                                                                                                            06/11/2019
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                     February 22, 2018 Session

       BOBBIE SEALS STUBBLEFIELD v. MORRISTOWN-HAMBLEN
                  HOSPITAL ASSOCIATION, ET AL.

                    Appeal from the Circuit Court for Hamblen County
                         No. 15CV193     Alex E. Pearson, Judge


                                  No. E2017-00994-COA-R3-CV


This appeal involves a re-filed health care liability action1 in which the plaintiff
challenges the summary judgment dismissal of her claim. We reverse the court’s grant of
summary judgment, in part. The case is remanded for further proceedings consistent with
this opinion.

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

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

Mark T. Hurt, Abingdon, Virginia, for the appellants, Bobbie Seals Stubblefield.

F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellees,
Morristown-Hamblen Hospital Association d/b/a Morristown Hamblen Healthcare
System and Angela Adams, R.N.

James G. O’Kane and Raymond G. Lewallen, Jr., Knoxville, Tennessee, for the
appellees, Morristown Heart Consultants, PLLC and Sunil T. Ramaprasad, M.D.



1
  Tennessee Code Annotated section 29-26-101 now defines most cases occurring in a medical context as
“health care liability actions.” The statute specifies that such an action “means any civil action, including
claims against the state or a political subdivision thereof, alleging that a health care provider or providers
have caused an injury related to the provision of, or failure to provide, health care services to a person,
regardless of the theory of liability, on which the action is based.” See Acts 2011, ch. 510, § 8. Effective
April 23, 2012, the term “health care liability” replaced “medical malpractice” in the Code. See Acts
2012, ch. 798. The provisions of the revised statute apply to this action.
                                       OPINION

                                I.     BACKGROUND

       The claim at issue relates to the alleged negligent post-operative care of Bobbie
Seals Stubblefield (“Plaintiff”) at Morristown-Hamblen Hospital Association (“the
Hospital”). On October 20, 2010, Plaintiff underwent a cardiac catheterization performed
by Pragnesh Patel, M.D. at the Hospital. Plaintiff remained at the Hospital overnight for
routine post-operative care and was attended to by Angela Adams, R.N., among others.
Per Dr. Patel’s instruction, Nurse Adams administered nitroglycerin intravenously
throughout the night. Plaintiff later complained that the nitroglycerin was causing “an
unbearable headache and nausea.” Plaintiff claims that she “begged” Nurse Adams to
stop administering nitroglycerin, while Nurse Adams claims that Plaintiff consented to
further doses once she was advised of the medical necessity. It was later discovered that
Plaintiff developed a hematoma and pseudoaneurysm in her groin at the catheterization
site. The hematoma continued to grow, despite treatment provided by the nurses on staff.
The nurses paged the cardiologist on-call, Sunil T. Ramaprasad, M.D. for assistance. He
did not report to the Hospital. Instead, he ordered placement of a device to stop the
bleeding and arranged for the intervention of a vascular surgeon, who reported to the
hospital immediately and performed emergency surgery to repair the femoral artery in the
early morning hours of October 21.

        As pertinent to this appeal, On February 7, 2012, Plaintiff filed a medical
malpractice action against the Hospital, Nurse Adams, Morristown Heart Consultants,
PLLC (“MHC”), and Dr. Ramaprasad (collectively “Defendants”). She also filed a
separate battery claim against Nurse Adams based upon the nurse’s continued
administration of nitroglycerin over her objection. Plaintiff voluntarily dismissed the
initial suit on December 5, 2014, after extensive discovery. Plaintiff then filed a second
suit pursuant to the saving statute on December 2, 2015, in compliance with the health
care liability pre-suit notice statutes.

       Defendants denied wrongdoing and filed motions for summary judgment with
supporting affidavits and depositions taken during the pendency of the first lawsuit.
Nurse Adams attested that Plaintiff gave her consent to the continued administration of
nitroglycerin once advised of the medical necessity. Nurse Adams explained that she
would have contacted the treating physician to obtain additional orders if Plaintiff had so
objected to the necessary medical treatment. She further attested that the hospital care
and treatment rendered by her and others was in accordance with the standard of care for
registered nurses in the Hamblen County community.

       Likewise, Dr. Ramaprasad attested as follows:
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      On October 21, 2010, I was on call for [the Hospital], and I received
      telephone calls from the cardiac care unit nursing staff regarding [Plaintiff].
      After being advised that she had bleeding, my responses included ordering
      the placement of a Fem-o-stop, a device which is used to prevent further
      bleeding, asking for an experienced and skilled cardiac cath technician to
      go to the cardiac care unit, ordering an ultrasound, and I arranged for a
      vascular surgeon, Dr. Assadnia, to intervene and evaluate the patient and
      formulate a treatment plan for [Plaintiff]. I consulted Dr. Assadnia because
      it is within his area of speciality to treat the large hemotoma and
      psuedoaneurysm that developed in [Plaintiff’s] right groin area, and it is not
      within my area of expertise to provide corrective treatment for this. All
      times on [October 21], I responded promptly and appropriately to the
      information provided to me by the cardiac care unit nursing staff, issued
      appropriate orders, and arranged for proper consultation, with the result that
      [Plaintiff’s] hematoma and psuedoaneurysm were promptly treated by Dr.
      Assadnia[.]

      It is my opinion within a reasonable degree of medical certainty that I
      complied in all respects with the standard of care applicable to the care and
      treatment of patients such as [Plaintiff] who experienced the events that
      occurred on [October 21], as that standard of care applies in Morristown,
      Tennessee, or in similar communities. Having complied with the standard
      of care there was no negligence or other fault by me as alleged in the
      Complaint, and [Plaintiff’s] injuries and damages claimed in the Complaint
      were not due to any breach of standard of care by me.

        On May 4, 2016, Plaintiff responded to the motion for summary judgment by
requesting additional time in which to conduct discovery, including taking the deposition
of Dr. Assadnia. The court granted Plaintiff’s request for more time on May 27. Plaintiff
then deposed Dr. Assadnia on August 9. Plaintiff again requested additional time on
September 13, and the case was re-set for hearing on October 4. While Plaintiff provided
responses to Defendants’ statement of undisputed material facts and filed various motions
reiterating her belief that Defendants’ breached the applicable standard of care, Plaintiff
never set forth any evidence by affidavit, deposition, or otherwise to show that there was
a genuine issue of material fact for trial. However, on September 1, 2016, Plaintiff
served via email and mail a supplemental response to Defendants’ interrogatories in
which Plaintiff identified two experts, Melanie Jill Ogle, R.N. and William M. Lieppe,
M.D., and provided a summary of their expected expert opinions.



                                           -3-
        Plaintiff’s supplemental response provided, in pertinent part, that Nurse Ogle was
“expected to testify, within a reasonable degree of professional certainty, that [the
Hospital’s] nurses breached the applicable standard of care in their treatment.” Plaintiff
also provided that Dr. Lieppe was expected to testify concerning Dr. Ramaprasad’s
failure to comply with the applicable standard of care in his treatment and “on causation
as to breaches of the applicable standard of care for both the nurses and Dr.
Ramaprasad.” Plaintiff continued, in pertinent part, as follows:

      Dr. Lieppe is expected to opine, within a reasonable degree of medical
      certainty, the following:

      1.      The negligence of the nurses, as opined by Nurse Ogle, was a cause
      of [Plaintiff’s] hematoma and pseudoaneurysm. It is more likely than not,
      that the nurses’ improper administration of Nitroglycerin and their failure to
      timely treat [Plaintiff] with anti-nausea medicine, individually and
      cumulatively caused [Plaintiff] severe headaches, nausea, and vomiting,
      which in turn resulted in her thrusting movements and inability to keep still,
      which in turn were the cause of the hematoma and pseudoaneurysm.

      2.     Dr. Ramaprasad violated the recognized standard of acceptable
      medical practice for cardiologists applicable as of October 2010 in
      Morristown, Tennessee or similar community in his treatment of [Plaintiff]
      as an on-call physician. Those violations include:

          a. Failing to come to the hospital to examine and supervise the
          treatment of [Plaintiff] after learning from the nursing staff that she
          was having complications, including a growing hematoma, and that
          the nursing staff was having difficulty dealing with those
          complications.

          b. Failure to arrange immediately for [Plaintiff] to be seen by a
          vascular surgeon after he was notified that the nursing staff could not
          control the bleeding, after the charge nurse told him that [Plaintiff]
          was bleeding to death, and after receiving information from which
          Dr. Ramaprasad knew or should have known that [Plaintiff] would
          likely need the services of a vascular surgeon.

       On September 30, Plaintiff requested a continuance, claiming that the Hospital had
unlawfully coerced Nurse Ogle to withhold her testimony. Plaintiff explained that after
she disclosed Nurse Ogle as an expert, Nurse Ogle advised counsel that she could no
longer provide expert testimony because her supervisor at Fort Sanders Regional Medical
                                           -4-
Center (“Fort Sanders”) threatened her with the loss of her job if she testified. Plaintiff
explained that Fort Sanders and the Hospital are in the Covenant Health network of
hospitals and reasoned that the Hospital encouraged or instigated the unlawful coercion at
issue. Plaintiff requested an evidentiary hearing to explore the matter further. Plaintiff
further asserted that a continuance was necessary because Nurse Ogle’s testimony was
essential to her response to the motions for summary judgment and a predicate to the
planned testimony of Dr. Lieppe, who had also not yet provided an affidavit.

       The case proceeded to a hearing on October 4, at which Hospital strongly objected
to Plaintiff’s accusation of witness coercion. Hospital further responded that they had
spoken with the Human Resources Department at Fort Sanders and found that Nurse
Ogle had not worked at Fort Sanders for more than a year prior to Plaintiff’s accusation.
Hospital provided an affidavit from Angie Montgomery, the Human Resources
Operations Specialist, in support of its claim. Hospital conceded that Nurse Ogle was
presently employed by another hospital in the Covenant Health network. MHC and Dr.
Ramaprasad responded by asserting that no response had been filed in opposition to their
motion for summary judgment and that Hospital’s alleged witness tampering had no
bearing on the case against them.

       Following the hearing, the court granted summary judgment in favor of
Defendants, by order entered on October 21. The court held that Plaintiff had failed to
file a properly supported response to the motions for summary judgment, establishing
that there was no deviation in the applicable standard of care and no causation for
Plaintiff’s injuries. The court also denied the pending motions for a continuance and an
evidentiary hearing, explaining that Plaintiff was provided several continuances and still
had not produced an expert witness to rebut Defendants’ motions with supporting
affidavits.

       On November 21, Plaintiff filed a motion to alter or amend the court’s judgment,
claiming that the court’s denial of the motion for a continuance was illogical and unfair
when Defendants were likely responsible for the coercion of her expert witness. Plaintiff
also submitted Dr. Lieppe’s newly procured affidavit in support of the motion, along with
supplemental responses to Defendants’ statements of undisputed facts. Plaintiff claimed
that her newly filed affidavit and responses raised issues of material fact, precluding
summary judgment. Lastly, Plaintiff requested relief from the court’s judgment based
upon counsel’s excusable negligence in failing to file an expert affidavit prior to the
court’s hearing. Counsel explained that he was “thrown into a crisis” by the sudden loss
of Nurse Ogle as an expert witness and that he spent his time briefing the motion for a
continuance rather than securing Dr. Lieppe’s affidavit.



                                           -5-
        Defendants opposed the motion, claiming that Plaintiff had been provided more
than an adequate amount of time to procure an expert and submit an affidavit in response
to the pending motions for summary judgment. Defendants noted that Plaintiff submitted
a certificate of good faith, certifying that she had consulted with a competent expert prior
to filing suit. Yet, no affidavit from any expert was filed prior to the hearing.

       Following a hearing on the motion, the court denied the motion to alter or amend
the judgment, finding that relief was not warranted when Plaintiff had sufficient time in
which to secure an expert but failed to do so without reasonable explanation. The court
further held that the late-filed supporting affidavit was inadmissible because Dr. Lieppe
was unfamiliar with the medical community at issue. Lastly, the court denied relief based
upon counsel’s alleged excusable neglect. This timely appeal followed.

                                       II.     ISSUES

        We consolidate and restate the issues raised on appeal as follows:

        A.     Whether the court abused its discretion in denying Plaintiff’s motion
        to continue and for an evidentiary hearing on the issue of witness coercion.

        B.      Whether the court erred in denying the motion to alter or amend.2

                               III.    STANDARD OF REVIEW

       “This court reviews a trial court’s decision to deny a motion for a continuance
under the abuse of discretion standard of review.” In re A’Mari B., 358 S.W.3d 204, 213
(Tenn. Ct. App. 2011) (citing State Dep’t of Children’s Servs. v. V.N., 279 S.W.3d 306,
317 (Tenn. Ct. App. 2008)). Likewise, this court reviews a denial of a motion to alter or
amend a court’s judgment under an abuse of discretion standard. “A trial court abuses its
discretion only when it ‘applie[s] an incorrect legal standard or reache[s] a decision
which is against logic or reasoning that cause[s] an injustice to the party complaining.’”
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999)). If a discretionary decision is within a range of acceptable
alternatives, we will not substitute our judgment for that of the trial court simply because
we may have chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215,
223 (Tenn. Ct. App. 1999).



2
 Plaintiff does not raise an independent issue relating to the court’s grant of summary judgment. Instead,
she claims that reversal is warranted (a) if the court abused its discretion in denying the motion for a
continuance and evidentiary hearing or (b) if the court erred in denying the motion to alter or amend.
                                                     -6-
                                    IV.    DISCUSSION

                                               A.

       Rule 6.02 of the Tennessee Rules of Civil Procedure provides as follows:

       When by statute or by these rules or by a notice given thereunder or by
       order of court an act is required or allowed to be done at or within a
       specified time, the court for cause shown may, at any time in its discretion,
       (1) with or without motion or notice order the period enlarged if request
       therefor is made before the expiration of the period originally prescribed or
       as extended by a previous order, or (2) upon motion made after the
       expiration of the specified period permit the act to be done, where the
       failure to act was the result of excusable neglect[.]

       Plaintiff argues that the court abused its discretion in denying her motion for a
continuance and an evidentiary hearing based upon the alleged witness coercion. She
asserts that her motion established the importance of Nurse Ogle’s testimony and the fact
that Nurse Ogle had been intimidated from submitting her testimony. Defendants
respond that Plaintiff failed to properly support her claim of coercion.3 Further,
Defendants claim that Plaintiff had engaged in extensive discovery and was given
adequate time in which to submit an expert affidavit prior to the hearing. Plaintiff issues
a reply brief in which she claims that the continuance at issue was only requested as an
immediate need in light of Nurse Ogle’s unexpected withdrawal of her testimony.

       This court has provided the following guidance regarding review of a trial court’s
ruling on a motion to continue:

       Decisions regarding continuances are fact-specific and motions for a
       continuance should be viewed in the context of all the circumstances
       existing when the motion is filed. This Court has held that the party
       seeking a continuance carries the burden to prove the circumstances that
       justify the continuance. In order to meet this burden, the moving party
       must supply some strong excuse for postponing the trial date. Factors
       relevant to the trial court’s decision include: (1) the length of time the
       proceeding has been pending, (2) the reason for the continuance, (3) the
       diligence of the party seeking the continuance, and (4) the prejudice to the
       requesting party if the continuance is not granted.

3
 At the time of the alleged coercion, Nurse Ogle no longer worked at Ft. Sanders Regional Medical
Center; however, she was employed by a different hospital in the same network.
                                                 -7-
Howell v. Ryerkerk, 372 S.W.3d 576, 580-81 (Tenn. Ct. App. 2012) (internal citations
and quotations omitted). Our analysis of this issue is best served by considering the
claims against Hospital and Nurse Adams separately from the claims against Dr.
Ramaprasad and MHC.

                              1. Hospital and Nurse Adams

       Plaintiff requested a continuance on September 27, 2016, after this action had been
pending since December 2, 2015. The explanation offered in support of the continuance
was the alleged witness coercion of Nurse Ogle, who was expected to establish the
negligence of Hospital and Nurse Adams, along with the entirety of the nursing staff.
Plaintiff offered an affidavit executed by counsel in support of her claim of coercion,
while Hospital adamantly denied the accusation and provided an affidavit in support of
their denial. Plaintiff sought the continuance to obtain admissible evidence of the
claimed intimidation, if possible, and to adequately respond to the motion for summary
judgment in light of her unexpected loss of an expert witness. Plaintiff has suffered
extreme prejudice as a result of the denial of the continuance as evidenced by the grant of
summary judgment when she was left without an expert from which to respond to
pending motions as it related to Hospital and Nurse Adams. With these considerations in
mind, we hold that the trial court abused its discretion in denying the motion for an
evidentiary hearing on the issue of witness coercion and the corresponding motion for a
continuance. Accordingly, we also reverse the grant of summary judgment as premature
and remand for further hearing on the claims alleged against Hospital and Nurse Adams.

                             2.      Dr. Ramaprasad & MHC

       Our analysis of this issue remains the same as it relates to the length of time the
proceeding has been pending. However, the remainder of the factors must be analyzed
differently. First, the reason for the continuance does not support a finding of relief as
applied to Dr. Ramaprasad and MHC. We do not agree with Plaintiff that Nurse Ogle’s
testimony served as a necessary predicate to the procurement of Dr. Lieppe’s affidavit.
Plaintiff’s summary of Dr. Lieppe’s expected opinions established that Dr. Lieppe was
expected to testify concerning two separate, unrelated issues, causation as it related to the
nurses and Dr. Ramaprasad’s alleged negligence. While Plaintiff still suffered prejudice
as a result of the denial of the continuance, her diligence throughout the case as to these
defendants was questionable when no expert affidavit had been secured in the more than
eight months that the case was pending, despite her filing of a certificate of good faith
establishing that an expert had been consulted and her summary of Dr. Lieppe’s expected
opinions. Accordingly, we hold that the trial court did not abuse its discretion in denying
the motion for a continuance as to the claims against Dr. Ramaprasad and MHC.

                                            -8-
                                            B.

        Plaintiff argues that the court abused its discretion in denying the motion to alter
or amend when she submitted new evidence that established genuine issues of material
fact. “The purpose of a Rule 59.04 motion to alter or amend a judgment is to provide the
trial court with an opportunity to correct errors before the judgment becomes final.” In re
M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005). These motions should “be granted
when the controlling law changes before the judgment becomes final; when previously
unavailable evidence becomes available; or to correct a clear error of law or to prevent
injustice.” Id. These motions “should not be used to present new, previously untried or
unasserted theories or legal arguments.” Id. Further,

       [w]hen additional evidence is presented in support of such a motion, the
       trial court should consider [the following factors:] the moving party’s effort
       to obtain the evidence in responding to the summary judgment; the
       importance of the new evidence to the moving party’s case; the moving
       party’s explanation for failing to offer the evidence in responding to the
       summary judgment; the unfair prejudice to the non-moving party; and any
       other relevant consideration.

Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003).

       This issue is pretermitted as to the claims raised against Hospital and Nurse
Adams in light of our reversal of the court’s grant of summary judgment. As to the
remaining defendants, the evidence is undoubtedly important to Plaintiff’s case, if
deemed admissible. However, the remaining factors overwhelmingly weigh in favor of a
denial of the motion. Plaintiff’s effort in obtaining the information and explanation for
the failure to obtain such information prior to the hearing are considerably lacking as
applied to these defendants. This particular action was pending for approximately eight
months prior to the hearing. This action was filed following Plaintiff’s voluntary nonsuit
of the original action in which extensive discovery was completed in response to pending
motions for summary judgment. Plaintiff was well-aware of the need for an expert
affidavit to respond to the motions but chose to wait until the last minute to procure one.
The non-moving party would also suffer unfair prejudice by allowing the case to continue
further, considering the overall age of the case.

        Plaintiff has also claimed her counsel’s excusable neglect in support of her request
for relief from the court’s judgment. Rule 59.04 “provide[s] a vehicle for seeking relief
from orders entered as a result of mistake, inadvertence, or excusable neglect by a party’s
counsel.” Ferguson v. Brown, 291 S.W.3d 381, 387 (Tenn. Ct. App. 2008) (footnote and

                                            -9-
citations omitted). This court has provided the following guidance on the issue of
excusable neglect in the context of a Rule 59.04 motion to alter or amend:

       Whether neglect is excusable is an equitable determination taking account
       of all relevant circumstances surrounding the party’s omission. The
       relevant circumstances envelop the big picture of both causes and effects,
       including:

       (1) the danger of prejudice to the party opposing the late filing, (2) the
       length of the delay and its potential impact on proceedings, (3) the reason
       why the filing was late and whether that reason or reasons were within the
       filer’s reasonable control, and (4) the filer’s good or bad faith. These
       circumstances must be weighed both with and against each other because, if
       considered separately, they may not all point in the same direction in a
       particular case.

Id. at 388 (internal citations omitted). We, like the trial court, do not find any bad faith
on counsel’s part; however, the other factors, weighed both with and against each other,
support the court’s denial of the motion to alter or amend. With all of the above
considerations in mind, we affirm the court’s denial of the motion to alter or amend as to
the remaining defendants, Dr. Ramaprasad and MHC. Accordingly, we need not address
the sufficiency of Dr. Lieppe’s affidavit as it relates to his familiarity with the medical
community.

                                   V.     CONCLUSION

        As to Hospital and Nurse Adams, we reverse the denial of the continuance and the
grant of summary judgment. We remand for an evidentiary hearing on the issue of
witness coercion and for further proceedings as may be necessary. The decision of the
trial court is affirmed in all other respects. Costs of the appeal are taxed equally to the
following parties: Bobbie Seals Stubblefield; Morristown-Hamblen Hospital Association
d/b/a Morristown Hamblen Healthcare System; and Angela Adams, R.N.

                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




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