Kelly on Malpractice

In Howell v. Turner, 2009 WL 1422982 (Tenn.Ct.App.), Ms. Williams visited her nephrologist for regular dialysis. Seven minutes after she began dialysis, she bled around the catheter site. She went to the ER and saw Dr. Turner. He ordered blood tests be done, which included testing Ms. Williams’ potassium level. The parties agreed that the order was entered in Ms. Williams’ paperwork and in the hospital computer. Dr. Turner stitched Ms. Williams’ catheter site and discharged her without any blood tests being completed. Dr. Turner went home without ensuring that the tests were performed. An unidentified hospital nurse cancelled the order for Ms. Williams’ blood tests. At trial, Dr. Turner testified that no nurse was ever permitted to cancel lab work without first getting a physician’s order. That evening, Ms. Williams returned to the ER where she was pronounced dead. Ms. Williams died from fatally high potassium levels (called hyperkalemia). The jury returned a verdict of for Ms. William’s estate.

On appeal, Dr. Turner argued that the subsequent cancellation of Ms. Williams’ blood tests by a hospital nurse was a superseding cause that should have relieved him of liability. He alleged that all four elements of a superseding cause were present in this case. In support of this contention, he explained that the blood tests were cancelled after Dr. Turner’s negligence; that Dr. Turner’s duty to evaluate and discharge Ms. Williams was a duty separate from the hospital’s duty not to cancel the blood test order; that had the blood tests been completed Ms. Williams would have received dialysis and lived; and that it was not “foreseeable” that a nurse would cancel an order for lab work, which would be an act of blatant malpractice.

The Court of Appeals started its analysis by revisiting the superseding cause doctrine. The essential factors necessary to demonstrate a superseding cause are (1) the harmful effects of the superseding cause must have occurred after the original negligence; (2) the superseding cause must not have been brought about by the original negligence; (3) the superseding cause must actively work to bring about a result which would not have followed from the original negligence; and (4) the superseding cause must not have been reasonably foreseen by the original negligent party. If all four elements are met, then the intervening cause is said to be a superseding cause which breaks the chain of proximate causation. In response, Plaintiff alleged that Dr. Turner’s failure to see that the order for lab work was completed prior to discharging Ms. Williams led to the lab work being cancelled later in the evening. Plaintiff also contended that cancellation of the order for lab work was reasonably foreseeable by Dr. Turner – “that human error is always foreseeable.”

The Court of Appeals found that the dispositive issue was foreseeability. The law in Tennessee has never been that it is unforeseeable, as a matter of law, that a medical practitioner commits malpractice. To the contrary, the general rule has been that “if one is injured by the negligence of another, and these injuries are aggravated by medical treatment (either prudent or negligent), negligence of the wrongdoer causing the original injury is regarded as the proximate cause of the damage subsequently flowing from the medical treatment.” citing Transports, Inc. v. Perry, 414 S.W.2d 1, 4 (Tenn.1967); Atkinson v. Hemphill, 1994 WL 456349(Tenn.Ct.App.1994). Thus, it may be foreseeable that a medical professional will act negligently. The Court of Appeals flatly rejected Dr. Turner’s argument that blatant malpractice is never foreseeable as a matter of law. The Court of Appeals affirmed the jury’s verdict.

Howell v. Turner is one of those sleeper cases that becomes more important as time goes by. It means one doctor with antecedent negligence may be liable for all of the damages where negligence from a subsequent health care provider aggravates or contributes to it. Remember that foreseeability is the key. As a result, foreseeability will be a fact issue for the jury in any case like this.