NASHVILLE, Tenn. (Legal Newsline) - A doctor can’t be compelled to testify about the performance of a nurse midwife before he arrived to deliver a baby who suffered hypoxic brain injury, Tennessee’s highest court ruled, rejecting arguments by trial lawyers that as a supervising physician he should be ordered to offer his expert opinion on whether the nurse met the standard of care.
A doctor may be compelled to testify about their own compliance with the standard of care, the Tennessee Supreme Court concluded, but not about someone else’s conduct.
“An expert, even a party defendant, may not be compelled to give his or her expert opinion because a private litigant is simply not entitled to a healthcare professional’s expert views,” the court ruled in a May 23 decision.
Brittany Borngne sued Dr. Michael Seeber, a nurse midwife, Caring Choice Women’s Center and the Chattanooga-Hamilton County Hospital Authority after her daughter was born disabled in March 2014. The baby’s fetal hear monitor began showing signs of distress after about 90 minutes of pushing and the nurse midwife called Dr. Seeber, who arrived about 45 minutes later and delivered the child via cesarian section.
A jury absolved the nurse of liability after a 2019 trial and Borngne appealed, saying the trial judge should have ordered Dr. Seeber to offer his expert opinion about the nurse’s performance in the hours before the delivery. During Dr. Seeber’s deposition, he repeatedly refused to discuss the nurse’s activity on advice of his lawyers, who cited a 2001 Tennessee Supreme Court decision allowing doctors to refuse to testify about the actions of independent physicians.
An appeals court ordered a new trial, ruling that as a supervising physician the doctor might have been compelled to testify on the nurse’s care. But the Tennessee Supreme Court reversed, saying that as a “law development court” it decided it would be bad policy to require doctors to offer opinions about the performance of other professionals, even if they are subordinates.
The court cited Tennessee Rule of Evidence 706, which states an expert witness can’t be appointed by the court unless the witness “consents to act.” The court also cited a 2005 Wisconsin Supreme Court decision that ruled a plaintiff can’t “ask a participating expert about matters in which the participating expert was not directly involved.”
The Tennessee Trial Lawyers Association supported the plaintiff, who argued supervising physicians had a duty to testify about whether people they supervise met the standard of care. The court disagreed, saying it “delving into the particular details of the supervisory relationship is unhelpful.”
“Healthcare as a whole is collaborative in nature and supervisory relationships are ubiquitous in the field,” the court wrote. “A party physician cannot be compelled to provide expert testimony concerning the standard of care of another practitioner.”
Timothy R. Holton represented the plaintiffs, while Joshua A. Powers, Emily M. Roberts, Dixie Cooper and Matthew H. Cline represented the defense. The Tennessee Lawyers Association also submitted a brief in the case.