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Durbin v. Sumner County Regional Health Systems9/6/2001
court erred in its instruction of Tennessee Pattern Instructions 3- Civil 3.50 (hereinafter "T.P.I. 3-Civil") This instruction is the instruction on comparative fault. The appellants argue that the trial court erred when it did not substitute the word "defendants" for the word "party." The appellants argue that the instruction indicated that the appellants themselves were to blame for some part of the fault.
In other parts of the instructions, the trial court clearly stated that the jury was to consider the liability of only the appellees "In deciding this case, you must determine the fault of each of the defendants." The instructions as a whole are not misleading so that the jury would consider any potential fault of the appellants. In addition, the verdict form did not contain a space for the fault of the appellants. Therefore, this mistake in the jury instruction is not a basis for overturning the verdict. See Estate of Elam, 738 S.W.2d at 174.
2. Duty to Follow Instructions
The appellants then argue that the trial court erred in its instruction of T.P.I. 3- Civil 6.21 which concerns a patient's duty to follow instructions. The appellants argue that there was error because there was no evidence presented by the appellees that Mrs. Durbin's failure to follow instructions caused her injury . The appellants argue that the inclusion of this instruction implied that the appellants were at fault.
Once again, the trial court made clear in other parts of the jury instruction that the fault of only the appellees was to be considered. When looking at the jury instructions as a whole, the trial court did not mislead the jury into considering the fault of the appellants.
3. Adverse Inference
The appellants also argue that the trial court erred in denying their request for a jury instruction on adverse inference because of the Hospital's failure to produce the electronic fetal monitoring strip generated on July 20, 1995. After an electronic fetal monitoring strip has been generated on a patient the Hospital procedure testified to at trial is that the strip is reviewed by the attending physician and then placed in a banker's box with other strips generated on other patients. In this case, the Hospital was unable to locate the strip generated on July 20, 1995. The appellants argued at trial that the trial court should have instructed the jury that they could infer that the monitoring strip would show that both twins were in distress.
The appellants submitted a modified version of T.P.I. 3-Civil 2.04 Absence of Witness or Evidence that specifically addressed the missing July 20, 1995 fetal monitoring strip. This instruction allows the jury to determine that a party's failure to supply certain pieces of evidence cast a negative reflection on their potential liability. The trial court denied both the modified instruction and the pattern instruction. The reasons as stated in the record are because July 22 was the pivotal day not July 20. The trial judge went on to state that he did not believe, "the absence of the monitoring strip rises to the level that a Jury can infer wrongdoing or there should be a presumption."
This court recently addressed this issue in Richardson v. Miller, 44 S.W.3d 1 (Tenn. Ct. App. 2000). In Richardson, a prenatal patient was put on an infusion pump to deliver medication to stop her contractions. The medicine delivered by the infusion pump caused the patient to suffer a heart attack. The patient later sued both the doctor and the supplier of the pump alleging that their negligence had caused her heart attack. Before being put on the infusion pump, the supplier of the pump sent a nurse to assess the pat
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