New Health Care Liability Action Opinion: Defendant (Who Was a Healthcare Provider) Cannot Be Compelled to Provide Expert Opinion Testimony About Another Defendant Provider's Standard of Care or Deviation from Said Standard

The Tennessee Supreme Court has released its opinion in Borngne v. Chattanooga Hamilton County Hospital Authority, No. No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023). The syllabus from the slip opinion reads:

This appeal primarily concerns the compulsion of a physician’s deposition testimony in a health care liability action. In 2014, a child was born via cesarean section and suffered permanent brain damage and severely debilitating injuries. By and through her next friend and mother Brittany Borngne (“Plaintiff”), the child sued the doctor who delivered her and the certified nurse midwife who was initially in charge of the birthing process, among other defendants. The trial court dismissed all claims of direct negligence against the defendant physician but allowed the [P]laintiff to proceed against the physician on a vicarious liability theory as the midwife’s supervising physician. However, during his deposition prior to trial, the physician refused to opine on the midwife’s performance outside of his presence. The trial court declined to require the physician to do so, and after a trial, the jury found in favor of the defendants. The Court of Appeals, in a divided opinion, partially reversed the judgment. The intermediate court concluded, among other things, that the trial court committed reversible error in declining to order the physician to answer the questions at issue in his deposition and remanded for a new trial. After review, we hold that a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard. We therefore conclude that the trial court here properly declined to compel the defendant physician’s testimony. Accordingly, we reverse the decision of the Court of Appeals and affirm the trial court’s judgment.

Here is a link to the majority opinion: 

Majority Opinion E2020-00158-SC-R11-CV-Page.pdf (tncourts.gov).

Justice Campbell wrote a concurring opinion as to the judgment but not reasoning that was joined by Justice Kirby:

Separate Opinion E2020-00158-SC-R11-CV-Campbell.pdf (tncourts.gov).

Justice Lee wrote a concurring opinion that takes issue with Justice Campbell's concurring in judgment opinion that was joined by Justice Kirby:

Separate Opinion E2020-00158-SC-R11-CV-Lee.pdf (tncourts.gov).

Here is Justice Kirby's opinion that also concurs with the results but not the reasoning of the majority opinion:

Separate Opinion E2020-00158-SC-R11-CV-Kirby.pdf (tncourts.gov).

NOTE: This decision relates to my July 1, 2021-post, to wit: 

Tony Duncan Law: New Health Care Liability Action Opinion: New Trial Ordered Due to Trial Court Errors as to Expert Witness Testimony and Premajority Medical Expenses (theduncanlawfirm.blogspot.com).

This decision is a rarity in Tennessee SCOTN jurisprudence due to the number of opinions released by the justices. All are must-read opinions for any lawyer who handles Tennessee health care liability actions.