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Comparative & contributory negligence not applicable to malpractice.

CONTRIBUTORY AND COMPARATIVE NEGLIGENCE CAN PROHIBIT OR REDUCE RECOVERY IN TORT CASES. In most states, contributory and comparative negligence are not factors in malpractice cases. The issue recently arose in this Tennessee case, in which a hospital tried to invoke the doctrines of contributory and comparative negligence in a malpractice case. No other jurisdictions apply the doctrines in malpractice cases. To the contrary, most jurisdictions hold that a patient's negligence provides only the occasion for medical treatment and may not be compared to that of a negligent physician other healthcare provider.

IN THE EARLY MORNING HOURS OF MAY 30, 1998, LARRY QUALLS WAS SERIOUSLY INJURED IN A SINGLE-VEHICLE ACCIDENT. He sustained a mild to moderate concussion and multiple facial fractures. Upon arriving at the trauma center at Vanderbilt University Medical Center (Vanderbilt) four hours after the accident, he had a blood alcohol level of .13 percent. This indicated a .20 percent blood alcohol level at the time of the accident. The patient was connected to a ventilator to assist his breathing and remained on a ventilator. Dr. Timothy Van Natta, the patient's treating trauma surgeon, admitted him to the Neuro-Intensive Care Unit (NICU) for observation. Over the next two days, the patient remained but suffered from "severe agitation." This was attributed to alcohol withdrawal. The patient was given unusually large doses of Valium, Fentanyl, and other drugs to keep him sedated. On June 2, 1998, the patient's fourth day at Vanderbilt, he continued to show signs of alcohol withdrawal and received large doses of medication to control his agitation. ACT Scan was ordered in preparation for reconstructive surgery on facial fractures. At approximately 10.20 pm, Linda Starks, R.N., Karita Turner, a respiratory therapist, and Peggy Fowler, a nurse's aide, transported the patient from the NICU to the CT suite. The patient was connected to a portable cardiac monitor and portable ventilator. The ventilator was attached to one of three oxygen tanks. One was full, the others half-full. Turner did not record the ventilator settings nor alarm parameters. Starks neither verified the alarms nor parameters on a cardiac monitor. She made no entry in the record of either alarm parameters or vital signs. At the CT suite, at approximately 10:30 pm, Starks administered a paralytic drug to the patient without telling any one. Consequently, the patient was unable to move or breath and was completely dependent on the ventilator. After the patient was secured to the table, Starks, Turner, and a CT technician moved to an adjoining control room. Starks and Turner could see the CT table through a window and could observe the patient's face on a television monitor. Neither looked at the cardiac monitor nor the ventilator while the patient was in the scanner. Starks maintained that she was watching the patient's face and listening for alarms. She and Turner maintained that no alarms sounded and that the patient's completion was "pink" and he was breathing when he emerged from the scanner. Shortly after the patient was moved to his bed, it was noticed that he had turned gray and was not breathing. Starks and Turner saw that the cardiac monitor showed the patient's heart had stopped. They disconnected the ventilator and began administering CPR. A "code" was called. Within minutes the "code" team arrived and took over resuscitation efforts. The patient was successfully resuscitated but sustained severe and permanent brain damage. The patient has been treated at NHC Healthcare, a skilled nursing facility where he has remained in a persistent vegetative state (PVS). His sister, as conservator for her brother, brought suit against Vanderbilt alleging negligence on behalf of hospital personnel. At trial, Vanderbilt admitted that Starks violated the applicable standard of care. However, Vanderbilt maintained that the violation of the standard of care was not the cause of the patient's permanent brain injury but that the patient suffered a catastrophic event such as seizure or a malignant heart arrythmia, caused by alcohol withdrawal. After a jury trial, the jury returned a verdict for the plaintiff in the amount of $7,666,000. The jury apportioned 70 percent fault to Vanderbilt and 30 percent fault to the patient. The trial court entered judgment for the plaintiff for $5,156,200. However, the court granted the plaintiffs motion for judgment for $7,666,000. Vanderbilt appealed.

THE SUPREME COURT OF TENNESSEE HELD THAT THE DOCTRINES OF CONTRIBUTORY AND COMPARATIVE NEGLIGENCE DO NOT APPLY IN MALPRACTICE CASES. The court overruled long-standing Tennessee case law holding that contributory or comparative negligence were factors, which should be taken into consideration in medical malpractice cases. Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121--TN (2004)
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Publication:Hospital Law's Regan Report
Geographic Code:1USA
Date:Dec 1, 2004
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