                                                                                       10/11/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             September 13, 2017 Session

         ESTATE OF EVELYN SAMPLE v. LIFE CARE CENTERS
                     OF AMERICA, INC., ET AL.

                 Appeal from the Circuit Court for Bradley County
       No. V-15-545  Michael S. Pemberton, Judge Sitting By Interchange


                            No. E2017-00687-COA-R3-CV


The Estate of Evelyn Sample (“the Estate”) appeals the March 13, 2017 order of the
Circuit Court for Bradley County (“the Trial Court”) granting summary judgment to Life
Care Centers of America, Inc. and Life Care Center of Cleveland (collectively “Life
Care”) in this health care liability action. We find and hold that Life Care made a
properly supported motion for summary judgment negating an essential element of the
Estate’s claim, i.e., causation, and that the Estate failed to produce evidence showing a
genuine issue of material fact. We, therefore, affirm the grant of summary judgment to
Life Care.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
                                 Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.

C. Mark Warren, Chattanooga, Tennessee, for the appellant, Ginger L. Sample, Personal
Representative of the Estate of Evelyn Sample.

Alan S. Bean, Nashville, Tennessee, for the appellees, Life Care Centers of America, Inc.
and Life Care Center of Cleveland.
                                       OPINION
                                      Background

       Evelyn Sample (“Deceased”) was an eighty-nine year old resident at a nursing
home operated by Life Care in Bradley County, Tennessee. In November of 2014,
Deceased died. The Estate filed suit for health care liability alleging that, per medical
orders, Deceased was not to be left lying flat in bed. The Estate further alleged that on
the day of her death, Deceased had been left lying flat in bed causing her to suffocate or
aspirate and die.

       Life Care filed a motion for summary judgment supported by, among other things,
the Estate’s response to a request for admissions and the affidavit of Bethany Dragnett,
R.N. In its response to the request for admissions, the Estate admitted that Deceased’s
death certificate “expressly identifies ‘ASCVD’ [arteriosclerotic cardiovascular disease]
as the sole cause of Evelyn Sample’s death.” The Estate also admitted that Deceased
suffered arteriosclerotic cardiovascular disease prior to the date of her death, that
Deceased suffered from congestive heart failure prior to the date of her death, that
Deceased’s death certificate does not mention the word ‘aspiration,’ and that no autopsy
of Deceased was requested. In her affidavit, Nurse Dragnett stated that she cared for
Deceased during Deceased’s stay at Life Care. Nurse Dragnett further stated she
specifically cared for Deceased on the day of Deceased’s death, and that in Nurse
Dragnett’s opinion none of the nurses or certified nursing assistants at Life Care breached
the standard of care with regard to the care provided to Deceased.

       In response to the motion for summary judgment, the Estate produced an affidavit
of Angelia Huff, R.N. and the deposition testimony of Bethany Dragnett, R.N. Nurse
Huff’s affidavit opined there was a breach in the standard of care by a failure to keep
Deceased’s bed elevated. In her affidavit, Nurse Huff states: “In my opinion, to [sic]
reasonable degree of nursing certainty, failing to keep the bed elevated caused Mrs.
Sample to aspirate causing acute respiratory failure and death.” During her deposition,
Nurse Dragnett testified that she never found Deceased lying flat in bed with the feeding
tube on. Nurse Dragnett further testified that she was called to Deceased’s room by
another employee on the day Deceased died. When she entered the room, Nurse Dragnett
found Deceased sitting in a wheelchair not breathing. Nurse Dragnett also testified that
she has no idea why Deceased died. Nurse Dragnett stated that Deceased had AFib and
had previously had a stroke.

      After a hearing on the motion for summary judgment, the Trial Court entered its
order on March 13, 2017 granting summary judgment to Life Care after finding and
holding that although the Estate had created a genuine issue with regard to whether Life
Care breached the standard of care, the Estate had failed to put forth any competent proof
                                            2
with regard to whether the alleged breach proximately caused any injury that otherwise
would not have occurred. The Estate appeals the grant of summary judgment.

                                       Discussion

       Although not stated exactly as such, the Estate raises one issue on appeal: whether
the Trial Court erred in granting summary judgment to Life Care. As our Supreme Court
has instructed:

             Summary judgment is appropriate when “the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any material fact
      and that the moving party is entitled to a judgment as a matter of law.”
      Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
      summary judgment de novo, without a presumption of correctness. Bain v.
      Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
      Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
      so, we make a fresh determination of whether the requirements of Rule 56
      of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
      Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
      Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

                                          ***

      [I]n Tennessee, as in the federal system, when the moving party does not
      bear the burden of proof at trial, the moving party may satisfy its burden of
      production either (1) by affirmatively negating an essential element of the
      nonmoving party’s claim or (2) by demonstrating that the nonmoving
      party’s evidence at the summary judgment stage is insufficient to establish
      the nonmoving party’s claim or defense. We reiterate that a moving party
      seeking summary judgment by attacking the nonmoving party’s evidence
      must do more than make a conclusory assertion that summary judgment is
      appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
      moving party to support its motion with “a separate concise statement of
      material facts as to which the moving party contends there is no genuine
      issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
      separate, numbered paragraph and supported by a specific citation to the
      record.” Id. When such a motion is made, any party opposing summary
      judgment must file a response to each fact set forth by the movant in the
      manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
      judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
                                            3
      to survive summary judgment, the nonmoving party “may not rest upon the
      mere allegations or denials of [its] pleading,” but must respond, and by
      affidavits or one of the other means provided in Tennessee Rule 56, “set
      forth specific facts” at the summary judgment stage “showing that there is a
      genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
      “must do more than simply show that there is some metaphysical doubt as
      to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
      Ct. 1348. The nonmoving party must demonstrate the existence of specific
      facts in the record which could lead a rational trier of fact to find in favor of
      the nonmoving party. If a summary judgment motion is filed before
      adequate time for discovery has been provided, the nonmoving party may
      seek a continuance to engage in additional discovery as provided in
      Tennessee Rule 56.07. However, after adequate time for discovery has
      been provided, summary judgment should be granted if the nonmoving
      party’s evidence at the summary judgment stage is insufficient to establish
      the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
      56.04, 56.06. The focus is on the evidence the nonmoving party comes
      forward with at the summary judgment stage, not on hypothetical evidence
      that theoretically could be adduced, despite the passage of discovery
      deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

      In Tennessee healthcare liability actions are governed by Tenn. Code Ann. § 29-
26-115, which provides, in pertinent part:

      (a) In a health care liability action, the claimant shall have the burden of
      proving by evidence as provided by subsection (b):
         (1) The recognized standard of acceptable professional practice in the
         profession and the speciality thereof, if any, that the defendant practices
         in the community in which the defendant practices or in a similar
         community at the time the alleged injury or wrongful action occurred;
         (2) That the defendant acted with less than or failed to act with ordinary
         and reasonable care in accordance with such standard; and
         (3) As a proximate result of the defendant’s negligent act or omission,
         the plaintiff suffered injuries which would not otherwise have occurred.
      (b) No person in a health care profession requiring licensure under the laws
      of this state shall be competent to testify in any court of law to establish the
      facts required to be established by subsection (a), unless the person was
      licensed to practice in the state or a contiguous bordering state a profession
                                             4
       or speciality which would make the person’s expert testimony relevant to
       the issues in the case and had practiced this profession or speciality in one
       (1) of these states during the year preceding the date that the alleged injury
       or wrongful act occurred. . . .

Tenn. Code Ann. § 29-26-115 (2012).

       In the case now before us, Life Care made a properly supported motion for
summary judgment showing that the alleged breach of failing to keep Deceased’s bed
elevated did not cause or contribute to Deceased’s death or to any other injury which
would not otherwise have occurred. The burden then shifted to the Estate to show a
genuine disputed issue of material fact with regard to causation. The Estate attempted to
satisfy this burden by producing the affidavit of Nurse Huff, which states: “In my
opinion, to [sic] reasonable degree of nursing certainty, failing to keep the bed elevated
caused Mrs. Sample to aspirate causing acute respiratory failure and death.” The Estate
produced no other competent evidence with regard to causation.

       In its order granting summary judgment to Life Care, the Trial Court correctly
found that Nurse Huff was not competent to testify as to the issue of causation. The Trial
Court relied upon Richberger v. The West Clinic, P.C., wherein this Court held that in a
health care liability action a registered nurse is prohibited from testifying as an expert
with regard to causation pursuant to Tenn. Code Ann. § 29-26-115(a)(3) because a
registered nurse is prohibited from making a medical diagnosis pursuant to Tenn. Code
Ann. § 63-7-103(b). Richberger v. The West Clinic, P.C., 152 S.W.3d 505 (Tenn. Ct.
App. 2004).

       In its brief on appeal, the Estate argues that “there is no dispute that there was a
sign in [Deceased’s] room to ‘KEEP BED ELEVATED TO 45 DEGREE ANGLE AT
ALL TIMES!!!! Per Dr. Bowers,’” and states that Life Care “has overlooked Dr. Bowers’
testimony at trial.” Our Supreme Court has clearly instructed, however, that:

       summary judgment should be granted if the nonmoving party’s evidence at
       the summary judgment stage is insufficient to establish the existence of a
       genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The
       focus is on the evidence the nonmoving party comes forward with at the
       summary judgment stage, not on hypothetical evidence that theoretically
       could be adduced, despite the passage of discovery deadlines, at a future
       trial.

Rye, 477 S.W.3d at 265. The Estate argues that it could produce evidence in its favor “at
a future trial,” but this does not satisfy its burden at the summary judgment stage. Id.
                                             5
       Life Care made a properly supported motion for summary judgment negating an
essential element of the Estate’s claim, i.e., causation. The Estate failed to produce
evidence demonstrating “the existence of specific facts in the record which could lead a
rational trier of fact to find in favor of [the Estate].” Rye, 477 S.W.3d at 265. We,
therefore, affirm the grant of summary judgment to Life Care.

                                       Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Ginger L. Sample, Personal Representative of the Estate of Evelyn Sample,
and her surety.




                                          _________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




                                            6
