*1 by Dr. Andеrson Cage Dr. advised CONLEY, as Executor day to con- Patricia Cage he Dr. called
when felt like sult, Kelley said she she Es- Representative Ms. Personal infarc- myocardial had did when she Stinson, Deceased tate of Martha fact, Plain- tion two months earlier. This assert, the tes- tiffs considered with when timony Brodarick, established a Dr. OF LIFE CARE CENTERS duty upon Cage Kelley Dr. to admit Ms. AMERICA, INC., al. et 10, duty hospital they on June Cage Accepting contend Dr. breached. Tennessee, Appeals of Court of light this evidence most favorable Section, at Nashville. Middle
Plaintiffs, arguendo that assuming proof Plaintiffs to es- presented adequate Aug. 2005 Session. elements, Plaintiffs tablish these essential Jan. 2007. competent to present failed nevertheless proof Cage’s that Dr. acts or Denied Appeal Permission likely not caused omissions more than Ms. Supreme Court June earlier, Kelley’s death. As we noted Dr. Kelley Brodarick testified that Ms. had a fifty percent than chance of
better survival 17, 1999, June had gone she Dr. pursuant on June 16 Ber-
hospital Thus,
kebile’s Plaintiffs instructions.
failed to an element prove essential of a malpractice.
claim for medical liability against
The sole claim of Mid- Associates, Cardiology
State P.C. was principle
based on the liability vicarious
for the negligence Cage. Dr. dis- Dr. against Cage,
missal the claim
therefore, necessitates the dismissal Cardiology Mid-State Asso-
ciates, above, For the reasons stated P.C. affirm summary
we dismissal of the
action Dr. and Mid-State Cage Associates,
Cardiology P.C.3
In Conclusion trial court is af- judgment
firmed, appeal with costs of assessed
against Plaintiffs. ruling other issues. 3. Our on this issue renders moot *6 Hallworth, Columbia,
Eugene R. Ten- nessee, and Jeffrey Downey, Washing- J. ton, D.C., the appellant, Patricia Conley, as Executor and Repre- Personal sentative of the Estate of Martha Stin- son, Deceased. Crider,
T.O. Christy Helton and T. Nashville, Tennessee, appellant, for the America, of Inc. Centers Bradley Gilmore, Nashville, M. Tennes- see, Jackson, appellee, for the of Genesis Inc., Geri-Srvs. d/b/a R. Bailey, J. Mark Benfield and Sadler Tennessee, Jehl, Memphis, Cameron C. Roсk, Arkansas, for the Little counsel Curiae, Amicus The Tennessee Trial Law- yers Association. Puri, Nashville,
Christopher Connell Curiae, Tennessee, counsel for the Amicus Association. The Tennessee Health Care JR., damages CLEMENT, J., $130,000 against in compensatory FRANK G. court, plaintiff and the opinion nursing in home. The delivered which the JR., P.J., KOCH, M.S., affirm nursing part, WILLIAM C. We appeal. home COTTRELL, J., joined. PATRICIA J. surviving part, and remand vacate concurring opinion. filed a for a trial. claims new OPINION I. The nursing estate of a former home wrongful brought resident this death ac- Facts The tion, sundry claims asserting against the arise from an appeal on matters nursing an arising home out of attack on on Martha Stin- attack James Johnson Mrs. another Stinson resident. As of son residents Cen- attack, while two were result of Mrs. Stinson was hos- Center, a nursing terville Health Care pitalized injuries including treated for operated She died four later home owned and hip. broken months (hereinafter America, pneumonia. Initially, Inc. claims Centers Care). leading principally up home sounded Although the events plaintiff con- malpractice, with are January the assault on contro- attack, tending injuries, verted, and death it that Mr. Johnson undisputed variety were the result of a and series they, along struck Mrs. Stinson while with home, acts of the nursing and omissions givers, gath- other residents and care were failing properly including screen and/or area. Moments before dining ered subsequently discharge the resident who attack, dropped piece Mr. Johnson plaintiff attacked Mrs. Stinson. addi- floor, immediately following paper tionally asserted claims Genesis signs agitation he displayed Jackson, Inc., provider psychiatric ser- engaged in described as “box- what were vicеs, Tennessee, and the State of contend- ing-like” Mrs. Stinson motions. When home, ing they, along the nursing pick up paper, stepped forward responsible for determining whether her, knocking her to the Johnson struck the resident assaulted who Mrs. Stinson *7 ground. immediately was Mrs. Stinson should been admitted or as a have retained transported hospital to a where she was home. nursing plain- resident at the The hip treated for and other trau- a broken tiffs against claim Genesis was dismissed injuries. hospi- remained matic She by court, the and the against trial claim discharge days. Upon from tal for several by the the State was denied Claims Com- hospital, transferred the Mrs. Stinson was plaintiff sought mission. The to amend facility. re- to a rehabilitation She never complaint attorney the to add a claim for turned to Mrs. Stinson died Life Care. nursing fees the home the under later, April months in of 2000. Pneu- four Adult Protection Act. trial Tennessee The of monia as the cause death. was identified TAPA finding court dismissed the not at issue are limited to matters plaintiffs the claims sounded in medical of Life Care on alleged acts and omissions therefore, statute, malpractice by and They pertain also day of assault. remedy exclusive was under the Medical Care, of Life to acts and omissions Malpractice plaintiffs Act. The Inc., Jackson, and the State malpractice nursing Genesis claims occurring period a Tennessee over jury. Following home went to the a six- trial, to the assault. Accord- day plaintiff leading up months jury was awarded ingly, we will the relevant Mr. to history- review Johnson be from discharged was day 1998, to the assault. prior Generations in the State evaluated approved placement and him for at Life Mrs. Stinson admittеd as a resident Following Care. his admission to Life Life to Care on March 1998. She was Care, the State conducted an annual evalu- years age It at the time. was her ation February of Mr. of 1999 Johnson nursing first admission to a home. Mr. appropriately determined he was to Johnson was admitted Life Care in Au- placed general remain in the could gust years age. when he was population at Life Care.1 It was not his admission to first such a nursing home care facility. or health Mr. State, In addition by to evaluations Johnson had been a resident of an in- Mr. Johnson periodically was evaluated patient psychiatric facility known as Gen- Jackson, Inc., prior Genesis of to and dur- immediately prior being erations to admit- Moreover, ing residency his Life Care. to ted Life Care. Genesis was under contract with provide health mental services for At all times to the relevant matters at Care, residents at provided which it issue, Screenings the Preadmission through psychiatrists psy- its staff of Program Annual Resident Review Division chologists. Pursuant to the contract with (the “State”) of the State of Tennessee Care, provided these services Genesis applicants seeking screened admission to for through- Mrs. Stinson and Mr. Johnson homes) (nursing health care centers residency out their at Life Care.2 Tennessee. purpose of the screening place in an applicant appropri- each Care, to Life Following his admission center, nursing ate health care home weekly Genesis visited Johnson on a Mr. nursing facility. skilled Mr. John- and/or throughout basis. This continued his sev- son was evaluated the State on at least At residency enteen-month at Life Care. prior two occasions his admission to Life no time did Genеsis recommend that Mr. He was Care. evaluated State discharged Johnson segregated be from 1996 and 1997 of its annual part reten- general at Life population Care. To protocol, tion review and on each occasion contrary, following routine visit Mr. Johnson appropriate Mr. was found be Johnson in December which was one admission general population to the assault, month prior to the Dr. Pre- Cheri home like Life Care. meau, Genesis, a psychiatrist with noted evaluations, well, In he doing its the State that Mr. considered Johnson was posed specialized did require whether Johnson threat routine mental required services, pose other residents he health that he did not and whether *8 specialized danger mental health services. to others. When himself or suggesting gram program by Baptist. 1. Additional evidence that The Mr. offered appropriately placed Johnson was at Life brought hospital Mr. Johnson to the for a trial Care was that admission after his to Life Care visit, examination, program and after the 1998, August by in prior but to the review the qualify found Mr. Johnson did not for the 1999, February State in Senior Care partial hospitalization for mental health ser Program Baptist Hospital at came to Life vices. Care Mr. to evaluate whether Johnson would qualify out-patient for an intensive mental provided 2. Genesis had similar services also day Baptist Only health care offered. service he for Mr. Johnson when resided at Genera- persons health with serious mental conditions tions. qualified partial hospitalization pro for the against to similar claims Stinson, trag- Complaint assert for Mrs. other than the As The 1, 2000, of Tennessee. January that and the State ic ocсurred on Genesis events in this pursued month residen- Genesis was twenty-two against Stinson’s Mrs. satisfactory, was cy generally at Life Care was The claim the State action. exceptions.3 a few Commission. pursued Claims 2002, January of Plain- Subsequently, in II. Amended to File Second tiff filed Motion History The Procedural Life to claims Complaint, allege Adult violating the Tennessee Care July initial Complaint was filed (TAPA). Motion Act Plaintiffs Protection named in only 2000. The defendant The trial court Amend was denied.4 to Complaint Life Care. In that Com- was alia, claims were rooted contended, found Plaintiffs inter Plaintiff plaint, therefore, malpractice, and psychotic patient Johnson with a medical Mr. was ex- unprovoked Malpractice Act was Plaintiffs history of attacks on others Medical remedy. to Life should not have been admitted clusive who should have been dis- Care who and/or filed a number of Motions parties long charged the attack on Mrs. before Plain- Summary Judgment. for Partial Stinson, by negligent Life Care was negligent pro- claims care regarding tiffs and admitting retaining Mr. Johnson as a January to prior to Mrs. Stinson vided resident, by to failing protect Mrs. Stinson The dismissed were dismissed. Johnson, Mr. by failing prop- from to maintenance, dietary pertained claims erly supervise Johnson. Life Mr. Care assessments, hy- toileting, grooming and it denying negligent answered was falls, allegations of im- giene, elopements, denying liability. medicine, proper psychotropic use later, Life Several months amend- Care psycho-social recreational deficient Answer, adding ed its as an affirmative premised part care. The claims were comparative fault. defense doctrine of standards, regulatory on various federal deny it continuing negligent While was bearing contended had no Care liable, Life asserted in the alterna- to an of care and amounted on standards fault, if it it tive that on the relied care. of a national standard of imposition professional rendered Genesis advice summarily these The trial court dismissed and the State to admit and retain finding provide failed to claims Plaintiff Therefore, contended, Johnson. Life Care allegations factual of breach any fault, if negligent, if it found to be regulations, under these standard care any, attributable to Genesis and the State filed Plaintiff expert affidavits Tennessee, be apportioned should that Mrs. Stinson suf- failed establish liability. reduce Care’s any a result of the failure injury fered (1) proper: dietary mainte- consequence comparative provide As a (2) (3) nance, activities of resi- toileting, its fault defenses asserted (5) Answer, assessment, grooming, hygiene Plaintiff amended its dent Amended *9 complaint away facility amend When the motion to the 3. Mrs. Stinson walked from the 4. denied, to Recon- Plaintiff filed Motion was permission supervision a cou- without on proposed Third attached which was sider to ple of These events are referred to occasions. Complaint which stated the same Amended elopements. only particularity. more claims TAPA Motion to Reconsider denied. (6) and care planning. The court also fy about a statement she to a attributed explained it found claims deficient “to prior nurse’s aid moments to Mr. Johnson the extent that” the claims premised striking Mrs. Stinson. on a Further, national standard of care. summary Genesis also filed a motion for the trial court dismissed Plaintiffs claims judgment seeking dismissal of Plaintiffs regarding elopements, psycho-social care against claims it in the amended complaint. activities, psychotropic medi- opposed motion, Life Care but Plaintiff cation. explained The court elope- did The trial not. court conducted a hear- alleged ments and psycho-social lack of ing 4, 2002, on this motion on December care nothing and activities had to do with and, 6, 2003, on March entered an order injuries Mrs. Stinson sustained on Jan- granting Genesis’s motion dismissing uary 1. As for negligent use of against Plaintiffs claims Genesis. medication,
the psychotropic the trial court The case proceeded to trial on Plaintiffs dismissed the claim. The court deter- claims that Life Care was liable admit- mined the claim was not supported by Mr. ting Johnson as a resident of the evidence, competent finding improp- it was home, to Mr. failing discharge erly opinion based on the of a nurse. thereafter, Johnson failing properly to su- in excluding was successful him, pervise failing protect Mrs. some of the proffered by evidence Plaintiff. 1, 2003, On Stinson.6 November after a The trial granted court motions in limine trial, six-day jury plaintiffs returned a regarding exclude evidence deficiencies $130,000 in compensatory verdict of dam- Department found of Health. The ages, all of which assessed trial court also excluded medical records parties appeal, raising Life Care. Both nu- from the Middle Tennessee Mental Health merous issues. (MTMHI), Institute Mr. Johnson which was transferred following the assault on III.
Mrs. Stinson. The records contained nota- tions stating that Mr. Johnson had “hit” The Issues four staff members at “Centerville Health Plaintiff and Life Care each raise a Care Center” and struck out at “resi- appeal. number of issues on Plaintiff cоn- proffered dents.” Plaintiff the records to (1) trial denying tends the court erred establish Life concerning Care had notice Complaint leave amend the to assert prior Johnson’s to the conduct assault (2) claims; by excluding TAPA Bessie on Mrs. Stinson. The trial court ruled Shepard’s recollection of what she believes that Plaintiff could introduce the rec- immediately prior aide said nurse’s ords in evidence unless the declarant could (3) assault; from excluding records Plaintiff, however, be identified. was un- concerning prior histo- MTMHI Johnson’s identify trial, able to the declarant. At (4) Care; ry excluding at Life records of court portion testimony excluded a regulatory of Bessie violations assessed the Ten- Shepard, deeming it unreliable Health; hearsay.5 Department nessee Shepard, Mrs. a visitor on the exclud- day Mrs. injured, ing regarding alleged neglect Stinson was was to testi- evidence sought damages punitive Plaintiff filed a Motion to Reconsider the 6. Plaintiff also jury Life Care. The issue went to the Shepard’s testimony, exclusion of Mrs. damages jury punitive were not found the trial court denied. justified. part That of the verdict is not chal- lenged appeal.
723 A. to prior months during of Mrs. Stinson the (6) assault; dismissing summarily the sig it is purposes appeal, For of against tort claims which vai’ious the the denied trial court nificant whether upon R. premised regulations. pursuant federal Amend to Tenn. to Motion 12.02(6). our 15 or This is because Plaintiff also contends the trial court erred P. Civ. regarding court’s of a trial decision it review allowing jury the by to consider whether substantially to 15 Motion Amend is a Rule comparatively against should allocate fault the than of our review more constrained of the State Tennessee. Rule a claim to pursuant dismissal Life Care contends the trial court erred 12.02(6). Mo grant to a Rule 15 Whether (1) admitting into the testimo- evidence is within the sound discre tion to Amend (2) witnesses; Plaintiffs three ny expert court, reviewing the trial and a tion of summarily dismissing Plaintiffs claims ab reverse a decision court will not such (3) Genesis; denying against co-defendant City Fann v. an abuse of discretion. sent Summary Judg- (Tenn.Ct. Life Care’s Motion for Fairview, 167, 175 905 S.W.2d of discharging may ment on the issue Mr. John- be set Such decisions App.1994). (4) son; if trial court excluding of Plaintiffs we find the appeal evidence aside mis legal an incorrect applied standard the be- State of Tennessee controlling le misapplied construed Commission; fore the Claims Univ., gal principles. White v. Vanderbilt awarding Plaintiff discretionary costs. 215, (Tenn.Ct.App.1999) 223 Inc., 4 Shoney’s, (citing Overstreet IY. (Tenn.Ct.App.1999)). S.W.3d above, Plaintiff’s Amended sharp In PROPOSEDSecond contrast from Complaint —The TAPA Claims from an a Rule appeal granting in an order 12.02(6) Dismiss, to Motion we review Plaintiff contends the trial court erred legal regarding trial court’s conclusions by denying Sec- proposed leave file the complaint adequacy of the de novo without Complaint7 ond Amended to assert TAPA Bell ex rel. correctness. presumption claims The trial court Care. Icard, al, 550, 554 et S.W.2d Snyder v. Amend, denied the Motion to Tenn. citing Hotel, (Tenn.1999); Stein v. Davidson § Ann. “this 71-6-120(g) stating, Code (Tenn.1997). 714, 716 of action scope is a cause within 29, Chapter and, therefore, Title this B. governed only by
action shall be Title a Tenn. R. Civ. examining When Chapter and the Adult Pro- Tennessee pleading, P. 15 Motion Amend tection Act does not have apply.” We may consider inter alia trial court denying trial court erred concluded notice, faith lack bad following factors: however, amend; the er- Plaintiff leave moving party, failure repeated amendments, ror harmless because Plaintiff failed by previous deficiencies cure motion, be upon state a claim relief can delay filing undue party, to the prejudice opposing under TAPA. granted undue which was A to Reconsider to 7. Plaintiff filed Motion to File Second filed Motion Com- Complaint, proposed Third Amended to which was attached the Amended attached also Complaint. plaint. Motion to Reconsider was proposed Amended Second Thereafter, Plaintiff That motion denied. denied. *11 724
futility of the proposed amendment. Hall
evidence.
v. Sundquist,
919,
Doe
2 S.W.3d
Bd.,
v. Shelby County
543,
Ret.
922
Bell,
S.W.2d
(Tenn.1999);
922
McBurney 33 (Tenn.Ct.App.1991). Dismissal pursuant to Tenn. R. 12.02(6) P. only Civ. is warranted when the record reveals that granting alleged facts will not plaintiff entitle the Motion to Amend would not have de relief when the layed complaint totally lack prejudiced case or the defen dants, ing in clarity and except specificity. insofar as the Dobbs v. claim itself Guenther, (Tenn.Ct. might prevail. 846 HMF Trust v. S.W.2d Bankers (citations Co., (Tenn.Ct. omitted.) App.1992). Trust App.1991). Accordingly, prac the better
tice grant would have been to Plaintiffs C. Motion prejudice to Amend without to Life In the Motion To File Second Amended right legal efficacy Care’s to test the of the Complaint, Plaintiff purpose stated the Second Complaint pursuant Amended amendment, being the addition of 12.02(6). Nevertheless, Rule and without IV, clarify Count was to that Plaintiff was prejudice party, to either we find the trial asserting a claim under the Tennessee court did indeed conduct a Tenn. R. P. Civ. Adult Protection Act simply to recover 12.02(6) analysis, and dismissed the TAPA attorneys’ fees specific as a element of upon finding claims Plaintiffs exclusive damages. motion, In repre- Plaintiff
remedy pursuant to the Medical Mal sented the trial court: practice Act. complaint Plaintiff in her initial 12.02(6)
A Tenn. R. P. Civ. Motion amended complaint sought relief includ- to Dismiss the sufficiency ing tests of a com attorneys costs and fees. Plaintiff plaint, strength not the of the plaintiffs pursue simply seeks to this amendment *12 Chapter Title clarify Attorneys’ scope [Medical of to that the costs and therefore, and, action being Malpractice this sought Act] fees and costs are [sic] 29, Chap- Title only by under the Tennessee Adult Protection governed shall be of specific damages Act as element Adult Protection ter and the Tennessee under this case. apply.” Act does not grounds one of asserted As several a discussion begin analysis our We to Plaintiffs Mo- opposition Care for the elements of of essential Amend, tion to Life Care contended the fees damages attorneys’ compensatory the amendment futile because “Ten- Act. Adult Protection under the Tennessee Adult Protection does not apply nessee Act pursu- of action asserted
when cause is D. Malpractice to ant Tennessee’s Medical Act The Tennessee Adult Protection argue went on to to statute.” “gravamen the trial court that the of Plain- Assembly’s The Tennessee General stat- scope Complaint tiffs falls within the of TAPA purpose enacting pro- ed for was to Malpractice Tennessee’s Medical statute at coming provisions tect the of adults within § seq.,” noting 29-26-115 et. that Plaintiff abuse, exploitation. or neglect the act from claimed inter alia that had devi- 71-6-120(a). §Ann. TAPA af- TenmCode accepted prac- “from professional ated the persons” and “elderly fords “disabled nursing tice for home facilities.” right recovery the of in a civil adults”9 compensatory for damages action for countered, contending Plaintiff its TAPA the are “neglect,” “abuse” or terms claims “distinguished between Ann. defined in statute. TenmCode. malpractice claims administrative and 71-6-120(a)(3). neglect” § оr is “Abuse negligence nurse aide outside that fell “the meaning in TAPA as infliction defined scope of Malpractice the [Medical Act]” anguish, mental physical pain, injury, or that to “the decision admit Mr. John- or the a caretak- deprivation services he negligent son supervision necessary er are to maintain the given by day aides on nurse health of an adult or a situa- and welfare practi- assault were not acts of care health provide tion in an adult is unable to which purview tioners within the the [Medical necessary to or the services that are obtain Malpractice Act].”8 or person’s health welfare.” maintain The trial argument court found the 71-6-120(1). §Ann. Tenn.Code persuasive. Life Care more In its Order amend, denying proven trial If it that a defendant is liable leave court is adult neglect,” protected found “this a cause of is action within the “abuse appears person This in Plaintiff’s 9. TAPAdefines “disabled adult” as a contention brief years age eighteen or older and who who is in this Court. distinctions (A) following: Has some meets one proposed Plaintiff refers are set forth in the body impairment of mind that makes Complaint, Third which was Amended Plain- any substantially person re- unfit to work at attempt tiff's second convince trial (B) employment; the ca- munerative Lacks grant court to leave to assert the TAPAclaims. consent; §71- pacity ... Tenn.Code. Ann. Complaint proposed Third Amended 6-120(a)(2). "elderly person" It also defines proposed substantially the same as the Sec- sixty age or who years of older as one who is Complaint speci- more ond Amended but with dysfunctioning, physical has some mental or ficity distinguishing as to factors which age.... including any resulting Tenn. from Plaintiff makes reference. 71-6-120(a)(3). § Code Ann. or next of kin may compensatory recover SECOND AMENDED COMPLAINT damages. § See TenmCode. Ann. 71-6-
120(d). addition, In if abuse or neglect is proven, the claimant shall be entitled to Count IV attorneys’ recover reasonable provid- fees (Violations of Tennessee Adult Protection neglect ed the abuse or resulted from “in- Act, seq TenmCode 71-6-102 et & *13 tentional, fraudulent malicious conduct” 71-6-120) § defendant, the burden proof herein, 63. At all times Martha “upon which is convincing clear and evi- Stinson was disabled adult [sic] within dence.” Id. meaning of Tenn.Code 71-6-120. claimant, however, may not recover impairments She had mental and lacked damages or attorneys’ fees TAPA under capacity consent. for a cause of action that lies within the applicable 64. Under of care standards scope Chapter of Title the Medical nursing the Administrator of defendant’s Malpractice Act. See Ann. TenmCode charged responsibili- home was § 71-6-120(g). TAPA expressly provides ty acting as the facili- gate-keeper of that damages elderly an person or ty, and must make the ultimate decision disabled adult may be entitled to recover whether or not to admit a [sic]. residents under TAPA apply do not to a cause patient 65. The decision to to a admit action scope within the of the Medical Mal- nursing home is an administrative deci- practice Act. contrary, To the TAPA pro- sion, not a An medical one. Administra- vides that such governed action shall be tor practitioner, is not a health care as solely by Malpractice the Medical Act. defined under Tennessee law. §Ann. 71-6-120(g). TenmCode being 66. Prior to Mr. Johnson admit- ted to defendant Life the Adminis- disabilities, Due to age her and it is trator knew should have known undisputed that Mrs. Stinson was both an Mrs. history. Johnson’s medical [sic] “elderly person,” and “disabled adult” as He injured multiple had attacked and defined by TAPA. See Ann. Tenn.Code. patients and care He providers. had (3). § 6—120(a)(2), Moreover, Plaintiff, 71— sexually assaulted both residents and who is Mrs. daughter per- Stinson’s and staff members. He had threatened to representative estate, sonal of her is statu- kill people diag- numerous and had been torily authorized to maintain this action on nosed with homicidal intentions. His behalf of Mrs. Stinson. See TenmCode. psychologist own defendant’s warned 71-6-120(b); § Ann. 20-5-106. There- represented staff that he extreme an fore, the first issue to be resolved is danger risk of to staff and other resi- whether Mrs. subjected Stinson was Notwithstanding dents. this risk the neglect” by Care, “abuse or as distin- engaged Administrator of Life Care guished from the actions of Mr. Johnson. willful, conduct wanton and reckless so, If we then must decide whether the general accepting Mr. Johnson into the scope falls within the of the MMA. population. home Such conduct nursing Plaintiffs TAPA claims are set forth in unjustifia- a substantial constituted IV, paragraphs Count through patients ble risk of defendant’s proposed home, Second Complaint. Stinson, Amended including Martha The pertinent provisions gross are as follows: and constituted a deviation from 1, 2000, January or about of care 70. On [sic] the standard that would Stinson Johnson and Martha by an James ordinary person. exercised each other allowed to interact with discharge 67. The ultimate decision in the cafeteria. is also an deci- patient administrative that Mr. Johnson and day On his Throughout stay, sion. Johnson monitored being Mrs. Stinson were be- aggressive delusional displayed a custo- acting in aids who were nurse рut defendants on notice havior provide basic Such aids capacity. dial injury represented a serious threat of he living, and daily acts of assistance with of Mr. to residents. Medical records practi- not health supervision, are reflect instances of Johnson numerous by the contemplated Tennes- tioners aggressive inappropriate sexual Malpractice They Act. are see Medical in- physical behavior. Staff assessments as defined under Ten- caretakers swing- dicate that he was combative and *14 Adult Protection Act. 1999, nessee 15, On he ing at the staff. March to Mr. John- threatened strike a CNA. Johnson January On 2000 Mr. 71.[sic] frequently peo- son was concerned about behavior. At displaying agitated was ple kill him. trying July to On time, piece dropped Mr. that Johnson becoming the staff noted he was The nurse floor. aid paper of more combative. On 31st it October at that monitoring Mr. Johnson who was that Mr. was noted Johnson had been going not to time stated she was physically abusive to staff and residents. piece for fear paper of of pick [sic] strike her. that Mr. Johnson would Despite the that Mr. 68. clear risk aid, with- operating This nurse who was residents, Admin- posed Johnson scope employment of her de- Care, appli- of Life in istrator breach of Life of America fendant Care Centers standards, Mr. discharge cable failed to Inc., Stinson to allow Mrs. proceeded pursue Johnson. The decision not piece paper, of attempt pick up discharge of Mr. an Johnson was by James promptly assaulted who was decision, and administrative economic committed sim- Johnson. nurse aid not a Such and was medical decision. separating in рle negligence conduct constituted a and substantial Stinson, allowing from Mrs. Johnson risk to of de- unjustifiable patients piece pick up Stinson of Mrs. nursing home, including Mar- fendant’s paper. Stinson, and de- gross tha constituted from the care that
viation standard of negligence a direct As result 72. ordinary per- exercised by an Martha by [sic] would nurse aid committed this body son. of great pain sustained Stinson distress, mind, suffered severe emotional As a direct result of the adminis- 69. ex- pocket medical and out of incurred breaches the standards trative injuries personal and sustained penses, care, above, as outlined Martha Stinson contusions, fractures, multiple including mind, great pain body sustained bruises, injuries and other hematomas distress, in- severe emotional suffered untimely death. lead to her [sic] which ex- pocket out of curred above, actions, injuries as described penses, personal and sustained contusions, neglect abuse as defined fractures, including multiple constitute Adult Protection bruises, injuries the Tennessee hematomas and other under deprived prop- untimely death. Act. Mrs. Stinson lead to her [sic] which er administrative and nurse aid services Johnson dropped paper and then be- which necessary for her gan to main- to “shadow box” as Mrs. ap- Stinson proper tain health. proached to pick up the paper, the re-
sponse of the nurse’s aide was neither an infliction of physical pain, injury or mental Although Life vigorously de anguish on by Mrs. Stinson the nurse’s nies the serious allegations, we must ac aide nor was it the type deprivation cept allegations Plaintiffs as true for the services a caretaker contemplated purpose 12.02(6) of a Tenn. R. P. Civ. 71-6-120(1). Tenn.Codе Ann. analysis of the legal efficacy of the assert Instead of asserting a viable TAPA ed claims. Accepting the factual allega IV, claim of true, abuse and neglect tions as Count question is whether Plaintiff essentially has Plaintiff has asserted a claim of set forth a claim of “abuse or strict liability against Care, contend- neglect” of Mrs. Stinson Care. As ing Life Care responsible for the ac- provides: statute “ Johnson, tions Mr. all of could ‘Abuse or neglect’ means the infliction prevented have been had Life Care not physical pain, injury, or mental an- admitted Mr. Johnson as a resident guish, and/or deprivation or the services by a discharged prior We, him to the assault. caretaker that are necessary to maintain therefore, pro- find that Count IV of the the health and welfare of an adult or a *15 posed Complaint Second to Amended fails situation in which an adult is unable to state upon a claim which relief can be provide or obtain the that services are granted. necessary to maintain person’s that added)
health or (emphasis welfare.” In seeking compensatory addition to damages under TAPA for abuse and ne- 71-6-120(1). § Tenn.Code Ann. glect, Plaintiff asserted a claim for attor- We are unable to conclude that the alle- neys’ fees. In its Motion to Amend the gations Count IV state a claim that Life Complaint, Plaintiff acknowledged that the Care, employees, agents its or abused or only basis for its claim for attorneys’ fees neglected Mrs. Stinson. To constitute pursuant TAPA, specifically to Tenn. neglect, abuse or Life Care —as distin- 71-6-101(d). § Code Ann. The statute guished from Mr. Johnson —had to inflict provides that a claimant shall be entitled “physical pain, injury, or anguish” mental attornеys’ recover fees or ne- “abuse if Stinson, alternative, on Mrs. or in the glect” proven. Ann. See Tenn.Code. deprive Care had to Mrs. Stinson of ser- 71-6-101(d). Accordingly, finding that necessary vices to maintain the neglect abuse or is precedent a condition health and welfare of Mrs. Stinson. No recovering attorneys’ fees under a matter how Plaintiff characterizes the acts TAPA Having prove claim. failed abuse Care, or omissions of Life employees its or neglect by Care, Plaintiff is not agents proposed Complaint, Life present entitled to attorneys’ a claim for Care’s decision to admit and retain Mr. fees. Johnson did not constitute an infliction of physical pain, or injury anguish mental E. (abuse neglect) by or upon Mrs. Scope Are the TAPA Claims the Within Moreover, Stinson. no matter how Plain- Malpractice of the Medical Act tiff sufficiency characterizes the of the su- pervisory played by role the nurse’s aide The trial court dismissed the TAPA or the rapidity response claims, of her finding when Mr. the claims sounded medi-
729 every- on common trier of fact based malpractice. Although we found cal not fall within it would day experiences, on an- TAPA claims should be dismissed Peete, 938 See scope the MMA. mean ruling not ground, other our does Graniger, 1994 (citing WL disagree trial find- S.W.2d that we court’s *3). 496781,at contrary, To the we find that ing. claims, those pertaining
TAPA
at least
cases,
malpractice
In medical
discharge Mr. John-
the admission and
act,
decision,
or
look whether
courts
son,
malpractice.
sound medical
the as
complained
required
omission
medical condition
patient’s
sessment
Malpractice
Act
Medical
act,
decision,
omission
and whether
stated,
Generally
а medical
upon medical
a decision based
required
damages
malpractice action is an action for
science,
training
skill. See
specialized
persona] injury or death
a result of
City Memphis,
rel.
Holt ex
Waller
care
any
malpractice
medical
a health
W2000-00913-COA-R3-CV,
WL
No.
upon
con
provider, whether based
tort or
2001).
(Tenn.Ct.App. July
at *6
Shelby
Health
County
tract law. Peete v.
complaints
causes of action involve
Where
(Tenn.Ct.
Corp., 938
involving
acts or omissions
about
App.1996). The Medical
Act
Malpractice
expertise, they
fall within
science
requires
plaintiff prove
that the
MMA;
not
they
do
scope of
where
act in
defendants failed to
accordance with
they
training
knowledge,
such
involve
recognized
pro
of acceptable
standard
ordinary negligence.
sound in
generally
practice and that
proximate
fessional
“as a
Peete,
generally
Acts or omissions 663 spiders of and other keep premises in a medical should free malpractice action ordinary negligence judged under pests matters of the medical arts involve and/or Hosp., Spivey not v. St. Thomas require specialized principles); sciences skills (Tenn.Ct. 12, 450 ordinarily possessed by TennApp. a 211 S.W.2d lay рerson. 31 Peete, liability patient’s Graniger (hospital’s 938 for (citing App.1947) S.W.2d at 696 Inc., an a treated as Sys., hospital fall from window Hosp. v. Methodist Healthcare case). Peete, 02A01-9309-CV-00201, In ordinary negligence No. 1994 WL 1994)) “alleged injured that she 496781, (Tenn.Ct.App. at *3 was Sep.9, plaintiff (other omitted). employee attempted of Defendant Conversely, a an citations when bar, orthopedic suspension an malpractice claim not include to dismantle does time, not at the negli- in use damages action for as a result of which was any portion apparatus of that medi- a provider of a health care when allowed gence Peete, in her in the head.” strike provider cal care such not involved facts, Peete those upon Based Hospital Corp. action. v. at 696. such Burris (Tenn.Ct. or- America, dismantling an 932, found the act Court suspension bar constituted ordi- omis- thopedic the extent the act or App.1989). To mal- of medical by nary negligence, instead complained could be assessed sion practice, and thus the MMA did apply. not nursing home and remain under the care Id. In an effort to distinguish the two of a physician while a resident of a types actions, the Peete court 483.40; § stated: home. 42 CFR Tenn. Comp. R. 1200-8-6-.05(2). Regs. & malpractice
Medical
typically
regu-
cases
As the
in-
diagnosis,
provide, nursing
volve a medical
lations
treatment or
home must com-
other
plete, prior
admission,
scientific
matters. The distinction
a Medicaid Pre-
ordinary
between
negligence
signed
Admission Evaluation that
mal-
must be
practice turns on
by physician
whether the acts or
and contain sufficient medi-
omissions complained of involve a matter
cal substance so that nurses in the Pre-
of medical sciencе or art requiring spe- Admission Evaluation
Unit
Bureau
cialized skills
ordinarily possessed
not
may
TennCare
evaluate the assessment.
by lay persons or whether the conduct Tenn. Comp.
Regs. §
R. &
1200-13-1-
complained of
1200-13-1-10(4)
(5).
can instead be
.10(2)00; §
assessed
on the basis of
everyday
common
experi-
Therefore,
applicable regulations
es-
ence of the trier of fact.
tablish as matter of
that the protocol
law
Id. (quoting Graniger,
1994 WL
at
to determine
whether
admit a resident
*3); see also Harvey Wolfer,
No. 03A01-
is,
to a nursing
instance,
home
in the first
9512-CV-00452,
WL
*2 a matter of medical
requir-
science or art
1996)
(Tenn.Ct.App.
March
(stating an ing specialized skills. As the Court
allegation the physician
negligent
was
explained,
Peete
acts or omissions com-
the manner
plaintiff
was moved from plained of which involve matters of the
during
examination
which move
table —
sciences,
medical arts
requiring
and/or
plaintiff
dropped
to the floor— specialized
ordinarily
skills not
possessed
sounded more in common
negligence
law
by lay person,
malprac-
sound in medical
than medical malpractice).
Peete,
tice.
VI.
judgments are
in
proper
vir-
civil
tually all
cases that can be resolved on
Summary
Negligence
Dismissal of the
of legal
alone,
the basis
issues
847
Byrd,
Against
Per Se Claims
210;
Mills,
at
S.W.2d
Pendleton v.
73
trial
granted
court
part
de-
115, 121 (Tenn.Ct.App.2001);
S.W.3d
how-
in part Life
nied
Care’s motion
sum-
ever,
are
they
appropriate
genu-
not
when
marily
claims,
dismiss
including
Plaintiffs
ine disputes regarding
facts exist.
material
based on alleged
those
of federal
violation
Tenn.
Civ. P.
party seeking
R.
56.04. The
regulations and variety
regard-
a
of claims
summary judgment
bears the burden
general
ing the
care of Mrs. Stinson. The
demonstrating
genuine disputes
that no
court granted partial summary
trial
judg-
fact
party
material
exist and that
is enti-
dismissing
ment
Plaintiffs claims
judgment
tled to
as a matter of law. God-
they
extent
were based
national
on a
stan-
frey,
Summary
90
at
judg-
S.W.3d
dard
care. The trial court also dis-
granted
ment should be
court
the trial
missed Plaintiffs
claims that
Care
facts,
undisputed
level when the
and the
negligent in failing
to maintain proper
reasonably
inferences
the un-
drawn from
Stinson,
hygiene
failing
Mrs.
to ade-
facts,
conclusion,
disputed
support one
quately supervise
to prevent
her so as
pаrty
summary
seeking
which is
elopements,
failing
properly
medi-
judgment
is entitled
as a
judgment
to a
her,
upon
cate
based
finding
Spaghetti
matter of law. Pero’s
&
Steak
neglect
her care did not contribute to
(Tenn.
Lee,
614,
v.
90
620
House
S.W.3d
the assault Mr. Johnson.
2002);
v. State
Auto.
Webber
Farm Mut.
(Tenn.2001).
Co.,
265,
49
Ins.
S.W.3d
269
A.
legiti-
The court must
strongest
take the
Summary judgments
enjoy pre-
do
mate
of the
view
evidence in favor
sumption of
appeal.
correctness on
Bell-
non-moving
in-
party, allow all reasonable
Johnson,
South Advert. &
v.
Publ’g Co.
in favor of
all
party,
ferences
discard
(Tenn.2003).
202,
100 S.W.3d
205
This
evidence,
countervailing
and,
if there is
must
court
make a fresh determination
dispute
any
material fact or if there
requirements
that the
R.
of Tenn.
Civ. P.
as to
any
is
doubt
the existence of a mate-
Brown,
56 have been
v.
satisfied. Hunter
fact, summary
rial
be
judgment cannot
(Tenn.1997).
49,
955 S.W.2d
50-51
We
granted. Byrd,
210;
847 S.W.2d at
EVCO
light
consider
evidence in the
most
Ross,
(Tenn.1975).
Corp. v.
733 if regulations, applicable, the fifteen citеd would regulations are four of federal We a national standard of care. 14 of the constitute paragraph Third Amended Com- Life is correct concluded Care have plaint to which Plaintiff contends grounds. both duty had a to adhere: § 42 too regulations simply a. Pursuant to 488.10 federal are C.F.R. and to a standard nursing obligation general home an and constitute vague had a that matter duty jury, a to assure that or for [sic] resident’s of care which acts or court, rights effectively judge are and to assure a can followed and providers of health care digni- each a omissions that residence has [sic] nursing operators. aptly home As stated right fied existence to exer- and Bowen, F.Supp. 1093 in Smith v. 656 or her rights cise his as a resident (D.Colo.1987), legislative def- “[t]here is no and as a citizen of the States. United care,’ there ‘quality health and inition 483.13(c) § to 42 b. Pursuant C.F.R. Bowen, F.Supp. at can be none.” 656 nursing duty to home had the Bowen held that 1097. The court also develop implement poli- and written so nursing regulations home are federal procedures prohibit cies and arguably that enforcement violates vague mistreatment, abuse of resi- neglect, funda- “commonly accepted principles of [sic], and misappropriation dence gives to “a proce- fairness” rise mental resident’s property. [sic] Bowen, 656 process due concern.” dural Furthermore, in a case F.Supp. at 1097. 483.25(f) 42 g. § Pursuant to C.F.R. Nurs- dealing admissibility of the nursing duty had a to home Rights, Home Patients’ Bill of another ing display ensure that residents who held, patients’ rights “The are so court psychological adjustment mental or broadly submission of them stated difficulties, appropriate receive jury a as the standard of care would result to correct treatment services speculative, completely ad hoc a verdict problem. the assessed by any legal rational standards.” unguided 483.25(h) h. Pursuant to 42 C.F.R. Hillhaven, Inc., F.Supp. Makas nursing duty home had (M.D.N.C.1984). matter of In the ensure that resident’s environ- [sic] Home, Stogsdill v. Manor Convalescent remain haz- ment free of accident Inc., Ill.App.3d 343 N.E.2d ards and that each resident receives (1976), brought the plaintiff wherein adequate supervision assistance contending against a home nursing prevent accidents. the standard of regulations established law, the court held the care as matter Plaintiff contended re- Life Care was vague to be suffi- regulations were “too maintain quired home of due indicators the standard cient statutory compliance with minimum 611- Stogsdill, 343 N.E.2d at care....” failing constituted standards to do so negligence per disagreed, se.12 Life Care upon the federal are too arguing regulations Plaintiffs claims that are based regulatory vague general be enforceable violations federal constitute national standard standards. Care also contended standards regulations also 12. Plaintiff contended claim. as a basis for breach of contract served its
care that runs afoul with the MMA. Tenn. C. §Ann. requires plaintiff
Code 29-26-115 a summarily The trial court dismissed in a malpractice prove by medical action to relating Plaintiffs claims Mrs. Stinson’s (1) care, expert testimony standard maintenance, dietary toileting, resident as- (2) that defendants deviated from that activities, grooming, hygiene, sessment standard, proximate that as a re- planning. and care have We concluded negligent sult of the defendant’s acts or the trial court did that the evidence fails to omissions, alleged or patient injuries suffered demonstrate how the errors any bearing had or omissions relevance which would not otherwise have occurred. Therefore, the assault Johnson. Of particular significance, the statute re- summary dismissal of these claims was quires plaintiff by expert to establish proper. testimony “recognized standard of ac-
ceptable professional practice ... VH.
community in prac- which the defendant or in a ...” community tices similar Tenn. Against SummaRY Dismissal of Claims 29-26-115(a)(1). § Code Ann. Jackson, Genesis of Inc. appeals summary dismiss- statute, By Tennessee courts Gen- al Plaintiffs cause action must apply “locality the so-called rule” in It contained esis. contends record malpractice medical actions. Pursuant dispute sufficient evidence to create a rule, plaintiff “a must show that the material facts to defeat Genesis’ Motion ordinary defendant failed to act Summary Judgment. compared reasonable care when to the cus part in pertinent Plaintiff contended or practices physicians toms from I: Count particular geographic region.” Sutphin v. 14, 1998, August or 36. On about (Tenn.1986). Platt, James Johnson was admitted to defen- qual United States of America fails to nursing dant home. At the [Life Care] ify particular geographic region.” as “a admission, time of his defendants knew Id. previous history that Mr. Johnson had a action, In this malpractice medical Plain- including severely beating violence prove “recognized tiff must standard of (cid:127) In previous nursing home resident. acceptable professional practice pro- fact, previous home refused thereof, specialty any, fession and the if Johnson. readmit Mr.
that the practices defendant the commu- dis- Through stay, his Mr. Johnson nity praсtices in which the defendant [Cen- behav- played aggressive and delusional terville, in a similar commu- Tennessee] on notice that he put ior that defendants nity injury the time the injury to represented a serious threat of wrongful action occurred.” Tenn.Code records of Mr. John- residents. Medical 29-26-115(1). statutory Ann. inap- instances of son reflect numerous permit plaintiff scheme does not in a sexual and propriate aggressive malpractice rely medical action on so- in- Staff physical behavior. assessments called national of care to estab- standard swing- dicate that he was combative professional lish a of acceptable violation at the On March ing staff. practices in a in Ten- more community becoming staff noted that he was nessee. combative.
735 allegations made on the Johnson’s medical histo- 52.Based 38. Mr. Given [Genesis], as- duty to and ry, facility had evaluate [Life Care] admission, allegations, not prior Mr. to and truth of those suming Johnson accept they were able to him unless standards applicable breached [Genesis] needs, meet care protect monitoring his total and and care in the treatment in the home from residents caused or con- which James Johnson and potentially his violent be- disruptive sustained injuries tributed to havior. January 2000. on Martha Stinson added) (emphasis Despite aggressive 39. Mr. Johnson’s behavior, defendant Life Care admitted liability in its to Genesis Answer denied him facility into the and thereafter failed Complaint. Following dis- the Amended provide necessary to him care covery, summarily to dis- Genesis moved keep his that he needed to violent and of action it miss Plaintiffs cause aggressive under De- behavior cоntrol. at all times contending that it had adhered Care, staff, through fendant their of care. The to the standard applicable failed Mr. Johnson’s keep to and Mrs. the motion dis- granted trial court providers adequately Stinson’s Genesis, finding there was not suf- missed conditions, in their changes informed to expert testimony ficient record including agitation aggression. care, applicable standard establish the 40. Defendant Life Care and their that the standard Genesis breached agents/employees breached applicable care, inju- any or such breach caused that statutory common law and duties plaintiff ries to the would other- which managing treating Johnson’s wise have occurred.13 aggressive behavior, in preventing aggressive causing his behavior from in- challenged summary reviewing When jury to Martha Stinson. dismissal, make a fresh determi- we must R. requirements
nation that
of Tenn.
Hunter,
P. 56
been satisfied.
Civ.
have
50.
...
at all pertinent
Genesis
was
dispute
If a factual
medical care. It that Dr. davit of to establish that Gene- Powers (1) Life to: Care contracted with Genesis applicable sis deviated from the standard pre-admission appli- conduct evaluation of Genesis, of care. Dr. opined Powers applicant cants to determine whether the particular and in employ- its professional appropriate placement Life ees, Dr. Sherwin Yaffe Dr. Cheri (2) Care; and/or provide psychiatric and medical Premeau, duty had a to review all informa- to Life care residents of Care as Genesis’s physicians ap- tion in medical records and psychiatrists and deemed Johnson’s propriate; and to monitor the residents to failure do so constitutes a deviation they ap- to determine still whether from the standard of Life Care also care. propriately placed special and whether expert on testimony relied Plaintiffs care, ap- medication or restrictions were witnesses, the records opined who propriate. concerning more provided Mr. Johnson than to establish that sufficient evidence opposed
Life Care
Genesis’ Motion for
been discharged
It
Mr. Johnson should have
Summary Judgment.
primarily
relied
January
facility prior
affidavit
Vanderbilt Geriatric
from the
1, January
previously
prior
14. As we have
and con-
distin-
discussed
Stinson
as
cluded,
properly
the trial court
dismissed
guished from
relate to the admis-
claims that
Plaintiff’s
that do not
claims
relate
Johnson
a resi-
sion
retention of Mr.
January
assault on
2000. Plaintiff's claims
treated,
dent,
properly
whether he
properly
that were
dismissed include those
medicated
restrained.
relating
of Mrs.
to the care
treatment
Genesis, pre-
Dr.
acts and omissions of
concluded
We have
the affidavits
all
shifting part
from
along
experts,
and Plaintiffs
with vented
Powers
have
on to Genesis. Since we
a of the fault
record,
created
other evidence
Genesis
against
Plaintiffs claims
decided
to Plain-
genuine dispute
facts material
dismissed,
summarily
have been
should not
According-
against
claims
tiffs
Genesis.15
thorny
presented
are now
with
we
summary
dismissal of
ly, we reverse
judgment
vacate
issue whether
against
Plaintiffs claims
Genesis.
trial,
to afford
against Life Care
order
Genesis,
Following the
Life
coattails
trial,
of Plaintiffs claims
one
summarily
filed a motion
dismiss
Care,
along
Plaintiffs claims and
to the
pertaining
Plaintiffs
it
*23
comparative
of
fault
assertions
Care’s
admission and retention of Mr. Johnson.
concluded
against Genesis. We have
of Life
of this
appeal
The sole basis
Care’s
in Samuel
rulings and rationale set forth
hinged on the
of
summary
issue
dismissal
(Tenn.
McMurtry, 962
v.
S.W.2d 473
son
Genesis. Life Care
that if the
contended
1998),
v.
Ridings
Ralph
and
M. Parsons
properly
trial court
Plaintiffs
dismissed
Co.,
(Tenn.1996),necessitate
15.
against
by patients
psychiatrist
limited to
have
actions
because the
knew should
providers.
patient posed
healthcare
v.
that his
an unreasonable
their
Strimas,
See Dunbar
known
foreseeable, readily
(Tenn.Ct.App.
to a
identifi-
562
risk of harm
Frazor,
1981);
went
party.
Tenn.
Id. at
The Court
see also
v.
58
able third
Osborne
(1968) (holding
typically
it
App.
be-
comment
that the factors
“The
efficiency
complaint
and fair Samuelson
sep-
ness are
by joining
thus served
as defen
independent
Totty
arate and
of Dr.
acts
dants all persons against
plain
whom the
separate
indepen-
combined with the
tiff can assert a cause of action.” Ridings,
dent acts of the other
defendants
caused
As explained the Court in Samu principles comparative conflict with elson, one trial in involving allega matters fault.17 Id. tions of separate, independent negligent procedure required under Tennes- acts of more than one tortfeasor which comparative see’s fault formulation re- allegedly combined to a single, cause indi efficiency joint liability tains the *24 injury necessary
visible
is
“to facilitate the
comparative
the fairness of
fault.
It
participation of
potentially responsible
all
judicial
also conserves
resources and
persons so there can be one fuller and
It
judgments.
eliminates inconsistent
fairer presentation of the relevant evi
the
fairly
competing
resolves
interests of
dence and to
jury
enаble the
to make a
recovery
plaintiff
full
for the
and the
complete
more informed and
determina
liability
equitable allocation of
for the
Samuelson,
liability.”
tion of
Allowing plaintiff
defendants.
a
to sue
plaintiff brought
at 475. The
an action
in separate,
defendants
ac-
consecutive
against
providers,
two health care
contend
ing
efficiency
tions would defeat
the
and
they
responsible
for death due to
their failing
diagnose pneumonia.
The
that are
objectives
fairness
the
of the
21, 1988,
July
16. On
the deceased
treated
was
that the deceased's condition could have been
Holland,
by
physician,
hospi-
successfully
prior
Dr.
a
at an HCA
treated
within 6 to
hours
day,
tal for a boil. The next
death.
Samuelson re-
to his
hospital
turned to the
with a fever and inflam-
by
mation around the boil and was treated
analysis,
In its
the
Court
Samuelson
also
later,
McMurtry, physician. Eight days
19.02,
Dr.
a
discussed the role of Tenn. R. Civ. P.
30,
July
hospital
on
went
Samuelson
to the
provides,
person
subject
which
who is
"[a]
emergency
complaints
room with
of back
jurisdiction
joined
the
of the court shall be
as
pain,
by
for which he was treated Dr. McMur-
party
person’s
complete
a
if
in the
absence
try.
following day, July
The
among
he twice
relief cannot be accorded
those al-
emergency
ready parties....”
Supreme
returned to the
with
room
the
The
Court found
visit,
symptoms.
compelled
joinder
Totty,
same
On his
he
the rule
the
of Dr.
first
Holland,
action,
complete
seen
Dr.
relief
which
but on his second visit
"because
in this
fault,
discouraged by
hospital personnel
governed by comparative
he was
the
could not be
seeing
Totty
physician.
August
parties
from
On
all
Dr.
he
accorded
unless
Samuelson,
Totty,
рarty."
chiropractor,
went to the office of Dr.
from compara- one action the rights and responsibilities par- tive of the of Exclusion Evidence ties, thereby necessitating separate trial evidentiary appeals Plaintiff numerous of those issues if jury verdict in this trial rulings by Specifically, court. matter is not vacated. We have therefore challenges Plaintiff exclu- trial court’s proper concluded course to is (1) to a sion of: attributed statement vacate verdict and (2) aide, Gandy; nurse’s Amber Mr. John- all surviving remand issues for trial in one Tennessee son’s records from Middle action. (3) Institute; of Mental evidence Health the De- assessed regulatory violations IX. Health; re- partment evidence of
Assessment of Costs neglect garding alleged of Mrs. Stinson period months to the as- prevailing party may prior The costs over a recover in the bill prepared included of costs sault Mr. Johnson.19 trials, necessary "discretionary gets ports) term 18. The costs” its and for reasonable trials, interpreter depositions fees for they only from the are allowable in name fact fees; guardian expenses are discretion; however, ad litem travel the trial court's the trial discretionary Id. not allowable costs.” costs court’s discretion is limited to identified trial not have the discretion court does 54.04(2). per- in Tenn. R. Civ. The Rule P. other than identified assеss costs those recovery mits the of "reasonable and neces- 54.04(2). P. Tenn. R. Civ. reporter depositions sary expenses court for trials, necessary expert wit- reasonable and holdings pertaining evidentia- 19. Our to these (or depositions stipulated ness fees re- ry only action apply to the cause of matters regarding the exception Decisions admissi utterance or to hearsay. notice bility of within the evidence are discretion Accordingly, the Motion Limine was 104(a). of the trial Tenn. court. R. Evid. granted and the evidence excluded. arriving <£When a determination at to ad Plaintiff of arguments why made a host mit or exclude that evidence even which is Gandy the statement attributed Ms. gener considered relevant trial courts are admissible and exclusion of the state- ally degree accorded a of latitude wide ment error. Our was reversible rules only appeal will be overturned on where evidence, however, provide that the court there is a abuse of showing of discretion.” authority is vested with the answer Co., v. Cambridge Otis Fire Mut. Ins. these preliminary questions concerning the (Tenn.1993) S.W.2d (citing Strick evidence, admissibility v. see State Edi- City land v. Lawrenceburg, 611 S.W.2d son, 03C019605CC00199, No. 1997 WL 832 (Tenn.Ct.App.1980); Tenn. R. Evid. (Tenn.Crim.App. at *5 June 401; City Austin Memphis, 1997) 104(a)), R. (citing Tenn. Evid. 624 (Tenn.Ct.App.1984); Inman v. arguments none of Plaintiffs are sufficient America, Aluminum Co. discretionary overturn the trial court’s Moreover, 350 (Tenn.Ct.App.1985)). error ruling. may not predicated upon ruling be on the admissibility of evidence unless a sub The trial court also excluded on right stantial complaining party MTMHI hearsay grounds at records affected. Tenn. Evid. 103. R. Johnson, suggested while a resident at Mr. sought
Plaintiff to introduce an Care, Life engaged had conflicts been aide, aby statement nurse’s Am prior to the combative behavior as and/or ber Gandy, through testimony of Bes sault on Mrs. Stinson. MTMHI rec Shepard, sie visiting who when the ords, prepared following which were assault her deposition, occurred. In Mrs. attack on Mrs. Stinson and Mr. Johnson’s Shepard that she testified witnessed Mr. Care, discharge from noted that drop paper Johnson piece Johnson had staff hit four members ground, Shepard suggested and when Mrs. Care Health The notes fur Center. *26 person to a Gandy she believed be Mrs. ther of Mr. mentioned incidences Johnson that pick up paper, she the Mrs. Gandy striking out at The source of residents. allegedly responded that she was afraid however, information, report not was hit her. might Shepard, Johnson Mrs. ed in trial the MTMHI records. The court however, to state went on she was not found the records information MTMHI’s certain was. person Shep who Mrs. unreliable hear and therefore inadmissible person ard stated she the believed was a say. The found the information court also aide, thought nurse’s that person and she prejudicial than substantially was more was but she Gandy, named was not cer R. probative, citing Evid. 403. Tenn. tain. Ms. also testified Gandy deposi relevant, making Although may tion evidence and denied such a statement. be excluded if is sub Following hearing probative a the Motion in Li- its value mine, stantially outweighed by danger of un Shepard’s the trial court found Ms. issues, prejudice, fair testimony hearsay to be unreliable confusion also it fall found did not within the excited Tenn. R. misleading jury. Evid. 403. being any when
that was these matters were er would be admissible in tried this evidence Thus, speaking subsequent not a decided. we are to wheth- trial for claims under TAPA.
741 decision The trial court’s found, to the assault. not all relevant the trial court As сhal- subsequent Otis, to three subjected 850 S.W.2d was is admissible. evidence A Motion hearings. during other Riley, lenges (citing v. at 448 McCormack denied. filed and Reconsider was (Tenn.Ct.App.1978)). S.W.2d again recon- exclude evidence the discretion to exclusion trial court has to Re- second Motion following relevant and to exclude sidered unreliable evidence on the hearing pre-trial out- At the effect consider.20 prejudicial evidence when Limine, Finding no Motions respective weighs probative parties’ its value. in- requested permission again its discre- Plaintiff the trial court abused indication court, evidence, trial and the tion, to exclude the this affirm the decision troduce we time, held it inadmissible fourth for the MTMHI records. to the as- showing of relevance absent a court also excluded evi The trial January 2000. Johnson on sault Mr. concerning deficiencies in the stan dence discretionary error with this Finding no by the Tennessee dard of care found decision, affirm. we of Health. The trial court Department rel the deficiencies determined B. to the issue whether evant Expert by Mr. responsible for the assault Plaintiff’s Witnesses evidence” is evi Johnson. “Relevant erred the trial court contends tendency to make the having dence testimony into evidence by admitting consequence is of existence of fact that It expert three witnesses. of Plaintiffs of the action more to the determination satisfy experts failed contends the than it probable probable or less would Ann. 29-26- rule. Tenn.Code locality Tenn. R. Evid. be without evidence. 115. 401. which is not relevant Evidence broad discre The trial court has R. not admissible. Tenn. Evid. We determining qualifications tion the decision to ex find no error with Mabon v. Jackson- expert witnesses. from the Tennessee clude records County Hosp., Madison Gen. Department of Health. (citing Shelby (Tenn.Ct.App.1997) regarding alleged ne Evidence Barden, 124, 131 County period
glect of Mrs. Stinson over (Tenn.1975)). Moreover, the Tennessee by Mr. John prior months to the assault directed that we Court has Supreme trial, excluded. Prior to the son was also discretionary decisions to “should allow trial entertained a three-hour court judicial though reasonable stand even Summary Judg a Motion for hearing on *27 their sound concerning minds can differ addressed, allegations part, in ment Univ., Inc., ness.” Mercer Vanderbilt by Mrs. Stinson neglected that Life Care (Tenn.2004) (citing 121, 133 134 S.W.3d failing to maintaining proper hygiene, 223). White, 21 at S.W.3d psychotropic administer appropriately action, a malpractice In a medical medications, failing appropriately testimo by expert must establish plaintiff from prevent elopements her to supervise acceptable standard ny “recognized the hearing, the facility. Following community ... practice professional failed to show Plaintiff had court found in a or practices defendant in relevant which alleged omissions were how the judge. trial a different This motion was entertained 20.
742 community.” similar region. Applying Tenn.Code Ann. the abuse of discre- 29-26-115(a)(l). § standard, Our courts have con- tion we find no error with sistently applied rule, this the so-called trial court’s decision to admit their testi- rule,” “locality in malpractice ac- mony into evidence. require proof tions to “the defendant failed expert, As Plaintiffs third Adminis- ordinary to act with and reasonable care Britt, Judy trator find no error with we compared when to the prac- customs or objec- the deсision to overrule Life Care’s tices of physicians particular from a geo- testimony tion to the of Administrator graphic region.” Sutphin, 720 S.W.2d at Britt. Our decision is on the fact based locality expert rule for testimo- (1) nursing that: home administrators
ny
applies
also
respect
professional
with
must be licensed under
Ann.
Tenn.Code
negligence claims. Martin v. Barge, 894
(2)
63-16-101-115;
§
testimony re-
expert
(Tenn.Ct.App.1994)
S.W.2d
751
(citing garding a nursing home administrator
(Tenn.
Everett,
Dooley v.
which defendant pleadings from into introducing evidence community similar to the one in concerning Plaintiffs Mabon, practices. defendant 968 S.W.2d State. Life contends this error. Thus, at 831. party’s expert must be It was not. knowledgeable of one or the other to be competent to testify. Ann. Tenn.Code discretionary We decisions review 29-26-115(a)(l); Robinson v. LeCorps, court, trial ex- such as the admission and (Tenn.2002). upon clusion of based the abuse evidence Mercer, 134 of discretion standard. The three experts testify called to standard, at 133. Pursuant to that S.W.3d Klein, Dr. Stephanie Jonathan Nurse trial court “discretionary decisions Zeman, and Judy Nurse Administrator judi- though are to reasonable stand even Britt. qualifica We will first address the concerning their cial minds can differ tions of Dr. Klein and Nurse Zeman. Mercer, at soundness.” S.W.3d Having the deposition reviewed and trial 223). White, (citing Zeman, testimony of Dr. Klein and Nurse substantially see that sim- they significant expertise presented we had The issue geriatric rel. presented medicine and home ilar to that in Patterson ex *28 Dunn, protocol communities, in rural Patterson v. No. 02A01-9710-CV- they 00256, sufficiently knowledgeable (Tenn.Ct.App. were about the 1999 398083 WL 1999). Patterson, 16, Teague In the concerning geo relevant information the June Centerville, enti- graphic region jury around Tennes contended the defendants allegations protocols plaintiffs see and health care center in tled to know the
743 as missions, them generally disallow that was no defendant against [Dunn] admissions. plaintiff the The evidential party suit. longer complaint against the the former asserted 783, Stearns, P.2d Kan. 830 250 Lytle v. inadmissible Dunns] defendants [the (1992) 1197, (quoting 1207 McCormick n impeachment purposes for as evidence or 781-82). 265, Evidence only conclusory it because contained alle- contained Factual statements that not substantive evidence. gations admis may considered as pleadings be plaintiff upon v. Mitch- The relied Pankow Patterson, 398083, *8 at sions. 1999 WL ell, 293, (Tenn.Ct.App. 737 S.W.2d 296); Pankow, at see (citing 737 S.W.2d 1987) proposition “pleadings for the that Mungan, also First Tenn. Bank only allegations if they are admissible are 798, (Tenn.Ct.App.1989). Ad Patterson, at of fact.” WL the are against of fact admissible missions plaintiff. *8. The trial court sided the as party making them “both substantive analysis This court’s Patterson includ- impeach purpose evidence and the McCroskey, ed a discussion of Branch v. Pankow, at ment.” 03A01-9709-CV-00385, No. 1998 WL introduce, pleadings sought 1998), (Tenn.Ct.App.Feb.5, wherein however, factual state did constitute into plaintiff sought the to introduce evi- ments of fact. We therefore or admissions allegations dence the made in a defendant the granting the find no error with claim the against cross cross defendant. Limine. Motion in The substance of these allegations was while in the sole possession,
“[t]hat custo- XI. dy defendant], the [cross control of In Conclusion (1) one of the two horses [defendant’s] of Plaintiffs We affirm dismissal injuries proxi- suffered serious which were TAPA set forth in Count IV of claims mately caused negligence Complaint. proposed Second Amended Patterson, 1999 [cross defendants].” WL Branch, (citing *8 1998 WL summary dismissal of We affirm *4). 47873, at held Branch court regula- Plaintiffs claims based on federal allegations in the cross claim were not tions. fact, merely conclusory admissions of discretionary We affirm trial court’s statements, and thus not as admissible evi- its to amend permitting decision Care or for impeachment. dence State against Answer to assert equivalent The modern common comparative an fault tortfeasor. as system the use law of alternative and summary dismissal We vacate forms hypothetical of statement claims Genesis and against Plaintiffs defenses, regardless claims and con- Care, remand judgment against Life sistency. appreciated It can readily be surviving for a trial all of Plaintiffs new pleadings of this nature are direct- claims Genesis. giving notice and lack primarily ed of costs We vacate award the essential character of an admission. Life Care. operate To as allow them admissions the trial court’s decision render their ineffective аnd We affirm would use hearsay statements exclude the unreliable underlying purpose. frustrate their affirm seeming Gandy. to Ms. We also Hence the decisions with una- attributed records, the nimity judicial them ad- the exclusion the MTMHI deny status *29 regulatory by violations assessed claims properly De- were excluded. Because Health, partment and evidence of al- Plaintiff state a factual un- failed to leged neglect of period Mrs. Stinson over a TAPA, der not resolve the we need issue prior of months to the assault. are malprac- whether the claims medical tice purposes applying claims or not for We affirm the decision admit into exclusionary language in TAPA.1 testimony evidence the of Dr. Jonathan Klein, Zeman, Stephanie Nurse and Nurse
Administrator Judy Britt.
Costs this are appeal equally assessed
against Plaintiff Care. COTTRELL, J.,
PATRICIA J. filed a
concurring opinion. COTTRELL, J.,
PATRICIA J. Susan MARLOW concurring opinion. Although I concur result and rea- Dan PARKINSON. soning of by majority opinion, reached I think it important emphasize one Tennessee, Appeals Court of I point. agree the trial with court that Section, at Middle Nashville. none of the allegations regarding Ms. Stin- 6, 2006 Session. Dec. stay at prior son’s home 1, 2000, January any state cause of action 23, 2007. April warranting They relief. properly Appeal Permission Denied dismissed because there was no causal Supreme Sept. 2007. Court connection between those incidents injuries or omissions and the suffered
Ms. Stinson due to assault
Johnson. That determination eliminates
most of allegations supporting
TAPA claims that Plaintiff wanted to add. (1) negligent
The viable are claims su-
pervision of Mr. Johnson Ms. Stin- and/or (2) assault;
son the time of the negli-
gent admission of Mr. Johnson and letting remain; negligent
him psychologi-
cal care he in the nursing while remained I agree majority
home. opinion allegations
that none of the regarding
these claims cause of action states a under 71-6-120(b) § Aim.
Tenn.Code abuse neglect defined Tenn.Code Ann. 71-6-102(1). Consequently, the TAPA course, actions, designation particular Of of a such and some issues have been malpractice triggers claim as one for requirements. regarding raised those evidentiary requirements applicable