New Health Care Liability Action Opinion: Defendant-Physician Blamed Nurses Without Pleading Their Comparative Fault as Required by Law, Which Necessitated a New Trial, Etc.

The Tennessee Court of Appeals released its opinion today in Kanipe v. Patel, No. E2019-01211-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a health care liability lawsuit. In 2013, Sandra Kanipe . . . died from an undiagnosed aortic dissection while in the care of Dr. Pragnesh Patel, M.D. . . .  Travis Kanipe . . . , Ms. Kanipe’s son, sued Dr. Patel in the Circuit Court for Hamblen County . . . .  After a trial, the jury found in favor of Dr. Patel. The Trial Court granted Mr. Kanipe’s motion for a new trial on grounds that Dr. Patel had, through his testimony, shifted blame to a non-party despite having never pled comparative fault. After a second trial, the jury found in favor of Mr. Kanipe. Dr. Patel appeals, arguing among other things that he never shifted blame. From our review of the record, we conclude that Dr. Patel did, in fact, shift blame to a non-party when he testified in the first trial that the nurses never notified him of Ms. Kanipe’s ongoing chest pain. In view of our Supreme Court’s holding in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996), the Trial Court did not abuse its discretion in ordering a retrial. We affirm the judgment of the Trial Court. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/kanipe_v._patel_e2019-01211.pdf

NOTE: This is a must-read opinion for any lawyer who handles tort cases governed by Tennessee substantive law where our system of modified comparative fault comes into play.  Oftentimes, defendants will try to shift blame (and fault) to nonparties in an attempt to avoid liability without complying with Rule 8.03 of the Tennessee Rules of Civil Procedure (which requires facts to be pleaded to support such a defense as well as the identity or description of any alleged nonparty tortfeasor).  As this opinion reminds us, Rule 8.03 is to be "strictly adhered to" by the courts.  Kanipe,  No. E2019-01211-COA-R3-CV, slip. op. at 14 (emphasis added) (citations omitted).    

This opinion also offers up a good explanation of Tennessee's peer review privilege and the "thirteenth juror" rule.  Id. at 15–18.