### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE November 1, 2016 Session

PATRICK R. MILLER v. VANDERBILT UNIVERSITY

Appeal from the Circuit Court for Davidson County

No. 11C3836 Thomas W. Brothers, Judge

___________________________________

No. M2015

- 02223

- COA

- R3

- CV

– Filed September 29, 2017

___________________________________

In this health care liability action, after t he 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

W. N EAL M C B RAYER

, J., delivered the opinion of the court, in which A NDY J. B ENNETT

, J.

, joined. R ICHARD H. D INKINS

, J., filed a separate, dissenting opinion

.

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.

OPINION

I.

A. F ACTUAL B ACKGROUND

Patrick Miller su ffered extensive injuries in a motorcycle accident on October 22,

2010

, and was immediately transported by helicopter to Vanderbilt University Medical2

Center . Examination revealed a shattered left hip, a severely fractured tibia in his right leg , and multiple f

ractures in his left foot. He also damaged his right popliteal artery, an artery that supplie s 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, o n October 25, 2010, Dr. Jason Evans, another orthopedic trauma surgeon, repair ed 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 e mergency d epartment
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 open ed

the knee incision a nd removed a large amount of purulent material. M r. 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 perfo rmed 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 h e was negligent ly and reckless ly discharged from the hospital , whic h allowed his infection to progress to the point that he was forced to have his leg amputated.

B. E XPERT T ESTIMONY AT T RIAL

The jury trial began on November 3, 2015. In his case in chief, the plaintiff presented testi mony from a number of witnesses. 2 He presented two expert witnesses :

1 Vanderbilt University operates Vanderbilt University Medical Center.

2 The plaintiff also showed the jury a portion of Dr. Manish Sethi’s video deposition. As an3

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 disease s

.

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 show ed a definite upward trend on November 1 . He testified that an elevated white blood cell count “usually indicates infection.” O n 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 repeat ed the white blood cell count, order ed a urinalysis and

chest x

- ray, and check ed the surgical wound site s

.

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 d ischarging

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

orthopedic trauma surgery fellow, Dr. Sethi assisted in Mr. Miller’s surgical procedures. T he plaintiff argues that Dr. Sethi ’s testimony is part of his prima fac ie case. But because Dr. Sethi provided no expert testimony on the applicable standard of care, deviations from the standard of care , or causation, we have not included his testimony in our summary

.4

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

deviation s from the standard of care caused Mr. Miller to lose his leg. In his opinion, i f an effective antibiotic regimen had been instituted in time, Mr. Miller’s leg could have

been saved.

At the conclusion of the plaintiff’s proof, Vanderbilt moved for a directed verdict. The court first granted a directed verdict on the issue of punitive damages, finding that the plaintiff had not shown sufficient proof. Next, the co urt granted a directed verdict on all remaining claims. The court held that the plaintiff failed to establish, through expert

medical testimony , the standard of care applicable to a specific agent of Vanderbilt, how that agent had deviated from the standa rd of care, and that the deviation had caused an injury that otherwise would not have occurred, as required by Tennessee Code Annotated § 29

- 26

- 115.

II.

The plaintiff argues that the trial court erred in granting both directed verdict s. He

also asserts that the trial court abused its discretion in refusing to allow him to reopen the proof to correct any deficiencies in his expert proof and in excluding testimony and argument related to his health insurance status. 3

A. E XCLUSION OF E VIDENCE

We begin with the plaintiff’s evidentiary issue. During opening argument, plaintiff ’s counsel indicated that Mr. Miller was discharged because he lacked health

insurance

. Vanderbilt objected, arguing, among other things, that the plaintiff’s health

insurance status was irrelevant and prejudicial

. The trial court agreed and excluded any testimony and argument based on Mr. Miller’s health insurance status

.

We review the trial court’s evidentiary decisions for an abuse of discretion. White

v. Beeks , 469 S.W.3d 517, 527 (Tenn. 2015), as revised on denial o f reh’ g , (Aug. 26, 2015) . “ A trial court abuses its discretion by applying an incorrect legal standard or reaching an illogical or unreasonable decision that causes an injustice to the compla ining
party. ” Id.

3 Vanderbilt raises a separate issue of whether the trial court erred in finding that Dr. Gandy and Dr. Felts were qualified to testify as expert witnesses. Because we conclude that the plaintiff failed to establish a prima facie case under Tenn essee Code Ann otated § 29

- 26

- 115, we do not reach this issue.5

The p laintiff asserts that evidence of his health insurance status was relevant to Vanderbilt’s motive in discharging him and his punitive damages claim

. But m otive is

not an element of a health care liability action. See Tenn. Code Ann. § 29

- 26

- 115(a) (2012)

. The issue was whether an agent or employee of Vanderbilt deviated from the standard of care in treating Mr. Miller and whether that deviation caused an injury that

would not otherwise have occurred. Id. Why the defendant may have deviated from the

standard of care is not a fact of consequence in a health care liability action. See Tenn. R. Evid. 401 ( defining relevant evidence).

E ven if the plaintiff’s health insurance status were relevant to his punitive damages claim, th e probative value of the evidence was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R.

Evid. 403. T he p laintiff conceded that no Vanderbilt representative would testify that

Mr. Mille r was discharged because he lacked health i nsurance and no member of

Mr. Miller’s family would testify that they were told that Mr. Miller was being discharged because he lacked health insurance. Under these circumstances, we conclude

that the trial court did not abuse its discretion in excluding evidence that Mr. Miller was

uninsured

.

B

. P ARTIAL D IRECTED V ERDICT ON P UNITIVE D AMAGES

Next, we address the plaintiff’s appeal of the trial court’s grant of a partial directed

verdict on his punitive damages claim

. “A motion for directed verdict requires the trial court to determine whether, as a matter of law, the evidence is sufficient to create an issue for the jury to decide.” White v. Vanderbilt Univ. , 21 S.W.3d 215, 231 (Tenn. Ct. App. 1999). Directe d verdicts are appropriate only when reasonable minds could reach only

one conclusion from the evidence. Alexander v. Armentrout , 24 S.W.3d 267, 271 (Tenn. 2000). “A case should go to the jury, even if the facts are undisputed, when reasonable

persons co uld draw conflicting conclusions from the facts. ” Richardson v. Miller , 44 S.W.3d 1, 30 (Tenn. Ct. App. 2000) . But the conclusions cannot be based on “speculation, conjecture, and guesswork.” Id.

When reviewing a trial court’ s decision regarding a directed verdict, appellate courts apply the same standard of review as the trial court. See Sauls v. Evans , 635 S.W.2d 377, 379 (Tenn. 1982). We do not weigh the evidence or evaluate the credibility

of witnesses. Conatser v. Clar ksville Coca

- Cola Bottling Co. , 920 S.W.2d 646, 647 (Tenn. 1995)

. Instead, we “take the strongest legitimate view of the evidence in favor of

the non

- moving party.” Eaton v. McLain , 891 S.W.2d 587, 590 (Tenn. 1994). We allow

all reasonable inferences in favor of the non

- moving party and disregard all evidence contrary to their position. Id.

Punitive damages are reserved for the most egregious cases. McLemore ex rel.
McLemore v. Elizabethton Med. Inv ’ rs, Ltd. P ’ shi p , 389 S.W.3d 764, 777 (Tenn. Ct. App.6

2012). The plaintiff must prove, by clear and convincing evidence, that the defendant acted intentionally, fraudulently, maliciously

, or recklessly. Hodges v. S.C. Toof & Co.

, 833 S.W.2d 896, 901 (Tenn. 1992). On t his record, we find no evidence, much less clear and convincing evidence, that the defendant acted in such a manner . Thus, we conclude that the partial directed verdict on plaintiff’s claim for punitive damages was appropriate.

C. D IRECTED V ERDICT ON A LL R EMAINING C LAIMS

Next, we consider whether the trial court abused its discretion in granting a directed verdict on all remaining claims. The plaintiff ’s claim against Vanderbilt was based solely on vicarious liability. Th e trial court held that “the plaintiff must identify the individual agent of the principal that deviated from the standard of care and that caused an injury that otherwise would not have occurred.” The court reviewed the expert testimony and “found no reco rd of the Plaintiff’s experts specifically identifying an individual physician and saying that physician failed to comply with the standard of care by certain actions, and that that physician’s actions resulted in harm to Mr. Miller which

would not otherwi se have occurred.”

“To avoid a directed verdict .

. . , the non

- moving party must present some evidence on every element of its case

— enough evidence to establish at least a prima facie

case. ” Richardson , 44 S.W.3d at 30

. To establish a prima facie cas e in a health care liability action, the plaintiff must provide material evidence , through expert medical testimony, on three essential elements :

(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and

rea sonable care in accordance with such standard; and

(3) As a pr oximate result of the defendant’ s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.

Tenn. Code Ann. § 29

- 26

- 115(a) ; Shipley v. Williams , 350 S .W.3d 527, 537 (Tenn. 2011).

In Tennessee, “a principal ma y be held vicariously liable for the negligent acts of its agent when the acts are within the actual or apparent scope of the agent’s authority.” 4

4 On appeal, Vanderbilt also argues that the plaintiff failed to produce evidence at trial that the individual physicians were agents of the hospital. But Vanderbilt admitted in its answer that the7

Abshure v. Methodist Healthcare

- Memphis Hosps.

, 325 S.W.3d 98, 105 (Tenn. 2010). Although t he plaintiff is free to sue the principal without suing the agent , t he principal’s liability remains purely derivative. Id. ; Cox v. M.A. Primary & Urgent Care Clinic , 313 S.W.3d 240, 251 (Tenn. 2010) ; see also Ali v. Fisher , No. E2003

- 00255

- CO A

- R3

- CV, 2003 WL 22046673, at * 5 (Tenn. Ct. App. Aug. 29, 2003), aff’d , 145 S.W.3d 557 (Tenn. 2004) (“Vicarious liability is imputed legal responsibility for the acts of another.”)

.

The same rule applies in a health care liability action premised on the vicarious liability of a h ospital . T he hospital’s liability is “based upon the principle ‘that the wrong of the agent is the wrong of his employer.’” Parker v. Vanderbilt Univ

. , 767 S.W.2d 412, 415 (Tenn. Ct. App. 1988) (quoting Raines v. Mercer , 55 S.W.2d 263, 264 (Tenn. 1932)). To make a prima facie showing of the “wrong of the agent,” the plaintiff must present expert testimony on the standard of care applicable to the agent, that the agent deviated

from that standard , and that the plaintiff’s injuries were a proximate result of that

deviation. Tenn. Code Ann. § 29

- 26

- 115(a). Without that showing, negligence may not
be impute d to the principal

.

The plaintiff argues that Dr. Gandy’s testimony in conjunction with Mr. Miller’s medical records established a prima facie case. 5 We dis agree. First, the plaintiff cannot substitute the medical record for expert testimony. The statutory requirements are clear. The plaintiff has the burden of providing material evidence on all three essential elements through expert testimony. 6 Id. § 29

- 26

- 115; Shipley , 350 S.W.3d at 53 6

- 37 7. Second

, we conclude that Dr. Gandy failed to adequately identify a specific agent of Vanderbilt

that deviated from the standard of care and whose dev iation caused an injury that would

not otherwise have occurred.

Dr. Gandy testified that the recognized standard of care for orthopedic surgeons treating trauma patients in 2010 required an orthopedic surgeon to recognize the

November 2 white blood cell count as potential evidence of an infection and to attempt to

“indiv iduals who provided care and treatment to the plaintiff while the plaintiff was a patient at Vanderbilt University Medical Center were the defendant’s employees and acting within the course and scope of their employment.” No proof is necessary to prove al legations that were admitted in the answer. Rast v. Terry , 532 S.W.2d 552, 554 (Tenn. 1976); Irvin v. City of Clarksville , 767 S.W.2d 649, 653 (Tenn. Ct. App. 1988)

.

5 Alternatively, the plaintiff contends that because the orthopedic trauma service at Va nderbilt used a “team approach” to patient care, he should not be required to determine which individual physician was responsible for his care. We are not persuaded that it is unfair to require the plaintiff to meet the statutory burden of proof under th ese circumstances. Vanderbilt’s negligence cannot be presumed. Tenn. Code Ann. § 29

- 26

- 115(c).

6 The common knowledge exception to the expert testimony requirement is not applicable here. See Murphy v. Schwartz , 739 S.W.2d 777, 778 (Ten n. Ct. App. 19 86).8

discern the source of any infection by examining the patient and ordering additional tests

. But rather than identify the specific orthopedic surgeon or surgeons who were subject to

that standar d and how he or they deviated from that standard, Dr. Gandy opined more generally that “they failed to investigate,” “they didn’t follow up on it

, ” and “nobody did anything else after that

. ” 7 Similarly, Dr. Gandy testified about Mr. Miller’s discharge without specifying which individual physician made the decision to discharge.

Dr. Gandy’s only reference to any individual orthopedic surgeon is the following testimony :

Q. And the

-- do

-- do you recall who the surgeons were for [the November 2 surg ery] ?

A. Dr. Mir was the primary surgeon. I don ’ t recall the

-- the assistant

surgeon. Q. Dr. Sethi?

A. Dr. Sethi was listed as one of them. Q. Right.

A. But I don ’ t re member

-- I believe t here were two, I believe, but I’m not

sure. Q. Al l right. Dr. Gandy , did Dr. Mir examine th e surgical wound site from

11/2 before Mr. Mil ler ’ s discharge on November the 5th?

A. There ’ s nothing in the record to that effect. Q. Is th ere anything in the record that would indic ate that Dr. Sethi

examined the wound sit e from 11/2 before Mr. Miller ’ s discharge on 11/5?

A. No.

And later, Dr. Gandy stated:

My

- - my primary criticism has been once that la b was done

-- if they ’ re having meeting s every

-- 6:00 in the morning, somebody shoul d have said,

“ Dr. Mir, we got a 22,000 whi te count. Should we get another white

count? ”

Dr. Gandy failed to draw a connection between the deviations from the standard of care that he identified and any individual physician. His identification of Dr. Mir and

Dr. Sethi as two orthopedic surg eons who operated on Mr. Miller but who did not

examine his wound site after November 2 is insufficient . He never testified that one or

both of the se physicians were responsible for Mr. Miller’s post

- surgical care and

7 In discussing causation, Dr. Gandy continued to express himself in generalities: “So if they had been alert and aware that there was something going on in there[,] . . . [i]f they had ruled out other areas of infection, gone in and looked at the l eg[,] . . . if they’d have gotten it fast enough, they c ould have preserved some of the

-- the muscle in there to preserve a below

- the

- knee amputation.”9

discharge. Dr. Gandy ’s testimony tha t “somebody” should have asked Dr. Mir to take action also falls short because it asks the jury to simply assume that Dr. Mir was responsible. A jury verdict in Mr. Miller’s favor based on this evidence could only rest

o n impermissible “ speculation

, conje cture , and guesswork .” Richardson , 44 S.W.3d at

30. We conclude that the trial court did not err in directing a verdict on all remaining

claims.

D

. D ENIAL OF P LAINTIFF ’ S M OTION TO R EOPEN P ROOF

Finally, we address the trial court’s denial of the plaintiff’s motion to reopen the proof to allow Dr. Gandy to provide additional expert testimony. A fter the trial court announced it was granting a directed verdict in Vanderbilt’s favor on all issues

, t he plaintiff move d to reopen the proof. Vanderbilt objected, and the trial court, noting its obligation to be fair to both sides, denied the plaintiff’s motion. The decision as to whether to reopen the proof to admit additional evidence is within the sound discretion of

the trial court

. Simpson v. Fronti er Cmty. Credit Union , 810 S.W.2d 147, 149 (Tenn. 1991)

.

The plaintiff’s only explanation for why this testimony was not provided during

his case in chief is that he was unaware that he had to meet this “heightened evidentiary
burden.” Heightened or n ot, t he burden of proof in a health care liability action is statutorily mandated and should be readily apparent

. Tenn. Code Ann. § 29

- 26

- 115(a). The obligation to prove an agent’s negligence in a case premised solely on vicarious liability is also based on longstanding agency rules. See Parker , 767 S.W.2d at 415

- 16.

Stil l, the plaintiff argues that the trial court should have given him a second chance to establish a prima facie case based on this court’s decision in Iloube v. Cain , 397 S.W.3d 597, 60 5 (Tenn. Ct. App. 2012)

. In Iloube , the plaintiff provided testimony on his medical expenses but did not introduce the actual medical bills as exhibits . At the conclusion of the plaintiff’s proof, the defendant moved for a directed verdict on the

claim f or medical expenses, citing the best evidence rule. Tenn. R. Evid. 1002. After the motion, but before the court ’s ruling , the plaintiff moved to reopen the proof to enter his medical bills and other documentary proof of medical expense s into evidence. T he court denied the motion without explanation. Iloube , 397 S.W.3d at 604

- 05

. B ased on “the entirety of the circumstance ,” this court held that the trial court’s denial of the plaintiff’s motion to reopen the proof for the narrow purpose of introducing d ocumentary evidence of his medical expenses was an abuse of discretion

. Id. at 605.

As Iloube makes clear, the decision whether to reopen the proof depends on the unique facts of each case , and here we conclude that the plaintiff had a “reasonable opportunity to prove his case

. ” Id. (quoting Bellisomi v. Kenny , 206 S.W.2d 787, 788 (Tenn. 1947)). T he plaintiff was seeking to present evidence that was available during

his case in chief. He did not make his motion until after the court announced its decision10

on the motion for directed verdict. P roducing an expert witness to testify is not the same

as introducing a missing exhibit. Dr. Gandy, an out

- of

- state witness with an active medical practice, had concluded his testimony two days earlier. Unde r these facts, we conclude that the trial court ’s decision was not an abuse of discretion.

III.

For the for e going reasons, the trial court’s decision is affirmed and the case remanded for further proceedings consistent with this opinion.

__________ _______________________ W. NEAL M C BRAYER, JUDGE