Clyde Holt v. City of Memphis ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 17, 2000 Session
CLYDE HOLT, INDIVIDUALLY AND AS NEXT OF KIN OF CLAUDINE
VERNON WALLER v. CITY OF MEMPHIS, ET AL.
An Appeal from the Circuit Court for Shelby County
No. 37503 T.D. Robert L. Childers, Judge
No. W2000-00913-COA-R3-CV - Filed July 20, 2001
This is a wrongful death case. The plaintiff called 911 after his mother experienced difficulty
breathing and passed out. When the paramedics arrived, the plaintiff’s mother had regained
consciousness. After examining her, the paramedics told the plaintiff that his mother was not sick
enough to be transported to the hospital. The plaintiff asked that his mother be transported to the
hospital, but nevertheless signed a form refusing transport to the hospital. A few hours later the
plaintiff’s mother’s condition worsened. When the paramedics returned, they found the mother
unconscious, and immediately took her to the hospital. She died seven days later. The plaintiff filed
a wrongful death suit, alleging that the paramedics were negligent in not transporting his mother to
the hospital on their first run. The trial court found the paramedics negligent and awarded the
plaintiff a money judgment. We reverse, holding that the plaintiff was required to establish by
expert testimony the standard of care for the paramedics.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed.
HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and
DAVID R. FARMER , J., joined.
Marshall L. Gerber, Carmen Graves, and Michelle L. Betserai, Memphis, Tennessee, for the
appellants City of Memphis and Richard Dexter.
Stephen R. Leffler, Memphis, Tennessee, for the appellee Clyde Holt.
OPINION
This is a wrongful death case. On February 19, 1990, paramedics Richard Dexter and
Christopher Newsom (“Dexter,” “Newsom” and collectively “the paramedics”) responded to a 911
call from the home of the decedent Claudine Vernon Waller (“the decedent”). Plaintiff/Appellee
Clyde Holt (“Holt”), the decedent’s son, placed the 911 call because his mother had passed out. She
had been coughing heavily and experiencing difficulty breathing and was discharging a brown fluid
from her mouth. The decedent suffered from kyphoscoliosis1 and emphysema, had a tracheotomy,
and required oxygen equipment to aid in her respiration. She was 56 years old.
When the paramedics arrived, the decedent was conscious and sitting up in her bed. The
paramedics examined her and determined that her vital signs were normal and that her breathing was
not labored. The paramedics asked the decedent whether she wanted to be taken to the hospital. She
declined. They presented the decedent with a form refusing transportation to the hospital, and she
indicated that she wanted Holt to sign the form. Holt signed the refusal to transport form, and the
paramedics left.
It is undisputed that the decedent declined transport to the hospital and that Holt, at his
mother’s direction, signed the refusal to transport form. However, the parties dispute the events that
led to the paramedics not transporting the decedent to the hospital during their first run. The parties
dispute first whether the decedent was alert and oriented at the time of the paramedics’ first run.
Holt’s grandmother Maggie Waller (“Mrs. Waller”), was present during the paramedics’ visit. Holt
and Mrs. Waller assert that, although the decedent was conscious, she was disoriented and
nonverbal. Holt testified that his mother groaned as she breathed, her head hung down, and she
seemed limp. He said that his mother was unable to sign the form refusing transport because she was
disoriented. He said that his mother did not verbally ask him to sign the form, but pointed to him
and nodded when the paramedics asked her whether she wanted Holt to sign the form. On the other
hand, Dexter, one of the paramedics, testified that the decedent was alert and oriented during the first
visit. The paramedics noted on their run ticket that the decedent was conscious, alert and oriented
at the time of the first visit. Dexter said that the decedent responded to questions asked of her either
verbally or by using her hands and body to indicate her answer. Dexter testified that the decedent,
when asked if she wanted to be taken to the hospital, “said no, she wanted to go back to sleep.”
The parties also dispute the circumstances surrounding Holt’s signing of the form refusing
transport to the hospital. Holt acknowledged that the paramedics asked his mother whether she
wanted to be taken to the hospital and that she “shook her head no” in response to their question.
However, Holt said that he told the paramedics that she did not realize what she was saying and that
she needed to be transported. Holt testified that, despite his insistence that his mother be transported,
the paramedics repeatedly told him that they did not believe that she was sick enough to be taken to
the hospital. Holt’s grandmother, Mrs. Waller, also testified that Holt repeatedly asked the
paramedics to take his mother to the hospital and that the paramedics responded by saying that she
was not sick enough to go. Holt asserted that the paramedics acted as though they were in a hurry
to get to another run and told him that they needed to get back to service. Holt testified that he felt
coerced into signing the refusal to transport form. He said that he believed that they were not going
to transport his mother since they had told him they had another run, and because they had begun to
1
Kypho scoliosis is a combination of two thoracic deformities: K yphosus, a posterior curve of the spine
(hunchback) and Scoliosis, a lateral curve of the spine. W hen these spinal deformities occur together they m ay cause
significant physica l deformity as w ell as cardior espiratory p roblems if the deformity is sev ere enoug h.
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pack up their equipment, preparing to leave. Holt asserted that despite his signing the form, he was
still concerned about his mother’s condition after the paramedics left.
In contrast, Dexter testified that Holt voluntarily signed the form refusing transport. Dexter
said that the paramedics, not Holt, brought up the subject of whether the decedent wanted to go to
the hospital. He testified that Holt responded to their inquiries by telling them that his mother had
just had phlegm build up and was now okay. Dexter maintained that neither he nor Newsom told
Holt that he needed to sign the form refusing transport because they had another run to make. Dexter
asserted that they did not have another run to make at the time and it is not policy to abandon one
run for another.
Two to four hours after the paramedics left, the decedent’s condition began to worsen. She
again began coughing heavily, had difficulty breathing, and discharged fluid from her throat. She
eventually passed out. Holt again called 911. The same paramedics responded to this call. As soon
as they arrived, the paramedics again examined the decedent, but this time determined that her vital
signs were poor and her breathing was labored. The decedent briefly regained consciousness, but
quickly lost consciousness and never regained it. As the paramedics transported Holt’s mother to
the hospital, she went into cardiorespiratory arrest and they began resuscitation efforts. The
resuscitation efforts continued when they arrived at the hospital. Holt’s mother was eventually
placed on a ventilator. She died seven days later.
On February 18, 1991, Holt filed suit against the paramedics and the City of Memphis2 (“the
City”), alleging that the paramedics were negligent and reckless in not transporting the decedent to
the hospital on their first run. He contended that the paramedics’ negligence resulted in his mother’s
death.
A bench trial was held. Holt testified at the outset of the trial. Holt testified that, despite his
insistence that his mother be taken to the hospital, the paramedics repeatedly told him that she was
not ill enough to be transported. Holt said that he reluctantly signed the form refusing transport
because he felt that the paramedics would not take his mother to the hospital, despite his insistence,
based on the paramedics’ demeanor, their actions, and their statement that they needed to get back
to service. He maintained that, during the paramedics’ first run, his mother, though conscious, was
disoriented and consequently could not sign the form refusing transport.
One of the paramedics, Dexter, also testified at the trial. Dexter said that the decedent’s vital
signs and breathing were normal at the time of the first run. He testified that, when asked whether
2
The Memphis Fire Department, Newsom, and the driver of the ambulance were also named in the suit.
However, Newsom had left the employ of the Memphis Fire Department and moved to Texas before the suit was filed.
He was not served with process and did not testify at trial. During trial and without objection from the plaintiff, the trial
judge dismissed the Memp his Fire Department as a pa rty to the suit. The complaint also lists a John Doe ambulance
driver; however, the record d oes not indic ate that he was id entified or served with process; he is not listed in the trial
court’s ord er or in the no tice of appe al.
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she wanted to go to the hospital, the decedent declined and indicated that Holt should sign the form
refusing transport to the hospital.
The decedent’s treating physician, Dr. Richard Boswell (“Dr. Boswell”) also testified, by
deposition. Dr. Boswell testified that the primary cause of death was cardiorespiratory arrest.3 He
opined that, had the decedent been transported to the hospital earlier in the day, she would not have
gone into cardiorespiratory arrest. He stated that her kyphoscoliosis was a manageable chronic
condition and that, had she arrived at the hospital in time to receive proper treatment, there was
nothing about her condition to indicate that she would not have continued to live. Dr. Boswell
admitted that he could not discern how much longer the decedent could have lived. He said that the
fact that the decedent’s vital signs were within normal range was not determinative as to whether she
should have been transported to the hospital. He said that, although vital signs are an important
guide, determining whether the patient’s breathing is labored is essential to ascertain whether the
patient is in respiratory distress. He stated that a trained observer is generally better than an
untrained observer at discerning whether a person is having difficulty breathing and that a paramedic
should be such a trained observer. The parties stipulated that Dr. Boswell was not an expert as to
paramedics’ procedure on when a patient should be transported to the hospital, as to the standard of
care for paramedics or as to whether the paramedics violated procedure by not transporting the
decedent to the hospital on their first run. Dr. Boswell testified that he never “intended to say” that
the paramedics “should have” transported the decedent at the time of the first run, only that, had she
come to the hospital earlier she would not have gone into respiratory arrest.
Dr. Kevin Merigian (“Dr. Merigian”), Medical Director of the Memphis Fire Department and
City of Memphis paramedics, testified for the defendants as an expert as to the standard of care for
a paramedic. Dr. Merigian wrote or edited the majority of the protocols and guidelines used by the
Fire Department. He testified that, after reviewing the paramedics’ run sheets from the two visits
as well as Dr. Boswell’s deposition testimony, he believed that the paramedics did not deviate from
the standard of care and acted appropriately in not transporting the decedent during the first run. Dr.
Merigian testified that when a patient refuses transport, the paramedic cannot force the patient to go.
Instead, the paramedic may either call MedCom to talk to a physician or leave the scene after
assessing the patient’s physiologic and mental condition. He felt that, in this case, the paramedics
acted appropriately in not transporting the decedent, based on the decedent’s vital signs; the
paramedics’ assessment of the decedent’s physical state, including the fact she was conscious and
alert, that she did not appear to the paramedics to be in any distress, and that her breathing did not
appear labored; her desire not to be transported to the hospital; and Holt’s signature on the form
refusing transport to the hospital. Dr. Merigian testified that the paramedics were trained to ascertain
if a patient’s breathing was labored. He said that it was not unusual for paramedics not to mark
every section of the medical survey on the run sheet when doing a patient examination. He
3
Dr. Boswell testified that the deced ent’s cardiorespiratory arrest lead to brain death, by cutting off oxygen to
her brain . He stated that an EEG done a week after the decedent was admitted showed no evidence of brain function
and that, after discussion with her family, he disconnected the decedent from the ventilator.
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maintained that, unless there was a problem present or an indication of an abnormality in the area
listed on the run sheet, leaving a section unmarked was not a cause for concern. Dr. Merigian
asserted that, in his opinion, there was no way to predict that the decedent would go into
cardiorespiratory arrest, considering that, at the time of the paramedics’ first run, her vital signs were
normal and there was no indication that her breathing was labored.
At the conclusion of the trial, the trial court issued an oral ruling. The trial court found that
the paramedics had failed to comply with the requirements of Tennessee Code Annotated § 68-140-
501, et seq. and the general rules promulgated by the Emergency Medical Service Board (“the
Board”), specifically Rule 1200-12.1.04(3)(a), which requires a paramedic to conduct a complete
assessment of the patient’s medical condition. The trial court stated that the paramedics’ failure to
fill out several of the evaluation categories on the run ticket evidenced that the paramedics were in
a hurry, too much of a hurry to fill out the form completely. The trial court noted that none of the
boxes in the cardiovascular section of the run sheet were checked, including the box labeled
“fainting” and that the box labeled “chest” in the section titled “Location of Injury-Illness.” The trial
court stated that, based on the evidence presented, “the location of the illness was, at least, in the
chest.” The trial court concluded that the paramedics failed to do a complete evaluation as required
by the statute and the rules. It also found that neither Holt nor the decedent knowingly refused
transport to the hospital because their decisions were based on the paramedics’ faulty information
that the decedent was not ill enough to be transported, information which resulted from the
paramedics’ incomplete evaluation of the decedent. Consequently, the trial court concluded that the
paramedics were negligent in failing to transport the decedent to the hospital on the first run, and that
this negligence caused her death. The trial court awarded judgment against the City and Dexter in
the amount of $76,8000, consisting of $6800 in funeral expenses, $20,000 for pain and suffering,
and $50,000 for loss of consortium for the decedent’s relationship with her minor son, Vernon
Martin. (Tr. at 201) From this decision, the City and Dexter now appeal.
On appeal, the City and Dexter contend, inter alia, that the trial court erred in finding that
the paramedics committed negligence in not transporting the decedent to the hospital because Holt
failed to present any expert testimony as to the paramedics’ standard of care or how the paramedics
deviated from that standard. They contend that the paramedics’ actions complied with the standard
of care and the requirements of the statute and general rules because the decedent was conscious
alert, oriented, and in no apparent distress at the time of the first run. They also note that the
decedent declined transport and that Holt signed the form refusing transport.
Holt argues that the paramedics’ actions constituted negligence as a matter of law because
their failure to transport was in direct violation of the standard of care established by the rules
governing paramedics. He contends that expert testimony was not needed because of the specificity
of the statutes and general rules outlining proper paramedic practice and care. He contends that
under Rule 1200-12-1-.11(7), he needed only to prove that the decedent was over the age of 55 and
had a respiratory disease in order to establish as a matter of law that the paramedics’ failure to
transport her on the first run was negligent.
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The determination of negligence claims is a mixed question of law and fact. Kelley v.
Johnson, 796 S.W.2d 155, 157-58 (Tenn. Ct. App. 1990) Therefore, our review of this case is
governed by rule13(d) of the Tennessee Rules of Appellate Procedure, which provides that review
of findings of fact by the trial court shall be de novo upon the record of the trial court, accompanied
by a presumption of correctness of the factual findings, unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
However, there is no presumption of correctness with regard to the trial court's legal determinations.
See Ball v. Hamilton County Emergency Med. Serv., No.03A01-9804-CV-00139, 1999 WL
134686, at *3 (Tenn. Ct. App. Mar. 9, 1999), perm. to appeal den. Sept. 13, 1999.
The trial court’s conclusion that the paramedics were negligent was based on its finding that
they violated both the statute and the Board’s rules concerning the examination and transportation
of patients. The trial court found that the paramedics’ failure to respond to each category listed in
the medical survey on the run sheet evidenced that the paramedics were in a hurry and that they
failed to conduct a complete evaluation of the patient as required by general rule 1200-12-1-
.04(3)(a):
The EMT shall perform initial patient survey, shall provide emergency care through
careful assessment of the patient, and shall recognize injuries and illness. The EMT
shall also gain knowledge of preexisting medical conditions, previously prescribed
medications, medical preference, and identification of the patient.
Tenn. Comp. R. & Regs. 1200-12-1-.04(3)(a) (1999). The trial court concluded that by failing to
conduct a “complete evaluation” as required under the rule, the paramedics also violated Tennessee
Code Annotated § 68-140-501 et seq., requiring full compliance with rules promulgated by the
Board.4
The trial court did not state that its decision was based on the doctrine of negligence per se,
but we must conclude that it was. Under the doctrine of negligence per se, the burden is placed on
the plaintiff to prove “that the defendant violated a statute or ordinance which imposes a duty or
prohibits an act for the benefit of a person or the public,” “that the injured party was within the class
4
Section 68-140-509 outlines the duties and authority of emergency service personnel on the scene:
Emergency medical services personnel shall exercise the skills and abilities needed to render
approp riate emergenc y medical ca re and pro vide emer gency med ical services in ac cordanc e with
authorized procedures in the respectiv e level of training , and shall adm inister care to p atients based
upon knowledge and application of principles derived fro m accep ted practice and med ical appro val,
and shall fully comply w ith the [B]oa rd’s regulation s governing activities and p erformanc e for the
category o f license or cer tification.
Tenn. Code Ann. § 68-140-509 (Supp. 2000). Section 68-140-511 further prohibits an EMT or p aramedic from violating
“any rule or regulation of the [B]oard,” failing to “report patient care which accurately reflects the evaluation and
treatment of each patient,” and “[a]bandoning or neglecting a patient requiring emergency care, following assumption
of duty.” Te nn. Code Ann. § 68 -140-51 1 (1)(C), ( 5), (6) (19 96).
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of persons whom the legislative body intended to benefit and protect by the enactment of that
particular statute or ordinance,” and “that such negligence was the proximate cause of the injury.”
Smith v. Owen, 841 S.W.2d 828, 831 (Tenn. Ct. App. 1992)(citations and internal quotations
omitted). Under Tennessee law, a paramedic has a statutory duty to provide emergency medical
services or “services utilized in responding to the perceived need for immediate medical care in
order to prevent loss of life or aggravation of illness or injury.” See Tenn. Code Ann. §§ 68-140-
509(a), 68-140-502(11). This duty is measured by the standard of care required of emergency
medical service personnel. Dooley v. Everett, 805 S.W.2d 380, 384-85 (Tenn. Ct. App. 1990). The
scope of the paramedic’s duty is question of fact for the trier of fact. Ball, 1999 WL 134686 at * 5
(citing Dooley, 805 S.W.2d at 384).
In a medical malpractice action, the standard of care, deviation from that standard of care,
and proximate cause must be established by expert testimony in any case not within the experience
or knowledge of a layman. Jennings v. Case, 10 S.W.3d 625, 627 (Tenn. Ct. App. 1999), perm. to
app. den. Jan. 3, 2000; Tenn. Code Ann. § 29-26-115 (2000). In this case, Holt presented no expert
testimony as to the standard of care for paramedics or as to how the paramedics deviated from that
standard by not transporting his mother to the hospital on their first run. Holt contends that the
statute requiring expert testimony in malpractice actions does not apply to this case because EMTs
and paramedics are not subject to the statute in that they are not licensed to practice medicine and
are not physicians. He argues that the specificity of the statutes and rules on the parameters of
acceptable paramedic practice obviate the need for expert testimony.
In Mooney v. Sneed, 30 S.W.3d 304 (Tenn. 2000), our Supreme Curt concluded that an EMT
is a “health care practitioner” within the meaning of Tennessee Code Annotated § 29-20-310(b) and
is, therefore, not immune from suit for medical malpractice under the Tennessee Governmental Tort
Liability Act. Id. at 307-08. In determining that an EMT is a health care practitioner within the
meaning of the statute, the Court reasoned that “the term ‘health care practitioners’ must be
construed in the context of those individuals who are subject to being sued for medical malpractice.”
Id. Thus, paramedics such Dexter and Newsom are subject to being sued for medical malpractice.
Consequently, in a medical malpractice suit against them, Tennessee Code Annotated § 29-26-115
would apply.
Every allegation of negligence against a health care practitioner is not a case of medical
malpractice:
The distinction between ordinary negligence and malpractice turns on whether the
acts or omissions complained of involve a matter of medical science or art requiring
specialized skills not ordinarily possessed by lay persons or whether the conduct
complained of can instead be assessed on the basis of common everyday
experienceof the trier of fact.
A malpractice case generally involves some type of medical diagnosis, treatment or other scientific
matter. Estate of Doe v. Vanderbilt University, Inc., 958 S.W.2d 117, 120 (Tenn. Ct. App. 1997).
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In this case, the heart of the plaintiff’s case is that the defendant paramedics failed to
appropriately assess the decedent’s condition and consequently did not believe it was necessary to
transport her to the hospital. The paramedic’s assessment of a patient’s medical condition and
determination of whether there is a need to transport the patient to the hospital, based on that
assessment, clearly involves matters of medical science or specialized skill. Paramedics receive
specialized training in order to assess patients’ medical needs and determine whether to provide
medical care. See Mooney, 30 S.W.3d at 307; Tenn. Code Ann. § 68-140-509(a). Therefore, this
case must be characterized as a medical malpractice action to which Tennessee Code Annotated §
29-20-115 would be applicable.
The trial court based its finding of negligence in part on the fact that the paramedics failed
to completely fill out the run sheet on the first run, concluding that this violated the complete
evaluation requirement of the statute and of Rule 1200-12-1-.04(3)(a). Certainly the fact that the
paramedics did not completely fill out the run sheet is evidence that they were in a hurry and is
relevant to whether they appropriately assessed the decedent’s condition. However, the failure to
completely fill out the run sheet did not injure the decedent; it is merely evidence that the paramedics
did not exercise due care in assessing the decedent’s medical condition. The incomplete run sheet,
in and of itself, is not sufficient to establish the standard of care for the paramedics in assessing a
patient’s condition, particularly in light of the unrefuted expert testimony of Dr. Merigian that it was
not unusual for a paramedic not to mark portions of the run sheet if the patient was not experiencing
difficulty in that area.
The trial court notes that the portion of the run sheet regarding “fainting” was not marked,
and the paramedics were initially called for the first run in part because the decedent had passed out.
Again, while this is pertinent to whether the paramedics exercised due care in assessing the decedent,
there is no evidence of a specific condition of the decedent that should have been ascertained by the
paramedics that would have changed their determination that the decedent did not need to be
transported to the hospital.
Holt notes that Rule 1200-12-1-.11(7) of the official compilation Rules & Regulations of the
State of Tennessee provides for transport of a patient over the age of fifty-five with a respiratory
disease, and argues that this establishes the standard of care, regardless of expert testimony. This
Rule states:
(7) Destination Determination - Sick or injured persons who are in need of transport
to a health care facility by a ground or air ambulance . . . should be transported
according to these destination rules.
***
(iv) Step 4. If the results of steps 1, 2, or 3 do not indicate a need to
transport the patient to a Level I Trauma Center or a need to contact
Medical Control for a triage decision but the patient satisfies any one
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of the following, Medical Control should be contacted for the triage
decision . . . If Medical Control [is not available] the patient should
be transported to the most appropriate facility:
(I) The patient is older than fifty-five (55) year[s] of
age; or
***
(III) A patient with a respiratory disease. . . .
Tenn. Comp. R. & Regs. 1200-12-1-.1(7) (1999) Holt argues that this Rule establishes that a patient
such as the decedent, fifty-six years old with a respiratory disease, must be transported to the
hospital, regardless of whether the patient indicates that she does not wish to be taken to the hospital
and regardless of the signed form refusing transport to the hospital. However, local rules and
procedures such as Rule 1200-12-1-.11(7) are to be read in conjunction with the Board’s rules and
the statutory provisions. See Tenn. Code Ann. § 68-140-509. The Memphis Fire Department EMS
Field Operations Manual provides: “If a patient refuses transport, note the refusal on the incident
report form and, if possible, obtain the patient’s signature.” In his undisputed expert testimony, Dr.
Merigian asserted that, once the decedent declines transport, absent extreme circumstances, the
paramedic cannot force the patient to go, and indicated that a family member’s signature at the
direction of the patient was sufficient. This application of the Rule makes sense; in the case of a
competent patient over age 55 who refuses to be transported to the hospital, are paramedics to take
the patient by physical force by ambulance to the hospital? Dr. Merigian’s expert testimony on the
application of the Rule in the field and the standard of care for paramedics on this issue was
unrefuted in the trial court below.
Holt notes that the evidence in the trial court below, apparently credited by the trial court
was that the decedent was disoriented and not competent to decline transport to the hospital. This
evidence is important, but again is not relevant to whether Holt established by competent evidence
the standard of care for the paramedics.
It must be noted that there was no finding by the trial court that Holt’s signature on the
refusal to transport form was coerced or involuntary. Rather, the trial court found that Holt was not
adequately informed before signing the form, because the paramedics’ assessment of his mother’s
condition was faulty and incomplete. This relates again to whether the paramedics appropriately
assessed and diagnosed the decedent’s condition, an issue for which the standard of care must be
established by expert testimony. Thus, under all of these circumstances, evidence that the
paramedics failed to transport the decedent to the hospital, in the absence of expert testimony that
the failure to do so breached the applicable standard of care, is insufficient to support a judgment
against the defendants. Accordingly, the trial court’s judgment against the defendants must be
reversed.
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The decision of the trial court is reversed. Costs on appeal are taxed to the appellee Clyde
Holt and his surety, for which execution may issue if necessary.
___________________________________
HOLLY K. LILLARD, JUDGE
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