                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      July 9, 2004 Session

                             ESTATE OF JASON JENKINS

                       Appeal from the Circuit Court for Davidson County
                                        No. 00C-2944



                No. M2003-01561-COA-R3-CV - Filed November 16, 2004


This is a suit for personal injuries brought by the mother of a mentally challenged 17 year old boy
occurring when his teacher attempted to transfer him from one chair to another and tripped over a
nearby rocker. Neither his teacher nor the Defendant Nurse who immediately attended to him after
the accident detected the fractured leg. Young Jason Jenkins died from causes unrelated to the
accident, and his suit was revived against Defendants, Metropolitan Government of Nashville,
Davidson County, Mary Ann Armbrister, and Lisa Morrow. The case was voluntarily dismissed as
to Defendant teacher Ms. Armbrister, and a settlement was reached between Plaintiff and
Metropolitan Government of Davidson County. The trial court sustained a Motion for Summary
Judgment on behalf of Ms. Morrow from which Plaintiff appeals. We affirm the action of the trial
court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and FRANK G. CLEMENT , JR., J., joined.

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Tammie Fralix, Administratrix of the
Estate of Jason Jenkins.

C. Hayes Cooney, Nashville, Tennessee, for the appellee, Lisa Morrow.


                                            OPINION

       Jason Jenkins was a mentally challenged 17-year-old child enrolled in Harris-Hillman
School’s special education program. Metropolitan Government of Davidson County operated
Harris-Hillman School for the disabled, and employed Mary Ann Armbrister as a teacher at the
school. Lisa Morrow was a licensed practical nurse at Harris-Hillman and also an employee of
Metropolitan Government. It is alleged by Plaintiff and undisputed by Defendants that both Ms.
Armbrister and Ms. Morrow were employees of Metropolitan Government and, at the time of the
incidents involved in the case, were acting within the course and scope of their employment. Venue
and jurisdiction are based upon Tennessee Code Annotated section 29-20-101, et seq., the Tennessee
Governmental Tort Liability Act.

         It is alleged and established by the undisputed proof that, on November 12, 1999, Ms.
Armbrister, while holding Jason in her arms, tripped and fell attempting to transfer him from one
chair to another. Jason Jenkins was attended at the scene both by Ms. Armbrister and by Ms.
Morrow. The existence or extent of his injuries was not immediately discovered by either Ms.
Armbrister or Ms. Morrow. When he was returned home by bus at the end of the day, his mother
immediately took Jason to Vanderbilt Hospital at which time his broken leg was discovered and
treated.

        On October 6, 2000, Jason Jenkins, by next friend and mother, Tammy Fralix, filed this suit
for personal injuries in the Circuit Court of Davidson County. While the suit was pending on
January 3, 2002, Jason Jenkins unexpectedly died of causes not connected with his injuries, and this
suit was revived in the name of his estate. Metropolitan Government answered the Complaint
essentially denying allegations of proximate negligence and by way of affirmative defense asserted
discretionary function immunity from liability pursuant to Tennessee Code Annotated section 29-20-
205(1). Ms. Armbrister answered essentially denying all allegations of proximate negligence and
by way of affirmative defense asserted that no action for personal injuries could be brought against
her because she was personally immune from such claims under Tennessee Code Annotated section
29-20-310.

        Ms. Morrow answered the claim pointing out that she was a licensed practical nurse and not
a registered nurse but was, at all times, an employee of Metropolitan Government acting within the
scope and course of her employment. She further asserted the affirmative defense of comparative
fault on the part of Co-Defendants.

        Since Plaintiff dismissed her case against Ms. Armbrister, and settled her case as to
Defendant Metropolitan Government of Davidson County, the case remains before the court only
as to Ms. Morrow and only in her capacity as a “health care practitioner” within the meaning of
Tennessee Code Annotated section 29-20-310(b). Except for such status she is immune, just as the
teacher Ms. Armbrister is immune, under the terms of that same statute. Hill v. City of Germantown,
31 S.W.3d 234 (Tenn. 2000).

       Tennessee Code Annotated section 29-20-310(b) provides:

               No claim may be brought against an employee or judgment entered against
       an employee for damages for which the immunity of the governmental entity is
       removed by this chapter unless the claim is one for medical malpractice brought
       against a health care practitioner. No claim for medical malpractice may be brought
       against a health care practitioner or judgment entered against a health care


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       practitioner for damages for which the governmental entity is liable under this
       chapter, unless the amount of damages sought or judgment entered exceeds the
       minimum limits set out in § 29-20-403 or the amount of insurance coverage actually
       carried by the governmental entity, whichever is greater, and the governmental entity
       is also made a party defendant to the action. As used in this subsection, “health care
       practitioner” means physicians licensed under title 63, chapter 6, and nurses licensed
       under title 63, chapter 7.

Tenn. Code Ann. § 29-20-310(b).

       Because Ms. Morrow is a licensed practical nurse, she is subject to liability for proximate
negligence under the provisions of Tennessee Code Annotated section 29-26-115, et seq.

       While both parties assert the single issue on appeal of whether or not the trial court erred in
granting summary judgment to Ms. Morrow, it appears that three sub-issues are actually involved:

1.     Did the rule in Transports, Inc. v. Perry, 414 S.W.2d p. 1 (Tenn. 1967) survive the
       implementation of comparative fault principles set forth in McIntyre v. Ballentine, 833
       S.W.2d 52 (Tenn. 1992)?
2.     Did Plaintiff offer any expert testimony to establish a disputed question of material fact as
       to the standard of acceptable professional practice and any deviation therefrom as is required
       in medical malpractice actions by the provisions of Tenn. Code Ann. § 29-26-115(a)?
3.     In considering motions for summary judgment is the court limited to considering the
       respective statements of undisputed facts under Tenn. R. Civ. P. 56.03 rather than
       considering the entire record before the court including affidavits, depositions, and other
       materials designated in Tenn. R. Civ. P. rule 56.06?

        Prior to the decision of the Supreme Court in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn.
1992), Tennessee recognized the well-settled common law rule that negligence and contributory
negligence presented “ ‘ all or nothing’ ” questions. 833 S.W.2d 52 at 54. By the same common law
rule, proximate contributory negligence absolutely barred recovery by Plaintiff. Talbot v. Taylor,
184 Tenn. 428, 432, 201 S.W.2d 1, 3 (Tenn. 1935); Hudson v. Gaitan, 675 S.W.2d 699, 704 (Tenn.
1984). The burden of proof was on Plaintiff to establish the proximate negligence of Defendant by
a preponderance of the evidence. DeGlopper v. Nashville Railway and Light Co., 123 Tenn. 633,
134 S.W. 609 (Tenn. 1911). Nothing in the McIntyre comparative fault system has changed this
basic responsibility of Plaintiff. The rule, as reiterated and supplemented following McClenanhan
v. Cooley, 806 S.W.2d 767 (Tenn. 1991), recognizes Plaintiff’s burden of proof as to both cause in
fact and proximate cause. See Waste Management v. South Central Bell, 15 S.W.3d 425, 430
(Tenn.Ct.App. 1997). Acting under the common law rule the supreme court decided Transports, Inc.
v. Perry, 414 S.W.2d 1 (Tenn. 1967). In that case Mrs. Viola Perry, injured while a passenger in an
automobile, brought suit against the owner and driver of the bus involved in a rear end collision.
The evidence before the jury as to the injuries to Mrs. Perry was conflicting particularly as to



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whether or not surgery subsequent to the accident had exacerbated her condition. In determining the
case the court held:

                There was some evidence from which the jury might have found that the loss
       of continence, numbness in the vagina and other complaints later reported by Mrs.
       Perry were due to the laminectomy or exploratory surgery itself, and plaintiff
       correctly insists that if this were true, the defendants would still be liable for the same
       if the surgery itself was made necessary and was itself a direct and proximate result
       of the injury sustained in the accident. There was material evidence, however, from
       which the jury could have found that the surgery performed was not really made
       necessary by any injury or aggravation thereof sustained in this accident.
                This Court, like most others, recognizes that if one is injured by the
       negligence of another, and these injuries are aggravated by medical treatment (either
       prudent or negligent), the negligence of the wrongdoer causing the original injury is
       regarded as the proximate cause of the damage subsequently flowing from the
       medical treatment., See Revell v. McCaughan, 162 Tenn. 532, 538, 39 S.W.2d 269
       (1931); Shipley v. Wellwood Silk Throwing Mills, 164 Tenn. 281, 47 S.W.2d 561
       (1932); Mallette v. Mercury Outboard Supply Co., 204 Tenn. 438, 450, 321 S.W.2d
       816 (1959). We do not understand that the defendants controvert this well settled
       principle of law.

Transports, Inc. v. Perry, 414 S.W.2d 1, 4-5 (Tenn. 1967).

        Two years after McIntyre this court first addressed the question of whether or not the rule in
Transports, Inc. v. Perry survived McIntyre v. Ballentine. In reaffirming Transports, Inc. v. Perry,
this court reasoned:

               Abolition of the common law rule would effectively shift the burden of
       proving medical negligence (or its absence) from the defendant to the plaintiff. To
       protect themselves, plaintiffs in future cases would feel compelled to timely name
       medical providers as defendants in any suit where the negligence of the original
       tortfeasor led to the necessity for medical care, whether or not medical negligence
       was actually suspected. In cases like the present one, where this was not done, and
       the one year statute of limitations for filing medical malpractice claims passed,
       allowing the defendant to allege medical negligence as an affirmative defense would
       unfairly prejudice the plaintiff’s right to a full recovery for her injuries.
               By retaining the common law rule, as other jurisdictions that have adopted
       comparative negligence have apparently done, we do not penalize the injured
       plaintiff, nor do we eliminate any remedies previously available to the defendant.
       Though he may not assert the negligence of a subsequent medical provider as an
       affirmative defense to reduce his liability to the plaintiff, the defendant may still file
       a third party claim or a separate suit in subrogation to redeem his own rights against
       the negligent practitioner.


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Atkinson v. Hemphill, 1994 WL 456349, *3 (Tenn.Ct.App. 1994) (no app. to appeal filed) (footnote
omitted).

      In 1998 the Eastern Section of this court followed Atkinson v. Hemphill in Troy v. Herndon,
1998 WL 820698 (Tenn.Ct.App. 1998) (no app. to appeal filed).

       While the case at bar was on appeal, the Western Section of this court issued its opinion in
Jackson v. Hamilton, W2000-01992-COA-R3-CV, 2003 WL 22718386 (Tenn.Ct.App. May 21,
2003) (perm.app.denied NFC May 10, 2004). In that case Plaintiffs appealed a $600 verdict and the
Court of Appeals, relying on Atkinson v. Hemphill and Troy v. Herndon, reversed the trial court and
remanded for a new trial, holding:

                Because we uphold the common law rule of the original tortfeasor’s liability
       for subsequent medical complications, we find that the trial court committed
       prejudicial error when it refused to instruct the jury on this rule of law. In light of the
       disposition of this issue, the only other issue this Court needs to address is issue
       seven above.
                                 Amending Defendant’s Answer
                Defendants assert that, if this Court should remand this appeal for a new trial,
       Defendants should be permitted to amend their answer to include the affirmative
       defense of the comparative fault of Dr. Robinson, the Plaintiff’s chiropractor. We
       find, as the Atkinson and Troy courts did, that such an amendment would be
       inconsistent with the common law rule of holding the original tortfeasor liable for
       subsequent medical treatment. Though, at first glance, this may seem a harsh result
       for a defendant, as the Court in Atkinson noted, such defendant could have the
       alternatives of impleading a third party to the original suit or suing the medical
       provider under a theory of subrogation. Id. at *5. Therefore, we deny Defendants
       relief to amend their answer.

2003 WL 22718386, at *6.

        On December 31, 2003, Defendant filed its application to appeal Jackson v. Hamilton to the
Supreme Court and, on May 10, 2004, the Supreme Court denied the application but designated the
opinion “not to be cited” pursuant to Supreme Court Rule 4. Section (F)(1) of that rule provides:
“If an application for permission to appeal is hereafter denied by this court with a ‘Not for Citation’
designation, the opinion of the intermediate appellate court has no precedential value.” Since
Jackson v. Hamilton was predicated entirely on the survival of the common law rule in Transport,
Inc. v. Perry, as that rule was reiterated by this court in Atkinson and Herndon, we must conclude
that the Supreme Court has serious questions about the survival of the common law rule iterated in
Transport, Inc. v. Perry. Since we have an ample basis for deciding this case on grounds other than
the survival or non-survival of the common law rule in Perry, we pretermit the issue.




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        In a suit for malpractice against a “healthcare practitioner” employed by a local government
entity and exempted from the protection offered to other local government employees under
Tennessee Code Annotated section 29-20-310(b), Plaintiff faces the ordinary burdens in a
malpractice action which are imposed by Tennessee Code Annotated section 29-26-115. Plaintiff
must prove:

               (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;
               (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).

       “In Tennessee, expert testimony is required to establish negligence and proximate cause in
malpractice actions unless the alleged malpractice is within the common knowledge of laymen.”
Ayers v. Rutherford Hospital, Inc., 689 S.W.2d 155, 160 (Tenn.Ct.App. 1984); Bursack v. Wilson,
982 S.W.2d 341, 343 (Tenn.Ct.App. 1998).

        Plaintiff attempts to establish her malpractice claim by the affidavit of Karen S. Ward, a
clearly qualified registered nurse holding a Ph.D from Cornell University and a Master’s Degree in
psychiatric nursing from Vanderbilt. She opines:

               The acceptable standard of practical nursing practice on November 12, 1999,
       did not permit Mrs. Morrow, a licensed practical nurse, to conduct an assessment of
       Mr. Jenkins. Under the acceptable standard of practical nursing practice, Mrs.
       Morrow had a duty to refer Mr. Jenkins to an appropriate healthcare provider for
       appropriate assessment. The failure to do so constitutes a breach of the acceptable
       standard of practical nursing practice.
               Clear - or unclear - verbalization of pain in a specific site should not have
       determined one way or the other how to conduct the assessment. Mr. Jenkins’
       limitations on communication mandated a complete and thorough assessment. This
       included removal of his clothing to examine his lower extremities in their entirety.
       The failure to do so constitutes a breach of the acceptable standard of practical
       nursing practice.
               Given the nature and extent of the fracture, it is clear that this injury would
       have been discovered if a proper assessment had been performed by a competent
       healthcare provider.




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               As a direct and proximate result of Mrs. Morrow’s breach of the acceptable
       standard of professional nursing practice, Mr. Jenkins’ treatment for this significant
       fracture was unnecessarily delayed for several hours.

       The record on appeal also contains the deposition testimony of Dr. Neil E. Green, Associate
Professor of Pediatrics at Vanderbilt University Medical Center, who testified:

              Q.      Okay. Can you tell from the records that you’ve reviewed whether or
       not Jason Jenkins has suffered any permanent injury as a result of this fracture?
              A.      He has suffered no permanent injury.
              Q.      Okay. And can - - can you tell us whether or not in your opinion his
       treatment was - - the delay of treatment, if injury did occur earlier in the day, was
       worse - - worsened his injuries in any way or retarded his healing in any way?
              A.      No, it did not.

         Plaintiff argues that since Dr. Green’s testimony is not included in the Statement of
Undisputed Facts filed by Defendant pursuant to Tenn. R. Civ. P. 56.03, the court is barred from
considering Dr. Green’s testimony in ruling on the Motion for Summary Judgment. This position
is without merit. The specification of material facts under Tenn. R. Civ. P. 56.03 is designed “to
assist the court in ascertaining whether there are any material facts in dispute.” T.R.C.P. 56.03. The
statement required under the rule is auxiliary to the motion in order to assist the court in rendering
judgment on the motion “forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P.
56.04.

       In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993) the Supreme Court of Tennessee specifically
endorsed the reasoning of the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S.
317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Justice Brennan pointed out in Celotex the mechanics
by which a moving party carries his burden under rule 56.

                Rather, as the Court confirms, a party who moves for summary judgment on
       the ground that the nonmoving party has no evidence must affirmatively show the
       absence of evidence in the record. This may require the moving party to depose the
       nonmoving party’s witnesses or to establish the inadequacy of documentary evidence.
       If there is literally no evidence in the record, the moving party may demonstrate this
       by reviewing for the court the admissions, interrogatories, and other exchanges
       between the parties that are in the record. Either way, however, the moving party
       must affirmatively demonstrate that there is no evidence in the record to support a
       judgment for the nonmoving party.

Celotex v. Catrett, 91 L.Ed.2d 265, 279.



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      At the time the Tennessee Supreme Court decided Byrd v. Hall, Tennessee Rules of Civil
Procedure, Rule 56.03 provided the parameters of the trial court’s consideration:

                The motion shall be served at least thirty (30) days before the time fixed for
        the hearing. The adverse party prior to the day of hearing may serve opposing
        affidavits. The judgment sought shall be rendered forthwith if the pleadings,
        depositions, answers to interrogatories, and admissions on file, together with the
        affidavits, if any, show that there is no genuine issue as to any material fact and that
        the moving party is entitled to a judgment as a matter of law. A summary judgment,
        interlocutory in character, may be rendered on the issue of liability alone although
        there is a genuine issue as to the amount of damages.

Tenn. R. Civ. P. 56.03 (1993).

        This is the Rule 56.03 that was construed by the Tennessee Supreme Court in Byrd v. Hall,
847 S.W.2d 208 (Tenn. 1993). Tennessee first adopted the “specifying material facts” procedure
now embodied in Rule 56.03 in 1997. The advisory commission at that time stated “new rule 56.03
tracks the language of a local federal rule in the Middle District of Tennessee. The commission
believes it will not only assist the court in focusing on the crucial portions of the record, but it will
cause lawyers to ascertain whether there is ‘a genuine issue as to any material fact.’ ”

        The “concise statements of material fact,” required since the 1997 amendment to Tenn. R.
Civ. P. 56.03, are significant features of the summary judgment procedure. These statements assist
with docket control and enable the courts to decide summary judgments motions efficiently and
effectively. See Jackson v. Finnegan, Henderson, Farabow, Garrett, and Dunner, 101 F.3d 145, 151
(D.C.Cir. 1996). They serve as “road maps” and trial courts should not be required to proceed
further if they are not provided. Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774
(Tenn.Ct.App. 2001). Thus, requiring compliance by both parties with Tenn. R. Civ. P. 56.03 is
justified. See Gardels v. Central Intelligence Agency, 637 F.2d 770, 773 (D.C.Cir. 1980).

        However, a decision to grant a summary judgment must ultimately be based on the
“pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any.” See Tenn. R. Civ. P. 56.04. Thus, while the Tenn. R. Civ. P. 56.03 concise
statement points the court to the portions of the record that are particularly relevant to the summary
judgment motion, it does not replace the evidentiary materials on which it is based.

        Ms. Morrow’s Tenn. R. Civ. P. 56.03 concise statement was filed on November 28, 2001.
It did not refer to Dr. Green’s opinion that her conduct had not caused any additional injury because
Dr. Green had not yet been deposed. In fact, he was deposed the same day that Ms. Morrow filed
her Tenn. R. Civ. P. 56.03 statement. The plaintiff’s attorney participated in this deposition and
cross-examined Dr. Green. Dr. Green was actually Metro’s witness. Following Dr. Green’s
deposition, Metro moved for summary judgment. Its accompanying Tenn. R. Civ. P. 56.03 statement



                                                  -8-
referred to Dr. Green’s opinion that “[t]he delay in treatment did not worsen Plaintiff’s injury in any
way or retard his healing in any way.” [TR. 113, ¶ 22].

        After the plaintiff dismissed its case against Metro, it would have been better practice for Ms
Morrow to amend her Tenn. R. Civ. P. 56.03 concise statement to include Dr. Green’s opinion.
However, the plaintiff knew about Dr. Green’s causation opinion and was aware that at least one of
the defendants intended to use this opinion to challenge the plaintiff’s ability to prove causation. The
plaintiff made no effort to shore up its evidence of causation during the sixteen months between
Metro’s motion for summary judgment and the entry of the order granting Ms. Morrow’s summary
judgment motion. Under these facts, the plaintiff was not prejudiced by the fact that Ms. Morrow’s
Tenn. R. Civ. P. 56.03 concise statement did not refer to Dr. Green’s causation opinion.

         The evidence considered in the light most favorable to Plaintiff reveals that the conduct of
Ms. Morrow played no part in causing the fracture to young Jason’s leg. She was not present at the
time Ms. Armbrister fell and Jason suffered his injuries. She came upon the scene afterwards and
examined him for injuries and did not discover the fracture. Even if one concedes that the failure
to diagnose the fracture was negligent, the critical question under the statute is whether Plaintiff
“suffered injuries which would not otherwise have occurred.” Tenn. Code Ann. § 29-26-115(a)(3).
The affidavit of Karen S. Ward establishes only that the negligence of Ms. Morrow was responsible
for the fact that “treatment for this significant fracture was unnecessarily delayed for several hours.”

         It is clear that the fracture of the leg occurred before Ms. Morrow came upon the scene. No
proof is offered that the delay in treatment of the fractured leg caused any exacerbation of the injury
or additional pain that otherwise would not have occurred. The affidavit of Ms. Ward does not refute
the testimony of Dr. Green that Jason Jenkins suffered no permanent injury as a result of the accident
or as a result of the treatment by Ms. Morrow. Further critical is the undisputed statement of Dr.
Green that the failure to discover the fracture did not “worsen(ed) his injuries?”

       So it is that matters which must be established by expert testimony under the Tennessee
Medical Malpractice Act are simply not established in this record, and summary judgment was
properly granted by the trial court. See Estate of Henderson v. Mire, 955 S.W.2d 56, 59 (Tenn.App.
1997); Roddy v. Volunteer Medical Clinic, Inc., 926 S.W.2d 572, 577 (Tenn.Ct.App. 1996); Parker
v. Vanderbilt University, 767 S.W.2d 412, 420 (Tenn.Ct.App. 1988); Dolen v. Cunningham, 648
S.W.2d 652, 654 (Tenn.Ct.App. 1982); Tenn. Code Ann. § 29-26-115.

        The judgment of the trial court is affirmed with costs of the cause assessed to Appellant. The
case is remanded to the trial court for collection of costs and any further proceedings necessary.



                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE



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