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Durbin v. Sumner County Regional Health Systems9/6/2001
one of the charges I read was with regards to- I won't repeat the deleted term but it's actually an agency relationship. And what I read was that Sumner County- or Regional Medical Center, as an employer, is responsible for the employee's negligence. What I should have done is stop right there because in this case there is no independent evidence that the Hospital did any negligence of its own apart from the actions of the agents, i.e., the nurses.
But, disregard that next sentence that I read which said, "In addition, you may also attribute fault directly against the Hospital if your find that the Hospital was at fault apart and separate from the fault of the nurses." The Hospital did nothing. There's no evidence the Hospital did anything so just simply disregard that second sentence of that charge.
Do y'all understand? Okay, there's one no-head shaking. All right. We've been here for two weeks listening to proof. All the proof against the Hospital is that the nurses did things wrong. If you give it its best shot, if you give it - there's no evidence independent of the nurses that the Hospital itself did anything wrong. The instructions I read had a sentence in it that said, "In addition, you could consider the independent negligence of the Hospital." And, I'm telling you the Hospital didn't do anything independent of their nurses. If you find the nurses did something wrong, then there are other jury instructions where it's a vicarious liability they would be responsible for the negligence of their nurses. But, disregard the instruction that said that the Hospital itself was negligent. Okay?
The appellant argues that this excerpt unduly influenced the jury in their deliberations with five statements that the Hospital was not negligent.
We disagree. The trial court was merely correcting a mistake made in reading the instructions to the jury. The trial court adequately explained the difference between the Hospital being negligent and the Hospital being held liable because of the nurses, negligence. We believe that the jury could easily understand the judge's comments. In addition, there was no evidence at trial of the Hospital's negligence, independent of the nurses. Therefore, the trial court did not make any impermissible comments on a question presented to the jury.
In Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn. Ct. App. 2000), we stated "we should not set aside a jury's verdict because of an erroneous instruction unless it affirmatively appears that the erroneous instruction actually misled the jury. Id. at 497 (citing Carney v. Coca-Cola Bottling Works, 856 S.W.2d 147, 150 (Tenn. Ct. App. 1993) and Helms v. Weaver, 770 S.W.2d 552, 553 (Tenn. Ct. App. 1989)). We do not believe that the trial court's mistake misled the jury. The trial court made every effort to clearly explain the instruction.
H. Jury Charge
The appellants argue on appeal that the trial court erred on several occasions when charging the jury. For a judgment to be overturned on appeal based on the jury instructions, the instruction must be shown to have more likely than not affected the outcome. Tenn. R. App. P. 36(b). When reviewed on appeal, jury instructions are considered as a whole when determining whether the trial court erred in the instructions. Estate of Elam v. Oakley, 738 S.W.2d 169, 174 (Tenn. 1987). Even if a portion of the jury instruction is objectionable, if the trial court explains it and corrects it in other parts of the jury charge so that the instructions as a whole are not misleading, then the jury instructions will not be considered prejudicial. Id.
1. Comparative Fault
The appellants first argue that the trial
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