                                                                                                              08/18/2020
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                         July 22, 2020 Session

    MICHAEL SURBER v. MOUNTAIN STATES HEALTH ALLIANCE d/b/a
                JOHNSON CITY MEDICAL CENTER

                   Appeal from the Circuit Court for Washington County
                        No. 33593     J. Eddie Lauderback, Judge


                                   No. E2019-01494-COA-R3-CV


This is a medical malpractice action1 in which the plaintiff filed suit against the hospital
for treatment he received following an eye injury, raising claims of direct and vicarious
liability. The case proceeded to a jury trial, at which the court granted a directed verdict
on the claim of direct liability at the close of the plaintiff’s proof. The plaintiff filed this
appeal, claiming the trial court erred in limiting his expert witness testimony. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which THOMAS R.
FRIERSON, II, J., joined. D. MICHAEL SWINEY, C.J., filed a separate concurring opinion.

Mark T. Hurt, Abingdon, Virginia, for the appellant, Michael Surber.

Frank H. Anderson, Johnson City, Tennessee, and Jimmie C. Miller and Sydney B.
Gilbert, Kingsport, Tennessee, for the appellee, Mountain States Health Alliance d/b/a
Johnson City Medical Center.




1
  Tennessee Code Annotated section 29-26-101 now defines most cases occurring in a medical context as
“health care liability actions.” Such an action “means any civil action . . . alleging that a health care
provider or providers have caused an injury related to the provision of, or failure to provide, health care
services to a person, regardless of the theory of liability, on which the action is based. . . .” Acts 2011, ch.
510, § 8. Effective April 23, 2012, the term “health care liability” replaced “medical malpractice” in the
Code. Acts 2012, ch. 798. The provisions of the revised statute do not apply to this action.
                                        OPINION

                             I.      BACKGROUND

       On November 4, 2006, Michael Surber (“Plaintiff”) was working on a motorcycle
while his father was welding in the same room. Although Plaintiff was wearing safety
glasses, he developed severe eye pain. He promptly visited Mountain States Health
Alliance d/b/a Johnson City Medical Center (“the Hospital”). Plaintiff relayed his
symptoms to the triage nurse, complaining of a possible foreign object in his eye, and the
nurse sent him to the “Fast Track” area of the Hospital.

       Plaintiff was seen by a physician’s assistant (“PA”), who, after reviewing his
symptoms and performing a variety of tests, diagnosed him with a corneal abrasion and
UV conjunctivitis, believing that he had a welder’s burn and a scratch on his eye.
Plaintiff was never examined by the supervising medical doctor and was ultimately
discharged, with pain medication and instruction to wear an eye patch for 24 hours. He
was further advised to return if his symptoms persisted when he removed the eye patch
upon the expiration of 24 hours.

        Plaintiff experienced pain when he removed the eye patch the next day, November
5. However, he did not return to the Hospital as instructed and did not seek any further
treatment until November 8, when he went to Northside Hospital. There, he was
examined by an emergency room physician. When his pain did not subside, Plaintiff
visited the Johnson City Eye Clinic. He was seen by Dr. Carlson, who ordered an
ultrasound of the eye. At that time, it was discovered that Plaintiff had a foreign object in
his eye. Dr. Carlson referred him to Dr. Gunn, a retina specialist, at Indian Path Medical
Center for further treatment. Dr. Gunn diagnosed him with a severe infection of the eye,
typically caused by a traumatic injury due to a foreign body. Plaintiff received an
injection of an anti-inflammatory agent in his eye and antibiotics for the infection.

       Plaintiff was then seen by another specialist on November 9, and he even received
surgery on November 13. However, the physician was unable to remove the foreign
object during surgery. As his vision worsened, he received treatment from a number of
physicians and also received a CT scan on November 26, which further revealed the
foreign body, measuring 7.9 millimeters in length and 1.7 millimeters in thickness.
Plaintiff finally underwent a second surgery that resulted in the loss of his eyeball on
November 29. He now wears a prosthetic eyeball.

       Plaintiff initially filed suit on October 30, 2007, against the Hospital and Nathaniel
J. Lee, M.D., the physician on staff at the Hospital on November 4, 2006. Dr. Lee was
later dismissed as a party, and Plaintiff moved for a voluntary dismissal shortly
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thereafter. The court granted the motion and entered a dismissal without prejudice on
September 9, 2013.

        Plaintiff then filed this action on September 9, 2014, naming the Hospital as the
sole defendant. His claims against the Hospital were based upon theories of vicarious
liability, for the alleged negligence of the PA, and of direct liability, for the Hospital’s
failure to enforce its own policy that every ER patient must be seen by a physician. As to
the direct liability claim, which is the claim at issue in this appeal, Plaintiff obtained the
expert testimony of Alan Markowitz, Ph.D. to address the standard of care and breach of
those elements. Plaintiff also arranged the expert testimony of John Thomas Edmonds,
M.D., an ophthalmologist, to address the causation element of the claim.

       Before the case proceeded to trial, the Hospital filed multiple motions in limine to
limit Dr. Markowitz’s testimony. Following oral arguments on the contested motions in
a pretrial conference, the court decided, in relevant part, that Dr. Markowitz was
prohibited from equating an internal hospital policy to the appropriate standard of care
and from testifying to the standard of care relative to a physician, PA, or nurse. The court
offered the following guidance in support of its ruling:

       The Court finds that a hospital administrator, such as [Dr. Markowitz], is
       permitted to testify as to the standard of care applicable to a hospital;
       however, at trial, [Dr. Markowitz] will be required to lay a proper
       foundation relative to the formation of his opinions. At trial, [Dr.
       Markowitz] is prohibited from testifying that an internal hospital policy,
       protocol, procedure, medical staff rule, regulation and/or medical staff
       bylaw equates to the standard of care. Similarly, [Dr. Markowitz] is
       prohibited from testifying that a federal or state rule, regulation or law
       equates to the standard of care. Prior to [Dr. Markowitz] testifying at trial,
       counsel for the parties will be permitted to voir dire him outside the
       presence of the jury for purposes of the Court determining whether [Dr.
       Markowitz] is qualified to testify to the standard of care applicable to [the
       Hospital]. Accordingly, the Court’s rulings on the Motions in Limine are
       granted in part, and reserved in part pending voir dire of [Dr. Markowitz] at
       trial as to whether he is qualified to testify as to the standard of care
       applicable to [the Hospital].

When the case proceeded to trial, Dr. Markowitz was called by Plaintiff and recognized
as an expert in the field of hospital administration and the standard of care relating to that
field. However, when Dr. Markowitz began to testify about the Hospital’s Rules and
Regulations requiring every ER patient to be seen by a physician, the Hospital objected.
The Hospital’s counsel requested that the matter be addressed outside the presence of the
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jury, and the trial court ruled that Dr. Markowitz’s testimony violated the pretrial order.
Specifically, the court reiterated that Dr. Markowitz was prohibited from testifying that a
hospital’s internal policies equated to the standard of care. After Dr. Markowitz provided
an offer of proof for the record, the trial court ruled the testimony inadmissible and
instructed the jury to disregard his testimony in its entirety.

       At the conclusion of Plaintiff’s proof, the Hospital moved for a directed verdict on
the direct liability claim. Plaintiff conceded that he was unable to prove his claim of
direct liability without Dr. Markowitz’s testimony. The court granted the motion and
dismissed the claim.2 This timely appeal followed the denial of post-trial motions.


                                           II.     ISSUES

        Plaintiff offers the following issues for this court’s review:

        A.    Did the circuit court err in excluding the opinions of the hospital
        administration expert on the defendant Hospital’s standard of care and
        breach of that standard?

        B.      Did the circuit court err in excluding the opinion of the hospital
        administration expert on the standard of care because of his testimony that
        the standard of care was commensurate with the Hospital’s internal policy
        that every ER patient must be seen by a physician?

        C.      When the Supreme Court has held that “[a] hospital can be negligent
        for failing to enforce its policies and procedures in patient care,” [Barkes v.
        River Park Hosp., Inc., 328 S.W.3d. 829, 835 (Tenn. 2010),] was it error
        for the circuit court to exclude the opinion of the hospital administration
        expert that the defendant Hospital breached its standard of care because he
        opined that the breach was the Hospital not following and enforcing its
        internal policy that every ER patient must be seen by a physician?

        D.     When the Supreme Court has observed that a direct liability claim
        against a hospital asserts negligence that is “in essence, managerial and
        administrative in nature,” Barkes, 328 S.W.3d at 835, did the circuit court
        err in excluding the opinion of the hospital administration expert as to the
        defendant Hospital’s standard of care, and whether the Hospital breached

2
  The case proceeded on the claim of vicarious liability. The case was submitted to the jury, which found
that the PA was not at fault, thereby requiring a verdict in favor of the Hospital.
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       its standard of care on the ground that the expert was not competent
       because he was not a medical doctor?

       E.     Did the circuit court err in issuing an order granting defendant
       Hospital’s motion in limine excluding any testimony of the hospital
       administration expert equating an internal policy of the Hospital with the
       applicable standard of care?

While stated variously by Plaintiff, we consolidate and restate the sole and determinative
issue on appeal as whether the trial court abused its discretion in limiting Dr.
Markowitz’s expert testimony.


                            III.   STANDARD OF REVIEW

       Rulings on admissibility of evidence are within a trial court’s discretion. White v.
Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn. Ct. App. 1999). “A trial court abuses its
discretion only when it ‘applie[s] an incorrect legal standard or reache[s] a decision
which is against logic or reasoning that cause [s] an injustice to the party complaining.’”
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999)). We review the decision of the trial court to determine:

       (1) whether the factual basis for the decision is supported by the evidence,
       (2) whether the trial court identified and applied the applicable legal
       principle, and (3) whether the trial court’s decision is within the range of
       acceptable alternatives.

White, 21 S.W.3d at 223. Improper admission or exclusion of evidence requires a new
trial if the outcome of the trial was affected. Tenn. R. App. P. 36(b); White, 21 S.W.3d at
222.


                                   IV.     DISCUSSION

        “To obtain a favorable verdict from the jury, [Plaintiff] was required to show at
trial that [the Hospital] failed to exercise that degree of care, skill, and diligence used by
hospitals generally in the hospital’s community and that its failure was the cause in fact
and a proximate cause of [Plaintiff’s injury].” Barkes v. River Park Hosp., Inc., 328
S.W.3d 829, 834 (Tenn. 2010) (internal citations and quotations omitted). Plaintiff relies
heavily on the Supreme Court’s opinion in Barkes, where the Court upheld a jury’s
verdict against a hospital for direct liability based upon the hospital’s failure to follow its
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own policies and procedures. Id. at 834. The facts of the case in Barkes are eerily
similar to the facts presented here. In Barkes, the patient sought medical treatment after
working outside with an ax and other hand tools to clear his yard. Id. at 831. He stopped
working when he noticed that his left arm was hurting. Id. Unable to ease his pain, he
and his wife visited the emergency room, where he was treated by a PA. Id. The PA did
not deem a full cardiac workup necessary given the symptoms present. Id. She conferred
with the physician on duty, who agreed with the diagnosis and treatment plan given the
information presented. Id. The patient was discharged with instruction to ice his arm and
take pain relievers. Id. He was never seen by a physician. Id. Less than two hours later,
he collapsed at home and was found unconscious. Id. He returned to the hospital via
ambulance, but the attempts to resuscitate him were unsuccessful. Id. His widow filed
suit against the hospital based upon a theory of direct liability. Id. In support of her
claim, she alleged as follows:

      [H]ad Mr. Barkes been triaged by a registered nurse instead of a paramedic,
      and had he been seen and examined by a physician instead of a nurse
      practitioner, the appropriate inquiries would have been made and the
      potential warning signs of a heart attack would have been observed. Mrs.
      Barkes also argued that had a physician examined her husband, the
      physician would have observed that Mr. Barkes had many potential risk
      factors for a heart attack, including being a heavy smoker, being obese with
      high cholesterol levels and having a family history of heart disease.

Id. Notably, Dr. Markowitz was an expert witness in the case.

       In upholding the jury’s verdict, the Court first acknowledged that “Tennessee law
clearly recognizes that hospitals owe a duty of reasonable care to their patients and may
be directly liable to patients independent of any liability based on the hospital’s
employees or agents.” Id. at 833. The Court then found the following material evidence
sufficient to support the jury’s verdict:

             River Park’s policy in effect at the time of Mr. Barkes’ treatment
      stated, “Any patient arriving at the Emergency Department will be seen by
      the emergency department nurse; triaged; and then seen by the appropriate
      physician.” It also stated, “All patients presenting for treatment in the
      emergency room are assessed by an emergency physician.”

            Alan Markowitz, PhD., an expert witness regarding hospital
      administration, testified that the standard of care at the time of Mr. Barkes’
      treatment for hospitals similarly situated to River Park was for a registered

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      nurse to triage the patient and a physician to “lay hands” on the patient,
      which is commensurate with River Park’s policy.

            Nurse Practitioner Kinkade, the medical provider who treated Mr.
      Barkes, testified that she was not aware of River Park’s policy requiring
      every patient presenting in the emergency department to be seen by a
      physician.

           Dr. Rosa Stone, who was working in River Park’s emergency
      department at the time of Mr. Barkes’ treatment, also testified that she was
      not aware of River Park’s policy requiring that any patient be seen by the
      appropriate physician.

             Dr. Stone testified that, when being consulted by Nurse Practitioner
      Kinkade about Ms. Kinkade’s decision to discharge Mr. Barkes, she asked
      Ms. Kinkade whether Mr. Barkes exhibited any signs of myocardial
      infarction, specifically whether he had prior cardiac history, shortness of
      breath, any other pain, and chest pain, to exclude cardiac related illness.

            Dr. Stone testified that she “would have reevaluated him” had she
      known that Mr. Barkes had a family history of cardiac problems, had high
      cholesterol, was pale, was sweating, was nauseous, was overweight, and
      was a smoker, all of which is information that a physician might elicit when
      evaluating a patient.

            Dr. Morton J. Kern, an expert witness, testified that the “treatment of
      Mr. Barkes was below the standard of care for emergency rooms looking at
      patients of this same presentation,” and that had the appropriate standard of
      care been applied, “Such treatment, I believe, would have saved his life.”

(Emphasis added.).

       Here, Plaintiff relied solely upon Dr. Markowitz to establish the standard of care
and the breach of such standard in support of his direct liability claim. Plaintiff asserts
that he sought to elicit the same testimony met with approval by the Court in Barkes. We
disagree. The plaintiff in Barkes offered such testimony through several witnesses,
including a qualified medical expert. In Barkes, the Court noted as follows:

      At trial, Mrs. Barkes presented the expert testimony of [(1) Dr. Markowitz],
      [(2)] a board-certified emergency medicine physician, and [(3)] a
      cardiologist, all of whom testified that the treatment of Mr. Barkes in River
                                           -7-
       Park’s emergency room fell below the applicable standard of reasonable
       care for a hospital under the circumstances. These experts agreed that the
       failure of River Park to follow its own written policy requiring that a
       physician see and examine every patient who presented at the emergency
       room was evidence of [its] breach of its duty to provide reasonable care.

The testimony offered by Drs. Stone and Kern was also of specific importance, namely
that the care provided was below the specific standard of care for emergency rooms
looking at patients “with the same presentation” and that further information would have
been gathered if the patient had been seen by a physician rather than a PA. Similar
testimony was not elicited in this case.

        Further, any error in limiting Dr. Markowitz’s testimony was harmless when
Plaintiff failed to offer an expert in the medical field to establish that he would not have
lost his eyesight had he been examined by a medical doctor at the Hospital. Plaintiff
asserts that Dr. Edmonds would have testified concerning the causation element for the
direct liability claim had Dr. Markowitz’s testimony not been stricken by the trial court.
He submitted an offer of proof for the court’s consideration, notably after Dr. Edmonds
was no longer available for cross-examination. The Hospital asserts that such offer
should not be considered by this court because Plaintiff did not disclose the offered
testimony. A review of the record confirms this fact.

        In the pre-trial disclosures, Plaintiff submitted that Dr. Edmonds expected to
testify, inter alia, that “had a physician seen and properly evaluated [Plaintiff] during his
emergency room visit, a delay in the necessary treatment would have been avoided and
[Plaintiff] would not have suffered the complete loss of vision to his right eye.” At trial,
Plaintiff sought to establish that a violation of the Hospital’s rules and regulations
amounted to a breach in the standard of care and was the proximate cause of Plaintiff’s
injury. The evidence simply does not support this assertion when Plaintiff failed to offer
any expert to establish that a physician, rather than a PA, would have diagnosed Plaintiff
differently based solely upon his or her status as a physician. The late-filed affidavit
submitted as an offer of proof also does not espouse this opinion. Instead, Dr. Edmonds
attests as follows:

       Based on my review of [the applicable medical history], and my
       professional education, training and experience, and assuming that the
       opinions expressed in the affidavit of Hobson Bryant, PA are correct, I have
       concluded, within a reasonable degree of medical certainty, that as a
       proximate result of the negligent acts and omissions of [the PA] as opined
       by Mr. Bryant in his affidavit, including [the PA’s] failure to do any
       radiographical diagnostic testing on [Plaintiff] or refer him immediately to
                                            -8-
       an ophthalmologist, [Plaintiff] suffered injuries which would not have
       otherwise occurred, namely the complete loss of vision and loss of
       [Plaintiff’s] right eye. To wit, [the PA’s] negligence resulted in a delay in
       the detection and treatment of [Plaintiff’s] penetrating eye injury by a
       metallic foreign object, which delay resulted in the permanent total loss of
       vision in that eye and ultimately the loss of that eye.

Likewise, PA Bryant concluded that the PA in this case acted with less than ordinary and
reasonable care and breached the applicable standard of care by failing either to order
diagnostic testing or to refer Plaintiff to an ophthalmologist. Neither witness attested that
the Hospital’s failure to ensure examination by a physician was the cause of Plaintiff’s
total loss of vision. With the above considerations in mind, we affirm the court’s limiting
of Dr. Markowitz’s testimony and its grant of directed verdict in light of such limitation.


                                  V.     CONCLUSION

       The judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are taxed to the appellant,
Michael Surber.


                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE




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