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Miller v. Vanderbilt University

Court of Appeals of Tennessee, Nashville

September 29, 2017


          Session November 1, 2016

         Appeal from the Circuit Court for Davidson County No. 11C3836 Thomas W. Brothers, Judge

         In this 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.

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

          Douglas S. Johnston, Jr., Nashville, Tennessee, for the appellant, Patrick R. Miller.

          Thomas A. Wiseman III and Kimberly G. Silvus, Nashville, Tennessee, for the appellee, Vanderbilt University.

          W. 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.




         A. Factual Background

         Patrick 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 unit.

         Mr. 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.

         Mr. 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.

         But two 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.

         Because 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.

         On September 28, 2011, Mr. Miller filed this health care liability action against Vanderbilt University[1] 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.

         B. Expert Testimony at Trial

         The jury trial began on November 3, 2015. In his case in chief, the plaintiff presented testimony from a number of witnesses.[2] 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.

         Dr. 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 professional practice.

         Dr. 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 count?"

         Dr. 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 sites.

         According 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.

         In Dr. 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.

         Plaintiff's 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 ...

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