EMAIL TO A FRIEND COMMENT

 

Life Care Planner and Standard of Care Expert Excluded; Discovery Violations


An orthopedic surgeon examined a man reporting left knee pain with movement. The orthopedic surgeon referred the man to a nurse practitioner in the neurology clinic. The man was first seen by the nurse practitioner at the neurology clinic about two weeks later. Over the course of several more months, the man attended additional appointments with the nurse practitioner about eight months after his first appointment. Later, the nurse practitioner referred the man to a neurologist.

 

About a month after he was evaluated by the orthopedic surgeon he was seen by another orthopedic surgeon for complaints of neck and right arm pain. The second orthopedic surgeon took an x-ray of the man’s head and neck and recommended that an MRI of his entire spine be performed. Because the second orthopedic surgeon did not accept the man’s insurance, the second orthopedic surgeon recommended that the man follow up with the first orthopedic surgeon.

 

The neurologist saw the man for complaints of left knee pain; constant burning into the left calf, foot, and knee; right hand spasms; shoulder pain; and a reduced ability to walk. The neurologist ordered an MRI of the neck. Based upon the MRI, the man was diagnosed with severe cervical stenosis with myelopathy.

 

The man returned to the second orthopedic surgeon for surgery. Specifically the man underwent an anterior cervical discectomy and cervical fusion at C3–4, C4–5, and C5–6. The second orthopedic surgeon performed a second decompression surgery about two months later.

 

The man and his wife sued the hospital, the first orthopedic surgeon, the nurse practitioner, and the neurologist. The complaint alleged that the first orthopedic surgeon, nurse practitioner, and neurologist were negligent and deviated from the medically recognized standard of care in their field of medicine and failed to properly diagnose and treat the man. The complaint also asserted that the hospital was vicariously liable based on the claims made against the first orthopedic surgeon.

 

During discovery the couple disclosed the names of four experts. The disclosure stated that one of the experts would be called the life care plan expert and that the couple would furnish a copy of the life care plan when it was completed. The couple failed to provide the defendants with a date by which they would provide supplemental disclosures.

 

The hospital, first orthopedic surgeon, nurse practitioner, and neurologist filed a motion to strike the couples’ designation of experts. The motion argued that the couple failed to comply with the rule because they did not provide the substance of the facts and opinions to which the experts were expected to testify or a summary of the grounds for each opinion. At a hearing on the motion, the Circuit Court for Davidson County granted the couple one month to serve full and complete supplemental disclosures. Within that month the couple served supplemental disclosures.

 

In the supplemental disclosures the couple changed their life care planning expert and submitted a life care plan prepared by that expert. The trial court determined that the couples’ disclosure of the new life care expert was not timely in that they did not seek leave of court and were not given leave of court to substitute this expert for the previous life care expert. Therefore, the court struck the life care expert as an expert witness and struck the life care plan the expert prepared. The trial court prohibited the couple from offering into evidence at trial any life care plan and any life care planning testimony. The trial court ruled that one of the couple’s expert’s testimony would be limited to his role as a treating physician.

 

The deposition of the couple’s standard of care expert was canceled by the couples counsel due to a scheduling conflict. When the deposition finally took place the standard of care expert did not bring his case file or any of the other requested documents to the deposition. Eventually, the hospital, first orthopedic surgeon, nurse practitioner, and neurologist filed a motion to strike the couples’ standard of care expert. The trial court precluded the couple’s standard of care expert from testifying at all due to their repeated failure to comply with the court’s orders regarding discovery.

 

The trial court granted summary judgment in favor of the hospital, first orthopedic surgeon, nurse practitioner, and neurologist.

 

The Court of Appeals of Tennessee, at Nashville, affirmed. The court held that the trial court did not abuse its discretion with respect to the exclusion of the couple’s life care planner due to their failure to provide a complete disclosure of the life care planner’s opinions in a timely manner and the preclusion of the couple’s standard of care expert from testifying at all due to their repeated failure to comply with the trial court’s orders regarding discovery.

 

The trial court did not abuse its discretion with respect to the exclusion of the couple’s life care planner due to their failure to provide a complete disclosure of the life care planner’s opinions in a timely manner. The information requested by the defendants was consistent with Tennessee’s Rules of Civil Procedure. The trial court gave the couple several extensions of time to provide the requested information and to comply with orders. The rules authorize a trial court to impose penalties for violation of pretrial procedures. The trial court excluded the second life care planner and her life care plan because her disclosure as an expert was not timely and the couple had not sought leave of court to add her as an expert. The trial court excluded the first life care planner as an expert because the couple failed to submit a full and complete supplemental disclosure and were therefore in violation of the trial court’s orders. The court held that the trial court did not abuse its discretion because it had identified the factual basis for its decision in its order and acted within its authority under the rules.

 

The trial court did not abuse its discretion with respect to the preclusion of the couple’s standard of care expert from testifying at all due to the repeated failure to comply with the trial court’s orders regarding discovery documents. The couple’s standard of care expert failed to bring the documents requested in the notice of deposition to the deposition. Even after the deposition, when the trial court gave the couple time to provide the documents requested in the notice of deposition, the couple did not produce any additional documents. The Tennessee Rules of Civil Procedure authorize trial judges to take appropriate corrective action against the party for discovery abuse including an order precluding an expert from testifying. The court held that the trial court did not abuse its discretion in excluding the standard of care expert because the trial court had a factual and legal basis for its sanctions and the trial court found that the defendants had been prejudiced by being unable to conduct an adequate and thorough deposition.

 

The Court of Appeals of Tennessee, at Nashville, affirmed the trial court’s grant of summary judgment in favor of the hospital, first orthopedic surgeon, nurse practitioner, and neurologist.

 

See: Mikheil v. Nashville General Hospital at Meharry, 2016 WL 373726 (Tenn.Ct.App., January 29, 2016) (not designated for publication).  

 

 

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