### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Septem ber 19, 200 2 Session CHRISTINA K. YEUBANKS, I NDIVIDUALLY 

### , AND AS NATURAL PARENT AND

SURVIVING NEXT OF KIN OF 

### S ARAH 

### N ICOLE 

### A NDERSON V 

### . METHODIST HEALTH CARE- MEMPH IS HOSPITALS D 

### /B 

### / A 

### L E 

### BONHEUR CHILDREN’S MEDICAL CENTER, INC., AMY L. HER TZ, M.D., S. DOUGLAS HIXSON, M.D., AND 

### PEDIA TRIC SURGICAL GROUP, INC. Appeal from the Circuit Court for Shelby County No. 300834-8 T.D. D’Army Bailey, Judge

No. W2001-02051-COA-R3-CV - Filed June 10, 2003

This is a procedurally

complex medical malpractice case. A child was injured in a car accide nt. She was taken by helicopte

r to the hos pital, where she died. The child’s mother filed suit, alleging liability on the par

t of three phy sicians, and vicarious liability on the part of the hospital for the actions of the three phy sicians. She also asserted that the second p hys ician’s m e dical group was liable for that physician’ s actions. The complaint was later amended to include i ndepe ndent allegations of liability

against the hospital. The mother voluntarily dismissed the claims against the first phy sician; ho wever, the claim of liability a

gainst t he hospita

l for the a

ctions of t he first physician remaine d. Imm

ediately before the trial , the moth er ass erted th at the hos pital wasliable for the actions of a fourth phy sician. The trial court ruled that evidence reg ardi ng a claim a gainst the fourth ph

ysi cian was not admissi

ble. Nea r the clo se of her

proof, th

e mother voluntar ily dismissed her claims against the second phy sician and his medical group. At the conclusion of the mother’s proof, the trial court granted motions for directed verdict for the claims based on the independent

actions of the hospital and for the claims against the hospital based on the a ctions of the first physician. The trial c ourt then denied a motion for directed verdict on the claim of vicarious liability against the hospital for the actions of the third phy sician. The trial court then heard a motion to strike te stimony

related to claims against the third phy sician. Prior to a ruling on the motion, the mother voluntarily dismissed the claims aga inst the third physician and ag ainst the hospital based on the actions of the third physicia n. The trial court

awarded costs against the mother and ordered that, prior to

refiling her case, the mother would be r equired to pay the

costs. The mother a

ppeals, arguing that consideration o f the mot ions for directed verdict was premature, tha t the trial court’s decision is notfinal and appealable, that the trial court improperly excluded evidence on claims that the hospital was liable for the actions of the fourth phy sician, that the tr ial cour t erred in granting the motion for directed ver

dict for t he indepe ndent cla ims of negligenc e aga

inst the ho spital, and that-2-

the trial court erred in awarding costs ag ainst the m

other and in requi

ring he r to pay those costs prior to refiling her case. We rever se the portion of the trial court’s decision requiring the mother to pay the awarded

costs prior to refiling her case. The r emainder of the trial court’s judgment is affirme d. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d in Part and Reversed in Part
H OLLY K IRB Y L ILLARD , J., delivered the opini on of the c ourt, in whi ch W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined.
T. Robert Hill, Frankie E. Wade, and Randall J. Phillips, Jackson, Tennessee, for appellant, Christina K. Yeubank s, individu ally , and as n atural p arent a nd surviving next of

kin of Sarah Nicole Anderson. Gary K. Smith, James T. McColgan, and Karen M. Campbell, Memphis, Tennessee, for appellee, Le Bonheur Children’ s Medical Center. Teresa J. Sigmon and Claire M. Cissell, Memphis, Tennessee, for appellee, Amy L. Hertz, M.D.
Albert C. Harvey

and Marcy L . Dodds, Memphis, Tennessee, for appellee, S. Dougla s Hixson, M.D. and Pediatric Surgical Group, I nc. OPINION
On the evening of February 17, 1998, Sarah Nicole Anderson (“Sarah”) , age nine, was riding in a car driven by

her mother, Plaintiff/Appellant Christina K. Yeubanks (“Yeubanks”). The c ar was involved in an acc id ent , an d S ara h wa s s eri ous ly in ju red . S he w as flo wn b y hel ico pt er t o Le Bonheur Children’s Medical Center (“L e Bonheur”). At Le Bonheur, Sar

ah was treated by

Amy Hertz, M.D. (“Dr . Hertz”), an emergency room physician. Also in the Le Bonheur e mergency room at the time wereWi ll iam Dav id Dun ava nt , III, M.D. (“Dr . Duna vant” ), a res ident , and P ablo Lez ama, M .D. (“D r. Lezam a”), a p ediat ric su rge r y fellow. They

were a ssisted by

two additi onal res idents, two nurse s, and other supportin g perso nnel. S. Douglas Hixson, M.D. (“Dr. Hixson”), a surgeon, was on call.
After the initial assessment, Sarah was sent to the Le Bonheur r

adiology de

partment for CAT scans. She was accompanied by Dr. Dunavant, Dr. Lezama, and two other Le Bonhe ur employ ees. While in ra di ol og y, S ar ah be ca me un re sp on si ve . S he wa s r et ur ne d t o t he em er ge nc y ro om just before midnight. Sarah’shealth continued to decline. Despite resuscitation efforts, Sarah died on the morning of February

18, 1998.
On February

16, 1999, Yeubanksfiled a la wsuit on he

r own beh alf and o n behalf of Sarah. Yeubanks named as defendants Dr. Hertz, Dr . Dunavant, an d Dr . Hi xs on. Sh e al so s ued Le Bonheur, under the doctrine of respondeat superior, ba sed on the actions of Dr. Her tz, Dr. Dun avant,1 Dr. Du nav ant, as an emp loyee o f The Univ ersity of T enne ssee, wa s entitled to abso lute imm unity for his

actions. Tenn. Cod e Ann. § 9-8-307(h) (1999) (“St ate off icer s and e mploy ees a re abs olut ely immun e fr om li abil it y f or acts or om issions w ithin the sco pe o f the officer ’s or em ploye e’s office o r emp loyme nt, except for wil lf ul, mali cious , or criminal act s or omissions or for act s or omissions done for personal gain.

. . . ).

2 See John son v. L e Bon heur C hildren’s M ed. Ctr. , No . W 199 9- 017 19- COA- RM-C V, 2000 Tenn. App . LEXIS 350, at *10 -11 (T enn. C t. App . M ay 25 , 200 0), aff’ d by Joh nson v . Le Bo nheu r Children ’s Me d. Ctr. , 74 S.W.3d 338, 346 (T enn. 2002). -3- Dr. Hixson, and Le Bonheur’s “other employees or a

gents.” Yeuban ks alleged liability unde r the doctrine of respo n deat superior against Dr. Hixson’s employ er, Pediatric Surgical Group, I nc. (“Pedia tric Surgical Group”). Yeubanks contended that “[a]s a direct and p roximate r esu lt of the defenda nts ’ negli gence, Sarah Anderson died be fore her injuries were properly diagnosed and treated.” The complaint sought $500,000 in damages on behalf of Sara h, and $1,000,000 in damages on Yeubanks’s behalf. Respo nsiv e plead ings filed by Dr. Hix son and Ped iat ric Su rgi cal Gro up, Dr. Her tz , an d Le Bonheur included the defense o f comparat ive fault, alleging fault ag ainst Yeubanks and the other co-def endants. On October 15, 1999, Dr. Dunavant was dismissed from the lawsuit with prejudice. 1 While Dr. Duna

vant wasdismissed a s a defe ndant, the allega tions ag ainst

Le Bonheur

for vicarious liability based on Dr. Dunava nt’s actions remained at issue. 2
On February

29, 2000, Yeubanks amended her complaint. The amended complaint added allegations of n egl ige nce and mi sre pre sen tat io n ag ain st Le Bonheur. The amended complain t also revisedthe amount of damages pray ed for, seeking $2,000 ,000 in damages on behalf of Sarah for her wrongful death and $1,000,000 in damage s on Yeuban ks’s behal f for loss of companionship, consorti um, love, and affection. The amended complaint also sought $500,000 in damag es on beh alf of Sarah’s young er

sister for loss of companionship, love, and affection, and $250,000 in damages on behalf of each of Sarah’s mater nal grandparents. L

e Bonheur’s answer

to the amended complaint asserted that the independent claims of neglig ence against L e Bonheur were time-barr ed.
On the eve o f trial, Yeubank s fil ed a pre-trial brief which included an a llegation that

Le Bonheur was vica riously liable for the actions of Dr. Lezama. In response, at the out set of the trial, Le Bonheur filed a motion to dismiss as time-barred the portion of Yeubanks’s amended

complaint asserting independent liability on the part of Le Bonheur, a s well as the claim asserted in the pre-trial brief that Le B onheur w as liable for the a ctions of Dr. L ezama. Asto the allegationsof liability agains tLe Bonheur in the a mended complaint, the trial court found that they were

not time-barred because Le Bonheur’s liability a

rose out of

the original transaction or occurre nce, and thus related back to the original complaint.
The trial court next addressed the assertion that Le Bonheur was liable for the ac ts or omissions of Dr. Lezama. The trial judg e focused on whether the allega tions from the or igin al complaint against Dr. Hertz, Dr. Hixson, and Dr. Dunavant, coupled with a c atchall allegation asserting Le Bonheur’ s vicarious liability for the actions of its “other employee s or agents,” stated-4-

a claim against Le B onheur bas ed o n Dr . Lez ama ’s a cti ons . Le Bonheur’s counsel maintained that Yeubanks’s pre-tri al brief was L e Bonhe ur’s fir st notice t

hat Yeub anks inte

nded to as sert a c laim agains tLe B on he ur fo r t he ac ts or om is si on s o f D r. Lez am a. Co ns eq ue nt ly, Le Bonheur’ s counsel said that L e Bonhe ur was no t prepar

ed to def end ag ainst

allega tions of vic arious lia

bility based on Dr. Leza ma’ s ac ti ons . In response, Yeubanks’s counsel stated that L e Bonheur

was on notice that Yeubanks was asse

rting a claim arising out of Dr. Lezama’s actions beca use the original complaint included a general allega

tion of vicarious liability aga inst the hospital for the actions of its employees and agents, and contended that Yeubanks wa s not requiredto name each one of them. Yeubanks’s counsel argued that L

e Bonheur was further placed on notice because the amended complaint alleged that L e Bonhe ur was lia ble for “allow[ing] unlicensed foreign students to practice medicine in the facility,” presumably imply ing that this was a reference to Dr . Lezama. Yeubanks’s counsel asserted that other pr e-trial document s put Le Bonhe ur on notic e that she

was p ursui ng vica

rious liab ility claims based on Dr. Lezama. The other pre-trial documents included a motion for s ummary judgment and a request for admissions, both of which mentioned Dr. Lezama. Yeuba nks noted that expertwitnesses had been questioned in depositions about Dr. L ezama’s lack of care, and that interrogatory

response s had iden

tified expe

rt witnes ses who we

re prep ared to

testify with resp ect to Dr. Lezama’s deviation from the standar d of care. Yeubanks adm itted that Dr. Lezama was not namedin either

the original or the amended complaint. Yeubanks’s c ounsel protested that he had insufficient

ti me t o re spo nd t o Le Bonheur ’s motion. N everthe less, the trial judg e orally

gra nt ed Le B onheur ’s motion, disallowing proof at trial regarding the assertion that Le Bonhe ur was liable based on the actions of Dr. Lezama. This ora l ruling was memorialized in a written order filed June 28, 2001.
At the trial, Yeubanks offered the testimony of three expert

witnesses , Shelly Cohen (“Cohen”), a registered nurse; Dr. James Calvert Jones (“Dr. Jones”), an emergency room physician; and Dr. Jeffre y Sw etnam (“Dr. Swetnam”), a surgeon. Cohen testified regarding the indepe ndent allegations of neg ligenc e by Le B onheur. She asser ted that L

e Bonhe ur faile d to ensu

re the immediate

avail abili ty o f experie

nced indi viduals to

provide w ell-org anized ca re, and f ailed to provide the personnel listed to assist in a trauma alert. T hus, L e Bonhe ur’s tre atment of

Sarah fe ll below the re cog nize d standar d of car e. Cohen a sserted

that the L

e Bonhe ur respi ratory therapi st failedto follow the appropriate trauma protocol, that the charting of input and output of fluids was insufficient

and below the standard of care, and tha tthe nurse s lacked

the knowl edge o f the flui ds. Cohen asserte d that t

he care of two nurse s did not me et the sta ndard of care f or a nurs e. She als o asserted that the taking of

vital signs was not done with sufficient frequency , that the nurses failed to properly monitor

and assess the situation, and that the recording char t contained gaps that were unacceptable. Cohen also contended that the trauma team failed to meet the applicable standard of care. Cohen’s testimony did not address whether the deviation from the standard of care by any of these persons caused Sarah’s death.
Yeubanks’s secondexpert was Dr. Jones. Dr. Jones’s testimony focused on Dr. Hertz. He stated generally

that Dr. Hertz’s actions fell below the standard of care f or the medical co mm un it y. When asked if this deviation from the s tandard of care was the p roximate cause of Sarah’s death, Dr.-5-

Jones stated that “I

felt that Sarah’s death was caused by a failure to recognize and stopthe internal bleeding in time. . . .”
Fi na ll y, Yeuba nks offeredthe expert testimony of Dr. Swetnam, a sur geon. Dr. Swetnam noted that no objective data regarding Sarah’s condition was recorded betwee n 10:30 p.m. and 11:20 p.m. on the nig

ht she wa s at Le Bonhe

ur. He te stified th at the actions of nurse Stephanie Plunk (“Plunk”), an employee

of Le Bonheur , fell below the standard of care in that she failed to prope

rly document Sarah’s record. On direct examination, when as ked what injuries Sa

rah susta ined as a result of this deviation from the standard of care, Dr. Swetna m stated that
in my opinion, if the documentation had been adequate, then may be somebo dy w ould have picked up sooner that she, indeed, was in shock and that she was not stable and she should nothave been in CAT scan. At that point, it’s pos sible that things c ould have been revved up and a differe nt track takenso that she could have gotten to the operating room where she nee ded to be.
Dr. Swetnam then agreed that Sarah “suffe redinjuries o

r ultimate ly d eath” because of

the failu re to properly doc

ument her condition.
When questioned about this assertion on cross-examination, Dr. Swetnam conceded that the words “may

be” and “possibly

” “would not be ade

quate to s tateto a rea sonable me di ca l c er ta in ty a diagno sis” that Dr. Swetnam would make for a patient. Dr. Swetnam acknowledged that he did not know whether any one looked at Plunk’s documentation on Sarah or was awar e whether Plunk’s documentation was “a h undred p ercent

complete , zero per

cent c omplete o

r somewhe

re in between . . . .” The proof showed that, while Sarah was in the radiology

roomand the r

esuscita tion room, she was monitored either by a “dyna mount” machine or a “propac” machine, each of which recorded and d isplayed her vital signs. Dr. Swetnam agreed that the information that Dr. L ezam a or Dr

. Dunavant would have needed would have been availab le to them on th

e monitors , and ther

efore t heir actions would have been unaffected by what Plunk did or did not record. Dr. Swetnam testified on cross-examination:
Counsel: I think, or a

t leas t I thought tha

t we had g otten to a

n agreement on t

his point, and th at is s impl y this, t hat on that n ight, the th ings that were not documented were, one, available, and, two, y ou cannot point to a single assessment, evaluation, examination, decision of any kind that was made for Sarah Anderson by the doctors that was base d on any

thing tha t was either in o r not in the document

ation by Ms. Plunk, don ’t y

ou a gr ee wit h th at ?
Dr. Swetn am: We can

assume th at.-6-

Counsel: And that is where we were e arli er, and with that as sumption, y ou would have to agree that the

lack of d ocumenta tion did not

contribu te to the d eath because they were not using that documentation to make their decisions; agreed?
Dr. Swetn am: We can

assume th at. Counsel: Do you ag

ree?
Dr. Swetnam: With the previous caveat that the blood pressures were actually taken, ye s. Counsel: A

nd y ou have n o informa

tion that th

ey were no t?
Dr. Swetn am: No, I

do not. Thus, in his testimony, Dr. Swetn am ultimately ag reed that the lack of documentation did not contribute to Sarah’s death.
On July 17, 2001, Yeubanks filed a notice of voluntar y dismissal

as to the claims against Dr. Hixson and his em

ploy er, Pedia

tric Surgical Group. Yeubanks’s claims ag ainst L e Bonhe ur for its own actions and the actions of Dr. Dunavant and Dr. He rtz remained at issue. Yeubanks then concluded the entirety

of her presentation of proof.
After Yeubanks closed her proof, L e Bonheur moved fo r a directe d verdic t on the cl aims agains tLe Bonheur arising out of its own alleged acts of neg ligence. The trial court gr anted the motion. The trial judge stated:

. . . I think [Le B onheur’s counsel] did a very skillful job of

cross examination, and I think that when he finished cross examining Dr. Swetn am as to hisstatement that the lac k of

doc um ent ati on c ont rib ut ed t o t he o ut com e, I th ink that Dr. Swetnam’s opinion was speculative as to what might have happened, what might not have been observed by t he doctor s. He adm

itted on cross exami n ation the presence of other types of instrumentation in both the resuscitation room or the emergency

room and the CT room, where the doctors could obse rve the v ital data , and he c ould

not point to any evidence that

the doctors were unaware of the vital da ta or even that the doctors read any

of the document

ation of th

e nursesduring t

hese pro ceeding s. And of course as a practical

matter on

e would think, if you take the logical inferences of the total testimony here, that if a doc tor is at a patient working, that they are more likely to observe

the continuing digital or other display of these vital signs, that the doctor c oncede d was bef

ore them , than they

are to stop and look at the notes of the recording nurs e who is there in the room writing these things down for that information. But whether one draws that inferenc e or not, the opinion of Dr. Swetnam that the d

eviation from the s tandard

of care in the re cording

does n o t3 Ye uba nks also filed a m otion to pro ceed as a pa upe r durin g this ap pea l. -7- approach the degree of medical ce

rtainty as to causation that in the Court’s mind can ma ke th is a c as e o f c on tr ov er sy f or th e j ur y.

. . . . The question i s causat

ion. I have liste

ned to the entire tr ial test im on y, I’ve read the pages cited from the testimon y of D r. Swetna m, I’ ve looked

back at m

y notes, and I

do not find in any of

that proo f prese

nted by [Yeubank s] that woul d rise to the level suffici ent to send to the jur y the issue of

proximate c ause

withregar

d to the claimed deviations under thestandar d of car e by the two nu

rses as it relatesto the death of Sarah Anderson. . . .

. . . . I don’t think liability—I

think that ther e are g ood reas ons why our law is well-steeped

in the view that fa

ult is defined as both negligence and proximate cause, and while there is negligence in this case, at least a s testified to by Dr. Swetnam and as in ess enc e ag ree d t o by [ Le Bonheur’ s counsel] , the second prong is causation, and I do not believe that [Yeubanks] has carried the burden such that on the issue of the lack of documentation causing the death of this child.
Ac co rd in gl y, I’m g oing to g rant the motion for

directe d verdic t as it

relates to Le Bonheur Hospital at least as it relates to the twonurses and any claimed failure to follow the standard with regard to the documentation. Thus, the trial court found that Yeubanks’s expert

witnesses failed to establish that any actions of Le Bonheur caused Sarah’s injury or death, and therefore

granted Le

Bonheur’s motion for directed verdict on this claim.
Le Bonheur then moved for a directed verdict on the

claim against Le B onheur based on the actions of Dr. Dunavant. This motion was granted beca use of the lack of proof that Dr. Dunavant’s care of Sarah fell below the applicable standard of c are, or tha t his care proximately caused or contributedto Sarah’s injuries. Fina lly, Le Bonheur moved for

a direc ted verd

ict on the claim agains tLe B onheur b ased on th e action s of Dr. H ertz. The tr ial cour

t denie d this motion. Dr. Hertz’s counsel movedto strike Dr. Jones’ s testimony , assert ing that his testimo ny d

id not esta blish that Dr. Hertz’s actions deviated from the standard

of care or caus ed Sar ah’s d eath. The tr ial j udge indicatedthat h

e wasunce

rtai n whe ther caus ation had b een e stabl

ished as to D r. He rtz, and said he would render a decision the following day

. The next day , prior to

the trial court’sruling o n the motion to st ri ke Dr . J on es ’s te st im on y, Yeubanks filed a

notice of voluntary dismissal of the cl aims ag ainst Dr. Hertz and the claim agains t Le Bonheur

for Dr. Hertz’s actions. That same day , pursuant to section 20-12-127 of the Tennessee Code Annotated, Yeubanks filed a pauper’s oath, asserting that she w as not able to bear the expenses of the action. There was no hearing on Yeubanks’s assertion that she was a pauper. 3-8-

On July 19, 2001, the trial court entered a written order on i ts ruling s on Le Bonheur’ s motions. At this point, there were no further claims pending.
Under Tenness ee Rule

of Civil Procedure 54.04, Dr. Hixson and Pediatric Surgical Group, Dr. Hertz, and Le Bonheur moved for

discretionary

costs in the amount of $76,710.74. In addition, pursuant to Tennessee Rule of Civil Procedure 41.04, they askedthat Yeubanks be required to pay th e discretionary

costs prior to refiling her case ag ainst these defendants. After a hearing on the issue, the trial court awarded $36,401.35 in discretionary c osts. Further, the trial judge ordered that if Yeubanks refiled her case, “all pr oceedings against these De fendants will be stayed until the Plaintiff has paid the above-awarded discretionar y costs.”
On app eal , Ye uba nks arg ues th at t he g ran ts of d ire cte d ve rdi ct i n fa vor of Le Bonheur are in contravention of Tennessee Rule of Civil Procedure 50.01; that the orders of directed verdict and the other pre-trial orders are not final and appealable unde r Tennessee Rule of Civil Procedure 54.02; that the trial court er red in not

permittin g Yeuba

nks to intro duce evidence r egard ing the c laim against Dr. Lezama; that the trial court erred in granting a directed verdict in favor of Le Bonheur for its alleged

acts of neglig ence; th at the tri al court abused it s discretion in awarding discretionary costs agains t Yeuban

ks, despite her pauper’s oath, and that it er red in or dering her to pa y those costs prior to refiling her case.
Dr. H ixson and the Pediatric Surgical Group, as well as Dr . Hertz, assert that Yeubanks’s appeal is frivolous as it relates to them, since they w ere nonsuited, and seek costs and expenses on appeal.
This Court reviews the trial court’s legal conclu sions de novo with no presumption of correctness. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1996).
Yeubanks first argues that the trial court prematurely considered the defendants’ motions for directed verdict. In support, Yeubanks c ites Rule 50.01 of the Tennessee Rules of Civil Procedure:
A motion for

a directed verdict

may be made

at the close of the evidence offered by an opposing

party or at the close of the case. The court shall rese rve rulin g until all parties alleging fault against any other party have presented their respective proof-in- chief. A party who moves f or a directed verdict at the close of the evidence offered by a n opponen

t may offer e vidence in the eve

nt that th e motio n is not granted, without havin g reserved the right so to do and to the sa me extent as if the motion had notbeen made. A motion fo r a dire cted ver

dict which is not gr

anted is not a waiver of trial by

jury even thoug

h all parties to the action have moved for4 Rule 3(e) o f the T enne ssee R ules of A ppe llate Pr oce dure , and its ac com pan ying co mm ent states in part:

. . . [I]n all case s tried b y a jury, no issue pr esente d for re vie w shall be predicated upon error in the admis sion or exc lus ion of ev idenc e, j ury ins tru cti ons gr ante d or refus ed, mis conduct of jurors , part ies
or coun sel, or other act ion committed or occu rring du ring the trial of the ca se , or other groun d upon which a new trial is soug ht, unless the sa me w as speci fically sta ted in a m otion for a n ew tria l; otherwis e such is sues wil l be tr eated as waived

. Tenn. R. Ap p. P . 3(e) (e mph asis ad ded ). Th e com men t to this Rule states: “Failure t o present an issue t o the trial cou rt, therefo re, will typica lly not me rit app ellate relie f. . . .” Ten n. R. A pp. P . 3(e) c mt.

5 Ten nessee Jurispru dence states:
The chanc ell or can not be put i n err or forfai li ng t o pass on exce pti ons t o deposi ti ons wh ere i t i s not shown by the re cord that his att enti on was ever c alled to the exc eptio ns or a ny actio n invo ked by him thereon, or that

he even so much as kne w of such exce ptions. In s uch ca se, such except ions wil l be
con sidere d as w aived

. 2 Tenn. Juris., Appeal and Error, § 43 n.13 (citing Wells v. Je nkins , 7 Tenn. Civ. App. (Higgins) 566 (1917 )). -9- directed verdicts. The order of the court granting

a motion fo

r a dire cted ver

dict is ef fe ct iv e w it ho ut an y as se nt of th e j ur y. Tenn. R. Civ. P. 50.01 (emphasis added). Thus, un der this rule, when p artie s to a s uit al lege comparative fault, the trial court is to reserve its ruling on a motion for directed ver dict until all the parties alleging comparative f ault have presented their proof-in-chief

. In this case , it is undisp

uted that Le B onheur, Dr. Her

tz, and Dr. Hixson and Pediatric Surgical Group alleged c omparat ive faul t. Le Bonheur made thr ee sepa rate mo t ions for directed verdict at the close of Yeubanks’s proof, prior to the proof- in-chief of any of the de

fendants. Two of Le Bonheur’ s motions for directed verdict were gr anted at that

point. Yeubanks asserts that the word“shall” in Rule 50.01 is mandatory, a nd therefore, this Court should vacate the gra nts of directed verdict in favor of Le

Bonheur. Le B onhe ur respo nds that Ye ubanks’scounsel f

ailed to object to consideration of the motions for directed verdict at that time, thus waiving the argument for appeal.
The courts of Tennessee

have long

held that “it is incu mbent upon

a litiga nt to call to the trial court’s attention those errors he believes have adver sely affe ctedhis case .” In re South Central Bell , 779 S.W. 2d 375 , 380 ( Tenn. Ct. A pp. 19 89) (ci ting Lawrence v. Stanford , 655 S.W.2d 927, 929 (Tenn. 1983); East Sevier County Util. Dist. of Sevier County v. Wachovia Bank & Trust Co. , 570 S.W.2d 850, 8 54 (Tenn . 1978); Anderson Count y Quarter

ly Court v. Judges of 28th Judicial Circuit , 579 S.W.2d 87 5, 883 (Te nn. Ct. App . 1978)); see also Norton v. McCaskill , 12 S.W.3d 789, 795 (Tenn. 2000); Tenn. R. App. P. 3(e) & cmt.; 4 2 Tenn. Juris., Appeal andError, § 43 n.13. 5 “The trial court must be given

the opportunity to correct errors in the conduct of a trial . . . before a litigant will be able to seek

reversal on appeal.” In re South Central Bell , 779 S .W.2 d at 79 5 (cit ing Rhea v. Marko Con str. Co. , 652 S.W.2d 3 32, 334 (Tenn. 1983 ); Pendleton v. Evetts , 611 S.W.2d 607,-10-

609 (Tenn. Ct. App. 1981); Valentine v. Conchemco, Inc. , 588 S.W.2d 871, 877 (Tenn. Ct. App. 1979)). Thus, an issue raised for the first time on appeal may be w a ived. Black v. Bl

ount , 938 S.W.2d 394, 403 (Tenn. 1996).
In the case at bar, L

e Bonheur made three separ ate motions for directed verdict. At no time didYeubanks’s counsel object to the trial court’s consideration of the motions a s premature or u nt im el y. Indeed, Yeubanks ma de substantive arguments opposing the motions. Moreover, Yeubanks filed no post-trial motion indicating that the trial court’s consideration of the motions for direct ed ve rdict was premature or untimely . On appeal, Yeubanks asserts that a dialogue that occurr ed betw een counsel and t he trial j udge de

monstrate s that Yeu

banks att empted to object to consideration of the motion for directed verdict, but was interrupted by the trial court. The transcript of the exchange, however, d o es not bea r out this a ssertion. Under these cir cumstanc es, we mu st conclude that this issue is waived on appeal.
Yeubanks argues next that the trial court’s orders for directed ve rd ict and on pre-trial motions are not final and appeal able ord ers under Rule 54.02 of the Tennessee Rules of Civil Procedure. Rule 54.02 outlines the method by which the trial cour t can make final and appealable an or der that would othe

rwise not be a fina l order:
When more than o ne cla im for re lief is pr esent in a n action, whether

as a cla im, counter claim, cross-claim, or third par ty claim, or wh en multiple parties are involved, the Court, whether at law or in equity , may direct the entry of a

final judg

ment as to one or mor e but fewer than all of the claim s or part

ies only upon an e

xpress determination that there is no just reason for delay and upon an express direction for the entry of

ju dgm ent . In the absence of such determination and direction, any order or other form of decision, however des ignated, that adjudicates fewer than a ll the claims or the rights and liabilities of fewer than all th

e partie s shall

not terminate the action as to any of the claims or parties, and the or der or ot her for m of deci sion is subject to revision at any time bef ore the entry

of the judgment adjudicatingall the claims and the rig

hts and lia

bilities of all the pa rties.
Tenn. R. Civ. P. 54.02. Here, Yeubanksfiled suit agains t three doctors, o ne hospita l, and one pediatric group. Dr. Dunavant was dismissed with prejudice based on his immunity; Dr. Hixson and Pediatric Surgical Group were voluntarily

dismissed; Le Bonheur wasorally g ranted a directed verdict for the actions of its employees and f

or the actions of Dr. Du

navant; Dr. Hertz was voluntarily dismissed, as wa s Le Bonheur

for the a ctions of Dr. Her tz. The tria

l court then enteredwritten orders reflecting the grantsof directed verdict. Thus, by the time the trial court

entered the orders for

directe d verdic t, there were no

defenda nts remaining in th

e case and no issues remaining to be adjudicated, except costs. Under these cir

cumsta nces, th e order s must be c onsidered final a nd appea lable, a nd Rule 54.02 would be inapplicable. This issue is without merit.6 Ap pro ximate ly three weeks aft er the trial cou rt’s decisi on, counse l for Yeubanks orall y moved to rec onsider the ruling reg ardin g Dr . Leza ma. Co unsel filed an exh ibit with the tri al court of documents indicating that Le Bonhe ur was on noti ce that

Yeubanks would be pur suing clai ms again st Le Bonheur for the acti ons of Dr. Lezama. Th e exhib it incl uded Le Bonh eur ’s res pons e t o a motion for sum mary judg ment

and me moran dum of sup por ting law in w hich it denied that

Dr. Lezama was a n agent , employe e, or s ervant of Le Bonheur, and that Dr. Lezama was an ind epe nde ntly contracted doctor; and Y eub anks’s m otion for pa rtial summ ary jud gme nt in which it alleged that Le B onhe ur was le gally liable for the ne gligenc e of D r. Leza ma. There is no indi cati on in the tri al r ecord t hat the tri al j udge r uled on th e moti on to recon side r. Conseque ntl y, we re view on appeal the tri al c ourt ’s rul ing on Le Bonheur’s original motion, and examine the plead ings br ough t to the trial ju dge ’s attention at that time

. Similar ly, Ye uba nks’s ap pellate brief no tes that, in response to an i nterr ogatory propounded by Le Bonheur reques tin g the na mes of i ndivi duals f or whom Yeubanks clai med Le Bonheur wa s vicariousl y liable, Yeubanks named , among others, Dr. Lezama. However, nothing in the r ecord indica tes that this inter roga tory resp onse was b roug ht to the a ttention o f the trial jud ge. -11- Yeubanks asserts next that the trial court improperly g ranted Le Bonhe

ur’s pre-trial motion to dismiss claims against Le Bonheur for vicarious liability and unde r the doctrine of respondeat superior for the actions of Dr. Lezama. W h ile Le Bonheur ’s motion w as couch ed as a motion to dismiss, and the trial court’s ruling was a gra nt of that motion, we must determine the true nature of the trial cou

rt’s ruling in ord

er to app ly

the appropriate standard of review. He re, neither the original complaint nor the a mended c omplaint inclu ded a claim w hich specified tha t Yeuban ks sough t to hold Le Bonh eur liab le for th e ac ts or o mi ss io ns o f Dr . Lez ama . Th e tr ial cou rt e xa mi ned whe th er Le Bonheur was plac ed on notic e that Ye ubanks sought to a ssert such a claim, and foun d that it ha d not. Thus, rather than dismissing an existing claim, the trial court ruled in effect that Yeubanks had not asserted such a claim until immediately befor e the trial. Consequently, Ye u bank s was precluded from introduc ing evid

ence at t ri al t o es tab li sh D r. Le za ma’ s wr ong ful act s or om is si ons and Le Bonheur’s liability for

them. The trial court’s ruling, therefore, must be c onsidered an evidentiary rulin g, reviewed on appeal under an abuse of discretion standard. See Rothstein v. Orange Grove Ctr., Inc. , 60 S.W.3d 807, 811 (Tenn. 2001); Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992) (citations omitted) (“When arriving at a de t er mination to admit or exclude even that evid

ence wh ich is considered relevant trial courts are g enerally a ccorded a wide degree of latitude and will only be overturned on appeal where there is a showing of abuse of discretion.”).
In considering Le B onheur ’ s motion, the trial judge asked Yeubanks to show where in the or i ginal or amend

ed compla

int Le Bonheur would hav e been put on notic e that it w as being held responsible for the actions of Dr. L ezama. Yeubanks directed the trial judge to the language from the origina

l complain

t alleg ing vica

rious liab ility

agains tLe

Bonheur f

or the acti ons of

“Drs . Her

tz, Dunavan t, an d H ic ks on , [ si c] an d i ts ot he r e mp lo ye es or a gents, under the doctrine of respondea t superior,” as well as the amended complaint, which indicated that L e Bonheur was liable for “[a] llow [ing] unlicensed foreign students to practice medicine in its facility.” The trial judge found that this language did not state a claim of “master /servant or agency

li abi li ty of

Le Bonheur for Dr. Lezama.” The tria

l court inq

uired fu rther a bout other

document s in the record that would have put Le Bonheur

on notice that Yeub anks wasseeking to hold Le B onheur li able for

Dr. L ezama’s a cts or omissions. T

he trial j udge r

eviewe d a respo nse to a motion for summary judgmen t and a request for admissions , and inquired about pending expert tes timony

regar ding Dr . Leza

ma’s ac tions. 6 After doing so, the trial court granted L e Bon heur’s m o tion as to claims based on the actions of Dr. Lezama. Con sideri ng all of the circumstance s, we ca nnot conc lude that

the trial court er red in-12-

finding that Yeubanks had not previous ly a sserted

a claim a gainst Le Bonheur ba sed on the actions of Dr. Lezama, or that the trial court abused its discretion in precluding Yeuba nks from introducing evidence to support such a claim.
Yeubanks argues n ext

that the trial court erred in granting Le Bonheur’ s motion for directed verdict regar ding the claim ag ainst L

e Bonhe ur based on the ac tions of itsnurses and Dr. D unavant. Yeubanks asserts t

hat the r ecord c ontains ma

teria l evi den ce t o su ppo rt t he c lai m, and th at Le Bonheur’s motion should have been denied.
In consideri ng a motion for

directed verdict, both the trial court and the appellat e court must look at all of the evidence, take the strongest legitimat e view of the evidence in

favor o f the oppo nent of the motion, and allow a

ll r easonable i

nferences i

n favor o f that party

. All counter

vailing evi dence must be disregarded, and if there is then any dispute as to any material fact, or any doubt as t o th e conclusions

to be drawn from

the who le eviden ce, the m

otion mus

t be den ied. C o na ts er v. C lar ksv ille C oca-C ola Bottling

Co

. , 920 S.W.2d 6

46, 647 (T

enn. 1995); H

urley v. Ten

ness ee F armers M ut. Ins. Co

. , 922 S.W.2d 887, 891 (Tenn. Ct. App. 1995). A directed verdict cannot be sustain ed if there is materia

l evidenc e in the record th at would s upport a ve

rdict for t he plain tiff under any of the th eories th e plaint iff has advan

ced. Id.
Under Tenness ee law, to support a claim for medical malpractice, the plaintiff must prove the following three eleme nts: (1) The recognized standard of acceptable professional practice in the profession and the special

ty thereof, if any, that the def endant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongf ul action occurr ed; (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accor

dance with such standard; and (3) As a proximate result of the defendant’s neglige nt act or omission, the plaintiff suffered injuries which would not otherwise have occ urred.
Tenn. Code Ann. § 29-26-1 15 (Supp. 2 002); see also Ki lpatrick v . Bryant , 868 S.W.2d 594, 598 (Tenn. 1993). Thus, the plaintiff must demonstrate the appropriate standard of car e, show that the defendant de vi at ed fr om th at st an da rd , a nd fi na ll y, connect the deviation from the standard of care to the injury

sustaine d by

the patie nt. A plain

tiff must “

prove tha t it is more l

ikely than not that the defendant’s negligence caused plaintiff to suffer injuries which would have not otherwise occurred.” Kilpatrick v. Bryant , 868 S.W.2d at 602 (q uoti ng Boburka v. Adcock , 979 F.2d 424, 429 (6th Cir. 1992)). “A mere

possibility

of such c ausa

tion is not enough; and when the matter remains one of pure speculation or conjecture or the proba bilities a re at be st evenly

balanced, it

becomesthe duty-13-

of the court to direct a verdict for the defe ndant . . . .” Id. (quoting Lind sey v. M iami Dev. Corp. , 689 S.W.2d 856, 861 (Tenn. 1985)). Thus, the supreme court continued, proof of caus ation equ ating to

a “possib ility ,” a “mig

ht have,” “may have,” “could have,” is not sufficient, as a matter of law, to establish the required nexus between the plaintiff’s injury and the def endant’s tortious conduct by a preponderance of the evidence in a medical malpractice case. Ca us at io n i n f ac t i s a ma tt er of pr ob ab il it y, notpossibility, and

in a medi cal malpractice case, such must be shown to a re as on ab le de gr ee of

me di ca l c er ta in ty. Id. (quot ing Lindsey v. Miami Dev. Corp. , 689 S.W.2d at 861-62).
In the case at bar, both nurse Cohen and Dr. Swetnam testified tha t the care by

the nurses at Le Bonheur

fellbelow the

establish ed standa rd of ca re. Cohe n’s testim ony didnot address the issue of causation. Dr. Swetnam, however, was questioned on direct examination regarding how the nurses’ failure

to proper ly document Sa

rah’s r ecord im pacted h er. Dr. Swetnam st

ated:
in my opinion, if the

documentation had been adequate, then maybe somebody would have picked up sooner that she, indeed, was in shock and that she was not stable and she should

not have been in CAT scan. At that point, it’s possible that thing s could have been revved

up and a different track taken so that she could have gotten to the operating room where she nee ded to be. (Emphasi s added). Moreo ver, on c ross-examination, Dr. Swetnam acknowledged that no assessme nt, evaluation, examination, or decision made for Sarah was based upon any thing that was either included or not included in the nurses’ documentation.
Based o n this testimony , the tria l judge s tated:

. . . I think that Dr. Swetnam’s opi nion was speculative as to what might have happened, what might not have been observed

by the doctors. . . . [T]he opinion of Dr. Swetnam that

the deviation from the standard of care in the recording does not approach the degree

of medical certainty

as to causation that in the Court’s mind can ma ke th is a c as e o f c on tr ov er sy f or th e j ur y.

. . . . The question is causation. I have listened to the e ntire trial testimony, I ’ve read the pages cited from the testimony of Dr. Swetnam, I’ve looke d ba ck at my notes, and I

do not find in any of

that proo f prese

nted by [Yeubank s] that woul d rise to the level suffici ent to send to the jur y the issue of

proximate c ause

withregar

d to the claimed deviations under thestandar d of car e by the two nu

rses as it relatesto the death of Sarah Anderson. . . .7 W ith regar d to the direc ted ve rdict fo r Le B onhe ur’s vica rious liab ility for the actio ns of Dr. Du nava nt, it

appears that

no medi cal expert

off ered t est imony rega rdin g Dr. Dun avant ’s all eged ne gli gence or the cau sal relatio nship between his acti ons and Sarah’s death.

8 Rule 5 4.04 states in p art:
Co sts not included in t

he bill of cost s prepared by the clerk are allowable only i n the court’s dis cretion. Disc retiona ry costs allowa ble ar e: reaso nab le and necessary court reporter expenses f or depositions
or trials, reaso nab le and nece ssary ex pert w itn ess f ees for depositions or trials, reasonable and necessary interpreter fees for dep ositions or trials, and guar dian ad li tem f ees; tra vel expens es ar e not allowa ble discre tionary c osts. Su bjec t to Ru le 41 .04, a party re que sting disc retiona ry costs sh all file and serve a motion wi thi n thi rty (30) days afte r entry of j udgment. The trial courtret ains juri sdic ti on over a motion f

or discr etionary cost s even t hough a party has f

iled a notice of appeal. The court may tax disc retiona ry costs a t the time o f volunta ry dism issal. Tenn. R. Civ. P. 54.04(2).

9 Rule 41 .04 states:
If a plai nti ff who has once di smiss ed an a cti on in any court commences an act

ion ba sed upon or including th e sa me clai m agains t th e same defen dant, t he Court may make such order for the payment of costs of th e acti on previous ly di smiss ed as it may deem prop er and may stay the proceedings i n the new action until

the plaintiff

has complied with the order.
Tenn. R. Civ. P. 41. 04.

-14- We find no error

in the trial court’s decision. Accordingly , the trial court’s grant of L e Bonheur’s motion for d irec ted verdict on the claim against it arising out of the actions of its nurses and Dr. Dunavant is affirmed. 7
Yeubanks also arg

ues that th e trial c ourt abus ed its discretion in awarding discreti onary costs because they

were punitive in nature and because she is proc eeding as a pauper.
Near the conclusion o f the trial, Yeubanks filed a pauper’s oath. Subsequently , the defend ants w ho had already been voluntarily dismissed moved to rec over costs in the amount of $76,710.74. See Tenn. R. Civ. P. 54.04(2), 8 41.04. 9 After a hearing, the tr ial judge awarded $36 ,401.35 in discre

tionary costs. Such costs ar

e awar ded at the trial cou rt’s disc retion, a nd th e award will not be overturned unless it evinces an abuse of that discretion. Stals worth v

. Grummons , 36 S.W.3d

832, 835 (Tenn. Ct. Ap

p. 2001) (c

iting Pe rd u e v. Gree n Bra nch Mi

ning Co

. , 837 S.W.2d 56 , 60 (Tenn . 1992)). Here, Yeubank s assertsthat the tr ial cour t abused its discre

tion in awarding the co sts beca

use the costs were punitive, and because she is proceeding as a pauper. After re viewing the record we find that the trial court’s order was not punitive in nature, but rather, was the result of consideration of all of the factors involving a trial that lasted almost six weeks and resu lted inthe trial court’s-15-

dismissal of claims against some defendants and the plaintiff’s voluntary

dismissal o f claims a

gainst other defendant s. Plaintiff contends that the trial court abused its discretion in awarding costs because she was procee ding as a

pauper u nder section 20-12 -127 of th e Tenne ssee Code

Annotate d, which s tates: (a) Any civil act ion may be comme

nced by a reside nt of this sta te without giving security as required by

law for costs and without the pay ment of litigation taxes due by (1) Filing the following oath of poverty ; . . .and (2) Filing an accompany ing affidavit of indigency as prescribed by

court rule. (b) The filing of a

civil action without paying the costs or taxes or giving security for the costs or taxes does not relie ve the pe rson filing the action from r esponsibi lity

for the costs or taxes but suspends their collection until taxed by the court.
Tenn. Code Ann. § 20-12-127 (Supp. 2002). Thus, the plaintiff must file the oath and t he affi davit of in di ge nc y. H er e t he re co rd in di ca te s t ha t Y eu ba nk s f il ed an oa th of

po ve rt y, but it does n ot include an affidavit of indigency . Moreover, even when the plaintiff properl y f iles a pa uper’s o ath and an affi davit

of indig ency , the plaintiff is not relieved from pa yin g the co sts or taxes ; the payment is merely suspended. See Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 4-9(b) & n.203 (1999 & Supp. 2001). Thus, the trial court did notabuse itsdiscreti on in awa rding c osts against Yeubanks, and this decision is affirmed.
Fi na ll y, Yeubanks argues that the trial court er red in requiring her

to pay the awa rded cos ts prior to refiling her

case. T he pay ment of su ch costs i s addres sed in Rule 41.0 4 of the Tennessee Rules of Civ

il Proced ure, whi ch provid

es: If a plaintif f who hasonce dism

is sed an actio n in any

court commencesan action basedupon or inc luding th e same c laim ag ainst

the same defendant, the Court may make such order for the pay ment of costs of the action previously dismissed as it may deem proper a nd may stay the proc eeding s in the new action u ntil the pla

inti f f has complied with the order.
Tenn. R. Civ. P. 41.04 (emphasis added). The rule clearly contemplates that the determination of when the plain

tiff must p ay

costs previous ly o

rdered is made after the case is refiled. Thus, the tria l court erred in orderin g that the costs be paid pr ior to the r

efiling of the ca se, and th

is decisio n must be reversed.-16-

Fi na ll y, defendants Dr. Hixson and Pediatric Surgical Group, and Dr. Hertz seek their co sts and expenses on appeal, arguing that this appe al, as it relate s to them, is frivolous. After a review of the record, we decline to find the appe al frivolous.
The decision o f the trial court is affirmed in part and rever sed in part, as set forth above

. Costs are taxed to the appellant, Christina K. Yeubanks, ind ividually , and as natural parent and surviving next of

kin of Sarah Nicole Anderson, and her surety , for which exe cution ma

y is sue, if ne ce ss ar y.

___________________________________ HOLL Y KIRBY L

IL LARD, JUDGE