Kelly on Malpractice

In Barkes v. River Park Hospital, No. M2006-01214-COA-R3-CV, the Court of Appeals offered a treatise on why hospital policies and guidelines do not establish the standard of care. Furthermore, the Court authored an expose about the independant duty of nurse practicioners who provide care in emergency rooms without supervision. It is important to understand why the Court found that this independent duty trumps vicarious liability when there is no corporate negligence doctrine in Tennessee. A recount of the Court’s opinion is helpful to understand the Court’s reasoning.

Medical professionals are judged according to the standard of care required by their profession. Dooley v. Everett, 805 S.W.2d 380, 384-85 (Tenn. Ct. App. 1990). “[O]ne who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.” Id. at 385. It was evident from the jury’s verdict that they concluded the hospital was liable because it breached a duty of care established in the 1997 written policy; however, the fact that the hospital failed to follow its internal policy, without more, may not be sufficient to establish a standard of care. See Prewitt v. Semmes-Murphey Clinic, P.C., No. W2006-00556-COA-R3-CV, 2007 WL 879565, at * 15 (Tenn. Ct. App. March 23, 2007); see also Land v. Barnes, No. M2008-00191-COA-R3-CV, 2008 WL 4254155, *13 (Tenn. Ct. App. Sept. 10, 2008) (“This court has previously declined to equate internal manuals or protocols with the applicable standard of care.”). In Prewitt, the plaintiff, a quadriplegic, sued for medical malpractice and negligent supervision following an injury from a fall while he was waiting to have a lumbar puncture procedure performed. Prewitt, 2007 WL 879565, at *1-2. Summary judgment was granted in favor of the defendants, a physician’s corporation and a nurses’ corporation and its employee. Id. at *15. On appeal, the issue was whether the expert testimony requirements under Tenn. Code Ann. § 29-26-115 had been satisfied. The court noted that [P]laintiff did not rely on his own experts’ opinions in attempting to establish the standard of care or its breach for nurse practitioners assisting in lumbar puncture procedures, but instead attempted to establish this standard of care through his questioning of Nurses Glover and Avant at deposition with regard to certain internal documents of The Med or Kindred. Id. at *44. The court found that this was not enough to satisfy the requirements of expert testimony regarding the standard of care and the breach of this standard within a medical malpractice case, as required by statute.

[W]e believe Plaintiff’s reliance upon this vague hospital policy and his questioning of Nurses Glover and Avant in its regard were not sufficient to satisfy the expert testimony requirements of the Tennessee Medical Malpractice Act regarding the
applicable standard of care. First, we note that other states have held that internal hospital policies, although possibly relevant when accompanying competent expert testimony, do not alone conclusively establish the standard of care for a medical procedure. See, e.g., Moyer v. Reynolds, 780 So.2d 205, 208 (Fla.Dist.Ct.App.2001); Pogge v. Hale, 253 Ill.App.3d 904, 915, 192 Ill.Dec. 637, 625 N.E.2d 792 (Ill.App.Ct.1993); Luettke v. St. Vincent Mercy Med. Ctr., No. L-05-1190, 2006 WL 2105049, at *12-13 (Ohio Ct.App. July 28, 2006); Wuest v. McKennan Hosp., 2000 SD 151, 619 N.W.2d 682 (S.D.2000); Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 414 (Tex.App.2003); Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 529, 636 S.E.2d 416 (Va.2006); Auer v. Baker, 63 Va. Cir. 596, 600 (Va. Cir.2004); Happersett v. Bird, 222 Wis.2d 624 (Wis.Ct.App.1998). Furthermore, we believe that the method by which Plaintiff attempted to extrapolate testimony establishing the standard of care, and the nature of questioning of Nurses Glover and Avant in this regard, failed to satisfy the expert proof requirements of Tenn. Code Ann. § 29-26-115 (Supp.2006). Throughout his questioning of these nurses at their discovery depositions, despite later relying on this testimony as expert proof of the standard of care, Plaintiff’s counsel did not ask either nurse to define thestandard of professional practice for nurses assisting in lumbar puncture procedures in Memphis or similar communities, or to describe their own familiarity with such standard. Instead, questions posed to these deponents by Plaintiff’s counsel regarding The Med’s policies evince his own belief that these internal standards were equivalent to the relevant standard of professional practice. As a result, rather than allow Nurses Glover and Avant express their opinions, he effectively asked them to accede to his own characterization of the applicable standard of care. Id. at *47-48.

In the case at bar, Plaintiff sought to hold several health care providers and River Park Hospital liable for medical malpractice because Mr. Barkes was seen by a nurse practitioner without being seen by a physician. This argument suggests the hospital breached a standard of care by allowing Mr. Barkes to be examined, treated and discharged by a nurse practitioner without requiring that he be “seen” by a physician. To appreciate the fallacy of this argument, to the extent it suggests a standard of care was violated because a physician did not “see” Mr. Barkes, requires an appreciation of three facts. One, hospitals may not control the “means and methods by which physicians render medical care and treatment to hospital patients.” Thomas v. Oldfield, No. M2007-01693, 2008 WL 2278512, at * (Tenn. Ct. App. June 2, 2008) (citing Tenn. Code Ann. §§ 63-6-204(f)(1)(A) and 68-11-205(b)(1)(A)). Two, Nurse Practitioner Kinkade and the Emergency Room physician with whom she consulted, Dr. Stone, were not employees of River Park Hospital; instead they were employees of PhyAmerica Physicians, Inc. Moreover, Tennessee Code Annotated sections 63-6-204(f)(1) and 68-11-205(b)(6) preclude hospitals from employing emergency physicians such as Dr. Stone. Three, like other nurse practitioners in Tennessee, Nurse Practitioner Kinkade was authorized to render health care services without being under the omnipresent supervision or direction of a physician. The quasi-independent role of nurse practitioners in providing health care in Tennessee is recognized in the applicable health care regulations, as the testimony in this case affirms. In Tennessee, a Nurse Practitioner is an “Advanced Practice Nurse.” See Tenn. Code Ann. § 63-7-126(a). Chapter 0880-6 of the Rules and Regulations of the Tennessee Board of Medical Examiners, titled, “Rules and Regulations Governing the Utilization and Supervision of the Services of a Nurse Practitioner,” as well as the evidence in the record before us, establish the fact that the role of a Nurse Practitioner in the delivery of health care is quite distinct from the historical role of
nurses. Regulations governing the services to be rendered by a nurse practitioner expressly contemplate that the nurse practitioner function with a degree of autonomy. This is evident from the statement of intent in the rules, wherein it is stated, it is “the intent of these rules to maximize the collaborative practice of certified nurse practitioners and supervising physicians in a manner consistent with quality health care delivery.” Rule 0880-6-.02.

In order to maximize the utilization of the nurse practitioner, the rules specify that the physician’s “supervision” of the nurse practitioner “does not require the continuous and constant presence of the supervising physician; however, the supervising physician must be available for consultation at all times or shall make arrangements for a substitute physician to be available.” Rule 0880-6-.02(2). Pursuant to these rules, a licensed physician is to be identified as having accepted the responsibility for supervising the nurse practitioner, and the physician serving in such capacity is defined as the nurse practitioner’s “supervising physician.” Rule 0880-6.01(4). Rule 0880-6-.02(5) provides that the “protocol” 14 (a) Shall be jointly developed and approved by the supervising physician and nurse practitioner; (b) Shall outline and cover the applicable standard of care; (c) Shall be reviewed and updated biennially; (d) Shall be maintained at the practice site; (e) Shall account for all protocol drugs by appropriate formulary; (f) Shall be specific to the population seen; (g) Shall be dated and signed; and (h) Copies of protocols and formularies shall be maintained at the practice site and shall be made available upon request for inspection by the respective boards. The regulations expressly provide that the nurse practitioner is to render his or her professional services pursuant to “protocols,” which are defined as “written guidelines for medical management developed jointly by the supervising physician and the certified nurse practitioner.” Rule 0880-6.01(3) (emphasis added).

For purposes of the issue presented, we find it significant that the regulations expressly require that the protocols “shall be jointly developed and approved by the supervising physician and nurse practitioner,” Rule 0880-6.02(5)14, and “the supervising physician shall be responsible for ensuring compliance with the applicable standard of care under (5). Rule 0880-6.02(6) (emphasis added). Based upon the foregoing, it is apparent the hospital has no direct role in establishing the required protocols related to health care services rendered by nurse practitioners and the hospital is not the supervisor of the nurse practitioner. Although a physician is required to serve as the supervisor of the nurse practitioner, the regulations do not require the supervising physician to be omnipresent. Moreover, the supervising physician is not required to make a personal review of the historical, physical, and therapeutic data when a patient is being examined by a nurse practitioner. See Rule 0880-6-.02(2)(7). To the contrary, the supervising physician is only required to personally review twenty percent of charts monitored or written by the nurse practitioner, and the supervising physician has thirty days within which to review them. Rule 0880-6-.02(2)(8). There are four principle exceptions to the foregoing rule: “(1)[w]hen medically indicated, (2)when requested by the patient, (3)when prescriptions written by the certified nurse practitioner fall outside the protocols, and (4)when a controlled drug has been prescribed.” If one of these exceptions occurs, the supervising physician is to make a personal review, at least once every ten business days, of the historical, physical, and therapeutic data, and shall certify by signature that the physician has reviewed the chart of any patient within thirty days. Rule 0880-6-.02(2)(7). Several witnesses who testified in this case put the foregoing rules and regulations in the context of a Tennessee emergency room. They stated that it was consistent with the applicable standard of care for a nurse practitioner in an emergency room in Tennessee to assess, diagnose, treat, and discharge a patient without a physician actually seeing the patient. One of River Park’s expert witnesses, nurse practitioner Ms. Jennifer Ezell, N.P., testified that River Park Hospital’s use of nurse practitioners in the Emergency Room in July of 2000 was a reasonable and acceptable use of nurse practitioners under the standard of care applicable to McMinnville or similar communities, including in cases such as Mr. Barkes where the physician will not actually see or lay hands on the patient. Dr. Bonner was asked, “Just in general, do you believe that the care provided to Mr. Barkes, evaluation and 15 the treatments provided, offered to Mr. Barkes during his visit of July 26, the first visit, July 26, 2000, do you believe that was appropriate, that care, evaluation, they were appropriate under the circumstances, sir?” His answer was, “Yes, it was.” In pertinent part, Nurse Practitioner Ezell testified as follows:

Q. Would an urgent patient be appropriate for a nurse practitioner to see,
evaluate and treat in River Park Hospital during July 2000?
A. Absolutely.
Q. Was Mr. Barkes an appropriate patient for Ms. Kinkade to see, evaluate and
treat when presented, went through triage, and then came back into the ER
iteself?
A. Yes, he was.
Q. The use of nurse practitioners – and the jury has heard of the process in place
in July 2000 at River Park Hospital and how nurse practitioners see patients
consult with the physician, a determination made on whether additional
treatment is necessary or whether discharge is appropriate, and that under
some circumstances such as this case the physician will not actually see or lay
hands on the patient.
Is that consistent with what you saw in the medical records and your review
of the depositions and things?
A. Yes.
Q. Is that a reasonable and acceptable use of nurse practitioners under the
standard of care that would be applicable in July 2000 to McMinnville or
similar communities?
A. Yes, absolutely.

The testimony of Nurse Practitioner Ezell was supported by that of Dr. Kevin Bonner, who is Board Certified in Emergency Medicine, and serves as a Staff Physician in the Emergency Department at Baptist Hospital in Nashville, Tennessee, and at Middle Tennessee Medical Center in Murfreesboro, Tennessee. He testified that the care provided to Mr. Barkes, including the evaluation and the treatment he received from Nurse Practitioner Kinkade during his first visit on July 26, 2000, was appropriate under the circumstances. Randy Spivey, R.N., also testified that River Park Hospital’s utilization of nurse practitioners in July of 2000 was an appropriate process. We acknowledge that plaintiff’s expert witness, Dr. Roy Keys, testified that the hospital had a written policy that stated “the patients will be seen by a physician or will be evaluated, there was another term, basically the physician needs to lay hands on the patient” and that the policy was breached because Mr. Barkes was not “seen” by a physician, and that Dr. Keys believed it would have made a difference if a physician had seen Mr. Barkes due to his belief that “the appropriate question would have been asked to elicit, not that the patient volunteered but what through being asked, to elicit some of the things that we might need to know as physicians to tell us, yes, this is a Some of the statements complained of include:
“cardiac event versus not.”

However, as discussed above, the written policy alone is not sufficient ton establish a standard of care; and, even if the written policy was held to be the standard of care, the verdict is irreconcilable and inconsistent due to the jury’s finding that each and every individual health care provider that Mr. Barkes came into contact with on the day of his death was not at fault. If the written policy established the standard of care, and these health care providers clearly did not adhere to the 1997 policy, then they should have been found in breach of that standard. Yet, the jury absolved them of guilt. Based on our finding that the doctrine of corporate negligence is not the law in Tennessee, and the jury’s finding that the individual health care providers were not at fault, while holding River Park Hospital 100% at fault, we determine that the jury verdict is irreconcilable and inconsistent. Considering the foregoing, specifically that none of the health care providers who were directly or indirectly involved in the care of Mr. Barkes were found to be at fault, we have determined that the jury reached two different conclusions of fact and law that are opposite, inconsistent and irreconcilable under applicable law. Because we have determined the jury’s verdict was based upon inconsistent and irreconcilable findings, it is our duty to reverse and remand the case for a new trial. See Milliken, 405 S.W.2d at 477 (citing Penley, 205 S.W.2d at 759); see also Concrete Spaces, Inc., 2 S.W.3d at 911.

The Court of Appeals could not reconcile a finding of no fault on the part of the actors with a finding of liability on the part of the hospital for violation of internal policy. This case will have far reaching ramifications if affirmed by the Supreme Court. It means that hospital policies have very little weight. Moreover, policies shrink in comparison to the power of an expert’s own opinion about the standard of care. Watch out for this case in future cases against hospitals when policies and guidelines are involved.