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Expert Testimony Against Co-Defendant in Health Care Liability Case

October 20, 2021

Expert Testimony Against Co-Defendant in Health Care Liability Case


Brittany Borngne Ex Rel. Miyona Hyter v. Chattanooga-Hamilton County Hospital Authority Et Al.

Facts:   Plaintiff filed a Health Care Liability Act claim against various defendants generally alleging Nurse was negligent in calling Doctor too late after failing to timely recognize a serious medical issue. During Doctor’s deposition, he declined to answer questions about Nurse’s care during times Doctor was not present and had no involvement in Plaintiff’s care. The Trial Court declined to order Doctor “call for an opinion by [Doctor] that asks him to comment on the actions of other healthcare providers and does not involve his own actions.” The jury ruled against the Plaintiff, who appealed.

Appellate Decision:   In a 2-1 decision, the intermediate court held the Trial Court erred by refusing to order Doctor to answer the questions in his deposition, and remanded for a new trial. The majority acknowledged the normal rule that a party defendant may not be compelled to answer questions about the treatment provided by other independent medical professionals. See Lewis v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001). However, the majority found an exception here where Nurse “was not simply another healthcare provider” in relation to Doctor but was “in a subordinate role.” The majority wrote it could be “absurd and unjust” if no one with the healthcare practice could be “compelled to testify as to whether [Nurse] complied with the acceptable standard of care.”

Judge Davis dissented, writing that the exception to the general rule cited by the majority is not supported by any authority, and should not be created here: “The issue is not the relationship between the parties or whether the evidence is relevant. The issue is whether an expert can be compelled to testify regarding whether another practitioner complied with the standard of care, an issue that was properly resolved in Lewis and Burchfield.”

Review Granted:   October 13, 2021.

Prediction:   Ben thinks the Supreme Court will rule in favor of the defendants for the reasons recognized by Judge Davis’s dissent. There is no reason why a supervisor could not testify to factual matters such as policy and procedure, but Ben does not see a compelling reason to require a defendant supervisor to offer opinion testimony about whether a subordinate co-defendant followed the standard of care.