defendant
physicians could have waited approximately three to four
minutes to determine whether Baby B was truly bradycardic or
simply experiencing a deceleration in his heart rate.
Michael
Aaron Hawkins, M.D., a practicing general obstetrician and
gynecologist in Dixon, Tennessee, claimed that Baby B's
bradycardia necessitated immediate delivery and that the
defendant physicians chose the fastest route using a method
accepted in the medical community. He described the situation
as an emergency and claimed that the defendant physicians did
not deviate from the applicable standard of care by
attempting delivery by forceps. He noted that a cesarean
section is a major operation with risks of severe
complications. He believed that the attempted delivery by
forceps was a "great idea and a great option to expedite
delivery." He explained that the placement of the second
blade likely caused an initial laceration, which was extended
when Baby B was removed during the cesarean section. He
further alleged that Baby B's bradycardia was likely
caused by placental abruption, which he claimed was not
necessarily "an automatic" occurrence but was a
"possibility" in twin deliveries that necessitated
advanced mental preparation. He claimed that blood obtained
from the umbilical cord indicated that Baby B was
"severely acidotic and because of [his] extreme
prematurity, [he was] even at further risk for a bad
outcome" prior to the attempted delivery.
Brian
Smith, M.D., a professor at Duke University School of
Medicine, opined that Baby B had an approximate 66 percent
chance of survival had he not sustained injuries during the
attempted delivery, while Scott Osborn Guthrie, M.D., a
neonatologist and assistant professor at Vanderbilt Medical
School, opined that Baby B only had a 38 to 42 percent chance
of survival as indicated by, inter alia, his prematurity,
male gender, Caucasian race, birth order, and hospital
location, factors known for affecting an infant's chance
of survival. Dr. Guthrie further claimed that Baby B also
experienced distress during labor prior to the failed
extraction. His opinion was based upon the laboratory values
drawn from blood obtained from the umbilical cord after
delivery. He believed the blood's base deficit value
indicated that Baby B was in distress at 9:47 a.m., two
minutes prior to the drop in heart rate at 9:49 and three
minutes prior to the failed extraction by forceps at 9:50. He
alleged that the fetal distress experienced prior to the
failed extraction was a "huge contributing factor"
in Baby B's failure to survive.
Drs.
Foulk, Herrell, Goodwin, and Hobbs also testified, as
pertinent to this appeal, concerning their recollection of
the labor and delivery of Baby B. Dr. Herrell stated that he
entered the operating room after Baby B was bradycardic. He
recalled immediately putting on his gown and gloves as he
listened to Baby B's heartrate. He examined Plaintiff and
found that she was fully dilated and that Baby B was in what
he considered a proper position for an operative delivery by
forceps. He described a "bigger sense of urgency"
among the staff and stated that the situation presented was
"an emergency of all emergencies." He stated,
"I don't know the words that were used, but the
consensus was that if I thought we could do this, let's
get it done." He provided that he later confirmed that
Baby B was bradycardic as a result of placental abruption,
which he characterized as a "catastrophic emergency that
was threatening [Baby B's] life."
Dr.
Herrell testified that he was a third-year attending at the
time of Plaintiff's delivery, while Dr. Foulk was a
first-year attending. He explained that she likely deferred
to him for placement of the forceps because of his two
additional years of training. He recalled that the forceps
were ready and available on the surgical table at the time of
his arrival. He confirmed that the use of forceps in this
case was unusual due to Baby B's positioning in the birth
canal and further explained that he had only performed a
forceps delivery on one other set of premature twins at a
gestational age of 32 weeks. He agreed that a 23 to 24-week
infant has delicate skin.
Dr.
Foulk testified that Plaintiff was at risk for complications
due to the fact that she was carrying twins, had
hypertension, was obese, and had a history of insulin
resistance. She stated, "[W]e know with twin pregnancy
anything you can imagine going wrong or scary in pregnancy is
times a thousand." She noted that Plaintiff was either
24 weeks and 2 days or 23 weeks and 5 days along in her
pregnancy, depending upon whether the ultrasound or the last
menstrual period was used as the marker. She explained,
"[W]e were hoping for the best and worried [about] what
could happen." She recalled that Plaintiff desired a
vaginal delivery, if possible once labor was imminent. She
explained that the type of cesarean section required was a
"much more serious procedure" than what could be
performed for a term pregnancy. She recalled that she
remained in the hospital after her initial consultation with
Plaintiff because "[a]nything that high risk, you
don't want to [not be] there, something could
happen."
Dr.
Foulk testified that Plaintiff was moved to the operating
room once they discovered that delivery was imminent. She
explained,
This is not just going to be [a] simple delivery. We knew we
needed the operating room. We knew we need[ed] ultrasound.
Anesthesia. Two NICU ...