*1 704

Defendant Neubert denied emphatically gave plaintiff any permission go that he STOKES, William L. Conservator of the the day plaintiff out for the lunches on was Mary Person and Estate of Patricia injured plaintiff “doing any- and that was Hall, Plaintiff-Appellant, him all on this thing” trip. for He also pay testified that neither would he ever his v. for travel to and employees from work nor LEUNG, M.D., Richard plaintiff he ever reimburse gaso- would for Defendant-Appellee. for purchased line own automo- bile. Tennessee, Appeals Court case, The issue in this as with most Section, at Jackson. Western dealing employee’s injury cases with arising employ out of and the course of 1, 1982. Dec. ment, analysis is in the final a factual rath Rehearing Denied Jan. 1983. legal er one. Jones Ridgewood than v. Center, Inc., Application Appeal Health Care 375 Permission to (Tenn.1983). weigh This Court will not re by Supreme Denied appeal; the evidence on under T.C.A. 2, 1983. May 50-1018), if (formerly 50-6-225 T.C.A. § § Rehearing Jan. On Petition for support material there is evidence decision, the chancellor’s we must affirm. Co.,

See, e.g., Kelley v. 3-M 639 S.W.2d Transou,

(Tenn.1982); Ins. Co. CNA v. (Tenn.1981).

S.W.2d 335

From a review entire record case, we hold instant there support evidence to the chancel

material plaintiff a com- finding

lor’s sustained arising

pensable injury both out of and employment. per of his We are

the course undisputed

suaded the fact was procedures, time

that the usual lunch participated the em

were known involved one of the em

ployer, regularly leaving premises obtaining

ployees others who remained at their

lunch for the stations; that on the date of the

work

accident, brought had his plaintiff indeed morning work with him that

lunch to no reason to leave work at

therefore had co but to obtain lunch for his

lunch time

workers; al plaintiff’s journey, and that employer unknown his

though arguably 15, 1980, benefitted February

on allowing employ the other employer by

his working while keep

ees to lunch, but

obtaining subjected their risk or

plaintiff to a definite hazard on the

road. Chancery Court of judgment is affirmed. are ad- County

Knox Costs against defendant.

judged *2 Cox,

James S. Memphis, for plaintiff-ap- pellant. Thomason,

John J. Memphis, for defend- ant-appellee. Scanlon,

Frank J. Gen., Atty. Sr. Asst. Nashville, for State.

NEARN, Presiding Judge, Western Sec- tion. malpractice case for

This is a medical she injuries when sustained hospital the window of her jumped from Originally, Hospital room. general essentially Doctor’s medicine. This was named Memphis along a defendant job is to teach the my U.T. latter. Leung, with Dr. but trial ****** morning plaintiff voluntarily hospital. non-suited the (continuing) against At the close of Bursten, Q. (Mr. Cox)—Dr. you are fa- doctor, directed a verdict *3 with of care miliar the standards and defendant, Leung. plain- for the The Dr. expected skill of a man required appeals tiff that action of the Trial who is an medicine man and internal ap- and the defendant raises issues on cardiologist undertaking who is the in the event the action of the Trial peal patient care and treatment of a who Judge is not sustained by this Court. and who psychiatric has a disorder orderly opinion An requires that be a specifically suffering from mental the considering fore of the directed matter Are you disorder? familiar with those verdict we first raised consider an issue standards? defendant-appellee. testimony The of University. A. I teach that at expert was plaintiff’s only medical witness this, you ask THE COURT: Let me defendant, objected objec to but such cardiologist Doctor: Is a internal testimony tion was overruled ad and the specialist medicine held same hinges mitted. Plaintiff’s therefore case in of care this degree psychiatrist as a ruling the correctness of since in medi that field. cases, malpractice cal and causa negligence going he is THE If to WITNESS: ordinarily required proved by tion are to be condition, psychiatric treat Your 29-26- expert medical T.C.A. testimony. § Honor, degree. he is to a minimal held 115(b). (1978 Nichopoulos, See German vs. THE COURT: Do know what that you Tenn.App.W.S.) S.W.2d 197. degree minimal is? expert Plaintiff testimo offered THE Yes I do. WITNESS: Bursten, Benjamin treating Dr. a non ny of testimony appears view of it that specialized psychiatry. doctor who In go must objection to this Court a doctor in the specializes defendant who rather weight more to the of the evidence cardiology. of field internal medicine and addition, it is its In admissibility. than was Bursten was not objection that Dr. state has law of this respect with qualified give opinion qualifi wide discretion the matter departure the standard of care and the McCay vs. expert cations of witnesses. See in the field of the de therefrom medical 424, Mitchell, (1970 Tenn.App. W.S.) 62 Dr. Bur- During the voir dire of fendant. We in the exercise 710. see no error as S.W.2d questioned he was and answered sten Appellee’s that discretion in this case. of follows: issue is without merit. Leung certified in Q. If Dr. is Board you cardiology, internal medicine and Now, the testi- having determined field, you? are are not same Court, we mony properly before field—that We are in same broad A. testimony such must ascertain whether course, is, surgery. medicine and Of whole, at the the evidence as considered license, he has a hold the same but we verdict was motion directed time the specialty from mine. different made, facts present material are with the stan- could law- Q. you But familiar the defendant is that practice psychiatry, making this deter- fully predicated. dards In the evidence correct? we must all mination examine strongest issue, take presented two really with I am familiar A. favor of the legitimate proof view of the practice things—the standards all countervail- prac- party, discard complaining and the standards psychiatry evidence, disputes all regard patients ing resolve psychiatric tice with Elavil_not days material evidence taken since four or doubt as to conclusions neurosis, hyperten- to be drawn from the evidence all in favor ago_Depression complaining party. Martin vs. St. sion. 95; Doty, Tenn.App.W.S.) 493 S.W.2d Mrs. Hall on a Leung then started Dr. Smyrna, Poole vs. First Bank of National said she had to the one she drug similar (1946 M.S.) 29 Tenn.App. 196 S.W.2d seen by ordered that she be taking been Leung Dr. Rutschman, psychiatrist.1 Dr. Viewing manner re- morning, testi- the next again saw quired, Mary shows that Hall was patient com- time fied that brought to the Doctor’s in Mem- Hospital were that noises in the hall plained to him phis in the late afternoon of February Then, following disturbing to her. very emergency 1977. She was first seen in the on the chart Dr. placed notation was room a Dr. Dunn noted that who room; her in close Leung: “Keep quiet for patient appeared suffering to be open time. Leave intercom door all the *4 depression” “acute and ordered numerous room; precaution; suicide detect noise precautions tests and instructed that suicide Sinequan p.o. q.i.d.” 25 then start Also, hospital. instituted the afternoon of Febru- p.m. At 2:10 on medical records re- contain these notations 26, Hall, jumped out of ary plaintiff, Mary garding patient admitting made in- severely the window in her room and physician: jured herself. Has been unusually cloudy tired and between ar- During period her thinking past days; Jimmy over few leap the second floor and her rival on Carter, U.S.A., President of told her to 26th, the nurses’ records reveal that Ms. come to the hospital wrong. to see what’s talking Hall and heard voices to her cried Has depressed age been since the of thir- evening February point all on 25. At one Has teen. heard voices and had visual dumped pitcher Ms. Hall of water over past days. hallucinations over few She her head “so God will cleanse her of her people believes are out to her get night sins.” The hallucinations went on all taking some threatened her. Has been going and Ms. Hall feared someone was depression. Elavil for February shoot her. 26th Ms. Hall was On Alert. person. Oriented Cranial presi- for the crying “waiting found nerves 2-12 intact. normal Cerebellum come im- dent” to see her. Her condition limits. Sens normal limits. Motor nor- around noon even proved and she came mal limits. Mental inappropriate status: as a the nurses station discuss career affect, thought processes underproduc- However, p.m. lab technician. at 2:00 Ms. voices, hallucinations, tive. Hears visual Hall locked herself in her bathroom and paranoid with people. eventually opened when the nurses patient was removed to the second door, Hall was in the crying bathroom Ms. hospital assigned floor of the to Dr. nurses she was afraid. floor and told the Leung, the defendant. Dr. Leung was a causal connec- In an effort to establish testify by plaintiff. called to He testi- tion between the acts of the defendant and impression fied as to his initial as contained injuries plaintiff, suffered Dr. hospital records which were: Bursten testified for the year Mentally old white female. Twenty follows: confused, slightly alleges running, Q. opinion have an as to what you Do fell down and hit her head and had some L.M.D_? direct, proximate cause of was the leg. bruises on President of jumping Patricia Hall go hospital, Mary called her to U.S.A. Hospital therefore he was worried about her. Re- window at the Doctors 27, taking day lates been two a 1977? Hydrodiurill February leaped window. 1. Dr. Rutschman was unable to see her before she out the 708

A. Yes. that error? We know of no case in this state that so holds. What we have said on Q. jury your Tell the what Court and is, it, nothing this as we see more than point opinion is. rule a restatement of the enunciated A. I think three proximate there were (1947 O’Quin Baptist Hospital, vs. Memorial Physically acutely causes. she was an 570, 694, Tenn.) 184 Tenn. 201 S.W.2d psychotic person disturbed with all of Hospi- vs. Thomas Spivey reiterated St. going the fears are to harm people tal, M.S.) Tenn.App. 211 S.W.2d her, turn. and she didn’t know where to 450, that: Secondly, given she was an incorrect general hospital rule is that a medication, given and was not a correct to exercise such reasonable care required medication to calm the fears. patient as his known condition toward a in an insecure Thirdly, put she was require and the extent and character may people room who sight out depends upon of this care the circum- doing might prevented have her from of each case. stances what she did. such rule of law does not MR. You cross-examine. may COX: might who physician exonerate counter proxi There can be more than one reasonable care actions of the mand such Whitehurst vs. injury. mate cause of an if such countermand is a hospital Howell, (1936 M.S.) Tenn.App. Therefore, injury. of an we must cause of a defendant Liability examine the record to determine if further act or fail be established if the defendant’s Plaintiff’s such is the case in this instance. *5 vs. proximate Payne ure to act is a cause. was to the effect expert testimony Woodward, (1949) 190 Tenn. is that “suicide hospital when a advised Therefore, tends plaintiff’s proof if the duty be taken its is to precautions” are to responsible show for to the defendant in a secure room place patient padded, the alleged proximate one or more of the three of self in which there are no instruments jury causes an issue for determination the is to be observed at injury patient and presented. intervals. If such approximately 15 minute available, patient the is to facilities are not It is not and could not be contended attendance and observation be in constant responsible plain- for the defendant was case, personnel. In this the by hospital Therefore, we psychotic tiff’s condition. hospital the did neither. proof is regard- orders are left with the defendant’s padded, was no secure room available There regarding his orders ing medication and afford constant hospital and the did not room hospital closing plaintiff’s the door to place to What was done was attendance. as open leaving system the intercom room near the patient ordinary the an chargeable to de- causes possible proximate and the nurses or attendants nurses station will first consider fendant’s conduct. We every on her about 15 min visually checked intercom. of the door and the the matter Therefore, expert’s testimony, the utes. elects hospital that when a course, We hold as hospital duty. the failed in its Of disor psychiatric with accept patient onset, a not now hospital the is stated at the precau with orders that “suicide case, ders and facts but these a defendant taken, prime responsibility be the the de brought tions” out to show must be reason facilities and reason reasonably afford safe did not countermand fendant procedures needs patient’s (under proof) able attendance to the the ably required However, the defendant hospital hospital. lies with the prevent injury self (under the changed negligent is not physician. physician The did order and not the hospital. This be hospital procedures proof) in constant attendance. ascertained, if, true, it must now be ing cer prescribes If a doctor supposed to be. defend such order proof, ad under the nurse hospital medication and the tain law, be a said in another, liable for ant can be is the doctor ministers plaintiff’s injuries. cause of We hold it Sinequan that the administration of not be so considered. have plaintiff “will no effect because it’s wrong drug or it either will have no The proof shows that the interior of the wrong drug effect because it is the or it will patient’s room could not be observed from worse, matters it plus make will make them Therefore, the nurses station. under the more energetic aggravated.” more In procedures instituted in or- hospital, short, drug might the administered or prevent der to self injury patient, to a might not have affected matters. attempted injury self must be about to take place when a hospital attendant looks in at proof subject, If this were all the intervals; regular patient calls on we agree would be inclined to with counsel nurses; the intercom and so advises the defendant; because, such proof again commotion in patient’s room loud conjecture ship embarks on the sea of in a enough to be heard without intercom is propelled by the winds of speculation. heard someone or passerby happens to However, there is more. walking room, be by, looks into the expert testified: something notices amiss indepen- and takes course, And, giving wrong drug, dent action prevent injury timely ad- give he also then failed to right drug vises the nurses station. which would be a calming drug, kind of major

The defendant often called tranquilizer, drug ordered the intercom kept be open help get at all times. which would This cannot but rid of the false beliefs, delusions, said to be an improvement over the the voices and so existing conditions. He also ordered on. door to be kept closed to patient lessen give drug He didn’t which would be agitation. This might be considered a dele necessary to calm her down. terious act but for the fact that the room this is first So area where he differed could not be visually observed from the from the usual standards of practice. nurses station. prevent it did Insofar as the administration of Sinequan someone who if passing by looking concerned, might is that if they chose to observing the plaintiff’s glass well have been a of water. There is *6 stressful condition reporting same to no proof proof that it hurt and no it nurses, or perhaps independently conjecture. But, helped—only thwarting a suicide attempt if such had expert prescribe testified that the failure to been occurring at that time. We are of the proper medication deviated from the opinion that such proof attempts estab to usual of practice required phy- standards of lish the negligence of the defendant based sicians with similar qualifications. Addi- “ifs”; upon found, too many liability, if the failure tionally, prescribe proper would be the result of speculation sheer drug proximate was testified to be a cause possibility—not A probability. verdict plaintiff’s injuries plaintiff’s expert. of which must be based on speculation and Therefore, actually whether or not such was conjecture is impermissible in law. St. jury a cause was a matter for Carter, Martin vs. Doty, supra; Ray Inc. vs. nothing speculative determination. We see Edwards, (1969 Tenn.) 222 Tenn. about that testimony possessed 864; Williams vs. M.C. West Con legal impediment other which would any struction Company, Tenn.App.M.S.) a jury question bar resolution

579 S.W.2d 883. presented. point On this we conclude that possible proximate This leaves as a jury is entitled to a trial and plaintiff cause prescribed the issue the medication mo- Judge granting the Trial erred or failed to prescribed by the defendant. entirety. tion for directed verdict in its appellee argues Counsel for that such action of the doctor predicate cannot be a for the case must be remanded for Since trial, plaintiff’s expert alleged because testified will eviden- a new we address Also, appellant. plaintiff errors raised Counsel counsel for faults the

tiary permitting defense counsel of the Trial cites as error refusal plaintiff’s expert to cross-examine witness evidence, plaintiff place to allow use of certain medical literature. Coun chief, plaintiff’s proof deposi- plain sel for defendant cross-examined Dr. J. Lee Rutsehman. The de- tions of expert Phy tiff’s witnesses with the use of deposition fendant had taken the of Dr. This book was not sician’s Desk Reference. Dr. as one Rutsehman and listed Rutsehman interrogatory listed in an expert of the defendant’s witnesses. to furnish: requesting the defendant 32.01, Tennessee Rules of Pro- Rule Civil journals, publica- titles of names of [t]he that, trial, cedure, forth any party sets tions, or other methods of publishers part of or all any deposition use treaties, articles, identification of all provisions. under certain conditions or publications books and other pamphlets, for insists he had the appellant Counsel expected to be used in this cause used or right deposition to use the in his litigation. of action in the Trial of this chief virtue of Tennessee Rules Civil that defend- appellant for claims Counsel 32.01(3)(D) provides which for Procedure him this information ant’s failure to furnish party offering depo- such use when “the the “benefit of use of dis- deprived him of procure the at- sition has been unable Ten- Admittedly, at the trial level. covery” subpoena.” of the witness by tendance 26.02(1) nessee Rules of Civil Procedure states argu- appellee Counsel for rebuts discovery regarding obtain [pjarties may fact that the record does not ment with the matter, which is rele- privileged, not ever issued appellant reveal that counsel for subject matter involved in the vant to the for Dr. Rutsehman. As surre- subpoena pending action. buttal, appellant relies counsel is be construed to if the rule 24-9-105(a)2 grants T.C.A. § expect- the literature require party to list practicing exemption an from physicians cross-examination, it will ed to be used for non attendance. penalties seeking such informa- require party face, 24-9-105(a) does On its T.C.A. § made, tion, request is same time the at the subpoena. grant exemption functioning crystal properly to furnish exemption that the The code section states divulge or at least to party to the other ball “at the time the must be claimed granted wit- will be asked of the questions all exemption grant- subpoena is served.” as well as on direct examination ness subpoena. not from a “penalties” ed fromis and, be forthcoming; will be answers that whether the doctor In order to determine Other- to deviate therefrom. bound not attendance, subpoena amenable to court wise, no one can know simply way there then *7 the witness must must be served and to be asked on cross- expected will be what attendance. regarding make his election that cross-ex- or of what form examination that election. There- may presume not We consist, will be if there will or amination showing plain- fore, has been no there or all. Whether any cross-examination the attendance procure was unable to tiff is a deci- or its form not to cross-examine Accordingly, subpoena. last moment. of the witness times made at the sion often cross-examination, refusing to when artful- addition, did not err in Judge the Trial In tendency done, plain- offered the has one admirable deposition ly the admit —to require counsel truth. To bring out the merit. issue is without tiff. The provided by subpoena, he claim exemp- occupational summoned 2. 24-9-105. Official or subpoena is witness, exemption at the time such served, subpoena. (a) if he The tion from — thereof, ground in which stating the employed positions, in occupies or is of the according the facts will return case the officer capacities in subdivision enumerated of the 24-9-101, penalties exempt to the claim. (7) from the of § provided witnesses for the nonattendance allegations plaintiff; the wit- made and third divulge cross-examination before findings ness has Even if it board’s in detail and its impossible. stating testified is not, requirement destroy appears were such would exhibit to be an conclusion. This its of admissible effectiveness. meet the criteria attempt 23-3409 set forth T.C.A. § evidence We do not so construe the rule and hold which states: (1979 Supplement) Judge the Trial did not err in his action. The formal statement the board The issue is without merit. statement, minority any, if shall be trial, limine, ruling Prior to the Trial subsequent admissible at a trial as Judge findings held that the of the Medical hearsay rule. The for- exception Malpractice Review Board were inadmissi- mal statement of recommendations of the ble as evidence. The evidence was attacked minority board statement shall in- or alleged on the basis of the unconstitutional- clude, to, (1) but not be limited the stan- ity Attorney of the act and the General has (2) applied; alleged dard of conduct taken appeal. this Counsel de- standard; (3) deviation from such Judge fendant cites this action of the Trial findings and conclusions. as reversible error. All the briefs filed in Act to legislature In altered the this case devote much to the constitu- space modify the contents of the “formal state- tional issue. ment” to consist of one or more of the course, ruling Of of the Trial following: Judge absolutely nothing on this issue had 26-112(c) T.C.A. § 29— do to with the initial outcome of this case as prepare The board shall a formal state- the Trial directed a verdict for de its recommendations. If a mi- ment of obligated fendant before the defendant was agree members do not nority of board put on any proof. It was the defendant with the statement and recommendations who report desired admit majority, minority statement board in his which he was never be which shall be identified prepared called fact adduce. as such. The formal statement recom- would, standing opinion, alone in our minority mendations of the board or the insufficient reason not to address the issue statement shall consist of one or more (in light remand) of the fact that we must following statements: if the constitutional issue had been neces sarily Judge. before the Trial properly (1) supports evidence the conclusion The general rule of constitutional issues or defendants failed to that defendant by any such should not be addressed comply appropriate with the standard necessary unless for determination complaint; charged of care as problem presented. Memphis Watts vs. (2) support evidence does not (1971) Transit Management Company, the defendant or de- conclusion 721, 462 Tenn. S.W.2d 495. applicable failed to meet the fendants com- charged standard of care as

We find that the Trial plaint; refusal to admit absolutely correct his grounds the evidence on other profferred fact, (3) there is a material issue of That than constitutional. The constitutional opinion, bearing requiring expert reason should not ground exclusionary as an by the for consideration been considered below and we do not have jury; court or *8 appeal. consider it on (4) complained The conduct dam- as was not a factor in the resultant appellee Counsel for tendered so, suf- ages. If whether proof that which in the record is described extent and disability and the any Exhibit 1. That exhibit consists of three fered as any per- and disability, duration of the describing the first the standard parts: impairment. stating manent applied; care to be second 712 seen,

As may therefore, now be the formal state- subject at all times be to modi- (1979 ment Supplement) prof- which was by legislature; fication and control ferred in this case far consists of more than changes and the which are enacted Act, permitted by the 1980 Act. The lawfully applicable be made to existing 29-26-112 allows only formal state- § action, causes of even in those states in ment to be introduced into evidence. In the retrospective laws are forbidden. (1978 case of Baldwin Knight, Tenn.) vs. * * * * * * 450, 569 Supreme S.W.2d our Court un- high Courts of authority have held that nothing held that equivocally “beyond the mere rules of evidence do not form part language statement, of the formal is admis- of contracts entered into while they are sible at trial.” constitutional issue force, it is competent for the aside, only we hold that the formal state- to, time, legislature change from time to ment as defined Legislature under evidence, the rules of and to make such trial, law as it exists at the time of could be change applicable existing causes of Further, admitted. that the admission of a ours) (emphasis action.” hearsay statement of the Medical Mal- practice procedural Review Board is a rem- failing Trial Court did not err in edy only. right” given If “vested profferred admit the evidence as the formal a party under the 1979 version or 1980 statement of the review board. statute, right version of the such would be are found without Appellee’s issues merit. to have admitted into trial that evi- only issues are also found Appellant’s without dence which was defined statute at the except merit for the matter of the directed time of trial. This case was in No- tried verdict and then as to the issue of the profferred vember 1981. The evidence alleged negligent failure to administer the this case under the Act does not meet 1979 proper drug. statutory requirement existant at time judgment The result is that of trial. in this holding regard Our does is reversed the cause is Court constitutionality not act as a ret- prohibited remanded for a new trial on the issue indi- rospective application of laws as set forth in 1, cated. 20, Article Section of the Constitution of of Tennessee.3 In Brewer vs. State against appellee. adjudged Costs are Company, Aetna Life Insurance Done at Jackson in the two hundred and 506, Supreme 490 our Tenn.) year Independence seventh of our and in holding procedural legisla- that remedial eighty-seventh year the one hundred and constitutional) (if

tion otherwise did not our Statehood. rights, quoted violate constitutional Hanthorn, 172, (1893) vs. Marx U.S. J„ MATHERNE, HIGHERS, Special as follows: S.Ct. L.Ed. Judge, concur. right It must be evident that the to have one’s controversies determined exist- PETITION FOR REHEARING ON ing right. rules of evidence is not vested has been petition A courteous to rehear rules to the remedies which pertain These First, plaintiff. citizens, and, filed counsel provides the state for its exists as to whether jury question insisted a they generally legal contemplation, in counter- of the defendant the action enter into constitute a neither hospital’s instruc- contract, manding certain they regarded nor can cause of tions constituted a being any right of the essence of which a jury ques- held no plaintiff’s injuries. We may seek to enforce. Like other party must, adhere to that tion on that issue and affecting remedy, they rules existed contracts, I, retrospective obligation made. shall be 3. Article Section 20. No laws. law, retrospective impairing —That no or law *9 holding. Second, suggested it is that on plaintiff

remand the be able to again should

proceed against the defendant all the-

ories be limited as re- our seems

quired by opinion. This a rather suggestion

novel to acquiesce us and in it place

would this Court the Trial Court peculiar

in a most This case posture. was

never submitted to jury. matter was Judge

determined as a Trial matter plaintiff's after presented. law was that,

We have held part, Judge correct as a law in dismissing matter of claim based on some theories of plaintiff. On issues which those we

have determined the Trial acted cor-

rectly dismissing, wants a We logic

retrial. know of no law or support

would our instruction to the Trial retry the issues which he com-

mitted no error in dismissing and which we

action affirmed.

Accordingly, the Petition to Rehear

denied. MOTORS,

STONES RIVER INC. and Snell,

Kenneth W.

Plaintiffs-Appellants,

v. COMPANY,

MID-SOUTH PUBLISHING

INC., Daily d/b/a Journal; News Keith, Press;

Donald H. d/b/a The Bill Bickford, Mary Bickford, Jo and Christ- Bickford, Defendants-Appellees.

ie Tennessee, Appeals

Court of

Middle Section.

Jan.

Application for Permission to Appeal

Denied Supreme 2, 1983.

May