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Bara v. Clarksville Memorial Health Systems9/12/2002
Sofia Bara, deceased, was in an auto accident on November 30, 1997. She was taken to the emergency room at Clarksville Memorial Hospital where she was examined by an emergency room physician. The ER physician ordered a CT scan of her abdomen and called in Defendant, surgeon Dr. David Miller, for consultation regarding the possibility of internal injuries. Dr. Miller viewed the CT scan and examined Sofia. He then admitted her to the hospital for observation at around 2:00 a.m. on the night of the accident.
The CT scan showed some fluid around her liver, but the fluid appeared to Dr. Miller to be fatty tissue, as Sofia was quite overweight. He saw her again around 2:00 p.m. the following afternoon, at which time she was drinking and asking for food; however, he did not perform a physical examination at that time. He spoke with her, and after checking her vital signs and talking with her mother, he stated that it would be fine for her to go home. However, Dr. Miller did not discharge her at that time, nor did he provide any discharge instruction. Sofia also had an orthopaedic injury and still needed to be seen by her orthopaedic surgeon prior to any discharge. There was a question at trial as to who actually discharged Sofia.
She was discharged at around 7:20 p.m. on the evening of November 30, 1997, and sent home with no discharge instructions regarding a possible internal injury or the potential for internal bleeding. She continued to feel ill and, on the night of December 1, was found unconscious. She died before she could be transported to the hospital. Her parents, Vickie and John Paul Bara, brought suit against Dr. David Miller and Clarksville Memorial Hospital for malpractice.
The case was tried to a jury in October 2000, and the jury rendered a verdict finding no fault on the part of either Defendant. Plaintiffs appeal the verdict asserting that (1) the jury was incorrectly charged that Plaintiffs must prove causation to a reasonable degree of medical certainty, (2) the jury was incorrectly charged that Plaintiffs had the burden of proving by a preponderance of the evidence that the death of Sofia Bara was reasonably foreseeable, and (3) the jury verdict was against the weight of the evidence. We agree that as to Dr. Miller the jury was incorrectly charged on causation and foreseeability and find that these errors likely affected the outcome of the trial. The judgment is reversed as to Dr. Miller and the case remanded for a new trial.
STANDARD OF REVIEW
The necessity of jury instructions based on a clear and sound exposition of the law in order for a jury verdict predicated upon those instructions to stand is a long standing principle of Tennessee law. "The parties are entitled to a clear and consistent charge, as well as a correct one, that justice may be reached." Citizens' Street Railroad Co. v. Shepherd, 64 S.W. 710, 711 (Tenn. 1901). A verdict will be reversed if it can be shown that an instruction contains an inaccurate statement of the law or is confusing and, considering the charge of the court as a whole, that the error was not harmless, i.e. that the instruction more likely than not affected the outcome of the trial. Cardwell v. Golden, 621 S.W.2d 774 (Tenn. Ct. App. 1981); Helms v. Weaver, 770 S.W.2d 552 (Tenn. Ct. App. 1989); Whitsett v. McCort, 1990 Tenn. App. Lexis 611, at *20 (Tenn. Ct. App. August 28, 1990).
The real question on this issue, then, is whether the error should be considered harmless. . . . Tenn. R. App. Proc. 36(b) states that a judgment should not be set aside unless, considering the whole record, the error more probably than not affected the judgment or would result in prejudice to the judicial
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