                IN THE SUPREME COURT OF TENNESSEE
                            AT NASHVILLE
                          (Heard at Jackson)  FILED
                                              December 21, 1998
                                     FOR PUBLICATION
                                              Cecil W. Crowson
                                            Appellate Court Clerk
                                     Filed:  December 21, 1998




FREDA G. MOON, EXECUTOR OF      )
THE ESTATE OF RUTH GARRETT,     )
                                )
      PLAINTIFF/APPELLANT,      )    DAVIDSON CIRCUIT
                                )
v.                              )    Hon. Barbara N. Haynes
                                )
ST. THOMAS HOSPITAL,            )    No. 01S01-9710-CV-00218
                                )
      DEFENDANT/APPELLEE.       )




FOR APPELLANT:                       FOR APPELLEE:

Harlan Dodson III                    Mary Martin Schaffner
Anne C. Martin                       Nashville
Julie K. Sandine
Nashville
                                     FOR AMICUS CURIAE:

                                     Richard L. Duncan
                                     Knoxville




                        OPINION



REVERSED AND REMANDED                                    HOLDER, J.
                                            OPINION



        We granted this appeal to address whether a hospital's general duty to

exercise reasonable and ordinary care to maintain an open airway in an

intubated patient is negated merely because the transection of an endotracheal

tube is an uncommon occurrence. We hold: (1) that under the circumstances,

a factual question exists concerning whether the standard of care required

placement of an oral airway or bite block when the patient exhibited agitation and

began biting on the endotracheal tube; (2) that the foreseeability of the

intubated and restrained patient's actions are relevant when assessing the

appropriate standard of care and deviation from that standard of care; and (3)

that the affidavits of the plaintiff's experts created genuine issues of material fact

concerning the standard of care and breach of that standard. The appellate

court's decision affirming the trial court's dismissal is reversed. The case is

remanded to the trial court for proceedings consistent with this opinion.



                                        BACKGROUND



        On February 6, 1986, Ray Garrett was admitted to St. Thomas Hospital,

the defendant. Mr. Garrett underwent successful coronary bypass surgery on

February 7. During surgery, Mr. Garrett was intubated with an endotracheal tube

to provide ventilation.1 After surgery, Mr. Garrett was taken to the recovery room

where his condition was considered stable.



        Nurse Patricia Hoeflein was assigned to Mr. Garrett in the recovery room.

Nurse Hoeflein's notes indicated Mr. Garrett "nods yes & no, but [was] very

agitated and restless when awake." The notes further indicated that Mr. Garrett



        1
         An endotracheal tube is a tube placed in the patient's throat to provide the patient's lungs
with oxygen.

                                                 2
denied pain but was "figiting [sic] at pacer wires" and "biting" his endotracheal

tube. Nurse Hoeflein placed Mr. Garrett in soft arm restraints.



         At approximately 1:05 a.m., Ronald McKay, a respiratory technician,

changed Mr. Garrett's ventilator. Around 1:40 a.m., McKay decreased the

percentage of oxygen that Mr. Garrett was receiving. McKay checked the

condition of Mr. Garrett's endotracheal tube and saw no indication of chewing or

biting. Approximately ten minutes later, McKay responded to an alarm in Mr.

Garrett's room and discovered that Mr. Garrett had bitten and nearly severed the

endotracheal tube. McKay sought assistance from respiratory therapy

supervisor, Gene Emerson. When they returned to Mr. Garrett's room, McKay

observed Mr. Garrett completely sever the tube, and a portion of the tube was

lodged in his throat. After several unsuccessful attempts to open Mr. Garrett's

mouth, the two men forced a device known as an oral airway into Mr. Garrett's

mouth to open his clamped jaws. A physician arrived and extracted the severed

portion of the tube from Mr. Garrett's throat. Although Mr. Garrett was

successfully reintubated, he had suffered a fatal heart attack during the

reintubation procedure.



         The plaintiff2 filed suit against the defendant alleging that the hospital:

failed to provide adequate supervision and staffing during Mr. Garrett's recovery

from surgery; had prior notice of the possible complications with the

endotracheal tube and failed to take appropriate action; and failed to provide the

necessary and proper "mouth brace" to protect the endotracheal tube. The

plaintiff alleged that the hospital's failure to properly supervise and care for Mr.

Garrett was the proximate cause of his death.




         2
          The c aptioned plaintiff, Fred a Moo n, was s ubstituted for the origin al plaintiff, Ruth
Garre tt, who wa s Ray G arrett's wife . Ruth G arrett died a fter suit wa s filed.

                                                     3
       The defendant hospital filed a motion for summary judgment. The

defendant argued that: (1) the transection of the tube was unforeseeable; (2)

the defendant provided appropriate staffing and supervision of Mr. Garrett; and

(3) because the failure of the endotracheal tube was unforeseeable and no

mouth brace or other device had been ordered by a physician, the defendant

was under no duty to supply such a device. The defendant's motion relied upon

affidavits of Patricia Hoeflein, R.N., and Ronald McKay, R.R.T. Both Hoeflin and

McKay testified that they had never previously witnessed a patient bite through

an endotracheal tube. McKay further testified that this was the first time he had

ever heard of a patient severing an endotracheal tube. Hoeflein testified that she

only used bite blocks on patients who were continuously having seizures.

Hoeflein testified that she would attempt to calm the patient and orient the

patient to the tube if a patient chewed on an endotracheal tube. Hoeflein stated

that medication may be used to sedate incoherent or uncooperative patients

biting or chewing on their endotracheal tubes. Hoeflein further stated that she

had commonly used oral airways "to prevent patients who continually bite on

their endotracheal tube to the point they are preventing the air line delivering the

breath and oxygen they need."



       The defendant offered the testimony of a respiratory therapy supervisor,

Gene Emerson, in support of its motion for summary judgment. Emerson

testified that he had neither seen nor heard of a patient causing a defect in an

endotracheal tube by chewing or biting on the tube. He stated that it was

common for patients to gnaw or chew on tubes while their lungs were being

suctioned. He opined that no precautions were necessary to prevent a patient

from biting on an endotracheal tube provided the biting stopped upon cessation

of the suctioning.




                                         4
      The defendant also relied on the affidavit of Clifton Emerson, M.D., in

support of its motion for summary judgment. Dr. Emerson was the

anesthesiologist responsible for Mr. Garrett's care during and after surgery. Dr.

Emerson stated that he was aware that patients can intermittently bite on the

endotracheal tube and interrupt the ventilatory flow.



      Such biting, which frequently occurs when the patient is being
      suctioned, is not considered problematic unless the
      anesthesiologist anticipates the patient might experience
      seizures. . . . If the anesthesiologist anticipates the patient may
      bite down on the tube sufficient (sic) to interrupt air flow, he/she will
      order a bite block or oral airway to be used in order to enable the
      endotracheal tube to deliver appropriate ventilatory support to the
      patient. The decision to order a bite block or oral airway is a
      medical decision.



       Dr. Emerson testified that he "had never known nor ever heard of a

patient completely transecting an endotracheal tube as did Mr. Garrett" although

he has been involved in over 20,000 open heart procedures. Based upon Dr.

Emerson's experience and training, "it was not reasonably foreseeable that Mr.

Garrett would bite his endotracheal tube in two." Dr. Emerson felt that the

incident was "such a freak accident that, even today, [he does] not routinely use

bite blocks for post-anesthesia patients." He added that "biting on a tube during

suctioning is an ordinary, every day event and in no way represents" the type of

emergency that would make a bite block or oral airway appropriate. Finally, the

president of the company that manufactured the endotracheal tube that Mr.

Garrett transected testified that although he believed that endotracheal tubes

can be both bitten "into" and "in two," he was unaware of any other instance

where a patient had transected an endotracheal tube.



       In opposition to the defendant's motion for summary judgment, the plaintiff

relied upon the affidavits of a cardiovascular surgical specialist, Joseph William

Rubin, M.D., and two critical care nurses, Nell S. George and Veronica Varallo.


                                          5
All three of the plaintiff's experts stated that "[w]hen the bedside nurse observed

Mr. Garrett biting his endotracheal tube . . . she should have either used a bite

block or repositioned the tube to keep him from further biting or contacted the

treating physician so that he could make that decision." Dr. Rubin opined that

"[t]he medical records in this case indicate that the bedside nurse knew Mr.

Garrett was biting his endotracheal tube during his recovery from surgery [and

that] based on the records, it was foreseeable that the endotracheal tube could

become occluded or impaired."



       Dr. Rubin premised his opinion on Mr. Garrett's medical records "which

indicate that the bedside nurse knew Mr. Garrett was agitated and biting his

endotracheal tube during recovery from surgery." Dr. Rubin stated that attending

medical personnel have a duty to ensure that a patient's endotracheal tube is not

blocked or damaged when the intubated patient displays an agitated behavior or

begins biting down on the tube. "One such preventive measure is repositioning

of the endotracheal tube, which decreases the extent of damage to one specific

part of the tube by teeth biting, thereby decreasing the likelihood of the tube

being severed in two. Another preventive measure is the use of a bite block."



       The defendant was permitted to offer a supplementary affidavit of Dr.

Clifton Emerson. In this affidavit, Dr. Emerson took issue with the alternative

actions plaintiff's experts stated should have been taken. In addition, he stated

that had he been contacted by the nurse, as plaintiff's experts suggested, Dr.

Emerson "would not have ordered a biteblock, oral airway, or any other

measures in order to prevent Mr. Garrett from biting the tube." The affidavit went

on to state, "Thus, even had the nurse caring for Mr. Garrett contacted me in the

early morning hours of February 8, 1986, the outcome of this case would have

been no different." By so opining, the defendant argues that Dr. Emerson has




                                         6
interjected "causation" into the summary judgment motion as an additional basis

for the motion for summary judgment.



         The trial court granted the defendant's motion for summary judgment.

The judge opined that no showing had been made from which it could be said

that the defendant reasonably knew or should have known of the probability of

an occurrence such as the one that caused Mr. Garrett's death. The trial court,

therefore, held that Mr. Garrett's death was unforeseeable and that the

defendant had no duty to take precautions against such an unforeseeable injury.

The trial court did not rule on the "causation" issue, preferring to rest its decision

on the determination that no duty was owed to Mr. Garrett.



         The plaintiff appealed to the appellate court arguing that her affidavits

created genuine issues of material fact. The appellate court affirmed the trial

court's dismissal and held that the defendant did not have a duty to prevent the

transection "because the transection of the tube was completely unforeseeable."

The court also opined that the plaintiff's experts failed to describe the applicable

standard of professional care in Nashville or in a similar community as required

by Tenn. Code Ann. § 29-26-115(a)(1). 3 Finally, the court faulted the expert

proof of the plaintiff because the opinions of those experts were based on an

inaccurate factual predicate, i.e., that Mr. Garrett was in an agitated state

following surgery.




         3
           Althou gh the appe llate cou rt addr esse d an iss ue co ncern ing the failure o f the pla intiff's
experts to explicitly reference in their affidavits the standard of care in Nashville or in a similar
community, the defendant neither filed a motion to strike the affidavits in the trial court nor raised
the issue in its motion for summary judgment. The trial court's order did not address the content
of the affid avits. This issue, the refore, s hould no t have be en raised for the first tim e on app eal.
Harrison v. Schrader, 569 S.W .2d 822 ( Tenn . 1978); Mor an v. C ity of Kn oxville , 600 S.W.2d 725
(Te nn. C t. App . 197 9). W e wo uld no te, ho weve r, that both partie s' aff idavits were com para ble in
that neither explicitly referenced the standard of care applicable in Nashville, Tennessee.

                                                       7
                                     ANALYSIS



       Summary judgment is appropriate if the movant can demonstrate the

absence of any genuine issues of material fact and that the movant is entitled to

a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The non-movant is

entitled to the strongest legitimate view of the evidence and is entitled to all

reasonable inferences which may be drawn from the evidence, discarding all

countervailing evidence. Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998)

(citing Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993)).



       The deceased was intubated, restrained, and in critical care. W hile

physicians cannot ensure either recovery from surgery or success of medical

treatment, hospitals owe a general duty to prevent patients from injuring

themselves following surgical procedures. Keeton v. Maury County Hosp., 713

S.W.2d 314 (Tenn. Ct. App. 1986) (stating hospital's "prime responsibility"

includes reasonable attendance to prevent patients from injuring themselves);

see also W. Page Keeton et al., Prosser and Keeton on Torts, § 53, at 357 (5th

ed. 1984) (stating duty may be analyzed as to "whether the plaintiff's interests

are entitled to legal protection against the defendant's conduct."). Clearly, a duty

is owed to an intubated and restrained patient to maintain a clear and

unobstructed breathing passage through an endotracheal tube. See generally

Hughes v. Hastings, 469 S.W.2d 378, 381 (Tenn. 1971) (noting use of plastic

airway to prevent tongue from obstructing air passage and "to prevent plaintiff

from biting . . . the endotracheal tube.").



       The defendant argues that the deceased's act was so unusual and

extraordinary that the act was unforeseeable; therefore, the defendant was

under no duty to guard against such an act. Accidents, however, "almost

invariably are surprises, in the sense that the precise manner of their occurrence


                                              8
cannot be foreseen." Spivey v. St. Thomas Hospital, 211 S.W.2d 450, 455

(Tenn. Ct. App. 1947). Accordingly, the particular harm need not have been

foreseeable if another "harm of a like general character was reasonably

foreseeable." Id. at 457.



         The defendant stresses that the accident was not foreseeable, since there

is no indication that another patient had ever severed an endotracheal tube. The

record, however, is clear that a risk of some harm is foreseeable if an

endotracheal tube is occluded or impaired. The plaintiff's experts, relying on

Nurse Hoeflein's notes and other evidence, create a genuine issue of material

fact concerning whether the defendant should have been aware of this risk of

occlusion due to Mr. Garrett's behavior. If a jury were to find that some harm

resulting from occlusion was foreseeable in light of the circumstances, then the

defendant would also owe a duty to protect Mr. Garrett from completely severing

the endotracheal tube, even though this specific harm was never foreseen.

Spivey, 211 S.W.2d at 457.



         Perhaps more important to our decision, however, is that the case now

before us is specifically controlled by the medical malpractice statute. The

statutory elements of a medical malpractice action are codified at Tenn. Code

Ann. § 29-26-115. The relevant inquiries under this statute are: the standard of

care;4 a deviation from the standard of care; and causation. Tenn. Code Ann.

§ 29-25-115(a)(1)-(3). Expert testimony is required to prove each of these

elements. Tenn. Code Ann. § 29-25-115(b). The standard of care and the

deviation from the standard of care, therefore, are not established by a

reasonable person standard as in other areas of negligence law. Summary

judgment, therefore, is inappropriate if competent expert testimony is conflicting.



         4
        "Th e rec ogn ized s tand ard o f acc epta ble pr ofes sion al pra ctice . . . in the com mu nity in
which he practices or in a similar com munity." Tenn. Code Ann . § 29-26-115(a)(1).

                                                       9
       The proper inquiry in this case is simply whether the defendant's failure to

order a bite block or oral airway, reposition the endotracheal tube, or contact the

treating physician deviated from the recognized standard of care. The defendant

has filed a motion for summary judgment with supporting affidavits alleging:



       (1)    "the endotracheal tube['s] . . . failure in this case was

       unforeseeable;"

       (2)    "the defendant provided appropriate staffing and supervision

       of Mr. Garrett;" and

       (3)    because the "failure of the endotracheal tube was not

       foreseeable and no mouth brace or other device had been ordered

       by a physician, the defendant had no duty to supply such a device."



In response, the plaintiff countered with affidavits from Nell S. George, R.N.,

B.S.N., M.S.N., Dr. Joseph William Rubin, M.D., C.M., and Veronica Varallo,

R.N. The affidavits of the plaintiff's experts may be summarized as follows:



       the beside nurse's care of Mr. Garrett fell below the recognized

       standard of care when failing to order a bite block, reposition the

       tube, or contact the treating physician upon observing Mr. Garrett

       biting his endotracheal tube as occlusion or impairment of the tube

       was foreseeable.



The hospital record and Nurse Hoeflein's testimony indicate that Mr. Garrett was

biting on his tube on two occasions occurring within less than a two-hour period

of time. Mr. Garrett became agitated and had to be restrained. The conflicting

expert testimony as well as the inferences to be drawn from the record create

genuine issues of material fact as to the standard of care and whether a

deviation from the standard of care occurred. Resolution of material issues of


                                         10
fact concerning possible deviations from the standard of care is generally within

the purview of the trier of fact. Summary judgment, therefore, was improperly

granted.



      Costs of this appeal shall be taxed against the defendant for which

execution may issue if necessary.




                                         JANICE M. HOLDER, JUSTICE



Concurring:

Anderson, C.J.
Drowota and Birch, J.J.




                                        11
