Day on Torts

Bifurcation of standard of care and causation issues in HCLA case affirmed.

Where a trial judge bifurcated an HCLA trial, addressing only the standard of care and whether defendants deviated from said standard in the first phase, and analyzing causation in the second phase if needed, the Court of Appeals affirmed the decision to bifurcate.

In Jernigan v. Paasche, No. M2020-00673-COA-R3-CV (Tenn. Ct. App. June 21, 2021), plaintiff filed a health care liability and wrongful death suit after the death of his wife. The wife had presented at an emergency room with severe abdominal pain and nausea and been examined by defendant Dr. Paasche. Dr. Paashe ordered a CT scan, which “revealed that Decedent suffered from a large paraesophageal hernia.” Dr. Paashe discharged the wife with a prescription and advice to follow up with her doctor within a few days.

The following day, the wife went to a different emergency room with severe abdominal pains and vomiting. She was seen by defendant Dr. Wojcik, who gave her fluids and medication and discharged her with instructions to follow up with her doctor within the week.  When the wife went to the emergency room again, another CT scan was performed and showed that she “had suffered a perforation with portions of her stomach having herniated into her chest.” The wife was taken into surgery, but she died in the recovery room after the procedure. Plaintiff subsequently filed this suit, alleging that “both Dr. Paasche and Dr. Wojcik were negligent for failing to properly diagnose Decedent’s condition, failing to obtain a surgical consult following their respective initial examinations of Decedent, and discharging her in an unstable condition.”

While other entities were initially named as defendants, by the time of trial only Dr. Paasche and Dr. Wojcik remained. A jury trial was held, which resulted in a verdict for defendants. Plaintiff, however, filed a motion for new trial, which the judge granted.

Before the second trial, numerous pretrial motions were filed and heard, which lead the trial judge to rule that the trial would be bifurcated. The judge ruled that “evidence of liability would be presented first, and only if the jury return[ed] a verdict finding one or both Defendants negligent, then the jury [would] hear issues regarding causation.” Plaintiff filed a motion for reconsideration as well as a motion for interlocutory appeal, both of which were denied. After a five-day jury trial regarding the “issue of standard of care,” the “jury explicitly found that neither doctor deviated from the recognized standard of acceptable professional practice in his care of Decedent.” This appeal followed, where the trial court’s decision to bifurcate and the jury verdict was affirmed.

The Court of Appeals began by reviewing the decision to bifurcate the trial. While the decision to bifurcate “must be left to the sound discretion of the trial judge,…the interests of justice will warrant a bifurcation of the issues in only the most exceptional cases and upon a strong showing of necessity.” (internal citation and quotation omitted). When deciding whether to bifurcate the issues in a trial, a judge “should consider the possibility of juror confusion, the risk of prejudice to either party, and the needs of judicial efficiency,” with bifurcation occurring only when “the issue to be tried is so distinct and separable from the others that a trial of it alone may be had without injustice.” (internal citation and quotation omitted).  A trial court’s decision to bifurcate a trial is reviewed using the abuse of discretion standard.

Before the second trial in this case, “the parties filed numerous motions seeking to limit or exclude evidence concerning primarily the August 11, 2012 CT scan and how the radiologist’s report from that scan should have been interpreted and utilized by Defendants.” Counsel for both parties argued extensively about which experts should be allowed to testify regarding which issues and “whether certain evidence was relevant to the standard of care or causation.” After these arguments, the trial judge stated: “So the only way I can think that we can do anything is maybe bifurcate the trial, and the first time we go and see if he violated the standard of care, send the jury out on that issue.”

Based on this procedural background, the Court of Appeals found that bifurcating the issues here was not an abuse of discretion. The Court explained:

[T]he parties allude in their appellate briefs to various evidentiary problems experienced during the first trial, which led the parties to file several pretrial motions prior to the second trial concerning expert witnesses and their proposed testimony. …[N]o consensus was achieved regarding the parameters of the evidence to be introduced. As such, the trial court rendered the discretionary decision to allow the jury to address the standard of care issue initially and separately from the issue of causation in an apparent attempt to establish greater control of the evidence that would be introduced during each phase and presumably to avoid the problems that befell the first trial. We note that [plaintiff] cites no authority for his position that the issues of standard of care and causation ‘cannot be separated without doing extreme injustice.’ Our research has likewise revealed no such authority. Based on the exceptional circumstances presented in this case, we disagree with [plaintiff].

The Court further found that proof of the standard of care and a breach of that standard were “distinct elements from causation,” and that the two issues were “distinct and separable.” (internal citation omitted). While the Court noted that it “certainly [did] not suggest that bifurcation of these issues would be necessary or advisable in every health care liability case,” it ruled that in this “exceptional case” the trial court did not abuse its discretion by ordering bifurcation of the issues.

Next, the Court analyzed plaintiff’s allegation that “the trial court erred by excluding his expert witnesses regarding surgery and radiology from testifying during the standard of care phase of the trial.” Before the trial, the court ruled that during the first phase “each party would be permitted to present testimony from two emergency department physician experts and that allowing any more expert proof regarding alleged violation of standard of care by the Defendants during the standard of care phase of the trial would be cumulative and a waste of the jury’s time, in accordance with Tenn. R. Evid. 403.” This ruling specifically excluded three experts identified by plaintiff from testifying during the first phase of the trial.

The Court of Appeals reviewed the testimony presented by plaintiff’s two emergency room physician experts, as well as the offer of proof made by plaintiff regarding his three excluded experts, and ultimately concluded that the trial court did not err in excluding the additional experts as cumulative. The Court noted that all three excluded experts stated that they were not providing an opinion regarding the standard of care for emergency room doctors, and they all offered testimony that was similar to that offered by the two experts that were allowed to testify. The Court found that “the proffered evidence would not have affected the outcome of the trial had it been admitted,” and that the trial court did not err by excluding it.

Finally, the Court addressed plaintiff’s argument that “the trial court erred by allowing Defendants to present certain testimony in an attempt to shift blame for their actions to…the radiologist who performed the CT scan on decedent.” Plaintiff asserted that “by allowing testimony that an emergency room physician had a right to rely on a radiologist to properly read the CT scan or to rely on the radiologist’s report, the trial court allowed the Defendants to shift the blame” to the radiologist, who was not a party to the action. The Court noted, though, that not only did plaintiff fail to object to this testimony at trial, but, in addition, “the testimony he sought to exclude was provided in part by his own experts without his objection.” The Court noted that neither defendant attempted to shift blame to the radiologist “by presenting proof that the CT report was inaccurate or that [the radiologist] was negligent in some manner,” and plaintiff’s argument on this point was thus rejected.

Having found that the trial court did not err on either the bifurcation or the evidentiary issues, the trial court’s judgment was affirmed in total.

This was a unique case with a unique procedural background, but it does show an example of bifurcation of the issues in an HCLA case which for a host of reasons is, and should be, rare as hen’s teeth. Any attorney arguing for or against bifurcation in a health care liability case should be aware of this opinion.

NOTE: This opinion was released 3.5 months after oral arguments in this case.

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