Debra Lovelace v. Baptist Memorial Hospital-Memphis ( 2020 )

01/16/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 12, 2019 Session
DEBRA LOVELACE ET AL. v. BAPTIST MEMORIAL HOSPITAL-
MEMPHIS
Appeal from the Circuit Court for Shelby County
No. CT-002460-15 Rhynette N. Hurd, Judge
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No. W2019-00453-COA-R3-CV
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Plaintiff filed a health care liability action against Defendant hospital following the death
of Plaintiff’s husband in 2014. The trial court granted summary judgment to the hospital
on two alternative, independent grounds: that the Plaintiff’s expert witness, a registered
nurse, was not competent to testify as an expert witness, and that the expert witness failed
to provide causation testimony as required to prove liability. Plaintiff appealed the trial
court’s ruling about the competency of her expert witness, but she failed to raise the
failure to provide causation testimony as an issue on appeal. As no argument was made to
challenge a distinct ground for summary judgment, we consider the argument waived and
affirm the trial court’s order granting summary judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY ARMSTRONG, J., joined.
Stephen R. Leffler, Memphis, Tennessee, for the appellant, Debra Lovelace, Next of Kin
and Wife of Billy Lovelace.
Jeffrey L. Griffin and Emily Hamm Huseth, Memphis, Tennessee, for the appellee,
Baptist Memorial Hospital-Memphis.
OPINION
I. BACKGROUND
This matter is a health care liability action brought under the Tennessee Health
Care Liability Act (“THCLA”). Billy Lovelace (“Mr. Lovelace”) was admitted to
Defendant/Appellee Baptist Memorial Hospital-Memphis (“Baptist”) on January 1, 2014,
after several days of fever, coughing, and vomiting. Upon admission to Baptist, Mr.
Lovelace was diagnosed with bilateral pneumonia, which was treated with antibiotics,
and with influenza, for which Mr. Lovelace declined treatment. Mr. Lovelace was
previously diagnosed with multiple myeloma, a form of bone cancer that affected his
immune system.
Following his admission to Baptist, Mr. Lovelace was placed in the hospital’s
intensive care unit, where his condition continued to deteriorate. Mr. Lovelace was
unable to turn himself no later than January 9, 2014. Baptist staff did not turn Mr.
Lovelace for extended periods of time. By January 17, 2014, Mr. Lovelace developed a
pressure ulcer that was eventually described as a deep tissue injury. By January 24, 2014,
six additional pressure ulcers were found on Mr. Lovelace’s body. Mr. Lovelace was sent
to a different medical facility on February 17, 2014. He died on March 10, 2014.
Plaintiff/Appellant Debra Lovelace (“Ms. Lovelace”) filed a complaint as the next
of kin and wife of Mr. Lovelace against Baptist and Defendant Baptist Memorial Health
Care Corporation (“Baptist Memorial Health Care,” and together with Baptist,
“Defendants”) on June 20, 2015. The complaint sought compensatory and punitive
damages on the grounds of wrongful death, negligence, medical malpractice, and both
intentional and negligent infliction of emotional distress. Attached to the complaint was
the affidavit of expert from Brenda W. Moore (“Nurse Moore”), a registered nurse with a
doctorate of nursing practice.1 In her affidavit, Nurse Moore claimed to be competent
under state law to express an opinion as an expert witness on the case and believed that a
good faith basis existed for the claim to proceed.
In separate answers, Defendants moved for the matter to be dismissed, denied all
liability for Ms. Lovelace’s claims, and moved to strike all but two of the complaint’s
factual allegations. In subsequent memoranda of law, Defendants argued that Ms.
Lovelace failed to provide the defendants with a sufficient pre-suit notice letter or a
HIPPA-compliant authorization to defendants under federal regulations. Ms. Lovelace
challenged Defendants’ motions and claimed all of her documents were compliant with
state and federal requirements. The matter proceeded as Ms. Lovelace substituted her
previous lawyers with new counsel in September 2017.
After a status conference in August 2018, Nurse Moore was formally designated
as an expert witness in the present case. Her expert witness report was submitted on
September 28, 2018, which stated that six of the seven pressure wounds found on Mr.
Lovelace were caused because of a lack of position changes while he was a patient at
Baptist. Nurse Moore was deposed on October 22, 2018. Following the deposition,
1
While Nurse Moore earned a Doctorate of Nursing Practice, she is not licensed as a nurse
practitioner in Tennessee or any other state. According to the record, Nurse Moore is the mother of Ms.
Lovelace’s former attorney.
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Defendants separately moved for summary judgment on November 27, 2018. Baptist
Memorial Health Care argued that it was a separate and distinct entity from Baptist and
did not provide medical care to Mr. Lovelace before his death.
Baptist argued that hospital officials did not cause Mr. Lovelace’s injuries and
were not liable under the state’s health care liability statutes. Baptist submitted a
declaration of its expert, Dr. Aaron Paul Milstone, supporting its summary judgment
motion which stated that the treatment that Baptist staff provided to Mr. Lovelace
complied with the recognized standard of professional care and that no act or omission by
Baptist staff led to Mr. Lovelace’s death or caused any skin breakdown or eventual
injury. Further, Baptist argued that Nurse Moore did not provide testimony to establish
causation and was not qualified to testify as an expert as a registered nurse. Baptist
further asserted that Ms. Lovelace failed to timely provide a qualified expert and could
not remedy this deficiency before trial.
Ms. Lovelace filed a response in opposition to Defendants’ motions for summary
judgment, arguing that she presented sufficient evidence of a breach of the standard of
case and causation. In particular, Ms. Lovelace disputed that that her husband’s pressure
sores were unavoidable given his illness at the hospital. Ms. Lovelace cited a portion of
Nurse Moore’s deposition testimony where Nurse Moore stated that she did not recall
seeing documentation that Baptist hospital staff could not turn Mr. Lovelace because of
this medical instability. In addition to her disputed facts, Ms. Lovelace also cited several
cases from other jurisdictions which supported her argument that Nurse Moore was
qualified to serve as an expert witness about the standard of care and causation regarding
bedsores. Baptist challenged Ms. Lovelace’s assertions in a reply brief.
When the motion for summary judgment was heard on February 1, 2019, the
parties stipulated that the claim against Baptist Memorial Health Care be dismissed for
procedural reasons. Following arguments from Baptist and Ms. Lovelace, the trial court
orally granted the motion for summary judgment for Baptist by stating the following:
The court is granting the defendant’s motion for summary judgment on two
bases. One, there’s no causation testimony from the only identified expert
witness by the date of the – the October date deadline for disclosing an
expert.
Furthermore, under [Tennessee Code Annotated section] 63-7-103 and our
medical – I always want to say medical malpractice, but healthcare liability
statutes, [Nurse] Moore is not competent to testify.
And, therefore, because the defendants have sufficiently presented
testimony, in the form of [their expert’s] affidavit, that the cause was not
the defendant’s – the defendant was not the cause of the plaintiff’s death,
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the plaintiff did have an obligation to put up or shut up, as The Court has
put it, to present competent testimony of causation and has failed to do so.
Therefore, there’s no genuine issue of material fact for a jury determination
in this case, and [the trial court] is granting the defendant’s motion for
summary judgment.
The trial court thereafter entered a written order granting Baptist’s motion for summary
judgment on the separate grounds of lack of causation testimony and lack of a competent
expert witness. Ms. Lovelace timely filed a notice of appeal.
II. DISCUSSION
Ms. Lovelace raises the following issue in her appellate brief: “Whether the trial
court committed error by granting the defendants’ motion for summary judgment: is a
registered nurse qualified to offer an opinion on the causation of pressure ulcers?” In its
brief, Baptist asserts that any challenge to the trial court’s grant of summary judgment
should be waived where Ms. Lovelace challenged only one of the two independent
grounds found by the trial court to support summary judgment. After a thorough review
of the record and the parties’ submissions to this Court, we agree.
As previously discussed, the trial court granted summary judgment to Baptist on
two bases. First, that Nurse Moore “offered no testimony as to the cause of Mr.
Lovelace’s bedsores or other injuries alleged in the Complaint, as required by Tenn. Code
Ann. § 29-26-115, and the deadline by which [Ms. Lovelace] was required to designate
all expert witnesses she intends to call at trial has passed.” Second, the trial court
reasoned that under the THCLA, Nurse Moore “is not competent to testify as to the cause
of Mr. Lovelace’s bedsores or other injuries alleged in the Complaint.” Thus, the trial
court found that not only was Nurse Moore not qualified to opine as to the cause of Mr.
Lovelace’s injuries, she simply did not offer testimony as to the cause of Mr. Lovelace’s
injuries.
Generally, where a trial court provides more than one basis for its ruling, the
appellant must appeal all the alternative grounds for the ruling. See 5 Am. Jur. 2d
Appellate Review § 718 (“[W]here a separate and independent ground from the one
appealed supports the judgment made below, and is not challenged on appeal, the
appellate court must affirm.”). Based on this doctrine, this Court has at least twice ruled a
party waived its claim of error on appeal by appealing less than all of the grounds upon
which the trial court issued its ruling. See Hatfield v. Allenbrooke Nursing and
Rehabilitation Center, LLC, No. W2017-00957-COA-R3-CV, 2018 WL 3740565, at
*78 (Tenn. Ct. App. Aug. 6, 2018), perm. app. denied (Tenn. Jan. 17, 2019);
Duckworth Pathology Group, Inc. v. Regional Medical Center at Memphis, No.
W2012-02607-COA-R3-CV, 2014 WL 1514602, at *1012 (Tenn. Ct. App. Apr. 17,
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2014). In Duckworth, a trial court entered an order which dismissed a complaint on at
least four alternative grounds. Duckworth, 2014 WL 1514602 at *11. The plaintiff, as
appellant, raised only two of the grounds for dismissal on appeal and failed to mention
the alternative grounds for dismissal in its initial brief. Id. The defendant, in the posture
of appellee, contended that the appellant’s failure to raise these alternative grounds led to
their waiver and that “it was unnecessary for this Court to consider” the issues that the
plaintiff had raised because the plaintiff failed to raise alternative issues that also led to
the dismissal of the case. Id. While the appellant addressed these alternative issues in its
reply brief, this Court declined to consider those issues and found that a reply brief was
the incorrect vehicle to raise new issues. Id. Thus, we affirmed the trial court’s judgment
“because [the plaintiff] failed to appeal all of the alternative grounds for dismissal in the
trial court’s order[.]” Id. at *12.
In Hatfield, a trial court entered an order that denied a motion to dismiss for lack
of personal jurisdiction on two grounds. Hatfield, 2018 WL 3740565 at *7. In their
appellant brief, defendants challenged only one of the two grounds the trial court cited as
the basis for its decision. Id. Nevertheless, this court held however, that the second
unchallenged ground “constitutes an alternative and independent basis for denying a
motion to dismiss for lack of personal jurisdiction.” Id. (citation omitted). While the
defendants in Hatfield were aware of both grounds cited in the trial court’s order, they
only argued that the trial court erred in ruling on one of the grounds in its appellate brief.
Id. As in Duckworth, the defendants only addressed the second ground in their reply
brief after their failure to raise the issue was brought up by the plaintiffs as appellees. Id.
“Because the individual defendants . . . failed to challenge one of the alternative grounds
for denying the motion to dismiss for lack of personal jurisdiction,” the Court of Appeals
affirmed the trial court’s decision. Id. at *8 (footnote omitted).
As an initial matter, we conclude that the trial court’s order contains two
independent bases for granting summary judgment. One involves the fact that Ms.
Lovelace arguably did not provide competent expert proof on causation (referred to
hereinafter as the “qualifications ground”). There is no dispute that this is an appropriate
basis for the grant of summary judgment in a health care liability action. See Mikheil v.
Nashville Gen. Hosp. at Meharry, No. M2014-02301-COA-R3-CV, 2016 WL 373726,
at *12 (Tenn. Ct. App. Jan. 29, 2016) (holding that because the plaintiff’s expert was
excluded, the trial court properly dismissed the health care liability claims on the ground
of lack of statutorily-required expert proof as to breach of the standard of care and
causation) (citing Tenn. Code Ann. § 29-26-115 (requiring that the plaintiff present
competent expert proof to establish the standard of care, breach of the standard of care,
and causation in a health care liability action)).
The second basis involves the trial court’s conclusion that even if Nurse Moore
was competent, her testimony did not include proof as to causation (referred to
hereinafter as the “lack of proof ground”). Under the current summary judgment
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standard, the party without the burden of proof may seek summary judgment “either (1)
by affirmatively negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.” Rye v. Women’s Care
Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). Once either standard is
met, the nonmoving party must then point to specific facts to show that summary
judgment is inappropriate. Id. “[A]fter adequate time for discovery has been provided,
summary judgment should be granted if the nonmoving party’s evidence at the summary
judgment stage is insufficient to establish the existence of a genuine issue of material fact
for trial.” Id. Here, Baptist filed the declaration of its expert contending that Baptist did
not breach the standard of care and that Mr. Lovelace’s injuries were not caused by
Baptist’s alleged negligence. It was therefore Ms. Lovelace’s burden to put forth
competent evidence, at the summary judgment stage, to support her claim of causation.
Without this evidence, summary judgment is appropriate. See Mikheil, 2016 WL 373726,
at *12. Thus, the trial court’s conclusion that Nurse Moore did not submit evidence from
its purported expert as to causation constitutes an independent basis for the grant of
summary judgment. Consequently, Ms. Lovelace was required to appeal both grounds
cited by the trial court, lest her challenge to the trial court’s grant of summary judgment
be waived. See Hatfield, 2018 WL 3740565 at *7–8; Duckworth, 2014 WL 1514602 at
*11.
Turning to Ms. Lovelace’s brief to this Court, we must conclude that she only
fairly raised the qualifications ground as an error on appeal. As previously discussed, the
issue designated by Ms. Lovelace involves only the qualifications of Nurse Moore to
offer a causation opinion. Generally, for issues to be properly raised before this Court,
they must be not only argued in the party’s appellate brief, but specifically designated as
an issue. Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002) (“We
consider an issue waived where it is argued in the brief but not designated as an issue”).
Even assuming that Ms. Lovelace’s issue is broad enough to encompass the additional
ground relied on by the trial court, however, we conclude that this issue was not
sufficiently argued in Ms. Lovelace’s appellate brief.
From our review, the bulk of Ms. Lovelace’s argument concerns her contention
that the trial court erred in ruling that Nurse Moore was not qualified to serve as an expert
witness. However, Ms. Lovelace failed to specifically contend that the trial court erred by
ruling that Nurse Moore presented no causation testimony in the case. For example, while
both the trial court’s oral ruling and written order clearly contain both grounds detailed
above, Ms. Lovelace’s recitation of the procedural history of the case mentions only the
qualifications ground.
This argument fares little better in the argument section of Ms. Lovelace’s brief.
Although considerable law is cited as to the qualifications ground, the only portion of Ms.
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Lovelace’s argument that could be construed to concern the lack of proof ground is as
follows:
If the essential element [Baptist] proposes to have negated is the element of
causation, the deposition testimony of Nurse Moore eliminates that as a
ground for granting summary judgment. She states that the lack of
repositioning of the patient led to the creation of seven different pressure
sores in a brief period of time. She draws that conclusion from the medical
records as opposed to the testimony of a witness to prove the negative
proposition that something was not done. But the medical records are all
anyone has to piece together what happened in the final days of [Mr.]
Lovelace’s life.
To the extent that this portion of the brief is construed as raising the lack of proof ground,
however, it is inadequate.
“It is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to develop an
argument in support of his or her contention or merely constructs a skeletal argument, the
issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d
603, 615 (Tenn. 2010). To this end, the Tennessee Rules of Appellate Procedure require
that arguments be supported by citation to relevant authority and references to the
appellate record wherein the relevant evidence may be found. See Tenn. R. App. P.
27(a)(7) (requiring appellant’s briefs contain an argument supported by “citations to
authorities and appropriate references to the record”); see also Tenn. R. Ct. App. 6(a)
(requiring that written argument include “[a] statement of each determinative fact relied
upon with citation to the record where the evidence of each such fact may be found”).
Arguments that do not contain appropriate citations to authority and references to the
record may be waived. See Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000)
(“Courts have routinely held that the failure to make appropriate references to the record
and to cite relevant authority in the argument section of the brief as required by Rule
27(a)(7) constitutes a waiver of the issue.”). Respectfully, to the extent that Ms.
Lovelace’s brief can be interpreted as challenging the lack of proof ground, the argument
thereon is no more than skeletal. Ms. Lovelace’s argument contains no citations to
relevant authority, and it fails to cite to the specific portion of the record Ms. Lovelace
contends constitutes Nurse Moore’s causation proof.
Although we generally do not condone the practice of correcting initial briefs
through reply briefs, we note that while waiver was raised by Baptist in its brief, Ms.
Lovelace made no effort to correct the deficiencies in her initial brief in a reply brief. Cf.
Shaw v. Gross, No. W2017-00441-COA-R3-CV, 2018 WL 801536, at *4 (Tenn. Ct.
App. Feb. 9, 2018) (considering a party’s reply brief to determine whether an issue was
raised but noting that deficiencies in initial briefs generally cannot be corrected in reply
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briefs). In fact, no reply brief of any kind was filed by Ms. Lovelace. Oral argument
provided no further illumination, as counsel for Ms. Lovelace again failed to point to the
specific evidence it contends constitutes the causation proof that the trial court found
lacking. Under these circumstances, we cannot conclude that Ms. Lovelace sufficiently
challenged the lack of proof ground in this appeal.
Based on the foregoing, we conclude that Ms. Lovelace failed to properly
challenge one of the two independent bases upon which the trial court granted summary
judgment. In the absence of a challenge to both independent grounds, Mr. Lovelace’s
argument that summary judgment was inappropriate is waived. See Hatfield, 2018 WL
3740565 at *7–8; Duckworth, 2014 WL 1514602 at *11. Consequently, the trial court’s
decision on this matter must be affirmed without reaching the substantive merits of the
grounds relied upon by the trial court.
III. CONCLUSION
The judgment of the Shelby County Circuit Court is affirmed, and this cause is
remanded to the trial court for all further proceedings as are necessary and consistent with
this Opinion. Costs of this appeal are taxed to Appellant Debra Lovelace, for which
execution may issue if necessary.
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J. STEVEN STAFFORD, JUDGE
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