New Health Care liability Action Opinion: Summary Judgment for Physician Reversed on Appeal Because the Trial Court Abused Its Discretion in Not Allowing Plaintiff to Obtain a New Standard-of-care Expert When that Expert Refused to Testify Through No Fault of Plaintiff, Etc.

The Tennessee Court of Appeals has issued its opinion in Blackburn v. McClean, No. M2021-00417-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This is a wrongful death health care liability action. At issue in this appeal are claims that were asserted against a hospital and an emergency room physician. During the course of litigation, the trial court permitted the defendants to amend their pleadings to assert a comparative fault defense but placed certain limitations on any new experts the plaintiff might retain to address the defense. The trial court also denied the plaintiff’s efforts to secure a new standard of care expert when one of his retained experts withdrew from the case and refused to testify. Ultimately, through a series of summary judgment orders, the claims against the hospital and emergency room physician were dismissed. Although the plaintiff generically challenges the trial court’s summary judgment dispositions on appeal, we conclude that the plaintiff’s challenges are all waived except as they relate to the last summary judgment order that was entered as to the emergency room physician. That summary judgment order is reversed consistent with the discussion herein, namely in light of our conclusion that the trial court abused its discretion in refusing to allow the plaintiff to secure a substitute standard of care expert after his retained expert refused to testify due to no fault of counsel or his client. Further, although we find no error in the trial court’s decision to allow the defendants to amend their pleadings to assert comparative fault, we are of the opinion that the court abused its discretion with respect to the limitations it placed on any potential expert retained by the plaintiff to address the issues raised in the later amendment alleging comparative fault.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/blackburn_v.mclean.pdf.

NOTE: The primary takeaway from this opinion is that it was an abuse of discretion by the trial court to not allow the plaintiff to obtain a new standard-of-care expert when the former expert in this area became unavailable through no fault of the plaintiff, which jibes with Tennessee's policy of deciding cases on their merits and not in procedural technicalities. The secondary takeaway is that the trial court also abused its discretion in severely limiting expert testimony that the plaintiff could offer to rebut a newly pleased defense based on the decedent's alleged comparative fault. Both of these abuses required reversal and a remand. 

P.S. This is the second appeal in this case. The first one is the subject of my from Aug. 1, 2020-post, to wit: http://theduncanlawfirm.blogspot.com/2020/08/new-case-on-certification-of-nonfinal.html.