In an opinion released today, a majority of the Tennessee Supreme Court held that the trial court in a healthcare liability action appropriately declined to require a defendant physician to opine on the defendant nurse-midwife’s performance outside of the physician’s presence.
In 2014, a child was born via cesarean section and suffered permanent brain damage and other severely debilitating injuries. Through her mother Brittany Borngne, the child sued, among other defendants, the doctor who delivered her, Dr. Michael Seeber, and the certified nurse midwife, Jennifer Mercer, who was initially in charge of the birthing process. The trial court dismissed all claims of direct negligence against Dr. Seeber but allowed the plaintiff to proceed against him on a vicarious liability theory as Nurse Mercer’s supervising physician. During Dr. Seeber’s pre-trial deposition, he refused to opine on Nurse Mercer’s performance outside of his presence, and the trial court declined to require him to do so. The jury found in favor of the defendants.
The Court of Appeals, in a divided opinion, partially reversed the trial court. It concluded that the trial court committed reversible error in declining to order Dr. Seeber to answer certain questions at issue in his deposition concerning Nurse Mercer’s compliance with the standard of care. Judge Kristi M. Davis filed a separate opinion concurring in part but dissenting as to the compulsion of Dr. Seeber’s deposition testimony.
Upon review, the Supreme Court also issued a divided opinion. The majority opinion, which was authored by Chief Justice Roger A. Page and joined by Justices Sharon G. Lee and Jeffrey S. Bivins, held that a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard. The majority, therefore, concluded that the trial court properly declined to compel Dr. Seeber’s testimony and reversed the decision of the Court of Appeals.
Justice Sarah K. Campbell filed a separate opinion concurring in the judgment, in which she expressed her disagreement with the majority opinion’s adoption of an evidentiary privilege for expert witnesses. Although in her view the trial court erroneously failed to compel certain deposition testimony by Dr. Seeber, Justice Campbell determined that the error was harmless and did not warrant reversal of the judgment or a new trial. Justice Holly Kirby joined in Justice Campbell’s separate opinion but also filed a separate opinion concurring only in the majority opinion’s result. Justice Kirby expressed additional concerns with the majority’s reasoning and consequences of the majority’s holding. Finally, Justice Lee authored a separate concurring opinion responding to the reasoning employed in Justice Campbell’s separate opinion.
To read the majority opinion in Brittany Borngne ex rel. Miyona Hyter v. Chattanooga-Hamilton County Hospital Authority et al. and the three separate opinions, visit the opinions section of TNCourts.gov.