Christian Yeubanks v. Methodist LeBonheur ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 19, 2002 Session
CHRISTINA K. YEUBANKS, INDIVIDUALLY, AND AS NATURAL PARENT AND
SURVIVING NEXT OF KIN OF SARAH NICOLE ANDERSON
V.
METHODIST HEALTHCARE-MEMPHIS HOSPITALS D/B/A
LE BONHEUR CHILDREN’S MEDICAL CENTER, INC.,
AMY L. HERTZ, M.D., S. DOUGLAS HIXSON, M.D., AND
PEDIATRIC 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 accident. She
was taken by helicopter to the hospital, where she died. The child’s mother filed suit, alleging
liability on the part of three physicians, and vicarious liability on the part of the hospital for the
actions of the three physicians. She also asserted that the second physician’s medical group was
liable for that physician’s actions. The complaint was later amended to include independent
allegations of liability against the hospital. The mother voluntarily dismissed the claims against the
first physician; however, the claim of liability against the hospital for the actions of the first
physician remained. Immediately before the trial, the mother asserted that the hospital was liable
for the actions of a fourth physician. The trial court ruled that evidence regarding a claim against
the fourth physician was not admissible. Near the close of her proof, the mother voluntarily
dismissed her claims against the second physician 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 actions of the
first physician. The trial court then denied a motion for directed verdict on the claim of vicarious
liability against the hospital for the actions of the third physician. The trial court then heard a motion
to strike testimony related to claims against the third physician. Prior to a ruling on the motion, the
mother voluntarily dismissed the claims against the third physician and against the hospital based
on the actions of the third physician. The trial court awarded costs against the mother and ordered
that, prior to refiling her case, the mother would be required to pay the costs. The mother appeals,
arguing that consideration of the motions for directed verdict was premature, that the trial court’s
decision is not final and appealable, that the trial court improperly excluded evidence on claims that
the hospital was liable for the actions of the fourth physician, that the trial court erred in granting the
motion for directed verdict for the independent claims of negligence against the hospital, and that
the trial court erred in awarding costs against the mother and in requiring her to pay those costs prior
to refiling her case. We reverse the portion of the trial court’s decision requiring the mother to pay
the awarded costs prior to refiling her case. The remainder of the trial court’s judgment is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part and
Reversed in Part
HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and DAVID R. FARMER , J., joined.
T. Robert Hill, Frankie E. Wade, and Randall J. Phillips, Jackson, Tennessee, for appellant, Christina
K. Yeubanks, individually, and as natural parent and 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. Douglas Hixson, M.D.
and Pediatric Surgical Group, Inc.
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 car was
involved in an accident, and Sarah was seriously injured. She was flown by helicopter to Le
Bonheur Children’s Medical Center (“Le Bonheur”).
At Le Bonheur, Sarah was treated by Amy Hertz, M.D. (“Dr. Hertz”), an emergency room
physician. Also in the Le Bonheur emergency room at the time were William David Dunavant, III,
M.D. (“Dr. Dunavant”), a resident, and Pablo Lezama, M.D. (“Dr. Lezama”), a pediatric surgery
fellow. They were assisted by two additional residents, two nurses, and other supporting personnel.
S. Douglas Hixson, M.D. (“Dr. Hixson”), a surgeon, was on call.
After the initial assessment, Sarah was sent to the Le Bonheur radiology department for CAT
scans. She was accompanied by Dr. Dunavant, Dr. Lezama, and two other Le Bonheur employees.
While in radiology, Sarah became unresponsive. She was returned to the emergency room just
before midnight. Sarah’s health continued to decline. Despite resuscitation efforts, Sarah died on
the morning of February 18, 1998.
On February 16, 1999, Yeubanks filed a lawsuit on her own behalf and on behalf of Sarah.
Yeubanks named as defendants Dr. Hertz, Dr. Dunavant, and Dr. Hixson. She also sued Le
Bonheur, under the doctrine of respondeat superior, based on the actions of Dr. Hertz, Dr. Dunavant,
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Dr. Hixson, and Le Bonheur’s “other employees or agents.” Yeubanks alleged liability under the
doctrine of respondeat superior against Dr. Hixson’s employer, Pediatric Surgical Group, Inc.
(“Pediatric Surgical Group”). Yeubanks contended that “[a]s a direct and proximate result of the
defendants’ negligence, Sarah Anderson died before her injuries were properly diagnosed and
treated.” The complaint sought $500,000 in damages on behalf of Sarah, and $1,000,000 in damages
on Yeubanks’s behalf.
Responsive pleadings filed by Dr. Hixson and Pediatric Surgical Group, Dr. Hertz, and Le
Bonheur included the defense of comparative fault, alleging fault against Yeubanks and the other
co-defendants. On October 15, 1999, Dr. Dunavant was dismissed from the lawsuit with prejudice.1
While Dr. Dunavant was dismissed as a defendant, the allegations against Le Bonheur for vicarious
liability based on Dr. Dunavant’s actions remained at issue.2
On February 29, 2000, Yeubanks amended her complaint. The amended complaint added
allegations of negligence and misrepresentation against Le Bonheur. The amended complaint also
revised the amount of damages prayed for, seeking $2,000,000 in damages on behalf of Sarah for
her wrongful death and $1,000,000 in damages on Yeubanks’s behalf for loss of companionship,
consortium, love, and affection. The amended complaint also sought $500,000 in damages on behalf
of Sarah’s younger sister for loss of companionship, love, and affection, and $250,000 in damages
on behalf of each of Sarah’s maternal grandparents. Le Bonheur’s answer to the amended complaint
asserted that the independent claims of negligence against Le Bonheur were time-barred.
On the eve of trial, Yeubanks filed a pre-trial brief which included an allegation that Le
Bonheur was vicariously liable for the actions of Dr. Lezama. In response, at the outset 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, as well as the claim asserted in the pre-trial
brief that Le Bonheur was liable for the actions of Dr. Lezama. As to the allegations of liability
against Le Bonheur in the amended complaint, the trial court found that they were not time-barred
because Le Bonheur’s liability arose out of the original transaction or occurrence, and thus related
back to the original complaint.
The trial court next addressed the assertion that Le Bonheur was liable for the acts or
omissions of Dr. Lezama. The trial judge focused on whether the allegations from the original
complaint against Dr. Hertz, Dr. Hixson, and Dr. Dunavant, coupled with a catchall allegation
asserting Le Bonheur’s vicarious liability for the actions of its “other employees or agents,” stated
1
Dr. Dunavant, as an emp loyee o f The University of T ennessee, wa s entitled to absolute imm unity for his
actions. Tenn. Cod e Ann. § 9-8-307(h) (1999) (“State officers and employees are absolutely immune from liability for
acts or om issions within the sco pe of the officer’s or em ployee’s office o r emp loyment, except for willful, malicious, or
criminal acts or omissions or for acts or omissions done for personal gain. . . .).
2
See John son v. Le Bon heur C hildren’s M ed. Ctr., No. W 1999-01719-COA-RM-CV, 2000 Tenn. App. LEXIS
350, at *10-11 (T enn. C t. App . May 25, 200 0), aff’d by Johnson v. Le Bo nheu r Children’s Me d. Ctr., 74 S.W.3d 338,
346 (T enn. 2002).
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a claim against Le Bonheur based on Dr. Lezama’s actions. Le Bonheur’s counsel maintained that
Yeubanks’s pre-trial brief was Le Bonheur’s first notice that Yeubanks intended to assert a claim
against Le Bonheur for the acts or omissions of Dr. Lezama. Consequently, Le Bonheur’s counsel
said that Le Bonheur was not prepared to defend against allegations of vicarious liability based on
Dr. Lezama’s actions. In response, Yeubanks’s counsel stated that Le Bonheur was on notice that
Yeubanks was asserting a claim arising out of Dr. Lezama’s actions because the original complaint
included a general allegation of vicarious liability against the hospital for the actions of its employees
and agents, and contended that Yeubanks was not required to name each one of them. Yeubanks’s
counsel argued that Le Bonheur was further placed on notice because the amended complaint alleged
that Le Bonheur was liable for “allow[ing] unlicensed foreign students to practice medicine in the
facility,” presumably implying that this was a reference to Dr. Lezama. Yeubanks’s counsel asserted
that other pre-trial documents put Le Bonheur on notice that she was pursuing vicarious liability
claims based on Dr. Lezama. The other pre-trial documents included a motion for summary
judgment and a request for admissions, both of which mentioned Dr. Lezama. Yeubanks noted that
expert witnesses had been questioned in depositions about Dr. Lezama’s lack of care, and that
interrogatory responses had identified expert witnesses who were prepared to testify with respect to
Dr. Lezama’s deviation from the standard of care. Yeubanks admitted that Dr. Lezama was not
named in either the original or the amended complaint. Yeubanks’s counsel protested that he had
insufficient time to respond to Le Bonheur’s motion. Nevertheless, the trial judge orally granted Le
Bonheur’s motion, disallowing proof at trial regarding the assertion that Le Bonheur was liable based
on the actions of Dr. Lezama. This oral 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. Jeffrey Swetnam (“Dr. Swetnam”), a surgeon. Cohen testified regarding the independent
allegations of negligence by Le Bonheur. She asserted that Le Bonheur failed to ensure the
immediate availability of experienced individuals to provide well-organized care, and failed to
provide the personnel listed to assist in a trauma alert. Thus, Le Bonheur’s treatment of Sarah fell
below the recognized standard of care. Cohen asserted that the Le Bonheur respiratory therapist
failed to follow the appropriate trauma protocol, that the charting of input and output of fluids was
insufficient and below the standard of care, and that the nurses lacked the knowledge of the fluids.
Cohen asserted that the care of two nurses did not meet the standard of care for a nurse. She also
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 chart 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 second expert 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 for the medical community.
When asked if this deviation from the standard of care was the proximate cause of Sarah’s death, Dr.
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Jones stated that “I felt that Sarah’s death was caused by a failure to recognize and stop the internal
bleeding in time. . . .”
Finally, Yeubanks offered the expert testimony of Dr. Swetnam, a surgeon. Dr. Swetnam
noted that no objective data regarding Sarah’s condition was recorded between 10:30 p.m. and 11:20
p.m. on the night she was at Le Bonheur. He testified that the actions of nurse Stephanie Plunk
(“Plunk”), an employee of Le Bonheur, fell below the standard of care in that she failed to properly
document Sarah’s record. On direct examination, when asked what injuries Sarah sustained as a
result of this deviation from the standard of care, Dr. Swetnam stated that
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 things could
have been revved up and a different track taken so that she could have gotten to the
operating room where she needed to be.
Dr. Swetnam then agreed that Sarah “suffered injuries or ultimately death” because of the failure to
properly document her condition.
When questioned about this assertion on cross-examination, Dr. Swetnam conceded that the
words “maybe” and “possibly” “would not be adequate to state to a reasonable medical certainty a
diagnosis” that Dr. Swetnam would make for a patient. Dr. Swetnam acknowledged that he did not
know whether anyone looked at Plunk’s documentation on Sarah or was aware whether Plunk’s
documentation was “a hundred percent complete, zero percent complete or somewhere in
between . . . .”
The proof showed that, while Sarah was in the radiology room and the resuscitation room,
she was monitored either by a “dynamount” machine or a “propac” machine, each of which recorded
and displayed her vital signs. Dr. Swetnam agreed that the information that Dr. Lezama or Dr.
Dunavant would have needed would have been available to them on the monitors, and therefore their
actions would have been unaffected by what Plunk did or did not record. Dr. Swetnam testified on
cross-examination:
Counsel: I think, or at least I thought that we had gotten to an agreement on this
point, and that is simply this, that on that night, the things that were not documented
were, one, available, and, two, you cannot point to a single assessment, evaluation,
examination, decision of any kind that was made for Sarah Anderson by the doctors
that was based on anything that was either in or not in the documentation by Ms.
Plunk, don’t you agree with that?
Dr. Swetnam: We can assume that.
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Counsel: And that is where we were earlier, and with that assumption, you would
have to agree that the lack of documentation did not contribute to the death because
they were not using that documentation to make their decisions; agreed?
Dr. Swetnam: We can assume that.
Counsel: Do you agree?
Dr. Swetnam: With the previous caveat that the blood pressures were actually taken,
yes.
Counsel: And you have no information that they were not?
Dr. Swetnam: No, I do not.
Thus, in his testimony, Dr. Swetnam ultimately agreed that the lack of documentation did not
contribute to Sarah’s death.
On July 17, 2001, Yeubanks filed a notice of voluntary dismissal as to the claims against Dr.
Hixson and his employer, Pediatric Surgical Group. Yeubanks’s claims against Le Bonheur for its
own actions and the actions of Dr. Dunavant and Dr. Hertz remained at issue. Yeubanks then
concluded the entirety of her presentation of proof.
After Yeubanks closed her proof, Le Bonheur moved for a directed verdict on the claims
against Le Bonheur arising out of its own alleged acts of negligence. The trial court granted the
motion. The trial judge stated:
. . . I think [Le Bonheur’s counsel] did a very skillful job of cross examination, and
I think that when he finished cross examining Dr. Swetnam as to his statement that
the lack of documentation contributed to the outcome, I think that Dr. Swetnam’s
opinion was speculative as to what might have happened, what might not have been
observed by the doctors. He admitted on cross examination the presence of other
types of instrumentation in both the resuscitation room or the emergency room and
the CT room, where the doctors could observe the vital data, and he could not point
to any evidence that the doctors were unaware of the vital data or even that the
doctors read any of the documentation of the nurses during these proceedings. And
of course as a practical matter one would think, if you take the logical inferences of
the total testimony here, that if a doctor 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 conceded was before them, than they are to stop and look at the notes of the
recording nurse who is there in the room writing these things down for that
information. But whether one draws that inference or not, the opinion of Dr.
Swetnam that the deviation from the standard of care in the recording does not
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approach the degree of medical certainty as to causation that in the Court’s mind can
make this a case of controversy for the jury.
....
The question is causation. I have listened to the entire trial testimony, I’ve
read the pages cited from the testimony of Dr. Swetnam, I’ve looked back at my
notes, and I do not find in any of that proof presented by [Yeubanks] that would rise
to the level sufficient to send to the jury the issue of proximate cause with regard to
the claimed deviations under the standard of care by the two nurses as it relates to the
death of Sarah Anderson. . . .
....
I don’t think liability—I think that there are good reasons why our law is
well-steeped in the view that fault is defined as both negligence and proximate cause,
and while there is negligence in this case, at least as testified to by Dr. Swetnam and
as in essence agreed to 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.
Accordingly, I’m going to grant the motion for directed verdict as it relates
to Le Bonheur Hospital at least as it relates to the two nurses 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 Bonheur based on the
actions of Dr. Dunavant. This motion was granted because of the lack of proof that Dr. Dunavant’s
care of Sarah fell below the applicable standard of care, or that his care proximately caused or
contributed to Sarah’s injuries. Finally, Le Bonheur moved for a directed verdict on the claim
against Le Bonheur based on the actions of Dr. Hertz. The trial court denied this motion. Dr.
Hertz’s counsel moved to strike Dr. Jones’s testimony, asserting that his testimony did not establish
that Dr. Hertz’s actions deviated from the standard of care or caused Sarah’s death. The trial judge
indicated that he was uncertain whether causation had been established as to Dr. Hertz, and said he
would render a decision the following day.
The next day, prior to the trial court’s ruling on the motion to strike Dr. Jones’s testimony,
Yeubanks filed a notice of voluntary dismissal of the claims against Dr. Hertz and the claim against
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 was not able to bear the expenses
of the action. There was no hearing on Yeubanks’s assertion that she was a pauper.3
3
Yeubanks also filed a motion to pro ceed as a pa uper during this appeal.
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On July 19, 2001, the trial court entered a written order on its rulings on Le Bonheur’s
motions. At this point, there were no further claims pending.
Under Tennessee 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 asked that Yeubanks be required to pay
the discretionary costs prior to refiling her case against these defendants. After a hearing on the
issue, the trial court awarded $36,401.35 in discretionary costs. Further, the trial judge ordered that
if Yeubanks refiled her case, “all proceedings against these Defendants will be stayed until the
Plaintiff has paid the above-awarded discretionary costs.”
On appeal, Yeubanks argues that the grants of directed verdict in favor 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 under Tennessee Rule of Civil Procedure 54.02;
that the trial court erred in not permitting Yeubanks to introduce evidence regarding the claim
against Dr. Lezama; that the trial court erred in granting a directed verdict in favor of Le Bonheur
for its alleged acts of negligence; that the trial court abused its discretion in awarding discretionary
costs against Yeubanks, despite her pauper’s oath, and that it erred in ordering her to pay those costs
prior to refiling her case.
Dr. Hixson and the Pediatric Surgical Group, as well as Dr. Hertz, assert that Yeubanks’s
appeal is frivolous as it relates to them, since they were nonsuited, and seek costs and expenses on
appeal.
This Court reviews the trial court’s legal conclusions 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 cites 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 reserve ruling until all
parties alleging fault against any other party have presented their respective
proof-in-chief. A party who moves for a directed verdict at the close of the evidence
offered by an opponent may offer evidence in the event that the motion is not
granted, without having reserved the right so to do and to the same extent as if the
motion had not been made. A motion for a directed verdict which is not granted is
not a waiver of trial by jury even though all parties to the action have moved for
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directed verdicts. The order of the court granting a motion for a directed verdict is
effective without any assent of the jury.
Tenn. R. Civ. P. 50.01 (emphasis added). Thus, under this rule, when parties to a suit allege
comparative fault, the trial court is to reserve its ruling on a motion for directed verdict until all the
parties alleging comparative fault have presented their proof-in-chief.
In this case, it is undisputed that Le Bonheur, Dr. Hertz, and Dr. Hixson and Pediatric
Surgical Group alleged comparative fault. Le Bonheur made three separate motions for directed
verdict at the close of Yeubanks’s proof, prior to the proof-in-chief of any of the defendants. Two
of Le Bonheur’s motions for directed verdict were granted at that point. Yeubanks asserts that the
word “shall” in Rule 50.01 is mandatory, and therefore, this Court should vacate the grants of
directed verdict in favor of Le Bonheur. Le Bonheur responds that Yeubanks’s counsel failed 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 incumbent upon a litigant to call to the trial
court’s attention those errors he believes have adversely affected his case.” In re South Central
Bell, 779 S.W.2d 375, 380 (Tenn. Ct. App. 1989) (citing 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, 854 (Tenn. 1978); Anderson County Quarterly Court v. Judges of 28th Judicial
Circuit, 579 S.W.2d 875, 883 (Tenn. 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 and Error, § 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.2d at 795 (citing Rhea
v. Marko Constr. Co., 652 S.W.2d 332, 334 (Tenn. 1983); Pendleton v. Evetts, 611 S.W.2d 607,
4
Rule 3(e) o f the Tennessee R ules of A ppe llate Procedure, and its ac com panying comment states in part:
. . . [I]n all case s tried by a jury, no issue presented for re view shall be predicated upon error in the
admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties
or counsel, or other action committed or occu rring du ring the trial of the ca se, or other ground upon
which a new trial is sought, unless the sa me w as specifically stated in a motion for a n ew tria l;
otherwise such issues will be treated as waived.
Tenn. R. Ap p. P. 3(e) (e mphasis added ). The com ment to this Rule states: “Failure to present an issue to the trial court,
therefo re, will typically not merit appellate relief. . . .” Tenn. R. App. P . 3(e) cmt.
5
Tennessee Jurisprudence states:
The chancellor cannot be put in error for failing to pass on exceptions to depositions where it is not
shown by the record that his attention was ever called to the exceptions or any action invoked by him
thereon, or that he even so much as kne w of such exce ptions. In such case, such exceptions will be
considered as waived .
2 Tenn. Juris., Appeal and Error, § 43 n.13 (citing Wells v. Jenkins, 7 Tenn. Civ. App. (Higgins) 566 (1917 )).
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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 waived. Black v. Blount, 938
S.W.2d 394, 403 (Tenn. 1996).
In the case at bar, Le Bonheur made three separate motions for directed verdict. At no time
did Yeubanks’s counsel object to the trial court’s consideration of the motions as premature or
untimely. Indeed, Yeubanks made substantive arguments opposing the motions. Moreover,
Yeubanks filed no post-trial motion indicating that the trial court’s consideration of the motions for
directed verdict was premature or untimely. On appeal, Yeubanks asserts that a dialogue that
occurred between counsel and the trial judge demonstrates that Yeubanks attempted to object to
consideration of the motion for directed verdict, but was interrupted by the trial court. The transcript
of the exchange, however, does not bear out this assertion. Under these circumstances, we must
conclude that this issue is waived on appeal.
Yeubanks argues next that the trial court’s orders for directed verdict and on pre-trial motions
are not final and appealable orders under Rule 54.02 of the Tennessee Rules of Civil Procedure.
Rule 54.02 outlines the method by which the trial court can make final and appealable an order that
would otherwise not be a final order:
When more than one claim for relief is present in an action, whether as a claim,
counterclaim, cross-claim, or third party claim, or when multiple parties are involved,
the Court, whether at law or in equity, may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express direction for
the entry of judgment. In the absence of such determination and direction, any order
or other form of decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other form of decision is
subject to revision at any time before the entry of the judgment adjudicating all the
claims and the rights and liabilities of all the parties.
Tenn. R. Civ. P. 54.02.
Here, Yeubanks filed suit against three doctors, one hospital, 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 was orally granted a directed verdict for the actions
of its employees and for the actions of Dr. Dunavant; Dr. Hertz was voluntarily dismissed, as was
Le Bonheur for the actions of Dr. Hertz. The trial court then entered written orders reflecting the
grants of directed verdict. Thus, by the time the trial court entered the orders for directed verdict,
there were no defendants remaining in the case and no issues remaining to be adjudicated, except
costs. Under these circumstances, the orders must be considered final and appealable, and Rule
54.02 would be inapplicable. This issue is without merit.
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Yeubanks asserts next that the trial court improperly granted Le Bonheur’s pre-trial motion
to dismiss claims against Le Bonheur for vicarious liability and under the doctrine of respondeat
superior for the actions of Dr. Lezama. While Le Bonheur’s motion was couched as a motion to
dismiss, and the trial court’s ruling was a grant of that motion, we must determine the true nature of
the trial court’s ruling in order to apply the appropriate standard of review. Here, neither the original
complaint nor the amended complaint included a claim which specified that Yeubanks sought to hold
Le Bonheur liable for the acts or omissions of Dr. Lezama. The trial court examined whether Le
Bonheur was placed on notice that Yeubanks sought to assert such a claim, and found that it had not.
Thus, rather than dismissing an existing claim, the trial court ruled in effect that Yeubanks had not
asserted such a claim until immediately before the trial. Consequently, Yeubanks was precluded
from introducing evidence at trial to establish Dr. Lezama’s wrongful acts or omissions and Le
Bonheur’s liability for them. The trial court’s ruling, therefore, must be considered an evidentiary
ruling, 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 determination to admit or exclude
even that evidence which is considered relevant trial courts are generally accorded a wide degree of
latitude and will only be overturned on appeal where there is a showing of abuse of discretion.”).
In considering Le Bonheur’s motion, the trial judge asked Yeubanks to show where in the
original or amended complaint Le Bonheur would have been put on notice that it was being held
responsible for the actions of Dr. Lezama. Yeubanks directed the trial judge to the language from
the original complaint alleging vicarious liability against Le Bonheur for the actions of “Drs. Hertz,
Dunavant, and Hickson, [sic] and its other employees or agents, under the doctrine of respondeat
superior,” as well as the amended complaint, which indicated that Le 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 liability of Le Bonheur for Dr.
Lezama.” The trial court inquired further about other documents in the record that would have put
Le Bonheur on notice that Yeubanks was seeking to hold Le Bonheur liable for Dr. Lezama’s acts
or omissions. The trial judge reviewed a response to a motion for summary judgment and a request
for admissions, and inquired about pending expert testimony regarding Dr. Lezama’s actions.6 After
doing so, the trial court granted Le Bonheur’s motion as to claims based on the actions of Dr.
Lezama. Considering all of the circumstances, we cannot conclude that the trial court erred in
6
Approximately three weeks after the trial court’s decision, counsel for Yeubanks orally moved to reconsider
the ruling reg arding Dr. Lezama. Counsel filed an exhibit with the trial court of documents indicating that Le Bonhe ur
was on notice that Yeubanks would be pursuing claims against Le Bonheur for the actions of Dr. Lezama. The exhib it
included Le Bonheur’s response to a motion for summary judgment and memorandum of supporting law in which it
denied that Dr. Lezama was an agent, employee, or servant of Le Bonheur, and that Dr. Lezama was an independently
contracted doctor; and Y eubanks’s m otion for partial summ ary jud gment in which it alleged that Le B onhe ur was legally
liable for the ne gligence of D r. Leza ma. There is no indication in the trial record that the trial judge ruled on the motion
to reconsider. Consequently, we review on appeal the trial court’s ruling on Le Bonheur’s original motion, and examine
the plead ings brought to the trial judge’s attention at that time. Similar ly, Yeubanks’s ap pellate brief no tes that, in
response to an interrogatory propounded by Le Bonheur requesting the names of individuals for whom Yeubanks claimed
Le Bonheur was vicariously liable, Yeubanks named , among others, Dr. Lezama. However, nothing in the record
indicates that this interrogatory resp onse was brought to the attention o f the trial judge.
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finding that Yeubanks had not previously asserted a claim against Le Bonheur based on the actions
of Dr. Lezama, or that the trial court abused its discretion in precluding Yeubanks from introducing
evidence to support such a claim.
Yeubanks argues next that the trial court erred in granting Le Bonheur’s motion for directed
verdict regarding the claim against Le Bonheur based on the actions of its nurses and Dr. Dunavant.
Yeubanks asserts that the record contains material evidence to support the claim, and that Le
Bonheur’s motion should have been denied.
In considering a motion for directed verdict, both the trial court and the appellate court must
look at all of the evidence, take the strongest legitimate view of the evidence in favor of the opponent
of the motion, and allow all reasonable inferences in favor of that party. All countervailing evidence
must be disregarded, and if there is then any dispute as to any material fact, or any doubt as to the
conclusions to be drawn from the whole evidence, the motion must be denied. Conatser v.
Clarksv ille Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Hurley v. Tennessee
Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn. Ct. App. 1995). A directed verdict cannot
be sustained if there is material evidence in the record that would support a verdict for the plaintiff
under any of the theories the plaintiff has advanced. Id.
Under Tennessee law, to support a claim for medical malpractice, the plaintiff must prove
the following three 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
reasonable care in accordance with such standard; and
(3) As a proximate 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 (Supp. 2002); see also Kilpatrick v. Bryant, 868 S.W.2d 594, 598
(Tenn. 1993). Thus, the plaintiff must demonstrate the appropriate standard of care, show that the
defendant deviated from that standard, and finally, connect the deviation from the standard of care
to the injury sustained by the patient. A plaintiff must “prove that it is more likely 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 (quoting Boburka v. Adcock, 979 F.2d 424, 429 (6th Cir.
1992)). “A mere possibility of such causation is not enough; and when the matter remains one of
pure speculation or conjecture or the probabilities are at best evenly balanced, it becomes the duty
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of the court to direct a verdict for the defendant . . . .” Id. (quoting Lindsey v. Miami Dev. Corp.,
689 S.W.2d 856, 861 (Tenn. 1985)). Thus, the supreme court continued,
proof of causation equating to a “possibility,” a “might 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 defendant’s tortious conduct by a preponderance of the
evidence in a medical malpractice case. Causation in fact is a matter of probability,
not possibility, and in a medical malpractice case, such must be shown to a
reasonable degree of medical certainty.
Id. (quoting Lindsey v. Miami Dev. Corp., 689 S.W.2d at 861-62).
In the case at bar, both nurse Cohen and Dr. Swetnam testified that the care by the nurses at
Le Bonheur fell below the established standard of care. Cohen’s testimony did not address the issue
of causation. Dr. Swetnam, however, was questioned on direct examination regarding how the
nurses’ failure to properly document Sarah’s record impacted her. Dr. Swetnam stated:
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 things could
have been revved up and a different track taken so that she could have gotten to the
operating room where she needed to be.
(Emphasis added). Moreover, on cross-examination, Dr. Swetnam acknowledged that no
assessment, evaluation, examination, or decision made for Sarah was based upon anything that was
either included or not included in the nurses’ documentation.
Based on this testimony, the trial judge stated:
. . . I think that Dr. Swetnam’s opinion 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
make this a case of controversy for the jury.
....
The question is causation. I have listened to the entire trial testimony, I’ve
read the pages cited from the testimony of Dr. Swetnam, I’ve looked back at my
notes, and I do not find in any of that proof presented by [Yeubanks] that would rise
to the level sufficient to send to the jury the issue of proximate cause with regard to
the claimed deviations under the standard of care by the two nurses as it relates to the
death of Sarah Anderson. . . .
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We find no error in the trial court’s decision. Accordingly, the trial court’s grant of Le Bonheur’s
motion for directed verdict on the claim against it arising out of the actions of its nurses and Dr.
Dunavant is affirmed.7
Yeubanks also argues that the trial court abused its discretion in awarding discretionary costs
because they were punitive in nature and because she is proceeding as a pauper.
Near the conclusion of the trial, Yeubanks filed a pauper’s oath. Subsequently, the
defendants who had already been voluntarily dismissed moved to recover costs in the amount of
$76,710.74. See Tenn. R. Civ. P. 54.04(2),8 41.04.9 After a hearing, the trial judge awarded
$36,401.35 in discretionary costs. Such costs are awarded at the trial court’s discretion, and the
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. App. 2001) (citing Perdue v. Green Bra nch Mining
Co., 837 S.W.2d 56, 60 (Tenn. 1992)).
Here, Yeubanks asserts that the trial court abused its discretion in awarding the costs because
the costs were punitive, and because she is proceeding as a pauper. After reviewing 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 resulted in the trial court’s
7
W ith regard to the directed verdict for Le B onhe ur’s vicarious liab ility for the actio ns of Dr. Dunavant, it
appears that no medical expert offered testimony regarding Dr. Dunavant’s alleged negligence or the causal relationship
between his actions and Sarah’s death.
8
Rule 5 4.04 states in part:
Costs not included in the bill of costs prepared by the clerk are allowable only in the court’s discretion.
Discretiona ry costs allowable are: reaso nable and necessary court reporter expenses for depositions
or trials, reaso nable and necessary expert witness fees for depositions or trials, reasonable and
necessary interpreter fees for dep ositions or trials, and guardian ad litem fees; travel expenses are not
allowa ble discretionary costs. Subjec t to Rule 41.04, a party requesting discretiona ry costs shall file
and serve a motion within thirty (30) days after entry of judgment. The trial court retains jurisdiction
over a motion for discretionary costs even though a party has filed a notice of appeal. The court may
tax discretiona ry costs at the time o f voluntary dismissal.
Tenn. R. Civ. P. 54.04(2).
9
Rule 41 .04 states:
If a plaintiff who has once dismissed an action in any court commences an action based upon or
including the same claim against the same defendant, the Court may make such order for the payment
of costs of the action previously dismissed as it may deem prop er and may stay the proceedings in the
new action until the plaintiff has complied with the order.
Tenn. R. Civ. P. 41.04.
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dismissal of claims against some defendants and the plaintiff’s voluntary dismissal of claims against
other defendants.
Plaintiff contends that the trial court abused its discretion in awarding costs because she was
proceeding as a pauper under section 20-12-127 of the Tennessee Code Annotated, which states:
(a) Any civil action may be commenced by a resident of this state without giving
security as required by law for costs and without the payment of litigation taxes due
by
(1) Filing the following oath of poverty; . . .and
(2) Filing an accompanying 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 relieve the person filing the action from responsibility 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 the affidavit
of indigency. Here the record indicates that Yeubanks filed an oath of poverty, but it does not
include an affidavit of indigency. Moreover, even when the plaintiff properly files a pauper’s oath
and an affidavit of indigency, the plaintiff is not relieved from paying the costs 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 not abuse its discretion in awarding costs
against Yeubanks, and this decision is affirmed.
Finally, Yeubanks argues that the trial court erred in requiring her to pay the awarded costs
prior to refiling her case. The payment of such costs is addressed in Rule 41.04 of the Tennessee
Rules of Civil Procedure, which provides:
If a plaintiff who has once dismissed an action in any court commences an action
based upon or including the same claim against the same defendant, the Court may
make such order for the payment of costs of the action previously dismissed as it may
deem proper and may stay the proceedings in the new action until the plaintiff has
complied with the order.
Tenn. R. Civ. P. 41.04 (emphasis added). The rule clearly contemplates that the determination of
when the plaintiff must pay costs previously ordered is made after the case is refiled. Thus, the trial
court erred in ordering that the costs be paid prior to the refiling of the case, and this decision must
be reversed.
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Finally, defendants Dr. Hixson and Pediatric Surgical Group, and Dr. Hertz seek their costs
and expenses on appeal, arguing that this appeal, as it relates to them, is frivolous. After a review
of the record, we decline to find the appeal frivolous.
The decision of the trial court is affirmed in part and reversed in part, as set forth above.
Costs are taxed to the appellant, Christina K. Yeubanks, individually, and as natural parent and
surviving next of kin of Sarah Nicole Anderson, and her surety, for which execution may issue, if
necessary.
___________________________________
HOLLY KIRBY LILLARD, JUDGE
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