                                                                                            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




D. MICHAEL SWINEY, C.J., concurring.

        I concur in the decision to affirm the judgment of the Circuit Court for Washington
County. I write separately to explain what I think is an additional crucial difference in this
case from Barkes v. River Park Hosp., Inc., 328 S.W.3d 829 (Tenn. 2010). In addition to
what is stated in this Court’s Opinion, I believe what distinguishes this case from Barkes
is the respective plaintiff’s proof as to the defendant hospital’s duty of reasonable care to
its patients and the applicable standard of care relative to that hospital’s duty.

       As noted in the opinion, Dr. Markowitz was one of the plaintiff’s experts both in
Barkes and in this case. I, however, find his proposed testimony in this case to differ in a
significant way from that presented in Barkes. In Barkes, our Supreme Court clearly
recognized 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.” Barkes, 328 S.W.3d at 833.

        In Barkes, the Supreme Court stated that Dr. Markowitz, “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 nurse
to triage the patient and a physician to ‘lay hands’ on the patient, which is commensurate
with River Park’s policy.” Id. at 833 (footnote omitted). What our Supreme Court did not
hold in Barkes was that the hospital’s policy established the acceptable standard of care for
the hospital. The Supreme Court stated that “[w]e held that a hospital has a duty to its
patients to exercise that degree of care, skill, and diligence used by hospitals generally in
its community.” Id. at 835. Additionally, “Mrs. Barkes 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, Thompson, 367 S.W.2d at 138 (quoting 41 C.J.S.
Hospitals § 8), and that its failure was the cause in fact and a proximate cause of the
patient’s death.” Id. at 834. The Supreme Court stated further that “a hospital can be
negligent for failing to enforce its policies and procedures in patient care absent a finding
that other health care providers were also negligent.” Id. at 835. Our Supreme Court did
not hold that the hospital’s policies and procedures established the acceptable standard of
care but stated, in effect, that the hospital’s policies may well be commensurate with the
standard of care at the time of a plaintiff’s treatment.

        In the case now before us, I can find no evidence presented to the Trial Court,
including Dr. Markowitz’s offer of proof, as to what was the acceptable standard of “care,
skill, and diligence used by hospitals generally in its community.” Id. at 835. I think that
a fair reading of Dr. Markowitz’s testimony as presented to the Trial Court was not that the
defendant hospital’s policies and procedures were consistent with and accurately stated the
acceptable standard of care of hospitals in the same or similar communities, but that those
policies and procedures established the acceptable standard of care. I do not believe that
to be the holding of Barkes. To hold otherwise would mean that a hospital, by adopting
very minimal policies and procedures, could establish its own acceptable standard of care
which could be below the acceptable standard of care for hospitals in the same or similar
communities. The acceptable standard of care for hospitals in the same or similar
community might well require more or less than is required by a specific hospital’s policies
and procedures.

       In short, I agree with the decision to affirm the Trial Court because, in addition to
the reasons stated in this Court’s Opinion, there was no proof presented, even in the offer
of proof, as to what the acceptable standard of care was for the defendant hospital. A fair
reading of the evidence on this issue presented to the Trial Court by the plaintiff was not
that the defendant hospital’s policies and procedures were commensurate with the
acceptable standard of care but that they, in fact, established it. Given the Trial Court’s
discretion as to ruling on the admissibility of evidence as correctly noted in our Opinion, I
find no reversible error as to the Trial Court’s decision on this issue. I concur in the
decision to affirm the decision of the Trial Court.



                                          ____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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