Brittany Nicole Vandyke v. Brooke E. Foulk, M.D.
E2016-00584-COA-R3-CV
| Tenn. Ct. App. | Sep 18, 2017Background
- Brittany VanDyke presented at ~24 weeks with twin premature labor; transferred to Johnson City Medical Center (JCMC) and prepped in the OR for anticipated complications. Baby A was delivered vaginally; Baby B was transverse and later became bradycardic.
- Dr. Foulk (attending) and residents Goodwin and Hobbs were present; Dr. Herrell (attending) was paged and arrived moments later. An attempted operative vaginal (forceps) delivery failed and a cesarean was performed ~5 minutes later. Baby B sustained a skull fracture and scalp avulsion, was transferred to NICU, and died hours later from hemorrhagic shock due to birth trauma.
- VanDyke sued JCMC, Medical Education Assistance Corporation/Physicians Group, and Drs. Foulk and Herrell for medical malpractice and wrongful death. At trial the jury returned a defense verdict. VanDyke appealed, challenging: (1) exclusion of brief resident testimony about recommending a C-section before forceps, and (2) the trial court’s sudden-emergency jury instruction.
- Trial court excluded residents’ deposition testimony under Tenn. Code Ann. § 29-26-115(b) as improper expert/standard-of-care testimony from unlicensed physicians; defendants also obtained a sudden-emergency jury instruction.
- Appellate court held the residents’ testimony was relevant to whether a cesarean had been considered but was hearsay as offered; exclusion was harmless because other evidence showed discussions and Foulk’s consideration of C-section. The court reversed, however, because the sudden-emergency instruction was improper where physicians had at least minimal time to reflect; that error probably affected the verdict — case remanded for new trial.
Issues
| Issue | VanDyke's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Denial of JCMC summary judgment (agency/vicarious liability) | JCMC held out services; written disclaimers didn’t provide meaningful notice | Patient signed forms disclaiming hospital employment of physicians | Not reviewed on appeal (trial on merits moots review) |
| Exclusion of residents’ deposition testimony about recommending C-section | Exclusion was error — testimony not offered to prove standard of care but to show contemporaneous discussion/res gestae | Testimony improperly sought to establish standard of care by unlicensed witnesses (statutory bar) | Testimony was relevant to decision process but constituted hearsay when offered for truth; exclusion was harmless because other evidence showed discussions and Foulk’s consideration of C-section |
| Sudden-emergency jury instruction | Instruction inappropriate because emergency was not both sudden and unexpected; defendants had time to reflect | Emergency was sudden and required immediate action; instruction appropriate | Instruction was erroneous: physicians had some time to reflect; giving it likely affected outcome -> reversible error; new trial ordered |
Key Cases Cited
- McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995) (explains sudden-emergency doctrine incorporated into comparative fault analysis)
- Olinger v. Univ. Med. Ctr., 269 S.W.3d 560 (Tenn. Ct. App. 2008) (limited application of sudden-emergency doctrine in medical malpractice)
- Tate v. County of Monroe, 578 S.W.2d 642 (Tenn. Ct. App. 1978) (denial of summary judgment based on genuine factual issues not reviewable after trial on merits)
- White v. Vanderbilt Univ., 21 S.W.3d 215 (Tenn. Ct. App. 1999) (standard of review for trial court evidentiary rulings)