PATRICK R. MILLER
Session November 1, 2016
from the Circuit Court for Davidson County No. 11C3836 Thomas
W. Brothers, Judge
health care liability action, after the plaintiff presented
his case-in-chief, the trial court granted a directed verdict
for the defendant hospital first on the claim for punitive
damages and second on all remaining issues. The plaintiff
appealed, arguing that the trial court erred: (1) in ruling
that he had failed to produce material evidence that a
specific agent of the defendant hospital had deviated from
the standard of care and that deviation had caused an injury
that would not otherwise have occurred; (2) in denying his
motion to reopen the proof; and (3) in excluding evidence
that he was uninsured. Discerning no reversible error, we
affirm the trial court's decision.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Douglas S. Johnston, Jr., Nashville, Tennessee, for the
appellant, Patrick R. Miller.
A. Wiseman III and Kimberly G. Silvus, Nashville, Tennessee,
for the appellee, Vanderbilt University.
Neal McBrayer, J., delivered the opinion of the court, in
which Andy J. Bennett, J., joined. Richard H. Dinkins, J.,
filed a separate, dissenting opinion.
NEAL McBRAYER, JUDGE
Miller suffered extensive injuries in a motorcycle accident
on October 22, 2010, and was immediately transported by
helicopter to Vanderbilt University Medical Center.
Examination revealed a shattered left hip, a severely
fractured tibia in his right leg, and multiple fractures in
his left foot. He also damaged his right popliteal artery, an
artery that supplies blood to the knee and calf. Mr. Miller
was placed on a ventilator and admitted to the intensive care
Miller's injuries were too severe to repair at one time.
On October 23, 2010, Dr. Jeffrey Dattilo, a vascular surgeon,
repaired the damaged popliteal artery with a vein graft from
Mr. Miller's left hip, and Dr. Hassan Mir, an orthopedic
trauma surgeon, stabilized the fractured tibia with a metal
plate. Next, on October 25, 2010, Dr. Jason Evans, another
orthopedic trauma surgeon, repaired his shattered left hip.
In a third surgery on November 2, 2010, Dr. Mir operated on
his right knee and his left foot.
Miller was discharged from the hospital on November 5, 2010.
Upon discharge, he was provided with medications and
rehabilitation equipment and scheduled to be seen in the
Vanderbilt orthopedic clinic on November 18.
days after his discharge, Mr. Miller returned to the
emergency department at Vanderbilt complaining of fever,
nausea, blurred vision, and severe pain in his right leg. His
family reported foul smelling drainage from his right knee.
Dr. Evans opened the knee incision and removed a large amount
of purulent material. Mr. Miller had also developed a large
amount of necrotic skin, tissue, and muscle in his right
lower leg that had to be removed.
of the extensive muscle loss, Mr. Miller chose amputation
over further attempts to save his right leg. Dr. Mir
performed an above-the-knee amputation on November 10.
September 28, 2011, Mr. Miller filed this health care
liability action against Vanderbilt University in the Circuit
Court for Davidson County, Tennessee seeking both
compensatory and punitive damages. According to the
complaint, Vanderbilt failed to recognize and investigate the
signs of infection that Mr. Miller exhibited before his
discharge on November 5. Mr. Miller alleged that he was
negligently and recklessly discharged from the hospital,
which allowed his infection to progress to the point that he
was forced to have his leg amputated.
Expert Testimony at Trial
jury trial began on November 3, 2015. In his case in chief,
the plaintiff presented testimony from a number of
witnesses. He presented two expert witnesses: Dr.
David Gandy, a board certified orthopedic surgeon from
Jackson, Mississippi who has been in practice since 1984, and
Dr. Stephen Felts, an internal medicine physician who
specializes in infectious diseases.
Gandy testified he was familiar with the standard of care for
orthopedic surgeons treating trauma patients in Nashville,
Tennessee. In his expert medical opinion, Mr. Miller's
post-surgical care during his initial hospitalization
deviated from the recognized standard of acceptable
Gandy noted that Mr. Miller's white blood cell count
showed a definite upward trend on November 1. He testified
that an elevated white blood cell count "usually
indicates infection." On November 2, Mr. Miller's
white blood cell count was 22, 300, well above normal, and
according to Dr. Gandy, at this point the standard of care
required "some more workup." Dr. Gandy stated:
My - my primary criticism has been once that lab [on November
2] was done . . . somebody should have said, "Dr. Mir,
we got a 22, 000 white count. Should we get another white
Gandy explained that an elevated white blood cell count
alerts a doctor that "something is going on" but
not "where the infection is." When asked what
should have been done, he responded "the doctor should
start looking for why." Dr. Gandy told the jury that he
would have repeated the white blood cell count, ordered a
urinalysis and chest x-ray, and checked the surgical wound
to Dr. Gandy, none of these things occurred. "[T]here
was no further lab work done, " and he saw no indication
in the medical record that the doctors who performed the
November 2 surgery examined the wound site before discharge.
He also found it significant that on November 4, Mr.
Miller's temperature rose to 102.2, and his heart rate
was elevated. Dr. Gandy explained that the combination of
fever and rapid heart rate was further indication of
infection or body stress.
Gandy's opinion, Vanderbilt deviated from the standard of
care by failing to take any action in the face of a rising
white blood cell count and in discharging Mr. Miller when he
had clinical signs of an untreated infection. He further
opined that, absent these deviations, Mr. Miller's leg
could have been saved.
other expert, Dr. Stephen Felts, stated that he was familiar
with the recognized standard of acceptable professional
practice for physicians treating patients with the symptoms
Mr. Miller exhibited during his initial stay at Vanderbilt.
Like Dr. Gandy, Dr. Felts opined that the failure to act on
the elevated white blood cell count on November 2 was a
deviation from the standard of care. Dr. Felts also agreed
that Mr. Miller's discharge was a deviation from the
standard of care. He testified that these deviations from the
standard of care caused ...