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Commercial Bank & Trust Co. v. Children's Anesthesiologists, P.C.

Court of Appeals of Tennessee, Knoxville

October 25, 2017

COMMERCIAL BANK & TRUST COMPANY, ET AL.
v.
CHILDREN'S ANESTHESIOLOGISTS, P.C., ET AL.

          Session Date: May 23, 2017

         Appeal from the Circuit Court for Knox County No. 3-740-14 Deborah C. Stevens, Judge

         Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc. (collectively "Plaintiffs") sued Children's Anesthesiologists, P.C.; Heather D. Phillips, D.O.; Kari L. Clinton; Neurosurgical Associates, P.C.; Lewis W. Harris, M.D.; and East Tennessee Children's Hospital Association, Inc. d/b/a East Tennessee Children's Hospital alleging health care liability in connection with surgery performed on Albert P. Mjekiqi ("Albert") in May of 2011. After a trial, the Circuit Court for Knox County ("the Trial Court") entered judgment on the jury's verdict finding no liability on the part of the defendants. Plaintiffs appeal to this Court raising issues with regard to admission of evidence and jury instructions. We discern no error, and we affirm.

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

          Sidney W. Gilreath, Cary L. Bauer, and Joshua M. Dennis, Knoxville, Tennessee, for the appellants, Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc.

          James H. London, Jennifer Pearson Taylor, and J. Spencer Fair, Knoxville, Tennessee, for the appellee, Children's Anesthesiologists, P.C.

          Edward G. White, Wayne A. Kline, and Lyndsey L. Lee, Knoxville, Tennessee, for the appellee, Neurosurgical Associates, P.C.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W. MCCLARTY and KENNY W. ARMSTRONG, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         When Albert was one year old he had a hemispherectomy which removed a portion of his brain. Albert had a shunt implanted to drain cerebrospinal fluid in his brain, and over the years had undergone at least one shunt revision procedure. At the time of the surgery that gave rise to this suit, Albert was an eight year old who had leftside weakness, but he was able to sit, stand, and walk. In May of 2011, after presenting to the emergency room with complaints of headaches and vomiting, and undergoing testing[1], Albert was admitted to East Tennessee Children's Hospital where he underwent surgery for a shunt revision. Albert was no longer able to walk post-surgery and instead was wheelchair-bound.

         Plaintiffs[2] sued alleging health care liability. The case was tried before a jury during a two week period in February and March of 2016. After trial, the jury returned its verdict finding no liability on the part of the defendants.[3] The Trial Court entered judgment upon the jury's verdict on March 8, 2016. Plaintiffs filed a motion for new trial, which the Trial Court denied. Plaintiffs appeal to this Court.

         Discussion

         Although not stated exactly as such, Plaintiffs raise four issues on appeal: 1) whether the Trial Court erred in allowing testimony that implied that Albert's parents came to this country as refugees; 2) whether the Trial Court erred in not allowing exhibit number 102 to be taken to the jury room; 3) whether the Trial Court erred in refusing to grant the motion for new trial when the defendants allegedly failed to offer evidence of the standard of care; and 4) whether the Trial Court erred in charging the jury with an 'error in judgment' instruction.

          Our Supreme Court has instructed:

An appellate court shall only set aside findings of fact by a jury in a civil matter if there is no material evidence to support the jury's verdict. Tenn. R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006). In determining whether there is material evidence to support a verdict, we shall: "(1) take the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all [countervailing] evidence." Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000) (citing Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)). "Appellate courts shall neither reweigh the evidence nor decide where the preponderance of the evidence lies." Barnes, 48 S.W.3d at 704. If there is any ...

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