                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Assigned on Briefs February 23, 2010

 NANCY LUNA v. ROGER DEVERSA, M.D. and HAMILTON COUNTY
HOSPITAL AUTHORITY

                  Appeal from the Circuit Court for Hamilton County
                   No. 08-C-411    W. Jeffrey Hollingsworth, Judge


                No. E2009-01198-COA-R3-CV - FILED JUNE 17, 2010


This appeal arises from a medical malpractice claim. A surgeon performed a procedure on
the plaintiff at the defendant hospital. The defendant hospitalist physician monitored the
plaintiff’s post-surgery recovery. The plaintiff filed this lawsuit asserting that the defendant
hospitalist was negligent in releasing her from the hospital prematurely. The defendant
hospitalist filed a motion for summary judgment, as did the hospital. The trial court granted
summary judgment to both. We affirm.


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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J. and C HARLES D. S USANO, J R., J., joined.

Nancy Luna, Palmer, Tennessee, pro se.

Laura Beth Rufolo, Chattanooga, Tennessee, for the appellee, Roger DeVersa, M.D.

Robert J. Boehm and C. Eugene Shiles, Chattanooga, Tennessee, for the appellee,
Chattanooga-Hamilton County Hospital Authority.

                                          OPINION

                                    I. BACKGROUND

      On March 23, 2007, the plaintiff, Nancy Luna, presented at the emergency room at
Chattanooga-Hamilton County Hospital Authority (“Erlanger”). Her chief complaint was
that she was unable to breathe when she laid down. After her ear, nose and throat physician,
Dr. Joseph Motto, was consulted, Ms. Luna was admitted to Erlanger.

       The following day, Dr. Motto performed a ten minute outpatient surgery on Ms. Luna
to remove polyps from her vocal cords. Dr. Motto noted in the medical record that Ms. Luna
could be discharged after it was determined that she was stable. Post-surgery, Ms. Luna was
taken first to the Post Anesthesia Care Unit (“PACU”). She was then transferred to a
recovery floor. The defendant hospitalist, Roger DeVersa, M.D., took over her care at this
point.

      Dr. DeVersa examined Ms. Luna at 7:33 p.m. and determined that she was stable
enough to go home. When he advised Ms. Luna that he was going to discharge her, she
responded that she did not want to go home and did not have a ride. Upon reviewing her
medical record, Dr. DeVersa called the emergency contact person listed, who agreed to pick
Ms. Luna up from Erlanger.

        Upon being informed that her emergency contact person was coming to pick her up,
Ms. Luna told Dr. DeVersa that she did not want to go home with the individual he had
called and would drive home herself. According to Dr. DeVersa, despite his instructions that
she should not drive herself home, Ms. Luna insisted that she was going to leave. Dr.
DeVersa therefore requested that Ms. Luna sign a form acknowledging that she was signing
herself out against medical advice or “AMA.”

       Later, an ambulance was called for Ms. Luna after she pulled over while driving. She
was returned to Erlanger, where she remained in the emergency room for approximately two
hours until discharged to the care of someone to drive her home.

       On March 24, 2008, Ms. Luna filed this lawsuit against Dr. DeVersa and Erlanger for
medical malpractice pursuant to the Tennessee Medical Malpractice Act, Tenn. Code Ann.
§ 29-26-115(a). In her complaint, Ms. Luna alleged that Dr. DeVersa and Erlanger were
negligent in discharging her “prematurely” from the hospital and that their actions caused her
to “suffer a heart attack, stroke, and fall into a diabetic coma.”

      Dr. DeVersa subsequently filed a motion for summary judgment on September 15,
2008. In his affidavit in support, he stated, in pertinent part, as follows:

       2. I am a physician currently licensed to practice medicine in the State of
       Tennessee. I was also licensed to practice medicine in the State of Tennessee
       in 2007. I practice the specialty of internal medicine now and during the year
       2007 in the Chattanooga, Hamilton County, Tennessee area.

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3. As a result of my education, training, background and experience practicing
the specialty of internal medicine in the Chattanooga, Hamilton County,
Tennessee area, I am familiar with the recognized standard of acceptable
professional practice required of an internal medicine physician in the
Chattanooga, Hamilton County, Tennessee area now and in the year 2007.

                                      ***

9. At 4:14 p.m., the nurse noted that Ms. Luna demonstrated the ability to feed
herself. By 5:54 p.m., it was noted that she was drinking liquids.

10. I saw Ms. Luna on the floor at 7:33 p.m. I performed a physical
examination of her. She was alert, oriented, coherent and not anxious. Her
lungs and heart were normal. Her abdomen was normal. Ms. Luna’s vital
signs were normal. She did not complain[] of pain. She had no nausea or
vomiting. She indicated that she was eating and drinking okay. I felt that she
was stable and could be discharged from the hospital.

11. Some of the indications that I look at to decide whether a patient is ready
for discharge are the vital signs, the physical examination, the neurological
status, the heart/lung status, [his/her] ability to eat and drink, and whether the
patient can mobilize independently.

12. I told Ms. Luna that I was going to discharge her from the hospital. She
told me that she did not want to go home, and did not have a ride. I did not
want Ms. Luna driving a car home by herself, and told her so.

13. I looked at her medical records and found a contact for a friend or family
member. I called the contact, Ms. Beverly Gaston. Ms. Gaston was willing
to come to the hospital and drive Ms. Luna home. I advised Ms. Luna of this.

14. I told Ms. Luna that Ms. Gaston was coming to the hospital to take her
home. Ms. Luna said that she did not want that to occur. She advised me she
would just drive home alone. Again, I stressed to Ms. Luna that she did not
need to be driving home alone.

15. I told Ms. Luna that since she was going against my advice and insisting
that she drive herself home, I wanted her to sign out AMA or “against medical
advice[.”]



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      16. Ms. Luna signed the AMA document, and left the hospital. It is my
      understanding that she started to drive herself home, against my advice, when
      she experienced dizziness and called the police.

      17. It is my understanding that an ambulance picked Ms. Luna up at her
      automobile, and brought her to the emergency room at Erlanger Medical
      Center. Her glucose had been low at the scene, and the EMS gave her D50 to
      increase her glucose. By the time she reached the emergency room, her
      glucose was normal. Ms. Luna stayed for approximately two hours at the
      emergency room and was discharged home.

      18. It is my professional opinion that the medical care, treatment and
      management I provided to Nancy Luna met the recognized standard of
      acceptable professional practice at all times. It is my professional opinion that
      I acted with ordinary and reasonable care in accordance with such recognized
      standard of acceptable professional practice.

      19. It is my professional opinion that my decision that Ms. Luna was stable to
      be discharged from the hospital after her surgery met the recognized standard
      of acceptable professional practice. It was appropriate to discharge her at the
      time I did.

      20. It is further my opinion that the matters set forth in the Complaint were not
      the result of any alleged failure on my part to meet the recognized standard of
      acceptable practice.

      21. The decision to discharge a patient is made by the attending physician, not
      the nursing staff.


      Erlanger filed its motion for summary judgment three months later. An affidavit from
Daniel Greach, R.N., was filed in support of the motion:

      2. I am a Registered Nurse and have been continuously licensed to practice
      nursing in the State of Tennessee since 1974. Since my licensure, I have been
      continuously employed as a Registered Nurse within the state of Tennessee
      and have been employed at Erlanger Hospital since 1974.

      3. At all relevant times in regard to this complaint, I was the assistant nurse
      manager and supervised the nurses providing care to the plaintiff.

                                             -4-
                                     ***

7. Dr. Motto wrote in his orders that the plaintiff could be discharged from the
hospital once she was found to be stable. (See Exhibit 3.)

8. At approximately 4:14 p.m. the plaintiff demonstrated the ability to carry
out normal activities. (See Exhibit 4.)

9. The medical records indicated that the plaintiff was examined at about 7:20
p.m. on March 24 by Dr. Deversa and found stable and medically ready to be
discharged home. (See Exhibit 5.)

10. The medical records reflect that Dr. Deversa ordered the patient
discharged and attempted to arrange transportation for her return home.
However, the records reflect that the plaintiff declined the ride home and
accepted the risks of leaving against medical advice. (See Exhibit 5.)

11. The medical records reflect that Ms. Luna signed the AMA document and
left the hospital (See Exhibit 6.)

12. The medical records reflect that while driving home, Ms. Luna reported
feeling dizzy, parked her vehicle, and called the police. (See Exhibit 7.)

13. The medical records reflect that at the scene, an emergency medical
technician checked her glucose level, found it to be low, and administered
glucose while en route back to Erlanger Hospital. By the time the plaintiff
reached the emergency room, her blood/glucose levels had rebounded. (See
Exhibit 7.)

14. The medical records reflect that the plaintiff remained at Erlanger’s
emergency room for approximately two hours for observation and then was
discharged home. (See Exhibit 7.)

15. I have also reviewed plaintiff’s medical records from subsequent visits to
Erlanger. I find no evidence of the plaintiff suffering “a heart attack, stroke
and falling into a diabetic coma.”

16. I know the standard of acceptable professional practice for Registered
Nurses practicing in hospitals in Hamilton County, Tennessee or similar
communities at the times alleged in the plaintiff’s complaint.

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       17. Based on my training and experience, I am qualified to render an expert
       opinion on the issue of standards of acceptable professional practice for
       Erlanger or similarly situated hospitals providing nursing care.

       18. It is my opinion, to a reasonable degree of professional certainty, that
       Erlanger met the recognized standard of acceptable professional practice for
       hospitals operating in Chattanooga, Tennessee or similar communities in
       providing nursing care and in following Dr. Deversa’s order to discharge the
       plaintiff from the hospital after his physical assessment.

       19. It is also my opinion, to a reasonable degree of professional certainty, that
       neither Erlanger nor any of its nursing staff were negligent or even responsible
       in allegedly “releasing the plaintiff prematurely” since only a physician can
       discharge a patient from the hospital. Registered nurses are not authorized
       under their state practice act (T.C.A. §63-7-103(b)) to order discharges.

       20. Furthermore, there is nothing in the relevant medical records or from my
       knowledge of the case which calls into question the medical judgment of Dr.
       Deversa to discharge the plaintiff from the hospital after he examined her at
       approximately 7:20 p.m. on March 24, 2007.


      After the summary judgment motions were filed, Ms. Luna, unrepresented, requested
numerous extensions of time. The trial court ultimately held that if no responses to the
pending motions were filed by Ms. Luna by May 4, 2009, both motions would be granted.

        In spite of the fact that Ms. Luna never filed responses, a hearing on both summary
judgment motions was held on May 4, 2009. After hearing argument from both defense
counsel as well as Ms. Luna, the trial court took the matter under advisement in order to
review whether Dr. DeVersa and Erlanger had provided appropriate affidavits to support
their respective motions. Subsequently, the court granted both dispositive motions through
an order and memorandum opinion. The trial court specifically held as follows:

       [I]n order to prevail in her claim against Dr. Deversa, Ms. Luna is required to
       prove, by expert testimony, that Dr. Deversa’s actions violated the standard of
       care in this community. With his affidavit, Dr. Deversa affirmatively negated
       that essential element. Therefore, the burden was shifted to Ms. Luna to
       produce evidence that there is a question of fact on that issue. Despite being
       given numerous opportunities to produce that evidence, Ms. Luna has failed
       to do so. Therefore, the Court finds there is no issue of fact to be tried on Ms.

                                              -6-
       Luna’s claims against Dr. Deversa and his motion for summary judgment will
       be Granted.

       . . . The only allegation Ms. Luna makes against Erlanger is that Dr. Deversa,
       who she alleged was negligent, was acting as an agent of Erlanger. Neither
       Dr. Deversa nor Erlanger address the agency issue in their motions. However,
       under these pleadings, Erlanger’s liability would have to be derivative of that
       of Dr. Deversa. Because the Court has already granted Dr. Deversa summary
       judgment, there cannot be any derivative liability attached to Erlanger.


(Emphasis in original.) The trial court found that the affidavits affirmatively negated the
essential element of negligence. As a consequence, the burden shifted to Ms. Luna to show
that there was indeed a question of fact. Because Ms. Luna failed to produce any evidence
to rebut the affidavits, the motions for summary judgment were granted.

       From these orders, Ms. Luna appeals.


                                         II. ISSUE

       We restate the issue raised by Ms. Luna in this appeal as follows:

       Whether the trial court was correct in granting the defendants’ motions for
       summary judgment because defendants affirmatively negated the essential
       elements of negligence, injury and causation in the plaintiff’s case and the
       plaintiff failed to comply with reasonable and appropriate court orders and
       Tennessee’s Medical Malpractice Act, Tenn. Code Ann. § 29-26-115(a).


                             III. STANDARD OF REVIEW

       A pro se litigant, who has decided to represent herself, is “entitled to fair and equal
treatment by the courts.” Young v. Barrow, 130 S.W.3d 59, 62 (Tenn. Ct. App. 2003) (citing
Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000)). We measure the
papers prepared by pro se litigants by less stringent standards than those applied to papers
prepared by attorneys. Id. at 63 (internal citations omitted). Thus, courts “should give effect
to the substance, rather than the form or terminology of a pro se litigant’s papers.” Id.
(internal citations omitted). As we grant such consideration to a pro se litigant who is
untrained in the law, it is also important that we “be mindful of the boundary between

                                              -7-
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.” Id.

        In reviewing a trial court’s grant of a motion for summary judgment, this court must
determine whether the requirements of Tenn. R. Civ. P. 56 have been met. Staples v. CBL
& Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000). Our inquiry involves only a question of law
with no presumption of correctness attached to the lower court’s judgment. Id. Under Tenn.
R. Civ. P. 56.04, “[s]ummary judgment is appropriate when the moving party can show that
there is no genuine issue of material fact and that it is entitled to judgment as a matter of
law.” Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008) (citing Tenn. R. Civ. P.
56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993)). In Tennessee, the moving party
who seeks to shift the burden of production to the nonmoving party who bears the burden of
proof at trial must either

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

        or

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


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

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


                                     IV. DISCUSSION

      The claims against Dr. DeVersa and Erlanger fall under the Tennessee Medical
Malpractice Act, Tenn. Code Ann. § 29-26-115, et seq. The Act sets out three elements that

                                              -8-
must be proved in a malpractice case:

       (1) The recognized standard of acceptable professional practice in the
       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); see also Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545,
553 (Tenn. 2006). As to these elements, we recently noted the following in Hager v. Larson,
M.D., No. E2009-00407-COA-R3-CV, 2010 WL 532856 (Tenn. Ct. App. E.S., Feb. 16,
2010):

       It is well established under Tennessee law that, except in circumstances in
       which the alleged malpractice is within the common knowledge of laymen, the
       plaintiff in a medical malpractice action is required to prove all of the three
       elements by expert testimony . . . . As is the case in the matter before this
       Court, it is now commonplace for defendants in medical malpractice cases to
       file motions for summary judgment to test the strength of the plaintiff’s case.
       The motion for summary judgment is generally supported by the
       defendants’ own affidavits stating that, in their professional opinion, their
       actions neither violated the applicable standard of professional practice
       nor caused the alleged injury. A defendant’s affidavit of this sort
       effectively negates the allegations of negligence in the plaintiff’s complaint
       and forces the plaintiff to demonstrate the existence of a genuine, material
       factual dispute that warrants a trial.

Id. at *3 (internal citations omitted) (emphasis added).

       In the instant case, the affidavits produced by Dr. DeVersa and Erlanger were
sufficient to shift the burden of production to Ms. Luna. To avoid summary judgment, Ms.
Luna was required to produce expert testimony to counter the defense affidavits regarding
the essential elements of her claim.

       However, when the burden of production shifted to Ms. Luna, she failed to offer any

                                               -9-
competent expert testimony. In Kenyon v. Handal, 122 S.W.3d 743 (Tenn. Ct. App. 2003),
this court noted:

       Patients who are unable to produce an expert affidavit of their own face almost
       certain dismissal of their complaint because the physician has effectively
       negated an essential element of their case. Without an opposing expert
       affidavit, patients cannot demonstrate the existence of a genuine factual
       dispute regarding whether the physician breached the standard of professional
       practice in the community.

Id. at 758 (citing Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831
(Tenn. Ct. App. 1997)).

       Accordingly, in view of the fact that Ms. Luna did not offer any expert proof, the trial
court did not err in granting the motions for summary judgment because an essential element
of Ms. Luna’s claim had been negated. Dolan v. Cunningham, 648 S.W.2d 652, 653 (Tenn.
Ct. App. 1982). Ms. Luna did not demonstrate the existence of a genuine, material factual
dispute that warrants a trial.


                                    V. CONCLUSION

       The order of the trial court granting the motions for summary judgment filed on behalf
of Dr. DeVersa and Erlanger is affirmed. The costs on appeal are assessed against the
appellant, Nancy Luna. The case is remanded to the trial court for such further proceedings
as may be necessary and proper.




                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




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