                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                January 21, 2010 Session

                         TINA TAYLOR, ET AL. v.
                 LAKESIDE BEHAVIORAL HEALTH SYSTEM

              Direct Appeal from the Circuit Court for Shelby County
          No. CT-0006091-01          Charles O. McPherson, Special Judge


                No. W2009-00914-COA-R3-CV - Filed March 15, 2010


        This is a medical malpractice case. Appellant filed suit against Appellee Hospital
after Appellant’s decedent suffered several falls and a broken hip while a patient at Appellee
Hospital. The trial court granted Appellee Hospital’s Tenn. R. Civ. P. 12.02(6) motion,
thereby dismissing Appellant’s amended complaint. Specifically, the trial court held: (1) that
the amended complaint was ineffective to give notice to Appellee Hospital because it did not
reference the date(s) of decedent’s falls, (2) that the medical malpractice claim and hedonic
damages of the widow arising therefrom were dismissed by previous orders of the court, and
(3) that the proof did not support the averments made in the amended complaint. After
review, we conclude: (1) that the amended complaint is sufficiently specific to satisfy Tenn.
R. Civ. P. 8, and to state a claim for medical malpractice against the Appellee Hospital, (2)
that the previous orders of the trial court only dismissed the wrongful death claims and
widow’s loss of consortium claims arising therefrom, and not the medical malpractice claims,
and (3) that the trial court reviewed matters outside the pleadings so as to trigger summary
judgment analysis under Tenn. R. Civ. P. 12.03, and (4) that there are disputes of material
fact in this case so as to necessitate a full evidentiary hearing on the medical malpractice
claim. Reversed and remanded for an evidentiary hearing on the medical malpractice claim
against Appellee Hospital and on the widow’s loss of consortium claims arising from the
alleged medical malpractice.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S. and H OLLY M. K IRBY, J., joined.

Robert L. J. Spence and Regina Guy, Memphis, Tennessee, for the appellant, Tina Taylor.
William H. Haltom, Jr. and Andrea N. Malkin, Memphis, Tennessee, for the appellee,
Lakeside Behavioral Health System.

                                               OPINION

       Between July 24 and September 21, 2000, Appellant Tina Taylor’s father, David
Kime, was a patient at Appellee Lakeside Behavioral Health System (“Lakeside”). It is
undisputed that, while a patient at Lakeside, Mr. Kime was taking various medications, some
of which caused him to be delirious and confused at times. In addition, Mr. Kime suffered
from tremors in his extremities, which condition was most likely due to Parkinson’s disease.
During his stay at Lakeside, Mr. Kime suffered several falls. Following a fall on September
21, 2000, Mr. Kime was transferred to Methodist Hospital in Germantown, Tennessee, where
he was diagnosed with a hip fracture, for which he underwent surgery on September 25,
2000. Following the surgery, Mr. Kime’s condition continued to deteriorate. His
temperature increased and he was observed to be lethargic, delirious, and disoriented. On
October 5, 2000, Mr. Kime was transferred to the Primacy Health Care & Rehabilitation
Center (“Primacy”) where he continued to exhibit similar symptoms. On or about October
7, 2000, Mr. Kime’s condition had not improved, and he was transferred to St. Francis
Hospital in Memphis, where he was diagnosed with septic shock, stemming from a
perforated viscus. Mr. Kime underwent surgery to repair the perforation, and was
subsequently placed in the intensive care unit at St. Francis. On November 13, 2000, Mr.
Kime died as a result of cardiopulmonary arrest due to sepsis.

       The original complaint in this case was filed on October 1, 2001 by Mr. Kime’s
widow (and Ms. Taylor’s mother), Margie Kime. The complaint, which alleged both medical
negligence and wrongful death claims, was filed against Methodist Hospital, Lakeside,
Primacy, Dr. Mary Missak, Dr. Michael Threlkeld, and Dr. Robert Burns. 1 Concerning
Lakeside, the complaint states, in relevant part, as follows:

                9. David Kime was a patient at [Lakeside] where he was on
                various medications which caused him to be delirious at times.
                Mr. Kime was very shaky and had a large amount of trembling
                of his extremities and was thought to have Parkinson’s disease.
                During his admission at [Lakeside], Mr. Kime fell and was
                subsequently diagnosed with a left hip fracture. Following the
                fall Mr. Kime was no longer able to handle his affairs due to


        1
         The cases against Dr. Missak and Methodist are still pending in the trial court. The claims against
Dr. Threlkeld and Dr. Burns were dismissed. Primacy was not listed as a party-defendant in the amended
complaint filed on February 3, 2009, see infra.

                                                    -2-
confusion, disorientation and incapacitation.

*                                    *                            *

26. Defendant Lakeside[’s] employee[s] failed to properly
monitor and assist Mr. Kime and w[ere] further negligent in
failing to provide a safe environment, causing him to fall
sustaining a fractured hip.

*                                        *                        *

32. Defendant...Lakeside...was negligent in not seeing that
proper care was furnished to Plaintiff David Kime. More
spe c if ic a lly, P lain tif f alle ges th at...L akesid e[’s]...
agents/employees were negligent in the medical care and
attention rendered to the Plaintiff, and did not exercise the
degree of care, skill and diligence used by such facilities and
their staffs generally in this community under the circumstances
which presented themselves at the time, including but not
limited to, the choice of medical techniques employed in caring
for Plaintiff David Kime.

*                                        *                    *

34. Plaintiff alleges that as a direct and proximate result of the
negligence and medical malpractice by the Defendants that
David Kime suffered substantial damages as follows:

       a. caused to suffer and incur severe and physical
       damages to his body resulting in extreme pain and
       suffering, that he required medical treatment to
       treat his injuries initially and subsequent follow
       up care by physicians for continued treatment,
       thereby incurring substantial medical expenses as
       well;
       b. caused to endure severe emotional distress and
       mental anguish;
       c. caused to suffer the loss of the normal
       enjoyment of the pleasures of life;
       d. caused to suffer substantial loss of earning

                               -3-
                    capacity; and
                    e. caused to die.

             35. Plaintiffs allege that as a direct and proximate result of the
             negligence and medical malpractice by the Defendant that
             Margie Kime, suffered substantial damages as follows:

                    a. caused to suffer and incur extreme emotional
                    distress and mental anguish;
                    b. caused to suffer the loss of the normal
                    enjoyment of the pleasures of life with her
                    husband;
                    c. cause[d] to suffer loss of consortium.

      In its Answer, filed on December 30, 2002, Lakeside states, in pertinent part, that:

             9. In response to Paragraph 9 of the Complaint, defendant
             Lakeside admits that Mr. David Kime was formerly a patient at
             defendant hospital, and that during his admission he was on
             medication. Defendant Lakeside admits that during his
             admission at the hospital, Mr. Kime fell and was subsequently
             diagnosed with a fracture of the...hip. Defendant Lakeside
             admits that following the hip fracture, he was transferred to
             Methodist Hospital for care and treatment....

      Although Lakeside admitted that Mr. Kime had fallen while at the facility, it denied
any negligence stemming from his treatment and any fault in his death.

      On May 7, 2003, Lakeside filed a motion for summary judgment, which motion was
supported by the affidavit of Dr. Hal Brunt.

       In opposition to the motion for summary judgment, Mrs. Kime identified two expert
witnesses, Dr. Frank C. Westmeyer and Nurse Janet Kirk, who both opined that Lakeside had
departed from the applicable standard of care in its treatment of Mr. Kime. Dr. Westmeyer
went on to explain that, in his opinion, the ruptured bowel which caused the sepsis and
subsequent cardiovascular incident occurred some time between October 7 and October 10,
2000, and that there was no direct connection between the hip repair surgery and the fecal
impaction that ultimately caused the bowel rupture.

      In her deposition, Nurse Kirk also opines that Lakeside deviated from the standard of

                                            -4-
care. Specifically, Ms. Kirk states that, because of Mr. Kime’s diagnosis with Parkinson’s,
he should have been moved to a room closer to the nurses’ station, that he should have been
checked every fifteen minutes as a fall precaution, and that a falls vest should have been used
in his case.

       On April 13, 2006, Lakeside filed an amended motion for summary judgment. By its
amended motion, Lakeside averred that the alleged wrongful death of Mr. Kime was not
caused by, or related to, treatment he received at Lakeside, but that his death was the result
of independent, intervening events that occurred subsequent to the care and treatment
rendered by Lakeside.

       Sometime in August of 2007, Dr. Threlkeld and Dr. Missak filed motions to dismiss
the individual claims of Margie Kime on grounds that hedonic damages are not allowed in
wrongful death claims under Tennessee law. The parties ultimately agreed and, on May 11,
2007, Judge Rita Stotts entered a “Consent Order Dismissing All Individual Claims of
Margie Kime.” This Order states:

                      This cause came to be heard upon announcement of
              Counsel that the parties have agreed that Margie Kime’s
              individual claims in this lawsuit should be dismissed for failure
              to state a claim on which relief can be granted since she has no
              individual claim for the alleged wrongful death of David Kime.

      Although there is no transcript of the hearing on Lakeside’s motion for summary
judgment, on March 5, 2008, Judge Stotts entered an order granting partial summary
judgment to Lakeside. This Order provides, in relevant part, as follows:

              After having reviewed this matter, from which the Court is of
              the opinion that there is no genuine issue of material fact upon
              which the liability of Lakeside...can be predicated for the
              alleged wrongful death of the plaintiff’s decedent, and that
              defendant Lakeside...should be granted partial summary
              judgment as to this issue,
                     IT IS, THEREFORE, ORDERED, ADJUDGED, AND
              DECREED that partial summary judgment is entered for
              defendant Lakeside...as to all claims that the alleged negligence
              of Lakeside...caused the death of plaintiff’s decedent.

     Based upon the entry of these two orders, Mrs. Kime moved the court for leave to
amend her complaint to clarify the exact causes of action she wished to bring against the

                                              -5-
respective defendants. On April 10, 2008, Mrs. Kime died and, by order of June 27, 2008,
the Kimes’ daughter, Tina Taylor, was substituted, in her mother’s place, as personal
representative o/b/o her father, David Kime. The motion to amend the complaint was
opposed by Lakeside. Specifically, Lakeside argued that Ms. Taylor’s amended complaint
should not be allowed because: (1) it does not clarify the claims and damages that apply to
Lakeside; (2) it is an attempt to re-litigate the wrongful death claim against Lakeside that had
been dismissed by Judge Stotts; (3) the claim for personal injury against Lakeside is barred
by the statute of limitations and statute of repose; and (4) it would unduly prejudice Lakeside
as Lakeside allegedly did not have notice of the claim. Unfortunately, before the issue of
whether an amended complaint should be allowed could be decided, Judge Stotts died.

       On January 30, 2009, Judge Charles McPherson, who had been assigned the case after
Judge Stotts’ death, issued an order granting Ms. Taylor’s request to file an amended
complaint. Concerning Lakeside, the amended complaint, which was filed on February 3,
2009, states:

              9. David Kime was a patient at Defendant...Lakeside...Hospital
              where he was on various medications which caused him to be
              delirious at times. Mr. Kime was thought to have Parkinson’s
              disease. During his admission at Defendant Lakeside, Mr. Kime
              suffered three falls. Following the third fall he was diagnosed
              with a left hip fracture. Following the fall Mr. Kime was no
              longer able to handle his affairs due to confusion, disorientation
              and incapacitation.

              *                                     *                          *

              26. Defendant Lakeside Hospital employees failed to properly
              monitor and assist Mr. Kime and w[ere] further negligent in
              failing to provide a safe environment, causing him to fall
              sustaining injury, resulting in a fractured hip.

              *                                     *                          *

              31. Defendant...Lakeside Hospital was negligent in not seeing
              that proper care was furnished to Plaintiff David Kime. More
              specifically, Plaintiff alleges that...Lakeside Hospital’s
              agents/employees were negligent in the medical care and
              attention rendered to the Plaintiff, and did not exercise the
              degree of care, skill and diligence used by such facilities and

                                              -6-
their staffs generally in this community under the circumstances
which presented themselves at the time, including but not
limited to, the choice of medical techniques employed in caring
for Plaintiff David Kime, causing him to fall sustaining injury
resulting in a fractured hip.

*                                         *                     *

33. Plaintiff Margie Kime now deceased since she brought this
cause of action o/b/o her husband David Kime, deceased, is
entitled to receive the pecuniary value of the life of David Kime.
David Kime was the loving husband of Margie Kime, and was
the companion and friend of his wife Margie Kime, providing
companionship, cooperation, affection and aid, but by reason of
his injuries and death she was deprived of the services and
consortium of her husband as a result of said negligence and
injuries caused by the Defendants Methodist...Hospital, Mary
Samuels Missak, M.D., and Michael G. Threlkeld, M.D.

*                                     *                         *

35. Plaintiff alleges that as a direct and proximate result of the
negligen ce an d m ed ical m alpractice by the
Defendant...Lakeside...Hospital, that David Kime suffered
substantial damages as follows:

       a. caused to suffer and incur severe and physical
       damages to his body, resulting in extreme pain
       and suffering, that he required medical treatment
       to treat his injuries initially and subsequent follow
       up care by physicians for continued treatment,
       thereby incurring substantial medical expenses as
       well;
       [b]. caused to endure severe emotional distress
       and mental anguish as a result of his injury from
       his fall at Defendant...Lakeside;
       [c]. caused to suffer the loss of the normal
       enjoyment of the pleasures of life as a result of his
       injury from the fall at Defendant....Lakeside.
       [d]. caused to suffer substantial loss of earning

                                -7-
                      capacity.

              36. Plaintiff David Kime was the loving husband of Margie
              Kime, who is now deceased, since the filing of this cause of
              action, and was the companion and friend of his wife Margie
              Kime, providing companionship, cooperation, affection and aid,
              but by reason of her husband David Kime’s injuries, she was
              deprived of the services and consortium of her husband.
              Plaintiff Margie Kime is entitled to recover the reasonable value
              of her injured spouse’s services and the reasonable value of her
              injured spouse’s companionship as well as the reasonable value
              of acts of love and affection that she lost growing out of said
              negligence and injuries caused by Defendant...Lakeside. In
              addition, Margie Kime is entitled to recover expenses
              reasonably incurred in attending her husband David Kime at the
              hospital as a result of his injuries resulting from
              Defendant...Lakeside’s negligence.

              *                                      *                          *

              2. That as a result of the medical negligence and injuries caused
              by Defendant...Lakeside Hospital, [Plaintiffs] have and recover
              Compensatory Damages for pain and suffering–both physical
              and mental; loss of enjoyment of life as well as medical
              expenses and all other damages allowed under Tennessee law in
              the amount of ONE MILLION DOLLARS ($1,000,000.00);

              3. That as a result of the medical negligence and injuries caused
              by Defendant...Lakeside to her husband David Kime, that
              Margie Kime receive compensation for the reasonable value for
              her injured spouse’s services, companionship and acts of love
              and affection that she lost in the amount of TWO HUNDRED
              THOUSAND DOLLARS ($200,000.00).

        In response to the amended complaint, on February 19, 2009, Lakeside filed a motion
to dismiss the amended complaint pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state
a claim upon which relief can be granted. Specifically, Lakeside posits its motion on the
following grounds: (1) “because the allegations against Lakeside in the amended complaint
are not supported by the proof, and were never alleged in the plaintiff’s answers to discovery,
expert witness affidavits, or the discovery depositions of the plaintiff’s expert witnesses;” (2)

                                               -8-
“[t]he factual allegations in the plaintiff’s amended complaint fail to state the date(s) on
which the falls allegedly occurred;” (3) “because the loss of consortium claim for Margie
Kime is improper;” and (4) “because the damages claims are not consistent with the Court’s
Order dismissing all wrongful death claims against Lakeside, and are not supported by the
evidence.”

      On March 20, 2009, the hearing on Lakeside’s motion to dismiss was held before
Judge McPherson. At that hearing, Judge McPherson made the following, relevant
comments from the bench:

              [P]art of [the] motion, and I think the crux of [the] motion is that
              legally this Amended Complaint cannot stand because the Court
              has already dismissed these claims against Lakeside....

              *                             *                            *

              The Court has reviewed this matter, and I think we are talking
              semantics here, but the Court feels that the Motion to Dismiss
              the Amended Complaint is well taken and should be granted....

      The Order granting Lakeside’s motion to dismiss was entered on April 9, 2009. The
Order provides, in relevant part, as follows:

                     This cause came to be heard on the Motion of Defendant,
              Lakeside...to dismiss the Amended Complaint pursuant to Rule
              12.02(6). The Court, having reviewed the pleadings herein and
              prior orders of the Court and having heard oral argument from
              counsel for the parties, finds that the Amended Complaint is
              legally insufficient as it seeks to advance causes of action that
              were previously dismissed by the Court, contains allegations that
              are not supported by the proof and were never alleged in
              Plaintiff’s answers to discovery, expert witness affidavits, or
              discovery depositions of Plaintiff’s experts, and fails to
              specifically state the date(s) of the alleged negligent acts of
              Defendant Lakeside. The Court further finds pursuant to Rule
              54.02 that there is no just reason for delay of the entry of a final
              judgment for Defendant Lakeside....
                     IT IS, THEREFORE, ORDERED, ADJUDGED AND
              DECREED that the Motion of Defendant Lakeside...to dismiss,
              pursuant to Rule 12.02(6), is granted, and the Court expressly

                                                -9-
               directs the entry of a final judgment on behalf of Defendant
               Lakeside....

       Ms. Taylor appeals and raises four issues for review as stated in her brief:

               I. Whether the trial court erred in ruling that Appellant failed to
               state a claim upon which relief could be granted on the basis that
               Appellant’s Amended Complaint did not specifically state the
               date(s) of the negligent acts of Appellee?

               II. Whether the trial court erred in ruling that Appellant failed
               to state a claim upon which relief could be granted on the basis
               that Appellant’s Amended Complaint “contained allegations that
               are not supported by the proof and were never alleged in
               Plaintiff’s answers to discovery, expert witness affidavits, or
               discovery depositions of Appellant’s experts?”

               III. Whether the trial court erred in finding that a Consent Order
               dismissing Appellant’s individual claims in a lawsuit due to a
               lack of cause of action relating to her wrongful death claim also
               served to dismiss Appellant’s individual claims relating to her
               personal injury action?

               IV. Whether the trial court erred in finding that Appellant’s
               Amended Complaint alleging medical negligence was in
               violation of the previous court order dismissing all wrongful
               death claims against Appellee?

        Our normal course at this point in an opinion is to discuss the applicable standard of
review and law. However, the protracted procedural history and, frankly, the maladroitly
drafted orders that comprise that history make our task quite difficult. We know that the
April 9, 2009 order appealed was predicated upon Lakeside’s Tenn. R. Civ. P. 12.02(6)
motion. It is well settled that a motion to dismiss a complaint for failure to state a claim upon
which relief can be granted tests the legal sufficiency of the complaint. It admits the truth of
all relevant and material allegations, but asserts that such allegations do not constitute a cause
of action as a matter of law. See Riggs v. Burson, 941 S.W.2d 44 (Tenn.1997). When
considering a motion to dismiss for failure to state a claim upon which relief can be granted,
courts are limited to an examination of the complaint alone. See Wolcotts Fin. Serv., Inc. v.
McReynolds, 807 S.W.2d 708 (Tenn. Ct. App.1990). The basis for the motion is that the
allegations in the complaint, when considered alone and taken as true, are insufficient to state

                                              -10-
a claim as a matter of law. See Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975). In
considering such a motion, the court should construe the complaint liberally in favor of the
plaintiff, taking all the allegations of fact therein as true. See Cook ex rel. Uithoven v.
Spinnaker's of Rivergate, Inc., 878 S.W.2d 934 (Tenn.1994). However, Tenn. R. Civ.
P.12.03 provides that:

              If, on a motion for judgment on the pleadings, matters outside
              the pleadings are presented to and not excluded by the court, the
              motion shall be treated as one for summary judgment and
              disposed of as provided in Rule 56, and all parties shall be given
              reasonable opportunity to present all material made pertinent to
              such a motion by Rule 56.

       As discussed by this Court in Brewer v. Piggee, No. W2006-01788-COA-R3-CV,
2007 WL 1946632 (Tenn. Ct. App. July 3, 2007), “[t]he phrase ‘matters outside the
pleadings’ has been described in the caselaw as additional evidentiary materials or, stated
differently, extraneous evidence.” Brewer, 2007 WL 1946632, *6 (citing D.T. McCall &
Sons v. Seagraves, 796 S.W.2d 457, 459-60 (Tenn. Ct. App.1990)).

        In his April 9, 2009 order the trial judge states that, in reaching his decision, he “
reviewed the pleadings herein and prior orders of the Court and heard oral argument from
counsel for the parties.” The order also states that the Amended Complaint “contains
allegations that are not supported by the proof and were never alleged in Plaintiff’s answers
to discovery, expert witness affidavits, or discovery depositions of Plaintiff’s experts.” It is
obvious from the litany of sources contained in the order that the court relied on more than
the allegations contained in the Complaint and Amended Complaint to determine if dismissed
was required. Consequently, this leads us to conclude that, pursuant to Tenn. R. Civ.
P.12.03, Lakeside’s motion to dismiss should have been treated as one for summary
judgment. In short, if a party files a motion to dismiss for failure to state a claim and
includes matters outside the pleadings, the trial court, upon considering the material outside
the pleadings, must review the motion as a motion for summary judgment pursuant to Tenn.
R. Civ. P. 56. Tenn. R. Civ. P. 12.02; see also Staats v. McKinnon, 206 S.W.3d 532, 543
(Tenn. Ct. App.2006).

        Turning back to the April 9, 2009 order, from the specific findings set out therein, it
does not appear that the trial court clearly applied either the Tenn. R. Civ. P. 12.02 standard,
or the summary judgment standard in this case. Specifically, the grounds upon which the
trial judge concluded that the “Amended Complaint is legally insufficient” are that the
amended complaint: (1) seeks to advance causes of action that were previously dismissed by
the Court; (2) contains allegations that are not supported by the proof and were never alleged

                                             -11-
in Plaintiff’s answers to discovery, expert witness affidavits, or discovery depositions of
Plaintiff’s experts; and (3) fails to specifically state the date(s) of the alleged negligent acts
of Defendant Lakeside. Although grounds (1) and (3) are arguably sufficient to support a
Tenn. R. Civ. P. 12.02(6) motion, ground (2) goes well outside the scope of a review of the
pleadings alone. Although a reference to discovery depositions and proof seems to indicate
a summary judgment analysis, the court’s statement that the allegations are not supported by
the proof indicates that the trial court went too far in its analysis. It is well established that
a summary judgment analysis first requires a determination of whether a dispute of material
fact exists. Here, the trial court makes no finding to indicate whether it concluded that the
material facts were in dispute; rather, the trial court appears to have concluded that the
allegations were not supported by the proof. This is usually the standard applied after a full
evidentiary hearing, which was not held in this case. Consequently, in order to correctly
analyze this issue we must determine the exact rulings made by Judge Stotts in the previous
orders. This determination is necessary to determine what, if any, causes of action should
have been allowed to survive in the amended complaint. Next, because the trial court
determined that the failure to include the date of Mr. Kime’s fall(s) in the amended complaint
negates its effectiveness, we must also examine the sufficiency of the amended complaint on
its face. Finally, if there are viable causes of action, and if the complaint is sufficiently
specific, we must then determine utilizing the summary judgment standard of review because
the trial court reviewed matters outside the pleadings whether there is a dispute of material
fact and/or whether Lakeside is entitled to judgment as a matter of law.

                                    Judge Stotts’ Orders

       Concerning the May 11, 2007 order, we concede that there is some confusion between
the heading of the order, which is titled “Consent Order Dismissing All Individual Claims
of Margie Kime” (emphasis added), and the body of the order, which states, in relevant part,
that: “Margie Kime’s individual claims in this lawsuit should be dismissed for failure to state
a claim on which relief can be granted since she has no individual claim for the alleged
wrongful death of David Kime.” On appeal, Lakeside contends that this order dismissed all
hedonic claims asserted by Mrs. Kime, whether arising from the wrongful death claims or
from the medical negligence claims.

        The Tennessee statute governing wrongful death actions identifies two classifications
of damages recoverable in wrongful death actions. Thrailkill v. Patterson, 879 S.W.2d 836
(Tenn.1994); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn.1999). The
Tennessee wrongful death statute, Tenn. Code Ann.§ 20-5-113, allows for the right to
recover for the mental and physical suffering, loss of time, and necessary expenses resulting
to the deceased from the personal injuries, and also the damages resulting to the parties for
whose use and benefit the right of action survives from the death consequent upon the

                                              -12-
injuries received.2 The first category of damages stems from injury sustained by the
decedent between the time of injury and death. Jordan v. Baptist Three Rivers Hosp., 984
S.W.2d at 600. This category encompasses medical expenses, funeral expenses, physical
and mental pain and suffering, lost wages, and loss of earning capacity. See id. Recovery for
pain and suffering requires proof of conscious injury. Knowles v. State, 49 S.W.3d 330, 338
(Tenn.Ct.App.2001)(citing Hutton v. City of Savannah, 968 S.W.2d 808, 811
(Tenn.Ct.App.1997)). Moreover, hedonic damages, or compensation for the loss of
enjoyment of life, are not recoverable under Tennessee's wrongful death statutes. See
Jordan, 984 S.W.2d at 595 n. 2; Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 943
(Tenn.1994).3

        The second category, considered “incidental damages,” arises from injury sustained
by the decedent's spouse or next of kin and includes the pecuniary value of the decedent's
life. Jordan, 984 S.W.2d at 600; Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 943
(Tenn.1994).

        Although individual hedonic claims are not recoverable in wrongful death actions in
Tennessee, we know that these types of damages are allowed if they flow from a medical
negligence claim. Turning back to the May 11, 2007 Order, although the header purports to
dismiss “all” of Mrs. Kime’s individual claims, the body of the order indicates that the reason
for this ruling is because Mrs. Kime “has no individual claim for the alleged wrongful death
of David Kime.” Based upon the foregoing discussion, we know that Mrs. Kime had no
independent claim for loss of consortium for her husband’s alleged wrongful death, but we
do know that (unless she consented to dismissal), her hedonic claims arising from any
medical negligence continued to exist. From the totality of the circumstance, we conclude
that the May 11, 2007 Order dismisses only the independent hedonic claims asserted vis a
vis the wrongful death claims; however, at this point in the procedural history, Mrs. Kime’s


        2
            The statute provides:

                  Where a person's death is caused by the wrongful act, fault or omission of
                  another and suit is brought for damages, as provided for by §§ 20-5-106 and
                  20-5-107, the party suing shall, if entitled to damages, have the right to
                  recover for the mental and physical suffering, loss of time and necessary
                  expenses resulting to the deceased from the personal injuries, and also the
                  damages resulting to the parties for whose use and benefit the right of
                  action survives from the death consequent upon the injuries received.


        3
          The Jordan Court specifically held that “[t]his holding does not create a new cause of action [for
loss of consortium] but merely refines the term ‘pecuniary value.’” Jordan, 984 S.W.2d at 600 .

                                                     -13-
claims on behalf of her husband for wrongful death and medical malpractice survive, as well
as any individual claims for loss of consortium arising from the medical malpractice.4

        The March 5, 2008 order, which was also entered by Judge Stotts, purports to grant
partial summary judgment in favor of Lakeside. The question is which of the causes of
action averred by Mrs. Kime were decided in favor of Lakeside. Specifically, the order
dismissed “all claims that the alleged negligence of Lakeside...caused the death of plaintiff’s
decedent” Although Judge Stotts references the negligence of Lakeside, she specifies that
she is dismissing any claims of negligence that “caused the death” of Mr. Kime. It is a well
settled that a trial court speaks through its orders, Palmer v. Palmer, 562 S.W.2d 833, 837
(Tenn.Ct.App.1997). From the plain language of the March 5, 2008 Order (and the fact that
it purports to grant only partial summary judgment), we can only conclude that the court
granted summary judgment to Lakeside on the wrongful death claims asserted against it.
Consequently, at this point in the procedural history, the medical negligence, as well as the
individual hedonic claims of Mrs. Kime arising therefrom, are still viable claims. We now
address whether the amended complaint is sufficient to state a claim for medical malpractice
against Lakeside, and/or to state a claim for hedonic damages on the part of Mrs. Kime
arising from the alleged medical malpractice.

                             Sufficiency of the Amended Complaint

        As discussed in detail above, when Ms. Taylor was substituted in her parents’ suit, she
moved the court for leave to amend her complaint to define the specific causes of actions that
existed after the entry of Judge Stotts’ orders. Based upon the foregoing discussion, those
causes of action included both the medical negligence claims and the loss of consortium
claims arising therefrom. Based upon Judge Stotts’ orders, any attempt to raise a wrongful
death claim, or an individual hedonic claim arising therefrom, should have been disallowed
in the amended complaint. However, any averments of medical malpractice and/or loss of
consortium arising therefrom, should have been evaluated for sufficiency and not dissallowed
ab initio.

         Here, the trial court found that the amended complaint failed to state a claim on which
relief could be granted because Ms. Taylor failed to include the actual date(s) of Mr. Kime’s
falls at the Lakeside facility. Tenn. R. Civ. P. 8 governs pleadings and provides, in pertinent
part, as follows:


        4
          For purposes of this opinion, we will refer to Mrs. Kime’s claims for personal injury on behalf or
her husband, and her individual claim for loss of consortium arising therefrom as “medical malpractice” or
“medical negligence.” We, however, do not make a determination as to whether her allegations, in whole
or part, amount to medical negligence or ordinary negligence.

                                                   -14-
              8.01 Claims for Relief. — A pleading which sets forth a claim
              for relief, whether an original claim, counterclaim, cross-claim,
              or third-party claim, shall contain: (1) a short and plain
              statement of the claim showing that the pleader is entitled to
              relief; and (2) a demand for judgment for the relief the pleader
              seeks. Relief in the alternative or of several different types may
              be demanded.

              *                                      *                           *

              8.05. Pleading to Be Concise and Direct —Statutes,
              Ordinances and Regulations —Consistency. — (1) Each
              averment of a pleading shall be simple, concise and direct. No
              technical forms of pleading or motions are required. Every
              pleading stating a claim or defense relying upon the violation of
              a statute shall, in a separate count or paragraph, either
              specifically refer to the statute or state all of the facts necessary
              to constitute such breach so that the other party can be duly
              apprised of the statutory violation charged. The substance of any
              ordinance or regulation relied upon for claim or defense shall be
              stated in a separate count or paragraph and the ordinance or
              regulation shall be clearly identified. The manner in which
              violation of any statute, ordinance or regulation is claimed shall
              be set forth.

              *                                          *                      *

              8.06. Construction of Pleadings. — All pleadings shall be so
              construed as to do substantial justice.

Moreover, Tenn. R. Civ. P. 1 mandates that the “rules shall be construed [liberally] to secure
the just, speedy, and inexpensive determination of every action.”

       The Tennessee Medical Malpractice Act, Tenn. Code Ann. §29-26-115, et seq.,
codifies the common-law elements of negligence, i.e., duty, breach of duty, causation
(proximate and legal), and damages. Although the Act requires specific proof, we find
nothing therein concerning additional pleading requirements other than those contained in
the Rules of Civil Procedure, supra. In short, there is no specific requirement, either in the
Rules of Civil Procedure, or in the Medical Malpractice Act, that the specific dates of the
alleged wrongdoing be specified in the pleadings. Although Tenn. R. Civ. P. 9.06,

                                              -15-
concerning special pleadings, indicates that, “[f]or the purpose of testing the sufficiency of
a pleading, averments of time and place are material, and shall be considered like all other
averments of material matter,” the notes to this rule specify that it “is not intended to create
exceptions to the principles set out in Rule 8.” Moreover, in her author’s note in 3 Tenn.
Prac. Rules of Civil Procedure Ann. §9:6 (2008-2009), Nancy MacLean notes that Tenn. R.
Civ. P. 9.06 “does not require averments of time and place if they are unnecessary to give the
defendant notice of the claim.” In short, the purpose of a pleading is to give the defendant
notice of the causes of action alleged against it and the facts giving rise thereto.
Consequently, the sufficiency of the pleading varies from case to case.

       Turning to the amended complaint, which is set out in fuller context above, we
conclude that the omission of the dates of Mr. Kime’s falls at Lakeside is not fatal. In fact,
from our reading, it appears that Ms. Taylor has plainly and succinctly stated a cause of
action for medical negligence against Lakeside, and has averred facts sufficient to put
Lakeside on notice of that claim. Specifically, under the heading “Facts Giving Rise to
Cause of Action for Medical Negligence,” at paragraph nine, Ms. Taylor states that “David
Kime was a patient at [Lakeside]...During his admission...Mr. Kime suffered multiple falls.
Following the last fall he was diagnosed with a left hip fracture.” This statement is
sufficient to provide notice to Lakeside that the plaintiff is suing based upon falls he suffered
during his admission. The mere lack of dates does not negate this notice. However, if
Lakeside was unable to adduce when the falls occurred, or the exact events that gave rise to
the suit, Tenn. R. Civ. P. 12.05. provides an opportunity to request a more definitive
statement, to wit:

              If a pleading to which a responsive pleading is permitted is so
              vague or ambiguous that a party cannot reasonably be required
              to frame a responsive pleading, the party may move for a more
              definite statement before interposing a responsive pleading. The
              motion shall point out the defects complained of and the details
              desired. If the motion is granted and the order of the court is not
              obeyed within fifteen (15) days after notice of the order or
              within such other time as the court may fix, the court may strike
              the pleading to which the motion was directed or may make such
              order as it deems just.

There is no evidence in the record that Lakeside availed itself of this provision. Nonetheless,
we conclude that the amended complaint did aver facts sufficient to put Lakeside on notice
of the events giving rise to the claim. The question then becomes whether the amended
complaint states a claim for medical negligence against Lakeside.



                                              -16-
        Under “Acts of Negligence,” in paragraph twenty-six of the amended complaint, Ms.
Taylor specifically asserts that Lakeside’s “employees failed to properly monitor and assist
Mr. Kime and w[ere] further negligent in failing to provide a safe environment, causing him
to fall sustaining injury, resulting in a fractured hip.” In paragraph thirty-one, Ms. Taylor
states, in relevant part, that Lakeside “was negligent in not seeing that proper care was
furnished to Mr. Kime.” A more specific statement follows: Lakeside’s “agents/employees
were negligent in the medical care and attention rendered to [Mr. Kime], and did not exercise
the degree of care, skill and diligence used by such facilities and their staffs generally in this
community.” We conclude that these statements satisfy the pleading requirements for
medical malpractice, i.e., Lakeside breached a duty by falling below the applicable standard
of care in dealing with Mr. Kime because Lakeside allegedly failed to use necessary falls
precautions in his case. In the section of the amended complaint entitled “Damages,” and
specifically at paragraph thirty-five thereof, Ms. Taylor avers that, as a direct and proximate
result of this alleged negligence, Mr. Kime incurred: (1) physical damage to his body
resulting in extreme pain and suffering, (2) substantial medical expenses, (3) severe
emotional distress and mental anguish, (4) loss of the normal enjoyment and pleasures of life,
and (5) substantial loss of earning capacity. Consequently, the amended complaint satisfies
the requirements of Tenn. R. Civ. P. 8, and the Medical Malpractice Act, in that Ms. Taylor
has averred duty, breach of duty, causation, and damages, and has averred facts sufficiently
specific to give Lakeside notice of the acts giving rise to the negligence claim.

        Lakeside also asserts that, the inclusion of a hedonic damages claim on the part of
Mrs. Kime, see paragraphs thirty-three and thirty-six of the amended complaint above, should
result in the dismissal of the amended complaint pursuant to Tenn. R. Civ. P. 12.02(6). We
disagree. As discussed in detail above, while hedonic claims are not allowed in wrongful
death actions in Tennessee, those claims are valid when arising from medical negligence.
From our reading of the amended complaint, it does not appear that Ms. Taylor is attempting
to revive the claim for wrongful death (or any loss of consortium claims on the part of Mrs.
Kime arising therefrom), which claims were properly dismissed by Judge Stotts. Rather,
from the amended complaint as a whole, we conclude that Ms. Taylor has averred only
medical malpractice and concomitant hedonic claims arising therefrom. However, because
the trial court looked beyond the four corners of the pleadings, we are required to apply the
summary judgment standard, pursuant to Tenn. R. Civ. P. 12.03, to determine whether a
dispute of material fact exists concerning the alleged medical malpractice and, if so, whether
Lakeside is entitled to judgment as a matter of law.

                                     Summary Judgment

      When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is

                                              -17-
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party's claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8-9 (Tenn.2008). However, “[i]t
is not enough for the moving party to challenge the nonmoving party to ‘put up or shutup’
or even to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the moving
party's motion is properly supported, “The burden of production then shifts to the nonmoving
party to show that a genuine issue of material fact exists.” Id. at 5(citing Byrd v. Hall, 847
S.W.2d 208, 215(Tenn.1993)). The non-moving party may accomplish this by: “(1) pointing
to evidence establishing material factual disputes that were overlooked or ignored by the
moving party; (2) rehabilitating the evidence attacked by the moving party; (3) producing
additional evidence establishing the existence of a genuine issue for the trial; or (4)
submitting an affidavit explaining the necessity for further discovery pursuant to Tenn. R.
Civ. P., Rule 56.06.” Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008)
(citations omitted).

        When reviewing the evidence, a court must determine whether factual disputes exist.
In evaluating the decision to grant summary judgment, we review the evidence in the light
most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving
party's favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.2003). If we find a disputed fact,
we must “determine whether the fact is material to the claim or defense upon which summary
judgment is predicated and whether the disputed fact creates a genuine issue for trial.”
Mathews Partners, No. M2008-01036-COA-R3-CV, 2009 WL 3172134 at *3 (Tenn. Ct.
App. Oct. 2, 2009)(citing Byrd, 847 S.W.2d at 214). “A disputed fact is material if it must
be decided in order to resolve the substantive claim or defense at which the motion is
directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury could
legitimately resolve the fact in favor of one side or the other.” Id.

       Turning to the record, in response to Lakeside’s May 7, 2003 motion for summary
judgment, which motion gave rise to Judge Stotts’ order granting partial summary judgment
(on the issue of wrongful death) in favor of Lakeside, Lakeside provided the affidavit of Dr.
Hal Brunt in support of its motion. In his deposition, Dr. Brunt opined, in relevant part, that:

              From my review of the records, it is my opinion that in all their
              care and treatment of Mr. David Kime, the physicians and staff
              of Lakeside Hospital...conformed to the applicable standard of
              care.... It is further my opinion that Mr. Kime’s fractured hip
              and any injuries allegedly incurred as a result thereof were not
              proximately caused by any departure from the standard of care
              on the part of Lakeside Hospital....

                                              -18-
       In response to Lakeside’s motion, Mrs. Kime (the plaintiff at that time) identified two
expert witnesses, Dr. Frank C. Westmeyer and Nurse Janet Kirk. In his deposition, taken
on October 25, 2004, Dr. Westmeyer testified, in pertinent part, as follows:

              Q. You indicate in...your affidavit, that in your opinion, the
              nursing staff at Lakeside Hospital departed from the standard of
              care by failing to provide appropriate supervision and
              monitoring of Mr. Kime, correct, sir?

              A. Yes, that is correct.

              Q. And the basis for that opinion, as I read your affidavit, is that
              you did your own calculating of what the fall potential
              assessment scoring should be based on Lakeside’s policies and
              procedures, correct?

              A. That’s exactly correct.

              Q. And that you reached the conclusion that...the score for Mr.
              Kime should have been 27?

              A. That’s right.

              Q. On the fall potential assessment scoring device, correct?

              A. That’s correct.

              Q. And if that calculation is correct, then the standard of care
              would require the patient to have triage supervision and
              monitoring every 15 minutes, correct?

              A. Correct.

              Q. And you indicated...that the hospital couldn’t have a nurse
              look at the patient every 15 minutes or so, so they needed to
              have a...person sitting beside the patient all the time; is that what
              you said...?

              A. Yes. I suspect that the only reasonable way to comply with
              their [Lakeside’s] own policy and procedure manual would be

                                              -19-
             to hire an aide, $8.50 an hour.

             Q. So...you are not of the opinion in this case that Lakeside
             failed to monitor this patient every 15 minutes as would be
             required by the assessment score, but that Lakeside should have
             had one-to-one supervision at every moment, every minute,
             correct?

             A. Well, in my opinion they didn’t do either one.

             Q. What’s the basis for your statement that [Lakeside] did not
             do periodic supervision and monitoring every 15 minutes?

             A. Because in the nursing notes there’s no indication they did,
             and there isn’t any indication that they hired an aide, which in
             my opinion after 20 years of medicine is the only way they could
             have carried that out.

      In her deposition, taken October 6, 2008, Nurse Kirk testified, in relevant part, as
follows:

             Q. What else [in the treatment of Mr. Kime was a deviation
             from the applicable standard of care]?

             A. [O]n the fall potential assessment, the assessment will be
             done a minimum of weekly, and may be done more often as
             indicated by the treatment team. This [fall potential assessment]
             was done three times, Week 1, Week 2, and Week 3. And that
             was it.

             Q. So again, it’s your opinion that Lakeside didn’t follow its
             protocol?

             A. No.

             Q. Was that a deviation from the standard of care?

             A. Yes.

             *                                 *                       *

                                           -20-
Q. What else, if anything do you have to say about the
protocols?

A. You know, [Lakeside] should have taken definitive action
after the first fall. They didn’t. They didn’t take definitive
action after the second fall.

Q. When you say definitive action, what did the standard of
care require, in your opinion, after the first fall?

*                                     *                           *

A. The vest, moving [the patient] closer [to the nurses’ station],
one to one [supervision].

Q. And you said previously that it was one to one [supervision]
unless they did the vest and moved the patient closer [to the
nurses’ station]?

A. Right.

Q. Is that still your testimony?

A. Yes.... You know, one fall maybe, two falls, three falls?
That’s unreasonable. And particularly when you have, you have
well spelled out policies on falls. But [Lakeside] just dropped
the ball.

Q. ...Is it your opinion that had the fall potential assessment been
performed each week, that the fall would absolutely have not
occurred?

A. Yes.

Q. And how are you basing that?

A. Based upon the standards of care being implemented. And
had the standards of care been implemented, then [Mr. Kime]
would have been placed on stringent watch, you know, be it a
vest, be it on one to one.

                               -21-
              Q. Well, do you think that he needed to be on one to one toward
              the end of his hospitalization?

              A. Certainly after the first fall. Certainly after the second fall.

              Q. Even though his condition improved?

              A. His gait was still unsteady.... He had already proven after
              two falls to be a fall risk.

       The competing testimonies of Dr. Brunt and Dr. Westmeyer and Nurse Kirk
absolutely give rise to a dispute of material fact in this case–that being whether, in caring for
Mr. Kime, Lakeside followed the applicable standard of care and/or its own internal policies
concerning fall precautions with this patient. Because there is a dispute of material fact, the
summary judgment analysis should have ended in favor of a full evidentiary hearing on the
alleged medical negligence and any damages (including the hedonic damages of Mrs. Kime)
arising therefrom.

       For the foregoing reasons, we reverse the judgment of the trial court, and remand the
matter for an evidentiary hearing on the claim of medical malpractice against Lakeside, and
any loss of consortium claims arising therefrom. Costs of this appeal are assessed against
the Appellee, Lakeside Hospital, for which execution may issue if necessary.




                                                     ____________________________
                                                     J. STEVEN STAFFORD, JUDGE




                                              -22-
