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Beard v. Branson

Court of Appeals of Tennessee, Nashville

November 8, 2017

LINDA BEARD
v.
JAMES WILLIAM BRANSON ET AL.

          Session February 16, 2016

         Appeal from the Circuit Court for Houston County No. 1368 Robert E. Burch, Judge

         This appeal is before the court on remand from the Supreme Court for our consideration of two issues that were not resolved by the Supreme Court in Beard v. Branson, No. M2014-01770-SC-R11-CV, ___ S.W.3d ___, 2017 WL 3725519 (Tenn. Aug. 30, 2017). This is a medical malpractice, wrongful death action in which Plaintiff seeks to hold Trinity Hospital, LLC ("Trinity") and James William Branson, M.D. ("Dr. Branson"), liable for the wrongful death of Ruth Hartley on September 29, 2004. Plaintiff alleged that Mrs. Hartley died because of delay in treatment of a bowel perforation she developed as a complication of colon surgery performed by Dr. Branson. In a partial summary judgment ruling, the trial court determined that a non-party, Stanley Anderson, M.D. ("Dr. Anderson"), the radiologist with whom Trinity contracted to provide services to its patients, was an apparent agent of Trinity and that Trinity was vicariously liable for any negligent acts or omissions of Dr. Anderson. Following a trial, the jury found in favor of Plaintiff and awarded damages in the amount of $750, 000.00, allocating 50% of the fault for Mrs. Hartley's death to Trinity, 10% to Dr. Anderson, and 40% to Dr. Branson. The two issues we must consider are: (1) whether the trial court erred in granting partial summary judgment to Plaintiff by finding that Dr. Anderson was the apparent agent of Trinity; and (2) whether the trial court erred in assessing discretionary costs in the amount of $68, 945.85 against Trinity. Finding no error, we affirm.

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

          David L. Johnson, Nashville, Tennessee; James T. McColgan, III and Sherry S. Fernandez, Cordova, Tennessee, for the appellant, Trinity Hospital, LLC.

          Philip N. Elbert and James G. Thomas, Nashville, Tennessee, for the appellee, Linda Beard.

          Frank G. Clement, Jr., P.J., M.S. delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J.

         On September 13, 2004, Ruth Hartley ("Mrs. Hartley") was admitted to Trinity Hospital, LLC ("Trinity") to undergo colon surgery to be performed by James William Branson, M.D. ("Dr. Branson"). Following the surgery, Mrs. Hartley developed complications, including an intestinal obstruction, that required her to remain hospitalized longer than expected. On September 26, 2004, the nursing staff charted that Mrs. Hartley's incision site showed drainage. The following day, September 27, Dr. Branson ordered an x-ray and a CT scan of Ms. Hartley's abdomen and pelvis. Stanley Anderson, M.D. ("Dr. Anderson"), a private radiologist whose practice group was under contract with Trinity, reviewed the CT scan and reported that it indicated the possibility of a mechanical bowel obstruction. Dr. Branson read the report, disagreed with Dr. Anderson's conclusion, and took no additional action at that time.

         On September 28, as Mrs. Hartley's condition continued to deteriorate, the nursing staff noted purulent drainage from the incision site and complaints of pain. At 1:55 a.m. on September 29, the nursing staff notified Dr. Branson that Mrs. Hartley's condition had worsened. Four hours later, at 5:50 a.m., the nursing staff notified Dr. Branson that fecal matter was leaking from the wound. Based on these reports, Dr. Branson ordered that Mrs. Hartley be immediately transferred to Centennial Medical Center ("Centennial") in Nashville. Due to the seriousness of her condition, she was transported by helicopter. When she arrived at Centennial, medical staff determined that Mrs. Hartley was in septic shock, which necessitated emergency surgery. While undergoing surgery, Mrs. Hartley went into cardiac arrest and was pronounced dead on September 29, 2004.

         On September 12, 2005, Denver Hartley ("Plaintiff), the surviving spouse, commenced this action by filing a pro se complaint against Trinity and against Dr. Branson to recover damages for the wrongful death of his wife.[1] The complaint asserted that the defendants negligently failed to diagnose and treat Mrs. Hartley's condition and it sought damages for Mrs. Hartley's pain and suffering, the economic value of her life, loss of consortium, funeral expenses, and other damages incurred. On February 15, 2006, attorney Philip N. Elbert filed a formal notice of appearance on behalf of Plaintiff and subsequently filed an amended complaint.

         In the interim, on November 1, 2005, the defendants filed separate motions to dismiss on the ground the statute of limitations had expired. They contended that the pro se complaint was a nullity because Mr. Hartley, who was not a licensed attorney, attempted to assert Mrs. Hartley's wrongful death claims in a representative capacity. Thereafter, the defendants filed motions for summary judgment on the same grounds. The trial court denied the motions, the case proceeded to trial, and judgment was rendered in favor of Plaintiff.

         In the appeal that followed, this court reversed the trial court, finding that the pro se complaint was a nullity and that the action was time barred. See Beard v. Branson, No. M2014-01770-COA-R3-CV, 2016 WL 1292904 (Tenn. Ct. App. Mar. 31, 2016), opinion supplemented on denial of reh'g, No. M2014-01770-COA-R3-CV, 2016 WL 1705290 (Tenn. Ct. App. Apr. 26, 2016). Plaintiff appealed, and the Supreme Court held that the action was timely. Beard v. Branson, No. M2014-01770-SC-R11-CV, S.W.3d, 2017 WL 3725519, at *14 (Tenn. Aug. 30, 2017).

         The Court reasoned that since the decedent's right of action passed to the surviving spouse pursuant to Tenn. Code Ann. § 20-5-106(a), Plaintiff, as the surviving spouse, acted on his own behalf and for his own benefit pursuant to his right of self-representation when he filed his complaint. Id. Consequently, Plaintiff commenced the action within the statute of limitations period. Id. Based on this determination, the Supreme Court reversed our decision and remanded the case for this court to rule on the remaining issues. Id.

         Before Plaintiff commenced this action, he discovered that a CT scan of Mrs. Hartley's abdomen and pelvis had been taken at Trinity Hospital on September 27, 2004, two days prior to her death. On July 26, 2005, Plaintiff, through counsel, requested from Trinity copies of all records, specifically including the CT scan. On August 2, 2005, Trinity responded by stating that it could not locate the CT scan. Subsequently, Plaintiff requested a copy of the CT scan from Dr. Branson, Highland Radiology Group (the practice group with which Trinity contracted to provide radiological services) and Centennial, where Mrs. Hartley had been transferred by helicopter for further treatment. None had a copy of the scan.[2] When Trinity finally produced a copy of the CT scan approximately three years later, Plaintiff's experts reviewed it and discovered that Dr. Anderson failed to note and report evidence of free air in Mrs. Hartley's abdomen, indicative of a bowel perforation. With this information, Plaintiff's experts could assess the extent of the dilatation of bowel referenced in the radiology report and critique the radiologist's failure to contact Mrs. Hartley's surgeon directly to discuss it.

         As a result of Trinity's failure to produce the CT scan and Dr. Anderson's notes for approximately three years, Plaintiff was foreclosed from adding Dr. Anderson as a defendant. As a consequence, Plaintiff moved to estop Trinity from denying vicarious liability for Dr. Anderson's negligence to prevent any prejudice resulting from the delay. Additionally, Plaintiff moved for partial summary judgment on the issue of Dr. Anderson's apparent agency.

         The trial court found that the undisputed material facts admitted by Trinity sufficiently established the elements of apparent agency. Based on this determination, the trial court granted Plaintiff's motion for partial summary judgment and held that, as a matter of law, Dr. Anderson acted as Trinity's apparent agent. The trial court reaffirmed its ruling at the close of Trinity's proof at trial and instructed the jury as follows:

Dr. Anderson acted as an agent of Defendant Trinity Hospital in connection with the radiology service he provided. It is necessary that you determine whether Dr. Anderson was at fault and determine the percentage of fault, if any, chargeable to him. Because Dr. Anderson acted as an agent of Defendant Trinity Hospital, the percentage of fault you assign to Dr. Anderson will be the responsibility of Defendant Trinity Hospital.

         At the conclusion of a two-week trial, the jury found in favor of Plaintiff and awarded damages of $750, 000.00, allocating 50% of the fault for Mrs. Hartley's death to Trinity, 10% to Dr. Anderson, and 40% to Dr. Branson. Trinity was held vicariously liable for the 10% of the fault apportioned to Dr. Anderson.

         The trial court entered judgment on this award on August 8, 2014. Thereafter, the trial court denied Trinity's motion for a directed verdict or a new trial and awarded discretionary costs to Plaintiff in the amount of $68, 945.85. Trinity timely appealed. Dr. Branson did not appeal.

         Trinity raised three issues on appeal: (1) whether the trial court erred by failing to dismiss the complaint as time-barred; (2) whether the trial court erred by awarding partial summary judgment to Plaintiff by finding that Dr. Anderson was Trinity's apparent agent; and (3) whether the trial court's award of discretionary costs against Trinity should be set aside. Because the Supreme Court decided the first issue, we limit our analysis to the two remaining issues.

         Standard of Review

         We review a trial court's summary judgment adjudications de novo without a presumption of correctness. Rye v. Women's Care Center of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). In doing so, we make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id. (citing Estate of Brown, 403 S.W.3d 193, 198 (Tenn. 2013)).

         Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04; see also Martin v. Norfolk S Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). The party moving for summary judgment bears the burden of demonstrating both that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Martin, 271 S.W.3d at 83.

         When the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either: (1) by affirmatively negating an essential element of the nonmoving party's claim; or (2) by demonstrating that the nonmoving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense. Rye, 477 S.W.3d at 250.

         Awarding discretionary costs in accordance with Tenn. R. Civ. P. 54.04(2) is within the trial court's reasonable discretion. Massachusetts Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35 (Tenn. Ct. App. 2002) (citations omitted). Nevertheless, a trial court's decision to award or deny discretionary costs should be guided by Tenn. R. Civ. P. 54.04(2). Id.

         Because these decisions are discretionary, we are generally disinclined to second-guess a trial court's decision unless the trial court has abused its discretion. Id. (citations omitted). The "abuse of discretion" standard of review calls for less intense appellate review and, therefore, less likelihood that the trial court's decision will be reversed. Id. (citing State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.Ct.App.2000); White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn. Ct. App. 1999)). Nevertheless, discretionary decisions must take the applicable law and the relevant facts into account. Lee Med, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citations omitted). An abuse of discretion occurs when a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision. Id. (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)).

To avoid result-oriented decisions or seemingly irreconcilable precedents, reviewing courts should review a lower court's discretionary decision to determine (1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the lower court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the lower court's decision was within the range of acceptable alternative dispositions. Flautt & Mann v. Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed)). When called upon to review a lower court's discretionary decision, the reviewing court should review the underlying factual findings using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and should review the lower court's legal determinations de novo without any presumption of correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.

Lee Med., Inc., 312 S.W.3d at 524-25.

         Analysis

         I. Vicarious Liability for Acts and Omissions of Dr. Anderson

         Trinity contends the trial court erroneously granted Plaintiff's motion for partial summary judgment by holding that Dr. Anderson was Trinity's agent, and consequently, instructing the jury as follows:

Dr. Anderson acted as an agent of Defendant Trinity Hospital in connection with the radiology service he provided. It is necessary that you determine whether Dr. Anderson was at fault and determine the percentage of fault, if any, chargeable to him. Because Dr. Anderson acted as an agent of Defendant Trinity Hospital, the percentage of fault you assign to Dr. Anderson will be the responsibility of Defendant Trinity Hospital.

         Trinity relies in part on the undisputed fact that Dr. Anderson was not Trinity's employee and, instead, his radiology medical practice group had a contract to perform medical imaging studies for Trinity. It also contends that Plaintiff failed to satisfy the three-part agency test set forth ...


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