                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     July 6, 2010 Session

  MYRNA WHEELOCK, ET AL. v. JESSE THOMAS DOERS, M.D., ET AL.

                     Appeal from the Circuit Court for Knox County
                       No. 1-240-08    Dale C. Workman, Judge




            No. E2009-01968-COA-R3-CV - FILED SEPTEMBER 14, 2010


In this appeal, the plaintiffs contend that the trial court erred in granting summary judgment
in favor of the defendants. We affirm the judgment of the trial court.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                               Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J. and D. M ICHAEL S WINEY, J., joined.

Terry G. Vann, Lenoir City, Tennessee, for the appellants, Myrna Wheelock, Lester Wheelock, and
Cortney L. Caldell.

F. Michael Fitzpatrick and Rachel P. Hurt, Knoxville, Tennessee, for the appellee, Parkwest Medical
Center.

Debra A. Thompson, Knoxville, Tennessee, for the appellees, Jesse Thomas Doers, MD; StatCare
Pulmonary Consultants, and StatCare Hospitalist Group.

                                         OPINION
                                     I. BACKGROUND

       This appeal arises out of an action for wrongful death brought by Myrna Wheelock
(“Wife”), Lester Wheelock (“Son”), and Cortney L. Caldell (“Daughter”) (collectively “the
Family” or “Plaintiffs”) against Jesse Thomas Doers, M.D., Statcare Pulmonary Consultants,
Statcare Hospitalist Group, and Parkwest Medical Center (“Parkwest”) (collectively
“Defendants”).

       On May 28, 2007, 78-year-old Gene Wheelock (“Decedent”) complained of shortness
of breath and was transported from NHC Farragut nursing home to Parkwest’s emergency
department. Upon arrival, Decedent underwent a physical examination and his medical
records were reviewed. Decedent’s medical history included a long list of serious medical
conditions, including a recent sub-arachnoid (intracranial) hemorrhage.1 Further diagnostic
tests, including a chest CT, revealed extensive blood clotting in Decedent’s lungs which
affected the flow of blood to Decedent’s left leg. The scan also revealed indications of
congestive heart failure.

        Dr. Doers, a pulmonologist, was paged due to the severity of the symptoms revealed
by the CT scan. After reviewing the results of the scan and Decedent’s medical history, Dr.
Doers determined that Decedent had massive pulmonary emboli (blood clots in the lungs)
and that these were most likely caused by Decedent being taken off his blood-thinning
medication. Dr. Doers informed Decedent’s family that Decedent could not be put back on
his blood-thinning medication due to his recent intracranial hemorrhage and that the best
option would be to insert a filter into Decedent’s right groin in order to prevent further blood
clots. The Family agreed and Decedent was returned to his room to be prepared for surgery.
Dr. Doers noted that Decedent was “quite tenuous with high risk of mortality” and that the
Family was aware of this. Because of the serious nature of Decedent’s condition, Dr. Doers
found it necessary to discuss Decedent’s desire to have “heroic procedures” done to save his
life. In his notes, Dr. Doers documented his discussion with Decedent regarding the use of
heroic procedures:

       Do Not Resuscitate. I discussed with the patient whether he would want CPR,
       heart defibrillation, or mechanical ventilation. He was quite clear that he did
       not wish this. I then addressed with the family members in attendance why I
       did this and whether they concurred, and all expressed their agreement at that
       time.

This account was transcribed on June 22, 2007, nearly one month after Decedent’s death.
Dr. Doers essentially reaffirmed this account in his deposition. He testified as follows:

       A. . . . I let him know how large this was and how there was a high risk of not
       surviving. I then asked him if he had ever thought about whether he would
       want heroic procedures done to include breathing machine, having his heart
       shocked, CPR and so forth.

       It was then that he actually sat up and said, “No,” and waived his hand with
       kind of a backhand motion. It was the most animated response that I got out
       of him during the entire time.

       1
           Bleeding in the brain. Decedent had been recovering from a stroke at NHC Farragut.

                                                   -2-
                                             ***

       Q. . . . [W]hat did [the Family] tell you?

       A. Well, he said not to everything and they said, yeah, in fact, he has got a
       living will. . . . And I said, Well, he has just told us what he wanted, that he
       did not want anything done -- you know, done.

                                             ***

       A. . . . I always recognize that living wills are valid at the time they are made,
       but people can change their mind. And he seemed so clear to me that it did not
       even register that there was any difference between what he stated to me and
       what his living will stated.

                                             ***

       Q. And is it hospital policy or is it standard in the medical community that this
       document overrides any provisions of the -- an advanced care directive?

       A. Yes. I mean, if it is clearly documented, . . . like I said, things change. If
       somebody has a – . . . I’ll give you an example -- a living will and they are
       just told that they have widely metastic lung cancer and then they tell the
       physician, I don’t want to have chemotherapy or any heroics done, we
       wouldn’t go to a two-year old living will and say that overrides it.


Decedent’s family disputes this account and alleges that Decedent had a living will
instructing medical personnel to use heroic efforts in order to sustain his life and that Dr.
Doers was aware of this. According to Decedent’s daughter-in-law, the following occurred:

       4. . . . Dr. Doers asked if Gene Wheelock wanted to be resuscitated, that Gene
       Wheelock asked what that was, that I explained it involved CPR, and that
       Gene Wheelock responded “Oh, yes, I want that!”

                                             ***

       6. That I have read Dr. Doer[s’] Deposition . . . stating that Gene Wheelock
       “sat up and said ‘No.” and waived his hand with a kind of backhand motion .
       . . most animated response” when asked if he wanted to receive CPR, and that

                                              -3-
        I absolutely and categorically tell you that did not happen, and that statement
        by Dr. Doers is false.

                                                 ***

      At 5:15 p.m. on May 28, Dr. McLean, a radiologist, began the filter procedure, which
was concluded at 5:30 p.m. Dr. McLean then ordered that Decedent be on bed rest for two
hours post-operation. This was ordered to prevent the formation of a hematoma at the
puncture site of the groin.

        Sometime after 7:00 p.m., Decedent informed the nurses that he needed to use the
restroom. Roger McGee, a certified nurse’s assistant (“CNA McGee”) entered Decedent’s
room and assisted him to the bathroom. Plaintiffs assert that they reminded CNA McGee that
Decedent was not to be moved until 7:30 p.m. However, a nursing judgment was made that
CNA McGee could assist Decedent to the restroom. Upon entering the restroom, CNA
McGee realized that Decedent’s oxygen hose was not long enough to reach the restroom.
CNA McGee removed the oxygen mask, assisted Decedent to the restroom, and left
Decedent’s room to get a longer oxygen hose. There is some dispute as to what happened
after this. Plaintiffs claim CNA McGee returned to find Decedent collapsed on the floor.
Plaintiffs assert that CNA McGee then reconnected Decedent’s oxygen and returned him to
bed. After returning to bed, Decedent stopped breathing.2

       CNA McGee pressed the code blue button and started CPR. A nurse came into
Decedent’s room at 7:36 p.m. and ordered CNA McGee to stop CPR due to Dr. Doers’ DNR
order. Plaintiffs contend that they pleaded with the nurses to continue giving CPR, but the
nurses declined to do so pursuant to Dr. Doers’ DNR order.3 Decedent was pronounced dead
shortly thereafter.

       Plaintiffs, individually and as heirs-at-law of Decedent, brought this wrongful death
action against Defendants on May 28, 2008.

      In his deposition, Dr. Doers testified to a reasonable degree of medical certainty that:
(1) Decedent had only a 10 to 20% chance of surviving the massive pulmonary emboli that

        2
         Defendants contend that CNA McGee reconnected Decedent to the oxygen while he was still on
the commode. Decedent’s daughter-in-law swore in an affidavit the following: “that Gene Wheelock passed
out and had to be carried back to bed, and that Gene Wheelock turned blue and [Son] yelled to tell the CNA
that Gene Wheelock had trouble breathing.”
        3
         Son contends that staff should have honored his request for CPR as he was Decedent’s attorney-in-
fact pursuant to an executed Durable Healthcare Power of Attorney.

                                                   -4-
were present when he entered Parkwest on May 28, 2007, and more likely than not he would
not have survived those pulmonary emboli and would not leave the hospital alive; (2)
Decedent would not have survived even if CPR was continued; (3) because of the massive
pulmonary emboli, Decedent would have suffered the same result even if a bed pan had been
used instead of assisting Decedent to the bathroom; (4) Decedent’s death bore no relationship
to the fact that Decedent did nor did not remain on bed rest for the full two hours, as ordered
by Dr. McLean; and (5) the purpose of the bed rest order was to prevent any bleeding at the
puncture site in the groin of the patient where the surgery had been performed; this bed rest
order had nothing to do with Decedent’s lung/pulmonary problems. Plaintiffs failed to offer
expert medical testimony to refute Dr. Doers’ testimony.

        On May 11, 2009, Defendants filed a motion for summary judgment, asserting that
the standard of care was not breached and that the care provided to Decedent did not result
in any injuries. At a hearing on that motion on July 24, 2009, the trial court held as follows:

       The Court does not find there is an independent cause of action for Myrna
       Wheelock, Lester Wheelock and Courtney Wheelock. They have no
       independent cause of action. This is a cause of action for the services provided
       to and any injury incurred by Gene Wheelock. If the plaintiff[s are] trying to
       assert an independent claim for their emotional injury for going through or
       observing the medical care given or not given to Gene Wheelock, I find there
       is no independent cause of action for that under the applicable case law related
       to medical services being provided. It does not follow with the one exemption
       which our appellate courts have set forth that for other persons other than the
       patient to sue for any action of a health care provider that otherwise falls
       within the Medical Malpractice Act that they don’t fall in that section. So they
       have no independent cause of action.

       Now, as to Dr. Doers, there is no countervailing valid affidavit to contradict
       the standard of care for him as a physician. So with that, the Court must find,
       under the Medical Malpractice Act, that one of the requirements for the
       plaintiff[s] is to establish a violation of the standard of care. And the Court
       finds that under the record before me at this point there is no contested issue,
       that all of his actions were within the standard of care, which is the thing that
       the plaintiff[s] must prove. So the motion is granted as to the doctor.

       As to the question as to whether the doctor’s memory of what the patient said
       about wanting or not wanting certain services, particularly the question of
       CPR, and the question of whether the doctor’s notations on the charts or
       instructions to the hospital about that, in light of the living will, whether there

                                               -5-
is a cause of action for that or not, still the Court finds is a matter under the
Medical Malpractice Act.

We have had a great deal of discussion here about medical services and the
request of medical care providers as to whether there can be a cause of action
for not providing medical services that a health care provider finds are not
within those services required to be given under the standard of care, but at
this point I don’t believe the law of this state allows a patient or others to bring
an action against a health care provider for not providing services that, within
the standard of care, would not have been provided.

And the classic, the easiest example I can think of it, we talked about
something specific in this case, but I think we’re going to get away from it, so
the issue is clearly identified. A patient walks in and says I want a full-body
MRI to find out if I have got cancer anywhere. And a health care provider, it
could be one of several different types, under the standard of care is not
required and will not order that service because that’s not required of the
standard of care.

Can that health care provider then be sued for not providing the service
requested of them that is available and can be given, but is not necessary under
the standard of care? I think the answer at this point is no. And there is a lot
of reasons -- you can say no and yes in regard to that question, but I think at
present there has been no indication that there is a cause of action for that in
Tennessee.

It would create some real interesting questions and effects on the social
policies now being discussed about preventative medicine and all those other
things if there was ever a definitive statement about all of this as to what
services should or should not be provided no matter what the client says or
might have. Where do you draw the line? But that’s another issue.

Now, because I find no cause of action against Doers and there is no question
otherwise other than his medical group, he is merely their agent, the case be
dismissed as to the doctors in the group.

As to the medical center, it’s a different set of issues because here we do have
a responding affidavit. The Court notes that the responding affidavit of the
nurse filed by the plaintiff does not describe in particular how she would know
the standard of care and about this time other than she has been a practicing

                                        -6-
       nurse.

       But onward from that, the crucial factor I think is, there is no proof that
       continuing CPR or giving CPR would have changed the end result, which is
       a critical requirement of the Medical Malpractice Act. That you have got to
       establish that the health care provider, in this case the nursing services being
       provided, even though there was, as taking as true everything stated by the
       plaintiff, a living will saying he wanted CPR, and taking as true the fact that
       he told the doctor he wanted CPR, there is no proof that the outcome would
       have been different if he would have suffered any injury.

       In fact, the reverse could have been true. He could have been given CPR for
       some period of time. And when do you stop is the next question. Just because
       a patient says I want it, does that mean you have to give it and continue giving
       it to when? But those are the reasons why it is left to the standard of care in
       the health-care industry, be it the nurses’ standard of care or the doctors,’ the
       reason why that’s left to that decision.

       So with that, the Court finds the case should be dismissed on the motion for
       summary judgment with attached costs to the plaintiff[s].

Plaintiffs then filed a timely notice of appeal.


                                         II. ISSUES

       We restate the issues raised by Plaintiffs in this appeal as follows:

       Whether the trial court erred in granting summary judgment under the facts
       of this case.


                              III. STANDARD OF REVIEW

      This case comes on appeal from grant of motions for summary judgment filed by
Defendants.

      In reviewing a trial court’s grant of a motion for summary judgment, this court must
determine whether the requirements of Tenn. R. Civ. P. 56 have been met. Staples v. CBL
& Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000). Our inquiry involves only a question of law

                                              -7-
with no presumption of correctness attached to the lower court’s judgment. Id. Under Tenn.
R. Civ. P. 56.04, “[s]ummary judgment is appropriate when the moving party can show that
there is no genuine issue of material fact and that it is entitled to judgment as a matter of
law.” Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008) (citing Tenn. R. Civ. P.
56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993)). In Tennessee, the moving party
who seeks to shift the burden of production to the nonmoving party who bears the burden of
proof at trial must either

       (1) affirmatively negate an essential element of the nonmoving party’s claim;
       or

       (2) show that the nonmoving party cannot prove an essential element of the
       claim at trial.


Hannan, 270 S.W.3d at 8-9. A “conclusory assertion” is not enough to shift the burden. Id.
at 5 (quoting Byrd, 847 S.W.2d at 215). It is also not enough for the moving party to “cast
doubt on a party’s ability to prove an element at trial.” Hannan, 270 S.W.3d at 8.

       If the moving party presents a properly supported summary judgment motion, the
burden then shifts to the nonmoving party to show that a genuine issue of material fact exists.
Byrd, 847 S.W.2d at 215. We review the trial court’s grant of summary judgment de novo
with no presumption of correctness. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 534
(Tenn. 2002). When considering a motion for summary judgment, the court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in the nonmoving party’s favor. Staples, 15 S.W.3d at 89. Summary judgment
should be awarded only when a reasonable person could reach only one conclusion based on
the facts and inferences drawn from those facts. Id.


                                      IV. ANALYSIS

        The trial court concluded that Plaintiffs’ complaint sounded in medical malpractice.
In distinguishing between medical malpractice and general negligence, it should be noted that
not all cases involving health or medical entities sound in medical malpractice. Gunter v.
Lab Corp. of Am., 121 S.W.3d 636, 640 (Tenn. 2003). In Gunter, the Supreme Court
embraced the New York Court of Appeal’s test for determining whether a claim sounds in
medical malpractice or general negligence:

       [A] claim sounds in medical malpractice when the challenged conduct

                                              -8-
       “constitutes medical treatment or bears a substantial relationship to the
       rendition of medical treatment by a licensed physician.” By contrast, when “the
       gravamen of the complaint is not negligence in furnishing medical treatment
       to a patient, but the hospital’s failure in fulfilling a different duty,” the claim
       sounds in negligence.

Id. at 640-41 (quoting Weiner v. Lenox Hill Hosp., 673 N.E.2d 2d 914, 916 (N.Y. 1996)
(quoting Bleiler v. Bodnar, 479 N.E.2d 230, 234-35 (N.Y. 1985))). From this analysis, the
Tennessee Supreme Court developed the “substantial relationship test,” which holds:

       [W]hen a claim alleges negligent conduct which constitutes or bears a
       substantial relationship to the rendition of medical treatment by a medical
       professional, the medical malpractice statute is applicable. Conversely, when
       the conduct alleged is not substantially related to the rendition of medical
       treatment by a medical professional, the medical malpractice statute does not
       apply.

Gunter, 121 S.W.3d at 641. The Court has held that “the medical malpractice statute may
extend to acts of non-physicians, such as nurses, when they are involved in the medical
treatment of a patient. Id. at 640. As noted by Defendants, this court in Conley v. Life Care
Ctrs. of Am., Inc., 236 S.W.3d 713, 729 (Tenn. Ct. App. 2007), has observed that to
distinguish between common law negligence and medical malpractice, courts must consider
“whether the decision, act, or omission complained of required the assessment of a patient’s
medical condition and whether the decision, act, or omission required a decision based upon
medical science, specialized training or skill.”

       Plaintiffs’ complaints about the post-surgical care of Decedent by the nursing staff,
primarily the decision to move him and in failing to continue the administration of CPR,
address matters that required decisions by the nursing staff involving specialized skill and
training. See McBee v. HCA Health Servs. of Tenn., Inc., No. M2000-00271-COA-R3-CV,
2000 WL 1533000, at *3 (Tenn. Ct. App. M.S., Oct. 18, 2000). These allegations, therefore,
sound in medical malpractice and would be matters under the Tennessee Medical
Malpractice Act, Tenn. Code Ann. § 29-26-115, et seq. (Supp. 2009). The Act sets out three
elements that must be proved in a malpractice case:

       (1) The recognized standard of acceptable professional practice in the
       profession and the specialty thereof, if any, that the defendant practices in the
       community in which the defendant practices or in a similar community at the
       time the alleged injury or wrongful action occurred;



                                               -9-
       (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.

Tenn. Code Ann. § 29-26-115(a) (Supp. 2009); see also Williams v. Baptist Mem’l Hosp.,
193 S.W.3d 545, 553 (Tenn. 2006).

        The trial court found that Plaintiffs did not satisfy the requirements of the Medical
Malpractice Act. In particular, the court determined that Defendants had affirmatively
negated the third element -- that Plaintiffs had not demonstrated a genuine issue of material
fact regarding causation, i.e., expert medical testimony that Defendants’ actions proximately
caused Decedent’s death.

       To avoid summary judgment, Plaintiffs were required to produce testimony to create
a genuine issue of material fact that the results, within a reasonable degree of medical
certainty, would have been different if Decedent had not been moved or if CPR had been
continued. Under the facts of this case, only a medical expert could carry Plaintiffs’ burden
of production to demonstrate causation. Plaintiffs provided an affidavit from Cheryl
Williamson, R.N. Her affidavit noted only that “patient Gene Wheelock might have lived
longer if given the opportunity.”

       “Causation in fact is a matter of probability, not possibility, and in a medical
malpractice case, such must be shown to a reasonable degree of medical certainty.” Bishop
v. Smith & Nephew Richards, Inc., No. 02A01-9405-CV-00108, 1995 WL 99222, at *5
(Tenn. Ct. App. W.S., Mar. 10, 1995). We also note that because a nurse is prohibited under
Tenn. Code Ann. § 63-7-103(b) from making a medical diagnosis, a nurse is likewise
prohibited from testifying as to medical causation. See Hinson v. Claiborne & Hughes
Health Ctr., No. M2006-02306-COA-R3-CV, 2008 WL 544662, at *5 (Tenn. Ct. App. M.S.,
Feb. 26, 2008).

      Plaintiffs therefore failed to meet the requirements of the Medical Malpractice Act
when they did not tender an expert who could proffer testimony regarding causation.
Accordingly, summary judgment was appropriate.

        Plaintiffs further allege that Dr. Doers and the medical staff mishandled Decedent’s
living will. Since we affirm the grant of summary judgment based upon Plaintiffs’ failure
to tender an expert who could give testimony regarding causation all other issues alleged by
Plaintiffs are pretermitted.

                                            -10-
                                   V. CONCLUSION

       The judgment of the trial court is affirmed and the case is remanded. Costs on appeal
are assessed to appellants, Myrna Wheelock, Lester Wheelock, and Cortney L. Caldell.




                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




                                            -11-
