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Durbin v. Sumner County Regional Health Systems9/6/2001
William Caldwell, M.D. In the event that a jury determines that the plaintiff's alleged injuries were the result of negligence, these defendants aver that the acts and omissions of Dr. Caldwell, in violation of the recognized standard of acceptable professional practice, caused or contributed to the plaintiff's injuries. Specifically, these defendants aver that Dr. Caldwell may be found to have been negligent for:
(1) Failing to monitor Ms. Durbin with sufficient frequency between May 30 and June 28, 1995;
(2) Failing to refer Ms. Durbin to an obstetrician specializing in high-risk monochromatic twin pregnancies; and
(3) Failing to order continuous external fetal monitoring for Ms. Durbin by a trained labor and delivery nurse and by failing to ascertain fetal well-being prior to discharging Ms. Durbin from the Hospital on July 22,1995;
(4) Failing to order an ultrasound, biophysical profile and a repeated non-stress test or a contraction stress test with Pitocin within 24 hours of the July 22 fetal monitoring strip, which did not document reactivity of the fetus.
These defendants deny that any act or omission on their own part, or any act or omission of Dr. Caldwell, caused the plaintiffs to suffer any injury they otherwise would not have suffered. However, in the event a jury concludes otherwise, these defendants invoke the defense of comparative fault.
Immediately before trial, the trial court granted the Hospital's motion to withdraw this defense without objection from the appellants. At trial, the appellants attempted to question the Hospital's expert witness, Dr. Bruner, regarding this amended answer. The appellant wished to prove at trial that the Hospital believed that Dr. Caldwell was at fault. The trial court denied the appellants' request because, in the court's opinion, the probative value of the questions did not outweigh the adverse affect. Tenn. R. Evid. 403. The trial court did state that the appellants could ask Dr. Bruner questions regarding the same issue as to Dr. Caldwell's culpability, but that the amended answer could not be brought into the examination.
We agree with the trial court - and for an additional reason. Allegations in pleadings may be introduced but only as admissions against the pleader. Pankow v. Mitchell, 737 S.W.2d 293 (Tenn. Ct. App. 1987); Goodman v. Balthrop Construction Co., 626 S.W.2d 21 (Tenn. Ct. App. 1981). In this case, the plaintiffs sought to use the allegations in the amended answer against Dr. Caldwell and to cross-examine Dr. Bruner about his belief that Dr. Caldwell was partially at fault. Neither the hospital nor Dr. Bruner can admit liability on the part of Dr. Caldwell. Therefore, the amended answer was not admissible.
B. Dr. Stuber's Deposition
Appellants also contend that the trial court erred when it did not allow them to use the deposition of Dr. Caldwell's proposed expert witness, Dr. Harry L. Stuber, in their examinations of appellees' expert witnesses Dr. Bruner and Dr. Fortunato. When Dr. Caldwell submitted his Rule 26 disclosures on May 20, 1999, he included as expert witnesses, Dr. Stuber and Dr. Fortunato. The Rule 26 disclosure included a summary as to what Dr. Stuber would testify to at trial. The appellants then deposed Dr. Stuber on April 5, 2000, about two weeks before trial. At this deposition, Dr. Stuber's testimony was not consistent with the Rule 26 disclosure. On April 7, 2000, Dr. Caldwell sent certified copies of a Revised Rule 26 Disclosure to the court and counsel involved in the litigation. This Revised Rule 26 Disclosure only included Dr. Fortunato as an expert witness for Dr. Caldwell. In the cover letter, Dr. Caldw
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