Moon v. St. Thomas Hospital

FREDA G. MOON, )
)
Executor of the )
Estate of RUTH GARRETT, )
)
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9609-CV-00389
v. )
) Davidson Circuit
ST. THOMAS HOSPITAL, ) No. 87C-239
)
Defendant/Appellee. )
FILED
COURT OF APPEALS OF TENNESSEE April 25, 1997
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE BARBARA N. HAYNES, JUDGE
HARLAN DODSON, III
ANNE C. MARTIN
JULIE K. SANDINE
Dodson, Parker & Behm
306 Gay Street
400 Realtors Building
P. O. Box 198066
Nashville, Tennessee 37219
ATTORNEYS FOR PLAINTIFF/APPELLANT
MARY MARTIN SCHAFFNER
Howell & Fisher
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
OPINION
This law suit arose out of the death of Ray Elmer Garrett which occurred
while he was a patient at St. Thomas Hospital, the defendant below. Finding that, as
a matter of law, the events surrounding Mr. Garrett's death were not reasonably
foreseeable, the Davidson County Circuit Court granted the defendant hospital
summary judgment. Freda Moon1, the decedent's daughter, has appealed to this court
arguing that this was not a proper case for summary judgment. We disagree.
Accordingly, we affirm the decision of the trial court.
On 6 February 1986, Mr. Garrett was admitted to the defendant hospital
where he underwent coronary bypass surgery the following day. During surgery, Mr.
Garrett was orally intubated with an endotracheal tube2 -- a tube placed in his throat
leading to his lung area which was used to provide him with the necessary oxygen.
After a successful surgery, Mr. Garrett was taken to the recovery room where his
condition was considered stable.
At approximately 12:00 a.m. on the morning following Mr. Garrett's
surgery, the nurse assigned to him, Patricia Hoeflein, observed that Mr. Garrett
became agitated and restless when she attempted to suction his lungs.3 She stated that
he bit on his endotracheal tube two times but that he ceased biting when she was
finished suctioning. In response to Mr. Garrett's fidgeting with the wires to which he
1
Ms. Moo n was substituted for the original plaintiff, Ruth F. Garrett, the surviving widow of Ray Elmer
Garrett, in 1990 following Ms. Garrett's death.
2
The end otracheal tub e was m anufac tured by Bivona, Inc. which was formerly a defendant in this suit until
the case against it was dism issed b y summ ary jud gment.
3
Nurse Hoeflein described the suctioning procedure as follows: "we use the bag, which is hooked up to 100
percent oxygen and has an adapter on the end that you place on the endotracheal tube and you bag the patient, or
pum p the p atient several times to give him quick am ounts o f oxygen. Yo u take that off and you have a sterile
techniq ue and you slide a catheter do wn the endo tracheal tube and as you pull back out yo u app ly suction which is
hoo ked up to the wall to eliminate mucous fro m the p atient's trache a and lung are a."
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was hooked, Nurse Hoeflein put him in soft arm restraints to prevent him, once he
awakened, from pulling at these wires. She stated that this was a common procedure
with post-operative patients. For the next hours, while she continued to care for him,
she noticed no signs of agitation. Almost two hours after Nurse Hoeflein suctioned
Mr. Garrett, she left his room for approximately thirty seconds and returned upon
being alerted that Mr. Garrett had bitten his tube.
At 1:40 a.m., just before Mr. Garrett bit his tube, Ronald McKay, a
respiratory technician, decreased the percentage of oxygen that Mr. Garrett was
receiving. At this time, Mr. McKay checked the condition of the endotracheal tube
and noticed no indication of chewing or biting. Ten or eleven minutes later at 1:50
a.m., Mr. McKay responded to an alarm in Mr. Garrett's room and discovered that he
had bitten his tube almost in two. Mr. McKay left the room seeking assistance from
the supervising respiratory technician. When Mr. McKay momentarily returned with
another respiratory technician, Byron Kaelin, and the respiratory therapy supervisor,
Gene Emerson, Mr. Garrett had completely bitten the tube in half. Though Mr.
Garrett's jaws were clamped shut, the men were able to force an airway tube through.
However, they could not remove a piece of the severed tube from Mr. Garrett's throat.
A physician, Dr. Lee, arrived and extracted the severed tube. Unfortunately, Mr.
Garrett suffered a heart attack during this process and he was unable to be revived.
Both Nurse Hoeflein and Mr. McKay testified at depositions that they had
never seen a patient bite through an endotracheal tube before, and Mr. McKay added
that this was the first time he had ever heard of such an incident. Though Nurse
Hoeflein was familiar with the use of bite blocks to prevent a seizing patient from
biting on his endotracheal tube, she testified that she had not felt that it was necessary
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to use a bite block or an oral airway in the case of Mr. Garrett. She testified that in
her six and a half years of critical care nursing, she had only used a bite block for one
type of patient -- one who was continuously seizing. She stated that, in her
experience, the only patients who continuously chewed on their tubes were those who
were seizing. For the majority of patients who were chewing on their endotracheal
tubes, Nurse Hoeflein testified that her approach would be to calm them down and
to orient them with regard to the tube. If a patient were chewing on a tube to the
point that they were incoherent and uncooperative, she might sedate them with
medication. If a patient's chewing were interfering with the delivery of oxygen, she
might put in an oral airway which she had commonly used "to prevent patients who
continually bite on their endotracheal tube to the point they are preventing the air line
delivering the breath and oxygen they need."
Mr. Emerson testified that he had never seen nor heard of a patient causing
a defect in an endotracheal tube by gnawing or chewing on the tube. He stated that
part of his duty as a respiratory therapist was to suction patients who have
endotracheal tubes and that it was "fairly common" for these patients to gnaw on the
tubes while being suctioned. He added that if a patient's gnawing was caused by the
suctioning and if it stopped when the suctioning stopped, no precautions were taken
to prevent the patient from biting the tube.
Nurse Hoeflein and Mr. Emerson both testified that they did not recall
personally using a bite block before the incident. They stated that though St. Thomas
had not generally used bite blocks before the incident, it had used them with most
patients since that time. Mr. Emerson testified that, following the incident, the
hospital adopted a policy to use a bite block or oral airway with any orally-intubated
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patient who has teeth. Mr. Emerson said that he had not used bite blocks or oral
airways for patients with endotracheal tubes at either of his two places of previous
employment.
In presenting its case, the defendant relied heavily upon the affidavit of
Clifton W. Emerson, M.D., an anesthesiologist with Cardiovascular
Anesthesiologists, P.C., and one of the doctors directly responsible for managing Mr.
Garrett's anesthesia and supervising his post-operative care. Dr. Emerson testified
that "patients can intermittently bite on the endotracheal tube and interrupt the
ventilatory flow [but that s]uch biting, which frequently occurs when the patient is
being suctioned, is not considered problematic unless the anesthesiologist anticipates
the patient might experience seizures." Dr. Emerson testified that "[i]f the
anesthesiologist anticipates the patient may bite down on the tube sufficient to
interrupt air flow, he/she will order a bite block or oral airway to be used in order to
enable the endotracheal tube to deliver appropriate ventilatory support to the patient."
Such a decision is a medical decision and as such, absent an emergency, it would
have been inappropriate for hospital personnel to utilize a bite block or oral airway
for Mr. Garrett without an order from one of the anesthesiologists. He added that
"[b]iting on a tube during suctioning is an ordinary, everyday event and, in no way
represents" such an emergency.
Dr. Emerson stated that though he had been involved in over 20,000 open
heart procedures, prior to Mr. Garrett’s surgery, he was totally unaware that a Fome-
Cuf endotracheal tube could be bitten in two by a patient. He "had never known nor
[had he] ever heard of a patient completely transecting an endotracheal tube as did
Mr. Garrett." He stated that based on his experience and training, "it was not
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reasonably foreseeable that Mr. Garrett would bite his endotracheal tube in two."
Indeed, Dr. Emerson felt that the incident was "such a 'freak' accident that, even
today, [he does] not routinely use bite blocks for post-anesthesia patients."
The defendant's testimony revealed certain disadvantages of oral airways
and bite blocks. Nurse Hoeflein testified that an oral airway was not only
uncomfortable but that it had the potential to make a patient gag which might lower
his heart and blood pressure. As for a bite block, it also is uncomfortable for a
patient. Additionally, prolonged use of a bite block can cause ulceration of the
mouth.
To support her position, the plaintiff relies upon the affidavits of Joseph
William Rubin, M.D., C.M., a cardiovascular surgical specialist, as well as those of
two critical care nurses, Nell S. George and Veronica Varallo. While both Dr. Rubin
and Nurse George were contacted through an expert witness service, Nurse Varallo,
who actually worked at St. Thomas in the critical care unit from 1992 to November
of 1994, was contacted through a former employer. All three of these experts opined
that the bedside care of Mr. Garrett fell below the recognized standard of acceptable
professional practice in the profession and the specialty of the critical care of patients.
Each one stated in his affidavit that, after reviewing these records, it was his opinion
that "[w]hen the bedside nurse observed Mr. Garrett biting his endotracheal tube at
[12:45 a.m.], she should have either used a bite block or repositioned the tube to keep
him from further biting or contacted the treating physician so that he could make that
decision."
Dr. Rubin's second affidavit stated that "[t]he medical records in this case
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indicate that the bedside nurse knew Mr. Garrett was biting his endotracheal tube
during his recovery from surgery [and that b]ased on the records, it was foreseeable
that the endotracheal tube could become occluded or impaired." In his third and final
affidavit, Dr. Rubin again stated that his opinion was based on medical records
"which indicate that the bedside nurse knew Mr. Garrett was agitated and biting his
endotracheal tube during his recovery from surgery." In addition, he stated that
attending medical personnel have a duty to ensure that a patient's endotracheal tube
is not blocked or damaged and that when a patient displays agitated and biting
behavior, there exists a further duty to prevent damage. "One such preventive
measure is repositioning of the endotracheal tube, which decreases the extent of
damage to one specific part of the tube by teeth biting, thereby decreasing the
likelihood of the tube being severed in two. Another preventive measure is the use
of a bite block." He testified that the decision of whether or not to use a protective
device or whether or not to reposition a tube is an appropriate decision for a critical
care nurse. In conclusion, it was Dr. Rubin's opinion that, "[u]nder the circumstances
of this case, it was reasonably foreseeable that Mr. Garrett would lose ventilatory
support due to his transection of the endotracheal tube and, as a result, be unable to
breathe and die."
The plaintiff submits that her evidence directly contradicts that of the
defendant and that it expressly demonstrates that inferences and conclusions contrary
to those of the defendant’s expert witnesses have been reasonably drawn from the
facts of this case. As such, the plaintiff asserts that this is not a proper case for
summary judgment which is to "be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
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is entitled to a judgment as a matter of law. " Tenn. R. Civ. P. 56.03. In other words,
summary judgment is appropriate when two prerequisites are met. First, there must
be no genuine issue as to any fact necessary to resolve the substantive claim or
defense embodied in the summary judgment motion, Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn. 1993), and second, the moving party must be entitled to a judgment as a
matter of law. Mansfield v. Colonial Freight Sys., 862 S.W.2d 527, 530 (Tenn. App.
1993). As our supreme court has stated "[t]he issues that lie at the heart of evaluating
a summary judgment motion are: (1) whether a factual dispute exists; (2) whether
the disputed fact is material to the outcome of the case; and (3) whether the disputed
fact creates a genuine issue for trial." Byrd, 847 S.W.2d at 214.
The legal principles which guide an appellate court's review of a trial court's
grant of a motion for summary judgment are well settled. Because the trial court's
decision involves only a question of law, there is no presumption of correctness
attached to this decision. Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996). This
court need only review the record to determine whether the requirements Rule 56
have been met. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). In so doing,
we must view the evidence in the light most favorable to the nonmoving party, allow
all reasonable inferences in favor of that party, and discard all countervailing
evidence. Id. (citing Byrd, 847 S.W.2d at 210-11). Summary judgment should be
granted if the facts and conclusions permit a reasonable person to reach only one
conclusion. McCall v. Wilder, 913 S.W.2d 150, 152 (Tenn. 1995).
Once it is shown by the moving party that there is no genuine issue of
material fact, the nonmoving party must then demonstrate, by affidavits or discovery
materials, that there is a genuine, material fact dispute to warrant a trial. Byrd, 847
-8-
S.W.2d at 211; see Tenn. R. Civ. P. 56.05. For Mr. Garrett's burden in this case, we
turn to the substantive law regarding medical malpractice which is outlined in
Tennessee Code Annotated section 29-26-115:
(a) In a malpractice action, 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 practices in the community in which he 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.
(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 he was licensed to practice in the state or a
contiguous bordering state a profession or specialty which would
make his expert testimony relevant to the issues in the case and
had practiced this profession or specialty in one 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 when it determines that the appropriate
witnesses otherwise would not be available.
The outcome of this case is contingent upon the "recognized standard of
acceptable professional practice" and whether the defendant hospital acted in
accordance with this standard. Id. § 29-26-115(a)(1) - (a)(2). We note that absent a
finding that the defendant owed Mr. Garrett a duty involving the protection of his
endotracheal tube from being bitten in two, it is irrelevant that protective measures
such as a bite block or an oral airway would have prevented the transection of the
tube. The plaintiff must show that, under these facts, the defendant hospital owed the
plaintiff a duty of care. As in all negligence cases, there is a duty to exercise
reasonable care under the circumstances. Pittman v. Upjohn Co., 890 S.W.2d 425,
428 (Tenn. 1994) (citing Doe v. Linder Constr. Co., 845 S.W.2d 173, 177
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(Tenn.1992)). In Doe, the court explained:
The term reasonable care must be given meaning in relation to the
circumstances. Ordinary, or reasonable, care is to be estimated
by the risk entailed through probable dangers attending the
particular situation and is to be commensurate with the risk of
injury. The risk involved is that which is foreseeable; a risk is
foreseeable if a reasonable person could foresee the probability of
its occurrence or if the person was on notice that the likelihood of
danger to the party to whom is owed a duty is probable.
Foreseeability is the test of negligence. If the injury which
occurred could not have been reasonably foreseen, the duty of
care does not arise, and even though the act of the defendant in
fact caused the injury, there is no negligence and no liability.
'[T]he plaintiff must show that the injury was a reasonably
foreseeable probability, not just a remote possibility, and that
some action within the [defendant's] power more probably than
not would have prevented the injury.' . . . The pertinent question
is whether there was any showing from which it can be said that
the defendants reasonably knew or should have known of the
probability of an occurrence such as the one which caused the
plaintiff's injuries.
Id. at 178 (citations omitted). See Pittman, 890 S.W.2d at 431 (finding that
defendant drug company was entitled to summary judgment as there was no genuine
issue of disputed, material fact with regard to the duty of care it owed to warn in this
case and that its warning was sufficient as a matter of law).
In this case, the risk of injury was the risk of the patient biting through his
endotracheal tube. We must determine whether the plaintiff's evidence in the form
of the affidavits of Nurse George, Nurse Varallo, and Dr. Rubin establishes that there
is a genuine, material fact dispute as to whether the defendants reasonably knew or
should have known of the probability of such an occurrence. We begin by an
examination of the plaintiff's experts' opinions. All three experts gave their opinions
that the bedside care of Mr. Garrett fell below the recognized standard of acceptable
professional practice in the profession and the specialty of the critical care of patients.
Each stated that "[w]hen the bedside nurse observed Mr. Garrett biting his
endotracheal tube . . ., she should have either used a bite block or repositioned the
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tube to keep him from further biting or contacted the treating physician so that he
could make that decision." In addition, Dr. Rubin stated that attending medical
personnel have a duty to ensure that a patient's endotracheal tube is not blocked or
damaged and that when a patient displays agitated and biting behavior, there exists
a further duty to prevent damage which can be satisfied by repositioning the tube or
using a bite block. Only Dr. Rubin directly addressed the issue of foreseeability in
opining that, based on medical records which indicate that the bedside nurse knew
Mr. Garrett was biting his endotracheal tube during his recovery from surgery, it was
foreseeable that the endotracheal tube could become occluded or impaired.
We find that the opinions espoused in the plaintiff's experts' affidavits are
inadequate for several reasons, the first of which is their failure to describe the
standard of care in Nashville, Tennessee. In Moore v. Walwyn, No. 01A01-9507-
CV-00295, 1996 WL 17143 (Tenn. App. 1996), this court upheld the grant of
summary judgment to a defendant doctor basing its decision in part on the failure of
the plaintiff's expert "to establish a material dispute as to deviation from the standard
of care." Id. at *5. The expert stated as follows: "In my opinion, intravenous
antibiotics should have been given at the time of the operation of 5/2/93, as well as
the operation of 5/5/93.... In my opinion, it fell below the standard of care for a
surgeon to do these operations without standard antibiotic prophylaxis." Id. at *4.
The court stated that the doctor's "statement does not describe the standard in
Nashville or explain that it is the standard in a similar community. Moreover, the
statement does not even describe a 'standard of acceptable professional practice.'" Id.
Dissenting on other grounds, Judge Koch agreed that "the omission of any reference
to the appropriate recognized standard of professional practice in Nashville or similar
communities as required by Tenn. Code Ann. Sec. 29-26-115(a)(1)" was a "material
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shortcoming" in the plaintiff's expert opinion. Id. at *12 (Koch, J., dissenting).
In the case at bar, the plaintiff's evidence makes no reference to the
appropriate recognized standard of professional practice in Nashville. Instead, all
three experts make a general reference to the recognized standard of acceptable
professional practice and assert their views of what actions the attending nurse should
have taken to properly care for Mr. Garrett. This court has stated that "[t]he
testimony of a physician as to what he would do or his opinion of what should have
been done does not prove the statutory standard of medical practice." Roddy v.
Volunteer Med. Clinic, Inc., 926 S.W.2d 572, 578 (Tenn. App. 1996) (quoting Lewis
v. Hill, 770 S.W.2d 751 (Tenn. App.1988)); see Goodman v. Phythyon, 803 S.W.2d
697, 700 (Tenn. App. 1990) (finding "generalized statements concerning the
deviation from the standard of care for medical practice" inadequate where the
plaintiff's expert failed to address the defendant doctor's assertion that his actions
complied with the standard of care).
In comparison to the plaintiff's lack of evidence on the acceptable standard
of care in Nashville, the testimony of the defendant's experts, all of whom were
employed in the Nashville area, indicates that acceptable practice did not mandate
they take any further protective action for a patient who had become momentarily
agitated during suctioning and bitten down two times on his endotracheal tube. Nurse
Hoeflein stated that in her six and a half years as a critical care nurse, she had only
used a bite block for a patient who was continuously seizing. Neither she nor Mr.
Emerson could recall personally using one of these devices nor did the defendant
hospital generally utilize such devices prior to this incident. Dr. Emerson, Nurse
Hoeflein, and Mr. Emerson were in accord in their assertions that it was common for
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patients who were being suctioned to gnaw on their endotracheal tubes during the
suctioning process. Because this gnawing was not considered problematic, both Dr.
Emerson and Mr. Emerson stated that no precautions were taken when a patient
displayed such behavior. To the contrary, Dr. Emerson considered it a "freak
accident" for a patient to bite through an endotracheal tube. Indeed, the transection
of an endotracheal tube seems to have been an unprecedented occurrence. Neither
Nurse Hoeflein, Mr. McKay, Mr. Emerson nor Dr. Emerson, who had performed over
20,000 open heart procedures, had ever experienced or heard of an endotracheal tube
being completely bitten in two.
Thus, a review of the defendant's expert proof reveals that the recognized
standard of professional practice did not necessitate further action because the
transection of the tube was completely unforeseeable. As is quoted above from our
state's supreme court, "[i]f the injury which occurred could not have been reasonably
foreseen, the duty of care does not arise . . . '[T]he plaintiff must show that the injury
was a reasonably foreseeable probability, not just a remote possibility.’" Doe, 845
S.W.2d at 178. Here, the proof does not even establish that the defendant medical
staff should have considered this injury a remote possibility. Therefore, we conclude
not only that the plaintiff's evidence fails to describe the standard of care in Nashville,
Tennessee, but that the defendant's uncontroverted proof demonstrates that no duty
existed because no reasonable person could have foreseen the probability of Mr.
Garrett biting the endotracheal tube in two.
In reaching this conclusion, we acknowledge Dr. Rubin's assertion that
based on medical records which indicate that the bedside nurse knew Mr. Garrett was
biting his endotracheal tube during his recovery from surgery, "it was foreseeable that
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the endotracheal tube could become occluded or impaired." However, we do not find
that Dr. Rubin's opinion substantiates the plaintiff's burden of foreseeability. Indeed,
this opinion exemplifies another defect in the plaintiff's evidence -- the inaccuracy
of the factual predicate upon which the plaintiff's experts drew their conclusions.
The undisputed facts in this case show that Mr. Garrett briefly displayed
agitated behavior while his lungs were being suctioned at which time he bit down on
his endotracheal tube two times. All of the defendant's experts agree that such
agitation is a common reaction for patients whose lungs are being suctioned. The
proof showed that Mr. Garrett's agitated behavior ceased as soon as the suctioning
ceased and that the medical personnel noted no further indication of such behavior
until he bit the tube in half almost two hours later.
As stated above, all three of the plaintiff's experts opined that "[w]hen the
bedside nurse observed Mr. Garrett biting his endotracheal tube at [12:45 a.m.],4 she
should have either used a bite block or repositioned the tube to keep him from further
biting or contacted the treating physician so that he could make that decision." In
addition, Dr. Rubin stated that attending medical personnel have a duty to prevent
damage to an endotracheal tube when a patient displays agitated and biting behavior.
Indeed, he prefaced his opinion in his third affidavit by stating that it was based on
Mr. Garrett's medical records "which indicate that the bedside nurse knew Mr. Garrett
was agitated and biting his endotracheal tube during his recovery from surgery."
According to the opinions espoused by these experts, the actions they advocate are
clearly contingent upon the patient being in an agitated state. However, the facts
4
We point out that the evidence was not that Mr. Garrett was biting his tube at 12:45 a.m.
as stated in all three experts' opinions. Rather, Nurse Hoeflein testified that he bit his tube two
times around 12:00 a.m.
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were that Mr. Garrett was only momentarily in an agitated state almost two hours
before the incident. His agitation was induced by a medical procedure which
typically caused agitation, and when the procedure was completed, Mr. Garrett
showed no further signs of agitation.
Rule of Civil Procedure 56.05 provides in part that "[e]xpert opinion
affidavits shall be governed by Tennessee Rule of Evidence 703" which states as
follows:
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or data
need not be admissible in evidence. The court shall disallow
testimony in the form of an opinion or inference if the underlying
facts or data indicate lack of trustworthiness.
Tenn. R. Evid. 703. In this case, the opinions expressed by the plaintiff's experts are
not based upon the facts of this case. If opinion testimony must be disallowed when
the underlying facts indicate a lack of trustworthiness, it certainly must be disallowed
when the underlying facts are inaccurate. Moreover, opinions which are not based
upon the facts of a particular case are inadmissible as irrelevant evidence. See Tenn.
R. Evid. 402. "'Relevant evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Tenn. R. Evid. 401.
Because the experts' opinions regarding the duty owed an agitated patient have no
bearing on the determination of whether there is a duty in the present case, this
evidence is irrelevant. See State v. Campbell, 904 S.W.2d 608, 616 (Tenn. Crim.
App. 1995) (upholding lower court exclusion of expert testimony where "trial court
correctly found that the proposed testimony of the psychologist would not
substantially assist the jury to understand the proof that had been adduced during the
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trial or to resolve any fact in issue").
In upholding the trial court's grant of summary judgment in this case, we
note that our courts have long espoused the view that summary judgment should be
entered cautiously in particular kinds of cases, of which medical malpractice is a
prime example. See Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn. 1977);
Ledford v. Moskowitz, 742 S.W.2d 645, 649 (Tenn. App. 1987); see also Blocker
v. Regional Med. Ctr., 722 S.W.2d 660, 662 (Tenn. 1987) (reversing the summary
judgment in a worker's compensation case involving the commencement of the
statute of limitations and noting that such cases most often are factual in nature). The
rationale behind this notion stems from the fact that the basic elements in a medical
malpractice case must be proven by expert medical evidence in the form of opinion
testimony. See Tenn. Code Ann. § 29-26-115(b); Payne v. Caldwell, 796 S.W.2d
142, 143 (Tenn. 1990); Hartsell v. Fort Sanders Reg'l Med. Ctr., 905 S.W.2d 944,
950 (Tenn. App. 1995), cert. denied, 116 S. Ct. 1352 (1996). "Because opinion
testimony always is subject to evaluation by the fact finder, it generally has been held
not an appropriate basis for summary judgment." Bowman, 547 S.W.2d at 530.
However, the court in Bowman noted an exception to this general rule: "in
those malpractice actions wherein expert medical testimony is required to establish
negligence and proximate cause, affidavits by medical doctors which clearly and
completely refute plaintiff's contention afford a proper basis for dismissal of the
action on summary judgment, in the absence of proper responsive proof by affidavit
or otherwise." Id. at 531. More recently, this court has stated that grants of summary
judgment "have proven particularly useful in medical malpractice cases . . . [w]hen
the issue is properly raised and it is shown prior to trial that the plaintiff cannot meet
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that burden [imposed on the plaintiff by the legislature]." Walker v. Bell, 828 S.W.2d
409, 411 (Tenn. App. 1991). We believe that this is a case where the plaintiff cannot
meet the burden of showing medical malpractice.
The plaintiff's evidence in this case fails to demonstrate a genuine material
fact dispute with regard to whether the defendant complied with the recognized
standard of acceptable professional practice in Nashville, Tennessee. The expert
affidavits presented by the plaintiff do not establish that the occurrence which caused
Mr. Garrett's death was foreseeable or that the appropriate professional practice
standard mandated further action in an effort to protect Mr. Garrett's endotracheal
tube. Furthermore, all of the experts' opinions are premised upon the incorrect fact
that the plaintiff was in an agitated state following surgery. Accordingly, we affirm
the trial court and tax the costs of this appeal to the plaintiff Freda G. Moon.
____________________________________
CONCUR: SAMUEL L. LEWIS, JUDGE
_____________________________________
HENRY F. TODD, P.J., M.S.
_____________________________________
WILLIAM C. KOCH, JR., JUDGE
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