                                                                                          08/01/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 June 27, 2017 Session

                ISIAH HOPPS, JR. v. JACQUELYN F. STINNES

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-002303-14     Robert L. Childers, Judge


                            No. W2016-01982-COA-R3-CV


This is a health care liability action in which a patient alleged that an emergency room
nurse practitioner violated the applicable standard of care in her treatment of him by
failing to order proper tests and failing to perform a proper examination. The case was
tried before a jury for three days. At the close of proof, the trial court granted a partial
directed verdict in favor of the Appellee, dismissing Appellant’s claims that Appellee
breached the standard of care by not ordering a CT scan. The court also refused to allow
the jury to consider whether Appellant’s vision loss was due to Appellee’s negligence.
The jury returned a verdict in favor of Appellee. We affirm.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J., joined.

Bill M. Wade, Memphis, Tennessee, for the appellant, Isiah Hopps, Jr.

William H. Haltom, Jr., and Laura Lampton Deakins, Memphis, Tennessee, for the
appellee, Jacquelyn F. Stinnes.

                                        OPINION

                          I. FACTS & PROCEDURAL HISTORY

       An object propelled by a weed eater struck Appellant Isiah Hopps, Jr. (“Mr.
Hopps”) in his left eye on August 13, 2013, and he therefore visited the emergency
department of Methodist Healthcare’s North Campus that same day. Appellee Jacquelyn
F. Stinnes (“Nurse Stinnes”) is a certified nurse practitioner who treated Mr. Hopps at the
emergency department for his eye injury. In doing so, Nurse Stinnes obtained a history
from Mr. Hopps regarding the circumstances that brought him to the emergency room
and examined his eye with an ophthalmoscope and a Wood’s lamp.1 She made a
diagnosis of a superficial abrasion of the cornea and conjunctivitis, prescribed him
antibiotic eye drops and a pain reliever, and gave Mr. Hopps discharge instructions to
return to the emergency room if his condition worsened and to follow up with his doctor
within two days.

       Four days later, on August 17, 2013, Mr. Hopps presented to the Regional Medical
Center at Memphis (the “Med”) complaining of pain, vision loss, and his left eye
protruding from the eye socket. Mr. Hopps was admitted to the Med that day. At the
Med, several CT scans were taken of Mr. Hopps’ head and face, which revealed that he
had “[l]eft preseptal and intra orbital cellulitis with retrobulbar abscess and proptosis.”
He was diagnosed with panophthalmitis and placed on broad-spectrum antibiotics. Mr.
Hopps was discharged from the Med on August 27, 2013, and he eventually lost his left
eye due to infection.

        On May 23, 2014, Mr. Hopps filed a health care liability suit against Nurse
Stinnes, T.M. Carr, M.D., P.C., and Methodist Health Care – Memphis Hospitals.2 In his
complaint, Mr. Hopps alleged that Nurse Stinnes violated the applicable standard of care
in her treatment of him on August 13, 2013 by failing to order the proper tests and for
failing to perform proper examinations. According to Mr. Hopps, Nurse Stinnes’ breach
of the standard of care resulted in his loss of vision in his left eye as well as other
damages. In her answer, Nurse Stinnes admitted that she “had a duty to provide
professional services to [Mr. Hopps] in accordance with the applicable standard of care”
when she treated him for his eye injury, but she also “affirmatively state[d] that she did in
fact meet [that] standard.” Nurse Stinnes subsequently amended her answer to allege the
comparative fault of Mr. Hopps due to his alleged failure to exercise reasonable care for
his own health and well-being. According to Nurse Stinnes, Mr. Hopps’ nonobservance
of her discharge instructions, including his failure to see a doctor within two days and/or
return to the emergency room if his condition worsened after discharge, caused delay in
his treatment that caused or contributed to his alleged injuries.


1
  A Wood’s lamp is an ultraviolent light that can be used to detect abrasions on the eye. Before using the
lamp, Nurse Stinnes applied a fluorescein stain to the eye. Once the Wood’s lamp is used to view an eye
with this stain, any injuries or tears in the eye are illuminated indicating any problem area.
2
  On September 3, 2014, T.M. Carr, P.C. filed a motion to dismiss based on the contention that Nurse
Stinnes was not and had never had been its employee. On October 31, 2014, an order of voluntary
nonsuit was entered dismissing T.M. Carr, P.C. on that basis. The trial court also dismissed Mr. Hopps’
claims against Methodist Healthcare – Memphis Hospitals on September 18, 2015, holding that Mr.
Hopps had not “submitted any expert proof that the Methodist nursing staff deviated from the standard of
care.” Therefore, the only defendant subject to this appeal is Nurse Stinnes.

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        The matter was heard by a jury over three days in April 2016. Mr. Hopps
presented the testimony of Dr. William E. Hauda II and Dr. Shree Kurup as expert
witnesses pursuant to Tennessee Code Annotated section 29-26-115. Dr. Hauda testified
as to the standard of care applicable in this case and that Nurse Stinnes’ treatment of Mr.
Hopps did not meet the required standard of care. Dr. Kurup testified regarding the
causal link between Nurse Stinnes’ alleged deviation from the standard of care and Mr.
Hopps’ injuries. In pertinent part, Dr. Hauda opined that the proper standard of care
applicable to Nurse Stinnes’ treatment of Mr. Hopps on August 13, 2013 would have
required Nurse Stinnes to refer Mr. Hopps “emergently to an ophthalmologist the day he
was seen, or urgently for follow-up the following day for these assessments.” Dr. Kurup
testified that Mr. Hopps might have been able to save some of his vision and his eye if he
had seen an ophthalmologist earlier.

       Nurse Stinnes presented the testimony of competing expert witnesses, including
Dr. Loren Crown. Dr. Crown testified that Nurse Stinnes fully complied with the
standard of care in her treatment of Mr. Hopps, including taking his history, examining
his eye with the Wood’s lamp, diagnosing, prescribing treatment, and providing
discharge instructions to Mr. Hopps. Dr. Crown also lamented that Mr. Hopps did not
properly follow Nurse Stinnes’ discharge instructions that ordered him to follow up with
his doctor within two days and return to the emergency room if his condition worsened.
According to Dr. Crown, the complications that Mr. Hopps suffered from his eye injury
did not mean that Nurse Stinnes deviated from the standard of care. Dr. Crown testified
that “[t]he standard of care was met, and the outcome was not affected . . . by a
deficiency in the standard of care.”

        At the close of proof, Nurse Stinnes moved for a directed verdict on the entire case
or, in the alternative, a partial directed verdict on (1) whether Mr. Hopps lost his vision in
his left eye due to the alleged negligence of Nurse Stinnes, and (2) whether Nurse Stinnes
violated the standard of care by failing to order a CT scan. After hearing arguments from
counsel and reviewing notes from trial testimony, the trial court determined that “a
directed verdict was appropriate on [Mr. Hopps’] claim for loss of vision, and on [Mr.
Hopps’] claim that [Nurse Stinnes] violated the standard of care by failing to order a CT
scan” due to insufficient proof on the issues. The remainder of the case was submitted to
the jury for deliberation. The jury returned a verdict in favor of Nurse Stinnes.

       Mr. Hopps filed a motion for a new trial on May 25, 2016, alleging essentially the
same three errors he now presents to this Court on appeal: (1) “The jury should have been
allowed to decide whether the standard of care required a CT scan;” (2) “Plaintiff’s jury
verdict form should have been accepted;” and (3) “The jury should have been allowed to
consider the likelihood that Mr. Hopps would have retained some degree of vision in his
eye but for [Nurse Stinnes’] negligence.” On August 25, 2016, the trial court entered an
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order denying Mr. Hopps’ motion for a new trial and approving the jury verdict rendered
on behalf of Nurse Stinnes in its capacity as the 13th juror.

                                     II.     ISSUES PRESENTED

       Appellant presents the following issues, as slightly reworded, for review on
appeal:3

            1. Whether the trial court erred by refusing to let the jury determine
               whether the standard of care required Nurse Stinnes to order a CT
               scan?

            2. Whether the trial court erred by refusing to let the jury consider Mr.
               Hopps’ degree of vision loss?

                                  III.      STANDARD OF REVIEW

        When presented with a motion for a directed verdict, a “trial court [must]
determine whether, as a matter of law, the evidence is sufficient to create an issue for the
jury to decide.” White v. Vanderbilt Univ., 21 S.W.3d 215, 231 (Tenn. Ct. App. 1999)
(citing Underwood v. Waterslides of Mid-America, Inc., 823 S.W.2d 171, 176 (Tenn. Ct.
App. 1991)). “Directed verdicts are proper only when reasonable minds, after
considering the evidence, could reach only one conclusion.” Id. Because a trial court’s
determination of whether to grant or deny a motion for a directed verdict is a question of
law, we review the decision on appeal de novo with no presumption of correctness.
Thomas Energy Corp. v. Caterpillar Fin. Servs. Corp., No. E-2014-00226-COA-R3-CV,
2014 WL 7366676 at *8 (Tenn. Ct. App. Dec. 26, 2014) (citing Blackburn v. Blackburn,
270 S.W.3d 42, 47 (Tenn. 2008)). However, appellate courts do not re-weigh the
evidence or make credibility determinations with regard to witnesses, but rather we view
the evidence in the light most favorable to the party against whom the motion is made.
White, 21 S.W.3d at 231.

                                           IV.   DISCUSSION

A. CT Scan

      Mr. Hopps asserts that the trial court erred in precluding the jury from considering
whether Nurse Stinnes’ failure to order a CT scan when she treated him for his eye injury

3
 Mr. Hopps’ appellate brief included an additional issue for appeal: “Did the trial court err in rejecting
Mr. Hopps’ proposed jury verdict form?” Mr. Hopps, by and through counsel, notified this Court at oral
argument that he was voluntarily withdrawing that issue from this Court’s consideration.
                                                    4
was a deviation from the standard of care. In order to prevail on his claim of health care
liability against Nurse Stinnes, Mr. Hopps was required to present expert proof
establishing the applicable standard of care, and that Nurse Stinnes’ conduct deviated
from that standard of care. Tenn. Code Ann. § 29-26-115(a). In granting Nurse Stinnes’
motion for directed verdict, the trial court held that there had been no expert proof that
Nurse Stinnes deviated from the standard of care by failing to order a CT scan in order to
allow that issue to go before the jury.

       The record on appeal indicates that no expert witness in this case ever testified that
the standard of care required Nurse Stinnes to order a CT scan for Mr. Hopps.
Nevertheless, Mr. Hopps argues that there was in fact expert testimony that a CT scan
would have been appropriate when Mr. Hopps was treated by Nurse Stinnes by
combining the expert testimony of one of his experts with the testimony of one of Nurse
Stinnes’ experts. The crux of Mr. Hopps’ argument is that his expert, Dr. Kurup, testified
that the projectile from the weed eater that hit Mr. Hopps in the eye was a “high velocity
missile.” Dr. Kurup, however, was not an expert on the standard of care. Mr. Hopps
then attempts to bootstrap the later testimony of Nurse Stinnes’ expert, Dr. Crown, who
disagreed with Dr. Kurup on the nature of the impact that the projectile had on Mr.
Hopps’ eye, stating that an injury from a weed eater is a low velocity impact injury. Dr.
Crown was also asked whether a “high-velocity impact to the eye [would] have
warranted a CT scan,” to which Dr. Crown replied “yes.” According to Mr. Hopps, the
combination of Dr. Kurup’s assertion that the injury was due to a high velocity missile
and Dr. Crown’s testimony that a high impact injury would have required a CT scan is
sufficient to satisfy the requirements of Tennessee Code Annotated § 29-26-115(a).

       However, when faced with this same argument by Mr. Hopps at the hearing on
Nurse Stinnes’ motion for directed verdict, the trial court considered the entire context of
Dr. Crown’s testimony rather than simply parsing out the reply to the aforementioned
question as Mr. Hopps has suggested. After doing so, the court held, and we agree, that
there was no proof that the standard of care required Nurse Stinnes to order a CT scan.
To illustrate this point, we have included the following additional portions of Dr.
Crown’s testimony:

       Q:     You consider a weed eater to be a low velocity, low impact injury,
              correct?

       A:     That is correct.

              ....

       Q:     Would a high-velocity impact to the eye have warranted a CT scan?
                                             5
      A:     Yes

             ....

      Q:     In the circumstances of this case, would the standard of care of a
             nurse practitioner require a CT scan?

      A:     No, and I want to point out that is substantiated by the fact that when
             they did a CT scan, nothing was found.

             ....

      Q.     I need to know if the standard of care requires a CT scan in this
             situation.

      A.     No, certainly not.

             ....

      Q.     If you saw this patient on August 13, would you have ordered a CT
             scan?

      A.     No, I wouldn’t.

      Q.     Would the standard of care require that?

      A.     No.

        After reviewing the record in the light most favorable to Mr. Hopps, we agree with
the trial court that there was no expert testimony by anyone that the standard of care
required a CT scan sufficient to create a question of fact for the jury to decide. We
therefore affirm the trial court’s directed verdict on that issue.

B. Degree of Vision Loss

       Because we hold that the trial court did not err in finding that there was no expert
proof that the standard of care required a CT scan, and the jury found that Nurse Stinnes
did not otherwise breach the standard of care, Mr. Hopps’ allegation of error with regard
to the trial court’s refusal to allow the jury to consider his degree of vision loss is
pretermitted. We therefore decline to consider the substance of Mr. Hopps’ arguments
                                            6
relative to his vision loss.

                                   IV. CONCLUSION

      For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the appellant, Isiah Hopps, Jr., and his surety, for which execution
may issue if necessary.



                                               _________________________________
                                               BRANDON O. GIBSON, JUDGE




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