Kerry Davis v. Garrettson Ellis, MD ( 2020 )

11/05/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 11, 2020 Session
KERRY DAVIS v. GARRETTSON ELLIS, M.D.
Appeal from the Circuit Court for Shelby County
No. CT-002190-12 Rhynette N. Hurd, Judge
___________________________________
No. W2019-01367-COA-R3-CV
___________________________________
This is a health care liability case. The trial court granted summary judgment in favor of
Appellee/doctor finding that Appellant’s expert witness failed to connect the decedent’s
death to Appellee’s alleged deviation from the standard of care. We conclude that
Appellant presented sufficient evidence, at the summary judgment stage, to create a
dispute of fact concerning deviation from the standard of care and causation.
Accordingly, we reverse the trial court’s grant of summary judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed in Part, Affirmed in Part, and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Gary K. Smith and C. Philip M. Campbell, Memphis, Tennessee, for the appellant, Kerry
Davis.
Jennifer S. Harrison and James E. Looper, Memphis, Tennessee, for the appellee,
Garrettson Ellis, M.D.
OPINION
I. Background
On January 18, 2011, 40-year-old Sylvia Davis was admitted to the emergency
room at Methodist Hospital-Germantown complaining of a cough, fever, and shortness of
breath. She was diagnosed with multilobar, community-acquired pneumonia and was
admitted to a medical floor.
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On the afternoon of January 19, 2011, at approximately 4:00 p.m., Dr. Garrettson
Ellis (“Appellee”), the on-call intensivist,1 performed a pulmonary consult. Dr. Ellis’
notes indicated that Mrs. Davis was awake, alert, and oriented; however, her oxygen
saturation level was 93% on a nonrebreather mask set to 100% oxygen.2 Dr. Ellis noted
that Mrs. Davis’ respiratory condition had “progressively worsened over the past 24
hours.” She “continued to be febrile and has become progressively more hypoxemic,
requiring 100% nonrebreather.” As such, Dr. Ellis opined that Mrs. Davis would likely
“get worse before she [got] better,” to-wit:
I anticipate that her pulmonary status is going to continue to decline. Given
her present course, she likely will need intubation and mechanical
ventilation within the next 24 hours. She will be admitted to the intensive
care unit [(“ICU”)] for close observation and intubation when needed.
Dr. Ellis did not order intubation at that time but referred Mrs. Davis to the ICU for
observation. The January 19, 2011, 4:00 p.m. consult was the only time Dr. Ellis saw
Mrs. Davis. Dr. Ellis’ shift ended at 6:00 p.m., and he had no further contact with Mrs.
Davis thereafter.
When Dr. Ellis’ shift ended, Dr. Glen Williams replaced him as the on-call
intensivist. Around 6:49 p.m., a respiratory therapist evaluated Mrs. Davis and reported
her condition to Dr. Williams. At 7:30 p.m., Mrs. Davis’ oxygen saturation level was
82%. At approximately 7:45 p.m., Dr. Williams ordered that Mrs. Davis be placed on a
non-invasive, positive-pressure ventilation facemask.3 For the next few hours, her
oxygen saturation level fluctuated from 96%-100%. At approximately 10:00 p.m., Mrs.
Davis’ oxygen saturation level decreased to 89%. At 11:00 p.m., her oxygen level
dropped to 74%; at that time, she was in acute respiratory distress and failure. Dr.
Williams ordered intubation. Beginning at 11:09 p.m., the emergency room doctor
attempted three unsuccessful intubations before calling for anesthesiology to assist. Mrs.
Davis was successfully intubated by an anesthesiologist at 11:36 p.m. Unfortunately, on
January 20, 2011, at approximately 5:23 a.m., Mrs. Davis coded. She was pronounced
dead at 5:40 a.m.
1
An intensivist is a physician who specializes in the care and treatment of patients in intensive
care. An intensivist may also be referred to as a critical care specialist.
2
A nonrebreather mask is a face mask that covers the nose and mouth, which can deliver a high
concentration of oxygen to a patient. Aimee Eyvazzadeh, MD, How Non-Rebreather Masks Work,
HEALTHLINE (Mar. 30, 2020), https://www.healthline.com/health/rebreather-mask#overview.
3
Noninvasive positive-pressure ventilation is “a form of mechanical support in which positive
pressure delivers a mixture of air and oxygen” via a standard ICU ventilator or a portable device.
Noninvasive Positive-Pressure Ventilation (NPPV) for Acute Respiratory Failure, AGENCY FOR
HEALTHCARE RESEARCH AND QUALITY (April 21, 2011),
https://effectivehealthcare.ahrq.gov/products/nppv-respiratory-failure/research-protocol. It is an
alternative to intubation. Id.
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 On May 16, 2012, Mrs. Davis’ husband, Kerry Davis (“Appellant”), filed this
health care liability action in the Shelby County Circuit Court (“trial court”).4 In his
complaint, Appellant alleged, in relevant part:
15. [] [A]lthough Dr. Ellis noted the need for intensive care and specifically
for intubation . . . no attempts were made to intubate Sylvia Davis at that
time.
16. Instead, the intubation was deferred and not even attempted until
several hours later, approximately one hour before midnight on January 20,
2011.
17. Because the medical condition of Sylvia Davis worsened because the
endotracheal tube had not been placed, the process of intubating her once it
was finally attempted became more difficult for the physician who
attempted it, who noted by that time that she was “in obvious respiratory
distress.”
***
22. Because of the lengthy delay in the placement of an endotracheal tube
in Sylvia Davis, the placement of which was medically indicated at or very
near the time it was first noted to be likely necessary by Dr. Ellis, Sylvia
Davis deteriorated and died, when, more probably than not, she would have
survived and recovered had she been timely intubated.
23. But for the acts of negligence referred to in the preceding paragraphs, it
is more probable than not that had Sylvia Davis been provided an
endotracheal tube at or very shortly after the time Dr. Ellis had noted that
she was likely going to need an endotracheal tube, her condition would not
have been allowed to deteriorate to the point that she would require
emergency resuscitation. It is also more likely than not that had she not
been allowed to deteriorate to the point that her condition became a medical
emergency, efforts to place an endotracheal tube would not have failed, and
Sylvia Davis would not have died an untimely death at the age of 40.
In his July 24, 2012 answer, Dr. Ellis denied liability.5
On November 30, 2018, Appellant identified Dr. Kyle Gunnerson as an expert
witness. On February 12, 2019, Dr. Ellis deposed Dr. Gunnerson as an adverse expert
4
Mr. Davis sued Dr. Ellis, Mid-South Pulmonary Specialists, P.C., Methodist Healthcare-
Memphis Hospitals, and Methodist Hospital of Germantown. Defendants Methodist Healthcare-
Memphis Hospitals, Methodist Hospital Germantown, and Mid-South Pulmonary Specialists, P.C. were
dismissed, and Dr. Ellis is the sole remaining defendant.
5
Concurrent with his answer, Dr. Ellis filed a Tennessee Rule of Civil Procedure 12.02 motion to
dismiss, which the trial court denied.
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witness; Mr. Davis’ counsel posed no questions to Dr. Gunnerson during this discovery
deposition.
On March 29, 2019, Dr. Ellis moved for summary judgment. As grounds for his
motion, Dr. Ellis asserted:
1. There is no causal connection between any alleged negligence by Dr.
Ellis and any injury, including death, to Ms. Davis; and
2. If cause-in-fact is established, a superseding, intervening cause relieves
Dr. Ellis of liability.
***
Summary judgment is appropriate in this matter because the undisputed
facts show that [Appellant], by way of his only medical expert, has not
established a causal connection necessary to prove his case. Additionally,
and in the alternative, even if [Appellant] were to establish cause-in fact,
Dr. Ellis is not liable because the three failed intubations of Ms. Davis
constitute a superseding, intervening cause.
On May 14, 2019, Appellant filed a response in opposition to the motion for summary
judgment along with Dr. Gunnerson’s affidavit. Dr. Ellis moved to strike Dr.
Gunnerson’s affidavit. In its July 3, 2019 order granting Dr. Ellis’ motion for summary
judgment, the trial court denied his motion to strike Dr. Gunnerson’s affidavit on its
finding that “the Affidavit, even if considered, does not remedy the deficiencies in [Dr.
Gunnerson’s] expert proof.” In concluding that Dr. Ellis was entitled to summary
judgment, the trial court analyzed his deposition testimony and affidavit:
Dr. Gunnerson is unequivocal that [Dr. Ellis] deviated from the standard of
care not because he failed to intubate Mrs. Davis but because, in Dr.
Gunnerson’s opinion, [he] failed to have a plan to address Mrs. Davis’
condition. . . . Careful reading of Dr. Gunnerson’s deposition reveals that
Dr. Gunnerson does not opine [that Dr. Ellis] deviated from the standard of
care by not intubating Mrs. Davis but rather by not documenting or having
a conversation with other providers for a patient “who will require
intubation at some time.” At no time during his deposition did Dr.
Gunnerson say [that Dr. Ellis’] failure to intubate Mrs. Davis or [Dr. Ellis’]
failure to have a plan more likely than not caused Mrs. Davis’ injury. . . .
Without any explanation for his changed opinion and with no additional
knowledge . . . Dr. Gunnerson’s Affidavit presents an entirely different
assessment of [Dr. Ellis’] treatment of Mrs. Davis. Unlike the deposition
testimony, the Affidavit emphasizes the question of untimely intubation.
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Based, in part, on the alleged discrepancy between Dr. Gunnerson’s deposition testimony
and affidavit, the trial court concluded:
According to the Affidavit, [Dr. Ellis’] failure to intubate caused the harm,
but, according to Dr. Gunnerson, [Dr. Ellis] did not deviate from the
standard of care by not intubating Mrs. Davis during the time he saw her.
Without expert proof connecting the alleged deviation to the cause of harm
to [Mrs. Davis], there is no genuine issue for trial, and [Dr. Ellis] is entitled
to summary judgment. [Dr. Ellis] has demonstrated [that Appellant’s]
evidence at this stage of the litigation is insufficient to establish
[Appellant’s] claim, and neither the Affidavit nor any other evidence
[Appellant] has presented demonstrates the existence of a genuine issue for
trial.
Having determined that Appellant failed to meet his burden to show, at the summary
judgment stage, that Dr. Ellis’ failure to intubate or failure to put in place a plan for Mrs.
Davis’ treatment caused her death, the trial court did not address Dr. Ellis’ alternate
ground for summary judgment concerning whether other providers’ subsequent treatment
of Mrs. Davis constituted a superseding/intervening cause that would negate Dr. Ellis’
liability. Appellant appeals.
II. Issue
The sole issue for review is whether the trial court erred in granting Dr. Ellis’
motion for summary judgment.
III. Standard of Review
A trial court’s decision to grant a motion for summary judgment presents a
question of law. Therefore, our review is de novo with no presumption of correctness
afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997). This Court must make a fresh determination that all requirements of Tennessee
Rule of Civil Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-
Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary
judgment is made, the moving party has the burden of showing that “there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Tenn. R. Civ. P. 56.04. “A fact is material ‘if it must be decided in order to
resolve the substantive claim or defense at which the motion is directed.’” Akers v.
Heritage Med. Assocs., P.C., No. M2017-02470-COA-R3-CV, 2019 WL 104130, at *5
(Tenn. Ct. App. Jan. 4, 2019), perm. app. denied (Tenn. May 16, 2019) (quoting Byrd v.
Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). Further, “[a] ‘genuine issue’ exists if ‘a
reasonable jury could legitimately resolve that fact in favor of one side or the other.’”
Akers, 2019 WL 104130, at *5 (quoting Byrd, 847 S.W.2d at 215).
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The Tennessee Supreme Court has explained that when the party moving for
summary judgment does not bear the burden of proof at trial, “the moving party may
satisfy its burden of production 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 Center of Memphis, MPLLC, 477
S.W.3d 235, 265 (Tenn. 2015) (italics omitted). Furthermore,
“[w]hen a motion for summary judgment is made [and] . . . supported as
provided in [Tennessee Rule 56],” to survive summary judgment, the
nonmoving party “may not rest upon the mere allegations or denials of [its]
pleading,” but must respond, and by affidavits or one of the other means
provided in Tennessee Rule 56, “set forth specific facts” at the summary
judgment stage “showing that there is a genuine issue for trial.” Tenn. R.
Civ. P. 56.06. The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co., [Ltd. v. Zenith Radio Corp.], 475 U.S. [574,] 586, 106 S.
Ct. 1348 [(1986)]. The nonmoving party must demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in
favor of the nonmoving party.
Rye, 477 S.W.3d at 265. “Upon review, this Court considers ‘the evidence in the light
most favorable to the non-moving party and draw[s] all reasonable inferences in that
party’s favor.’” Ray v. Neff, No. M2016-02217-COA-R3-CV, 2018 WL 3493158, at *3
(Tenn. Ct. App. July 20, 2018) (quoting McCullough v. Vaughn, 538 S.W.3d 501, 505
(Tenn. Ct. App. 2017) (citing Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002))); see
also Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003) (citing Webber v. State Farm
Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001)). The trial court may grant
summary judgment only if “‘both the facts and the conclusions to be drawn from the facts
permit a reasonable person to reach only one conclusion.’” Helderman v. Smolin, 179
S.W.3d 493, 500 (Tenn. Ct. App. 2005) (quoting Carvell v. Bottoms, 900 S.W.2d 23, 26
(Tenn. 1995)).
IV. Analysis
Appellant’s burden of proof in this health care liability case is governed by
Tennessee Code Annotated section 29-26-115(a), which provides, in relevant part:
(a) . . . the claimant shall have the burden of proving by evidence as
provided by subsection (b):
(1) The recognized standard of acceptable professional practice in the
profession and the specialty thereof, if any, that the defendant
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practices in the community in which the defendant practices or in a
similar community at the time the alleged injury or wrongful action
occurred;
(2) That the defendant acted with less than or failed to act with
ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission,
the plaintiff suffered injuries which would not otherwise have
occurred.
Tenn. Code Ann. § 29-26-115(a). The statute further provides that:
(b) No person in a health care profession requiring licensure under the laws
of this state shall be competent to testify in any court of law to establish the
facts required to be established by subsection (a), unless the person was
licensed to practice in the state or a contiguous bordering state a profession
or specialty which would make the person’s expert testimony relevant to
the issues in the case and had practiced this profession or specialty in one
(1) of these states during the year preceding the date that the alleged injury
or wrongful act occurred. This rule shall apply to expert witnesses
testifying for the defendant as rebuttal witnesses. The court may waive this
subsection (b) when it determines that the appropriate witnesses otherwise
would not be available.
Accordingly, “the evidence required by section 29-26-115(a) must be proven through the
testimony of a qualified expert witness.” Young v. Frist Cardiology, PLLC, 599 S.W.3d
568, 571 (Tenn. 2020) (citing Shipley v. Williams, 350 S.W.3d 527, 550 (Tenn. 2011)
(citing Tenn. Code Ann. § 29-26-115(a); Williams v. Baptist Mem’l Hosp., 193 S.W.3d
545, 553 (Tenn. 2006); Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002))). So,
here, we are concerned with whether Dr. Gunnerson’s deposition testimony or affidavit
creates at least a dispute of fact concerning: (1) the applicable standard of care; (2)
whether Dr. Ellis deviated from the standard of care, and/or (3) whether Dr. Ellis’
deviation from the standard of care caused Mrs. Davis’ death. Before addressing this
question, we briefly discuss the trial court’s treatment of Dr. Gunnerson’s affidavit.
As noted above, Dr. Ellis moved to strike Dr. Gunnerson’s affidavit, which Appellant
filed in opposition to Dr. Ellis’ motion for summary judgment. Specifically, Dr. Ellis
alleged that Dr. Gunnerson changed his opinions only after reviewing Dr. Ellis’ motion
for summary judgment, thus, he argued that the affidavit was a “sham affidavit.” At the
summary judgment hearing, the trial court stated that it was going to “disallow” the
affidavit; however, in its July 3, 2019 order, the trial court denied the motion to strike the
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affidavit. It is well-settled that a trial court speaks through its orders. Palmer v. Palmer,
562 S.W.2d 833, 837 (Tenn. Ct. App. 1977). “A judgment must be reduced to writing in
order to be valid. It is inchoate, and has no force whatever, until it has been reduced to
writing and entered on the minutes of the court.” Cunningham v. Cunningham, No.
W2006-02685-COA-R3-CV, 2008 WL 2521425, *5 (Tenn. Ct. App. June 25, 2008).
Based on the trial court’s statements in its order, it did consider Dr. Gunnerson’s affidavit
but found it of no effect, i.e., “the Affidavit, even if considered, does not remedy the
deficiencies in [Dr. Gunnerson’s] expert proof.” We will discuss the effect of Dr.
Gunnerson’s affidavit on Appellant’s burden of proof below. However, as an initial
matter, we conclude that it was not error for the trial court to consider Dr. Gunnerson’s
affidavit in addition to his deposition testimony. Tennessee Rule of Civil Procedure
56.06 specifically allows affidavits in response to motions for summary judgment to “set
forth specific facts showing that there is a genuine issue for trial.” Tenn. R. Civ. P.
56.06; see also Rye, 477 S.W.3d at 250, 262, 265; Foltz v. Barnhart Crane & Rigging
Co., No. W2018-02198-COA-R3-CV, 2019 WL 6842375, at *3 (Tenn. Ct. App. Dec. 16,
2019); Miller v. TRH Health Ins. Co., No. E2017-02049-COA-R3-CV, 2019 WL
4861555, at *2 (Tenn. Ct. App. Oct. 2, 2019); Lexon Ins. Co. v. Windhaven Shores,
Inc., 601 S.W.3d 332, 338 (Tenn. Ct. App. 2019). Accordingly, we affirm the trial
court’s denial of Dr. Ellis’ motion to strike Dr. Gunnerson’s affidavit. We now turn to
the substantive question of whether the trial court erred in granting Dr. Ellis’ motion for
summary judgment.
A. Deviation from the Standard of Care
Concerning the first and second prima facie elements in this health care liability
action, i.e., the standard of care and whether Dr. Ellis deviated from it, the trial court
found:
During his deposition, Dr. Gunnerson stated . . . that he agreed with
[Dr. Ellis’] assessment that Mrs. Davis would “most likely need intubation
sometime in the future” . . . , but he disagreed with transferring Mrs. Davis
to ICU with “no plan laid out in the chart or in the . . . communication with
his oncoming intensivist partner for the night as far as specific steps to be
taken in regards to Mrs. Davis’s respiratory status.” . . . .
When asked at what point a patient in Mrs. Davis’ condition should
be intubated, Dr. Gunnerson said, “[I]n a standard of care, 24 hours would
be, you know, would be too late.” He went on to say that if a patient
needed to go to ICU immediately, “then either intubating her or making a
plan for doing this promptly, sooner [rather] than later, is necessary.” . . . .
Dr. Gunnerson explained the intensivist has options, including immediate
intubation or trial noninvasive procedures, but the standard of care requires
that there be a treatment plan.
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***
Dr. Gunnerson stated that the standard of care did not require [Dr.
Ellis] to intubate Mrs. Davis when he saw her at 4:00 pm. . . . He also
opined there was more than one way of addressing Mrs. Davis’ condition. .
. . Dr. Gunnerson is unequivocal that [Dr. Ellis] deviated from the standard
of care not because he failed to intubate Mrs. Davis but because, in Dr.
Gunnerson’s opinion, Defendant failed to have a plan to address Mrs.
Davis’ condition. . . . Careful reading of Dr. Gunnerson’s deposition
reveals that Dr. Gunnerson does not opine Defendant deviated from the
standard of care by not intubating Mrs. Davis but rather by not
documenting or having a conversation with other providers for a patient
“who will require intubation at some time.” . . . .
Reading Dr. Gunnerson’s affidavit in the light most favorable to Appellant (as we must
do at the summary judgment stage), we disagree with the trial court’s conclusions that
“Dr. Gunnerson does not opine [that Dr. Ellis] deviated from the standard of care by not
intubating Mrs. Davis but rather by not documenting or having a conversation with other
providers for a patient ‘who will require intubation at some time.’” As discussed above,
in the span of approximately 24 hours, Mrs. Davis’ condition rapidly deteriorated, and
she was at risk for “impending respiratory failure.” As set out in the notations Dr. Ellis
made on Mrs. Davis’ medical chart, he recognized that her respiratory condition was
declining and that she was at risk for “impending respiratory failure.” In his deposition,
Dr. Gunnerson explained that because Mrs. Davis’ condition was rapidly declining, the
standard of care required Dr. Ellis to intervene and implement a treatment plan that
would stabilize her respiratory condition. He opined that this type of foresight and
anticipation is what differentiates an intensivist from a doctor who does not perform
critical care. It is “that anticipation that something bad is going to happen, and using
clinical judgment [that] has been honed over the years to interact to prevent that badness
from happening . . . .” According to Dr. Gunnerson, Dr. Ellis’ plan to send Mrs. Davis to
the ICU for monitoring did not satisfy the standard of care because “a plan just to watch
her is not a plan to reverse or to treat or to support her respiratory status.” Dr. Gunnerson
opined that, at the time Dr. Ellis was treating Mrs. Davis, she had “nowhere left to go [in
terms of treatment of her respiratory decline] other than [a] mechanical type of positive
pressure.” As such, Dr. Gunnerson surmised that Dr. Ellis’ wait and see approach was
not a sufficient plan of care and, thus, constituted a deviation from the standard of care.
In furtherance of his opinion that Dr. Ellis took the wrong approach in Mrs. Davis’ case,
Dr. Gunnerson explained that Dr. Ellis had several options that would have satisfied the
standard of care. Dr. Gunnerson opined that Dr. Ellis could have attempted a
noninvasive treatment through a positive-pressure ventilation facemask; however, he
conceded that this treatment option likely would have been unsuccessful given Mrs.
Davis’ rapidly declining respiratory condition. In that case, Dr. Gunnerson opined that
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the standard of care would dictate intubation, to-wit:
Q. . . . Any other opinions against Dr. Ellis, I want to be clear, he had two
choices when he was at the bedside, he should have -- or the standard of
care, required him to electively intubate or do a noninvasive brief trial,
monitored the patient’s outcome, which we both agree could or could not
have been good or bad?
A. Correct.
(emphases added). In his affidavit, Dr. Gunnerson reiterated this point, stating that, “It
would have been reasonable under the standard of care applicable to Dr. Ellis as an
intensivist to have attempted a brief trial of noninvasive positive pressure ventilation, but
also to have been prepared to perform the intubation promptly . . . .” In lieu of attempting
either of these treatments himself, Dr. Gunnerson opined that Dr. Ellis could have met the
standard of care by instructing other providers to perform these treatments imminently.
Rather, Dr. Ellis left the hospital on January 19, 2011, leaving Mrs. Davis without
necessary treatment or a clear plan for immediate treatment. In this regard, Dr.
Gunnerson’s deposition and affidavit create a dispute of fact as to whether Dr. Ellis,
while recognizing that Mrs. Davis was in immediate danger of losing her airway,
ostensibly abandoned her by failing to provide necessary treatment before ending his
shift. A close reading of Dr. Gunnerson’s deposition and affidavit indicates that the lack
of any intervention on Dr. Ellis’ part forms the basis of Dr. Gunnerson’s opinion that Dr.
Ellis deviated from the standard of care.
B. Causation
Concerning the prima facie element of causation, “a plaintiff in a [health care
liability] case in Tennessee ‘must prove that it is more likely than not that the
defendant’s negligence caused plaintiff to suffer injuries which would have not otherwise
occurred.’” Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993) (emphasis added)
(quoting Boburka v. Adcock, 979 F.2d 424, 429 (6th Cir. 1992)). Specifically, the
Kilpatrick Court explained that
the plaintiff must introduce evidence which affords a reasonable
basis for the conclusion that it is more likely than not that the
conduct of the defendant was a cause in fact of the result. A mere
possibility of such causation is not enough; and when the matter
remains one of pure speculation or conjecture or the probabilities are
at best evenly balanced, it becomes the duty of the court to direct a
verdict for the defendant . . . .
The plaintiff is not, however, required to prove the case
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beyond a reasonable doubt. The plaintiff need not negative
entirely the possibility that the defendant’s conduct was not a
cause and it is enough to introduce evidence from which
reasonable persons may conclude that it is more probable
that the event was caused by the defendant than that it
was not . . . . (Citation omitted). A doctor’s testimony that a
certain thing is possible is no evidence at all. His opinion as
to what is possible is no more valid than the jury’s own
speculation as to what is or is not possible. Almost anything
is possible, and it is thus improper to allow a jury to consider
and base a verdict upon a ‘possible’ cause of death. (Citation
omitted). The mere possibility of a causal relationship,
without more, is insufficient . . . .
Lindsey, 689 S.W.2d 856, 861-62. Thus, proof of causation equating to a
“possibility,” a “might have,” “may have,” “could have,” is not sufficient,
as a matter of law, to establish the required nexus between the plaintiff’s
injury and the defendant’s tortious conduct by a preponderance of the
evidence in a medical malpractice case. Causation in fact is a matter of
probability, not possibility, and in a medical malpractice case, such
must be shown to a reasonable degree of medical certainty. White v.
Methodist Hosp. South, 844 S.W.2d 642, 648-49 (Tenn. [Ct.] App. 1992).
Kilpatrick, 868 S.W.2d at 602 (emphases added) (quoting Lindsey v. Miami Dev. Corp.,
689 S.W.2d 856, 861-62 (Tenn. 1985)).
Throughout these proceedings, Dr. Ellis has maintained that Dr. Gunnerson’s
deposition and affidavit fail to show, to a reasonable degree of medical certainty, that Dr.
Ellis’ alleged deviation from the standard of care caused Mrs. Davis’ death. Rather, Dr.
Ellis contends that any opinion concerning a causal link between Dr. Ellis’ actions and
Mrs. Davis’ death was purely speculative and, thus, insufficient to establish causation.
See Bara v. Clarksville Mem’l Health Sys., Inc., 104 S.W.3d 1, 10 (Tenn. Ct. App.
2002) (“[I]f a doctor cannot testify as to cause in fact to a reasonable degree of medical
certainty, his testimony is not admissible before the jury and if there is no other expert
evidence of causation in fact in a medical malpractice case, summary judgment would be
proper.”). Case law provides that “proof of causation equating to a ‘possibility,’ a ‘might
have,’ ‘may have,’ ‘could have,’ is not sufficient, as a matter of law, to establish the
required nexus between the plaintiff’s injury and the defendant’s tortious conduct by a
preponderance of the evidence in a [health care liability] case.” Kilpatrick, 868 S.W.2d
at 602.
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In granting Dr. Ellis’ motion for summary judgment, the trial court found that
[a]t no time during his deposition did Dr. Gunnerson say [that Dr. Ellis’]
failure to intubate Mrs. Davis or [his] failure to have a plan more likely
than not caused Mrs. Davis’ injury.
While it is true that Dr. Gunnerson does not opine, in his deposition, that Dr. Ellis’ failure
to adhere to the standard of care caused Mrs. Davis’ death, he was never asked this
question. In fact, Appellant’s attorney did not pose any questions to Dr. Gunnerson
during his discovery deposition. Regardless, in his affidavit (which Appellant properly
submitted to refute Dr. Ellis’ claim for summary judgment), Dr. Gunnerson states:
In my deposition I was not asked whether I hold the opinion to a reasonable
degree of medical certainty that a deviation from the standard of care in this
case more likely than not caused any injury, including the death of Sylvia
Davis, which would not otherwise have occurred. I do hold that opinion.
To a reasonable degree of medical certainty, had Sylvia Davis been timely
intubated on the afternoon or early evening of January 19, 2011, before her
condition deteriorated to the point that intubation had to be done as an
emergency, it is medically probable that Sylvia Davis would not have died
in January of 2011.
Dr. Gunnerson’s affidavit statement is not supposition. It is a definitive statement, to a
reasonable degree of medical certainty, that Dr. Ellis’ failure to implement a treatment
plan for Mrs. Davis more likely than not led to her death. In this regard, Dr. Gunnerson’s
affidavit creates a dispute of fact concerning whether Dr. Ellis’ deviation from the
standard of care caused Mrs. Davis death.
We concede that, in his deposition, Dr. Gunnerson occasionally used the word
“speculation.” In his affidavit, however, Dr. Gunnerson explained that he “did not mean
to convey the impression that all of [his] opinions [were] based upon speculation.”
Indeed, when examined in context of the entire deposition, it is clear that Dr.
Gunnerson’s “speculation” concerned whether Dr. Ellis’ trial of noninvasive treatment
earlier in the day would have been successful in stabilizing Mrs. Davis’ respiratory
condition. As Dr. Gunnerson explained in his affidavit:
5. . . . My discussion of certain things being subject to “speculation” is
confined primarily to the issue of alternative care measures that Dr. Ellis
could have undertaken instead of timely intubation, specifically a trial of
noninvasive positive pressure ventilation first as an alternative to intubation
in order to attempt to avoid the more invasive care measure of intubation.
Such a trial did not take actually place when Dr. Ellis was caring for Sylvia
Davis. For that reason, I refer to it as a “hypothetical” trial.
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Dr. Gunnerson also “speculated” concerning whether noninvasive treatment would have
been successful in Mrs. Davis’ case. Specifically, in his deposition, Dr. Gunnerson stated
“that noninvasive positive pressure ventilation usually do[es] not work” in patients with
multilobar pneumonia or severe pneumonia because the pneumonia is “not easily
reversible.” Thus, Dr. Gunnerson opined that Mrs. Davis likely would have not
responded to the noninvasive positive pressure ventilation “considering how sick she
was.” However, Dr. Gunnerson explained that it would have been reasonable and within
the applicable standard of care for Dr. Ellis to try the noninvasive treatment before
proceeding to intubation. As explained in his affidavit:
6. I was asked many questions with the word “speculation” or “speculate,”
the vast majority of which were addressed to a trial of noninvasive positive
pressure ventilation which Dr. Ellis did not actually undertake. Ultimately,
it is my opinion, as I indicated at pages 148 and 149 of my deposition,
that it is medically probable that the alternative measure of
noninvasive positive pressure ventilation, had Dr. Ellis attempted such
a trial when he first saw Sylvia Davis, actually would not have been
successful; therefore it is at least speculative to say that it would have
been successful. My testimony in my deposition on this issue was that
noninvasive positive pressure ventilation was not “going to avoid
intubation at all.”
(emphasis added).
Dr. Ellis’ argument that “[t]here is no proof that, if Dr. Ellis had attempted to
sedate, intubate and mechanically ventilate the patient, the outcome would have been any
different,” and Dr. Ellis’ assertion that “Dr. Gunnerson agreed that what happened with
[the ER doctor] after 11:00 p.m. could have happened to Dr. Ellis at 4:00 p.m.” are both
based, in part, on certain portions of Dr. Gunnerson’s testimony that are taken out of
context. For example, Dr. Ellis cites the following passages from Dr. Gunnerson’s
deposition:
Q: How do you know that if Dr. Ellis attempted to [sic] sedation,
intubation and mechanical ventilation when he was at the beside [sic]
earlier in the afternoon he would not have encountered the same
difficulty?
A: Oh, we don’t know.
***
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Q: But the same scenario could have unfolded earlier in the afternoon
same as it unfolded later in the evening, replace [the ER doctor] with
Dr. Ellis earlier in the afternoon. That could have happened?
A: Yes.
(emphases supplied by Dr. Ellis). However, when viewed in full context, Dr.
Gunnerson’s testimony evinces his actual opinion, to-wit:
Q: How do you know that if Dr. Ellis attempted to [sic] sedation,
intubation and mechanical ventilation when he was at the beside [sic]
earlier in the afternoon he would not have encountered the same difficulty?
A: Oh, we don’t know. However, we do know that anesthesia was able to
intubate after the first pass. At least that’s what it -- what it implied in the
note. . . . I did not see an anesthesia note that said it was a difficult airway
from the anesthesia’s standpoint. [The ER doctor] had a problem with it.
Dr. Ellis may not have had any problems at all. Matter of fact, at this time,
you know, Dr. Ellis may be a better intubator than [the ER doctor], I have
no idea what [the ER doctor]’s experiences were. Dr. Ellis described in his
deposition that he’s intubated patients, you know, and he would actually
intubate this patient.
If the patient was able to have an oxygen starting point at 93
percent on 100 percent, that’s a higher starting point than I think when
[the ER doctor] came up there at 70 percent. So just from the
beginning, the patient had a higher level of oxygen. So if there was
difficulty, there was a little bit more reserve that could have provided
some more time, patient wouldn’t have been as dire straights as what
happened later in the evening, so airways can change as the day goes
on, too.
The patient had a longer time to breathe faster, get more fluids. The
airway could have become more edematous. Who knows. We didn’t
compare the airways before and after. So it may not have been a problem
and Dr. Ellis may actually have been a better intubator than [the ER
doctor], so --
***
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Q But the same scenario could have unfolded earlier in the afternoon same
as it unfolded later in the evening, replace [the ER doctor] with Dr. Ellis
earlier in the afternoon. That could have happened?
A Yes. And at that time you would have Dr. Ellis who was at the
bedside providing the -- the care and would be able to then use either
bag mouth – bag mask valve -- bag valve mask, could have called for
help with anesthesia, another attending could have come up and could
have helped at that time, while the patient starting off with a saturation
of 93 percent instead of 74 percent would have had a little bit better
starting point. Again, it’s not good, because she’s very sick, but [she]
would have had a better starting point than when the respiratory
arrest happened later that evening to where it was called up when the
sats were markedly lower than that. So the starting point is markedly
lower, and the margin of error is . . . so narrow, so close, that you just
didn’t have that, you know, that time.
(emphases added). Dr. Gunnerson’s deposition testimony does not differ materially from
his affidavit. He has consistently maintained that if Dr. Ellis had followed the standard of
care by immediately implementing a plan to address Mrs. Davis’ declining respiratory
condition, one of two things would have more likely than not occurred. Either the
noninvasive approach would have avoided intubation, or, failing that, intubation could
have been achieved on a non-emergency basis before Mrs. Davis was in full respiratory
arrest. According to Dr. Gunnerson, such actions would likely have saved Mrs. Davis’
life. In his deposition, Dr. Gunnerson specifically explained that if Dr. Ellis had adhered
to the standard of care, he would have attempted the noninvasive procedure (or instructed
others to do so) between 4:00 p.m. and 5:00 p.m., when Mrs. Davis’ oxygen saturation
level was at 93%. Within two hours, it would have been clear whether the noninvasive
treatment was working. If, as Dr. Gunnerson speculated, the noninvasive approach
proved unsuccessful, Mrs. Davis could have undergone non-emergency intubation by
7:00 p.m. Dr. Gunnerson explained that, with timely treatment, Mrs. Davis’ chance of
death was 25-40%. Stated differently, had Dr. Ellis complied with the standard of care
and provided timely treatment to stabilize Mrs. Davis’ failing respiratory condition, she
would have had a 60-75% probability of survival. Instead, Dr. Gunnerson opined that Dr.
Ellis’ “wait and see” approach cost Mrs. Davis critical time and resulted in further
decline of her respiratory status, which ultimately led to her death. Specifically, Dr.
Gunnerson explained that Dr. Ellis’ inaction resulted in Mrs. Davis starting the
noninvasive treatment at 7:45 p.m., when her oxygen saturation level had dropped to
82%, as opposed to starting the treatment between 4:00 p.m. (when Dr. Ellis first
evaluated Mrs. Davis) and 6:00 p.m. (when Dr. Ellis’ shift ended), when her oxygen
saturation level was approximately 93%. According to Dr. Gunnerson, earlier treatment
would have prevented Mrs. Davis from becoming more hypoxemic and bradycardic and
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from falling into respiratory distress.6
While the noninvasive treatment, which was started at 7:45 p.m., initially
improved Mrs. Davis’ oxygen saturation levels to 96%-100%, the improvement was
temporary. By 10:00 p.m., despite receiving constant oxygen through noninvasive
means, Mrs. Davis’ oxygen level had decreased to 89%. At 11:00 p.m., her oxygen
saturation level had fallen to 74%, which, according to Dr. Gunnerson, caused her
respiratory arrest. Dr. Williams then ordered intubation on an emergency basis; however,
by this time, Mrs. Davis had been deprived of sufficient oxygen for such a period of time
that it was too late to save her life. In none of his statements did Dr. Gunnerson deviate
from his opinion that Dr. Ellis’ failure to act within the applicable standard of care more
likely than not resulted in Mrs. Davis’ death. Kilpatrick, 868 S.W.2d at 602. In short,
according to Dr. Gunnerson’s testimony, it is more probable than not that Dr. Ellis’
failure to adhere to the standard of care caused Mrs. Davis’ death. Id. (quoting Lindsey,
689 S.W.2d at 861-62). In this regard, Dr. Gunnerson’s deposition and affidavit are
sufficient to create a dispute of material fact concerning whether Dr. Ellis’ actions (or
inaction) caused Mrs. Davis’ death.
From Dr. Gunnerson’s deposition and affidavit, Appellant has provided sufficient
evidence to create a dispute of material fact concerning whether Dr. Ellis deviated from
the standard of care and, if so, whether his error caused Mrs. Davis’ death. See Rye, 477
S.W.3d at 265. Viewing Dr. Gunnerson’s statements in the light most favorable to
Appellant, we conclude that there are unresolved issues of material fact that preclude
summary judgment. See Ray, 2018 WL 3493158, at *3 (quoting McCullough, 538
S.W.3d at 505 (citing Godfrey, 90 S.W.3d at 695)); see also Stovall, 113 S.W.3d at 721
(citing Webber, 49 S.W.3d at 269).
C. Intervening/Superseding Cause
Before concluding, we briefly address Dr. Ellis’ alternative ground for summary
judgment, i.e., that the three failed attempts to intubate Mrs. Davis constituted a
superseding/intervening cause, which relieved him of liability. As noted above, although
Dr. Ellis averred this ground in his motion for summary judgment, based on its
conclusion that Appellant failed to meet the prima facie burden to show a causal
connection between Dr. Ellis’ alleged deviation from the standard of care and Mrs.
Davis’ death, the trial court never addressed intervening/superseding causation.
6
Hypoxemia occurs when a person has low levels of oxygen in her blood. Jill Seladi-Schulman,
Ph.D., What Is Hypoxemia?, HEALTHLINE (May 17, 2019),
https://www.healthline.com/health/hypoxemia. “Bradycardia is a slower than normal heart rate” and “can
be a serious problem if the heart doesn’t pump enough oxygen-rich blood to the body.” Bradycardia,
MAYOCLINIC, https://www.mayoclinic.org/diseases-conditions/bradycardia/symptoms-causes/syc-
20355474#:~:text=Overview,than%2060%20times%20a%20minute (last visited Sept. 9, 2020).
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The Tennessee Supreme Court has explained that “an independent intervening
cause breaks the chain of proximate causation and thereby precludes recovery.” White v.
Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998). However, if the intervening act is a
“normal response created by negligence,” which “could have reasonably been foreseen[,]
and the conduct [of the original wrongdoer] was a substantial factor in bringing about the
harm,” the act is not a superseding/intervening cause, and the original wrongdoer is not
relieved of liability. Id. (quoting McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.
1991)); see also McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 905 (Tenn.
1996); Haynes v. Hamilton County, 883 S.W.2d 606, 612 (Tenn. 1994). In summary, in
relying on a superseding/intervening cause to negate his liability, a party must show that:
(1) the harmful effects of the superseding cause must have occurred after
the original negligence; (2) the superseding cause must not have been
brought about by the original negligence; (3) the superseding cause must
actively work to bring about a result which would not have followed from
the original negligence; and (4) the superseding cause must not have been
reasonably foreseen by the original negligent party. Godbee v. Dimick, 213
S.W.3d 865, 882 (Tenn. Ct. App. 2006).
White v. Premier Med. Grp., 254 S.W.3d 411, 417 (Tenn. Ct. App. 2007); see also
Cotten v. Wilson, 576 S.W.3d 626, 639 (Tenn. 2019) (citations omitted); Borne v.
Celadon Trucking Servs., Inc., 532 S.W.3d 274, 299 (Tenn. 2017) (quoting White, 254
S.W.3d at 417). Usually, the question of “[w]hether . . . an act or event constitutes an
intervening cause is for the jury to determine unless the uncontroverted facts and
inferences to be drawn from the facts make it so clear that all reasonable persons must
agree on the proper outcome.” White, 975 S.W.2d at 529-30 (citing McClung, 937
S.W.2d at 905); see also Evridge v. Am. Honda Motor Co., 685 S.W.2d 632, 635 (Tenn.
1985) (citing Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 281 (Tenn. App.
1977)) (“The issue of proximate or intervening cause is one for the jury to decide, unless
the uncontroverted facts and the inferences to be drawn from them make it so clear that
all reasonable men must agree on the outcome.”). Here, Dr. Gunnerson’s testimony
creates a genuine issue of material fact concerning: (1) whether the superseding
emergency intubations were brought about by Dr. Ellis’ original negligence in failing to
adhere to the standard of care; and (2) whether the superseding intubations caused Mrs.
Davis’ death, which would not have otherwise followed from Dr. Ellis’ original
negligence. White, 254 S.W.3d at 417 (citing Godbee, 213 SW.3d at 882). Accordingly,
superseding/intervening causation is not a ground for summary judgment under the facts
presented here.
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V. Conclusion
For the foregoing reasons, we reverse the trial court’s grant of Dr. Ellis’ motion
for summary judgment. The trial court’s order is otherwise affirmed, and the case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed to the Appellee, Garrettson Ellis, M.D., for all
of which execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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