               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                August 16, 2016 Session

 STEPHNY DENISE YOUNG, ET AL. v. RICHARD JORDAN, MD, ET AL.

                  Appeal from the Circuit Court for Shelby County
                    No. CT-004445-11 Rhynette N. Hurd, Judge
                     ___________________________________

             No. W2015-02453-COA-R9-CV – Filed September 20, 2016
                    ___________________________________


This is a healthcare liability case. Appellees, patient and her husband, filed suit against
Appellants, physician and employer. Appellants raised the affirmative defense of
comparative fault based on the fact that Appellee/patient had been non-compliant with
medical advice. Appellees moved for partial summary judgment on the affirmative defense
of comparative fault. The trial court granted the motion, and Appellants appeal. Because
expert testimony adduced during discovery creates a dispute of material fact as to the
question of Appellees’ non-compliance with medical advice and the effect of such non-
compliance on Appellees’ injury, the grant of summary judgment was error.

      Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
                             Reversed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN and
BRANDON O. GIBSON, JJ., joined.

Stephen W. Vescovo, Clarissa McClain Cissell, and Laura Lampton Deakins, Memphis,
Tennessee, for the appellants, Richard Jordan and The Medical Group of Memphis, PLLC,
d/b/a The Medical Group.

Donald A. Donati and Thomas J. Long, Memphis, Tennessee, for the appellees, Stephny
Denise Young and Ben Young.
                                         OPINION

                                      I. Background

       On or about March 22, 2011, Stephny Denise Young suffered a stroke. On September
29, 2011, Mrs. Young and her husband, Ben Young (together, “Appellees”), filed suit against
Richard Jordan, M.D., internist, and Dr. Jordan’s employer, The Medical Group of Memphis,
PLLC d/b/a The Medical Group (“The Medical Group,” and together with Dr. Jordan,
“Appellants”). At the time of her stroke, Dr. Jordan was Mrs. Young’s primary physician. In
2006, Mrs. Young underwent a heart valve replacement. Following the procedure, to prevent
blood clots, Mrs. Young’s cardiovascular clinic, the Stern Cardiovascular Clinic (“Stern
Clinic”), prescribed Coumadin, an anticoagulation medication. It is undisputed that Mrs.
Young’s medication required regular testing of her blood coagulation levels, which are
measured by an index called the International Normalized Ratio (“INR”). To maintain her
INR levels at the recommended therapeutic range of 2.5 to 3.5, Mrs. Young was instructed to
return to the Stern Clinic periodically for INR level testing.

        On February 25, 2011, Mrs. Young reported to the Stern Clinic for INR level testing,
which showed her INR level to be 2.2. Because her INR level was below the recommended
therapeutic range, the Stern Clinic increased Mrs. Young’s Coumadin prescription
temporarily and advised her to return to the Stern Clinic to recheck her INR level in seven to
ten days. Mrs. Young did not return to the Stern Clinic as advised. Rather, on March 2,
2011, she presented to Dr. Jordan with complaints of headaches and left-sided, facial
numbness; both symptoms had persisted for several days. Dr. Jordan ordered a CT scan,
which did not reveal any neurological cause for Mrs. Young’s symptoms. Dr. Jordan did not
check Mrs. Young’s INR level and did not adjust her Coumadin dosage. Dr. Jordan testified
that Mrs. Young told him that she was scheduled to return to the Stern Clinic for a follow-up
INR level check. Dr. Jordan diagnosed Mrs. Young with migraines and prescribed Fioricet, a
pain reliever. Between March 2, 2011 and March 19, 2011, Mrs. Young took nine doses of
Fioricet as prescribed by Dr. Jordan. On March 21, 2011, Mrs. Young presented at St.
Francis Hospital with symptoms of a stroke. Hospital staff measured Mrs. Young’s INR
level at 1.7. Mrs. Young was diagnosed with a hemorrhagic stroke from a blood clot that had
formed on her synthetic heart valve. The stroke left Mrs. Young disabled with impairments
affecting her vision, motor skills, memory, and mobility.

       On September 29, 2011, Appellees filed suit against Appellants. In their amended
complaint, which was filed on February 16, 2014, Appellees assert that Dr. Jordan breached
the standard of care by prescribing Fioricet to Mrs. Young to treat her headaches. The
complaint avers that Fioricet contains a pharmaceutical component, Butabarbital, that
interferes with blood clotting. Having prescribed Fioricet, Appellees contend that Dr. Jordan
had a duty to increase Mrs. Young’s dose of Coumadin, in order to maintain her INR level
within the recommended therapeutic range. Appellees allege that Dr. Jordan’s failure to
                                            -2-
modify the Coumadin dosage caused Mrs. Young’s INR level to fall, which, in turn, caused a
blood clot and her subsequent stroke. Specifically, the complaint avers that Dr. Jordan
breached the standard of care by: (1) prescribing Fioricet instead of an alternate medication;
(2) “fail[ing] to order an INR [level] for [Mrs.] Young on March 2, 2011;” (3) “fail[ing] to
increase [Mrs.] Young’s Coumadin level on March 2, 2011[,] as it was sub-therapeutic at that
time and should have been increased;” (4) “fail[ing] to order timely follow up to [Mrs.]
Young’s Coumadin level on March 2, 2011, to ensure that the Coumadin level was in the
therapeutic range;” and (5) “fail[ing] to properly monitor [Mrs.] Young’s Coumadin level
and adjust it accordingly to ensure that the INR [level] stayed within the therapeutic range of
2.5-3.5.”

        On October 27, 2014, Appellants filed an answer to the amended complaint, denying
liability. As an affirmative defense, Appellants alleged comparative fault on the part of Mrs.
Young. Specifically, Appellants averred “that reasonable and ordinary care was not
employed by the plaintiff Stephny Young in complying with the advice and instructions of
her health care providers[,] which resulted in harm to the plaintiff.”

      On June 1, 2015, Appellees filed a motion for partial summary judgment, arguing that
Appellants:

       have completely failed to offer any facts and competent opinions that any act
       of [Mrs. Young] was more likely than not a cause of the stroke. Put simply,
       without any defense expert witness offering an opinion that M[r]s. Young’s
       actions caused injury, [Appellants], as the nonmoving party, cannot prove an
       essential element of comparative fault at trial.

On July 10, 2015, Appellants filed a response in opposition to the motion for partial summary
judgment stating that the deposition testimony of Dr. Brown, Appellees’ expert witness,
“create[d] a genuine issue of material fact as to whether M[r]s. Young was non[-]compliant,
and whether that non[-]compliance caused her injuries.”

        On July 15, 2015, the Circuit Court for Shelby County (the “trial court”) heard the
motion for partial summary judgment on the affirmative defense of comparative fault. The
trial court granted the motion by order of August 20, 2015. Appellants filed a motion to
reconsider, which was denied by the trial court by order dated September 11, 2015.

        On September 16, 2015, Appellants filed a Tennessee Rule of Appellate Procedure 9
motion, seeking permission from the trial court for an interlocutory appeal of the grant of
partial summary judgment. On September 23, 2015, Appellees filed a response in opposition
to Appellants’ motion for interlocutory appeal. On November 19, 2015, the trial court entered
an order granting permission for Appellants to seek an interlocutory appeal. Appellants filed
their application for an interlocutory appeal to this Court on December 4, 2015. This Court
                                             -3-
denied the application for interlocutory appeal because it was not timely. See Tenn. R. App.
P. 9(c) (providing that the application for permission to appeal must be filed “with the clerk
of the appellate court within 10 days after the date of entry of the order in the trial court”).
Therefore, the latest date possible for filing the application to this Court was November 30,
2015.

       On December 17, 2015, Appellants filed a Tennessee Rule of Civil Procedure 60.01
motion to vacate or amend the trial court’s order granting permission to appeal, with an
affidavit of counsel that the parties had neither been notified nor received a copy of the order
until December 1, 2015. On December 18, 2015, the trial court granted Appellants’ motion,
vacating its prior order granting permission for interlocutory appeal and entering a new order
that same date, granting permission for interlocutory appeal. On December 22, 2015,
Appellants timely filed a second application for interlocutory appeal to this Court, which we
granted by order of February 3, 2016.

                                          II. Issues

      In our February 3, 2016 order, we certified the following issues for review under
Tennessee Rule of Appellate Procedure 9:

       1.     Is a motion for summary judgment brought by a plaintiff an appropriate
              procedural mechanism for disposing of an affirmative defense?
       2.     Did the trial court err in granting [Appellees’] motion for partial
              summary judgment on the issue of comparative fault?
       3.     Did the trial court err in denying [Appellants’] motion to reconsider?

                                   III. Record on Appeal

       Before turning to the substantive issues, we first address certain procedural shortfalls
in the appellate record. Specifically, we refer the parties to Tennessee Rule of Appellate
Procedure 24(a), concerning the content of the appellate record. This Rule provides, in
relevant part:

       The following papers filed in the trial court are excluded from the record: (1)
       subpoenas or summonses for any witness or for any defendant when there is an
       appearance for such defendant; (2) all papers relating to discovery, including
       depositions, interrogatories and answers thereto, reports of physical or mental
       examinations, requests to admit, and all notices, motions or orders relating
       thereto; (3) any list from which jurors are selected; and (4) trial briefs; and (5)
       minutes of opening and closing of court. Any paper relating to discovery and
       offered in evidence for any purpose shall be clearly identified and treated as an
       exhibit. No paper need be included in the record more than once.
                                             -4-
Tenn. R. App. P. 24(a). In this case, Appellants filed a designation of the record, attempting
to limit the record to certain enumerated filings. Nevertheless, the record contains filings
outside the record designation, including motions in limine relating to discovery and other
motions and documents unrelated to the issues certified in this appeal. It is, of course,
incumbent on the parties to review the record as prepared by the clerk before it is transmitted
to this Court. Because we often see extraneous filings in appellate records, we take this
opportunity to remind future litigants that they should endeavor to adhere to the Tennessee
Rules of Appellate Procedure when submitting records to this Court. To do otherwise, the
parties place on this Court a duty that falls to them, i.e., to prepare the appellate record. We
now turn to address the substantive issues.

                                  IV. Standard of Review

        At issue in this interlocutory appeal is the grant of a motion for partial summary
judgment on the issue of comparative fault in a healthcare liability case. We note that the
trial court, in its order granting the motion for summary judgment, stated: “[t]his action
accrued in March 2011; therefore, the standard for granting summary judgment set forth in
Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008)[,] applies” (emphasis added).
For purposes of the summary judgment standard, the date of filing, not accrual, determines
the standard by which the trial court is to judge the motion for summary judgment. For
actions filed on or after the July 1, 2011 effective date for Tennessee Code Annotated Section
20-16-101, the statute, not Hannan, provides the correct standard. See, e.g., Rye v.
Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 260-61 n.7 (Tenn. 2015)
(finding that Section 20-16-101 “does not apply in this appeal because the Ryes filed this
action before the statute’s July 1, 2011 effective date”) (emphasis added); Estate of Boote v.
Roberts, No. M2012-00865-COA-R3-CV, 2013 WL 1304493, at *9 (Tenn. Ct. App. Mar. 28,
2013) (stating that where an action was filed after July 1, 2011, “the trial court was required
to apply the summary-judgment standard set forth in Tennessee Code Annotated § 20-16-
101”). Even though the date of accrual in this case was when Mrs. Young suffered her
stroke in March of 2011 (i.e., before the July 1, 2011 effective date for Section 20-16-101),
the date of filing was September 29, 2011 (i.e., after the July 1, 2011 effective date for
Section 20-16-101). Accordingly, the motion for summary judgment is not governed by
Hannan, as the trial court stated; rather, it is governed by Tennessee Code Annotated section
20-16-101, which provides:

       In motions for summary judgment in any civil action in Tennessee, the moving
       party who does not bear the burden of proof at trial shall prevail on its motion
       for summary judgment if it:
       1.     Submits affirmative evidence that negates an essential element of the
              nonmoving party’s claim; or
       2.     Demonstrates to the court that the nonmoving party’s evidence is
                                           -5-
              insufficient to establish an essential element of the nonmoving party’s
              claim.

Tenn. Code Ann. § 20-16-101 (Supp. 2014) (effective July 1, 2011).

        Our usual course of action in a case where a trial court applies an incorrect legal
standard would be to vacate the judgment and remand for further proceedings; however,
where a nonmoving party in a motion for summary judgment raises a dispute of material fact,
then a trial court’s grant of summary judgment under any standard would be improper. We
review a trial court’s rulings on questions of law, such as motions for summary judgment, de
novo with no presumption of correctness. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84
(Tenn. 2008). In doing so, “[t]his Court must make a fresh determination that the
requirements of Tennessee Rule of Civil Procedure 56 have been satisfied,” or 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. Tenn. R. Civ. P. 56.04; Mathews Partners, L.L.C. v. Lemme, No. M2008-
01036-COA-R3-CV, 2009 WL 3172134, at *3 (Tenn. Ct. App. Oct. 2, 2009) (citing Hunter
v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997)). In other words, under either Hannan or
Section 20-16-101, a dispute of material fact will preclude the grant of summary judgment.
As stated by this Court in Evco Corp. v. Ross, 528 S.W.2d 20, 25 (Tenn.1975):

       The summary judgment procedure was designed to provide a quick,
       inexpensive means of concluding cases, in whole or in part, upon issues as to
       which there is no dispute regarding the material facts. Where there does exist a
       dispute as to facts which are deemed material by the trial court, however, or
       where there is uncertainty as to whether there may be such a dispute, the duty
       of the trial court is clear. He is to overrule any motion for summary judgment
       in such cases, because summary judgment proceedings are not in any sense to
       be viewed as a substitute for a trial of disputed factual issues.

Id. Therefore, we will first determine whether there is a dispute of material fact before
summarily vacating the appeal and remanding for reconsideration. If there is a dispute of
material fact, we may reverse the grant of summary judgment under either standard; in that
case, remand would be an unnecessary procedural delay.

                                        V. Analysis

  A. Summary Judgment as a Procedural Mechanism for an Affirmative Defense

        Turning to the first issue, i.e., whether a motion for summary judgment is an
appropriate procedural mechanism for disposing of an affirmative defense, we find nothing
in the Tennessee Rules of Appellate Procedure, nor in our caselaw, to preclude consideration
of comparative fault in a summary judgment motion. Rather, our caselaw is replete with
                                            -6-
examples of disposition of various affirmative defenses by summary judgment. See, e.g.,
Sherrill v. Souder, 325 S.W.3d 584 (Tenn. 2010) (finding that summary judgment could be
applied to the affirmative defense of expiration of statute of limitations); Woodard v. Gross,
No. W2011-02316-COA-R3-CV, 2012 WL 3893519 (Tenn. Ct. App. Sept. 10, 2012)
(affirming that the trial court’s grant of summary judgment was proper based on the
affirmative defense of the statute of repose); Carlen v. Jackson, No. M2000-02564-COA-
R3-CV, 2001 WL 1090513 (Tenn. Ct. App. Sept. 19, 2011) (affirming the trial court’s grant
of partial summary judgment on the issue of comparative fault as an affirmative defense).
Although “comparative fault is typically a question for the trier of fact,” if the moving party
meets the standard set out in Tennessee Rule of Civil Procedure 56, the motion for summary
judgment must be granted. Ellington v. Jackson Bowling & Family Fun Ctr., No. W2012-
00272-COA-R3-CV, 2013 WL 614502, at *10 (Tenn. Ct. App. Feb. 19, 2013) (citing Norris
v. Pruitte, No. 01A01-9709-CV-00506, 1998 WL 1988563, at *3 (Tenn. Ct. App. Aug. 24,
1998)). In the absence of any countervailing authority (of which we find none), we decline
to carve out an exception excluding the affirmative defense of comparative fault from
disposition by summary judgment.

                 B. Appellee’s Motion for Partial Summary Judgment

       As to the second issue, i.e., whether the trial court erred in granting Appellees’ motion
for partial summary judgment on the issue of comparative fault, as noted above, under any
standard for summary judgment, if there is a dispute of material fact as to the affirmative
defense, the grant of summary judgment was error. For a question of fact “[t]o be material, a
fact must be germane to the claim or defense on which the summary judgment is predicated.”
 Eskin v. Bartee, 262 S.W.3d 727, 732 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639
(Tenn. 1999). Appellants contend that the pleadings, depositions, answers to interrogatories,
and admissions raise a dispute of material fact concerning whether Mrs. Young’s non-
compliance with her doctors’ instructions to return for a follow-up check of her INR level
caused her stroke. In their motion for summary judgment, Appellees contend that summary
judgment on the affirmative defense of comparative fault is proper because “put simply,
without any defense expert witness, offering an opinion that M[r]s. Young’s actions caused
injury, [Appellants], as the non[-]moving party, cannot prove an essential element of
comparative fault at trial.” In its order granting partial summary judgment on the issue of
comparative fault, the trial court found:

       8.     None of the medical experts in this case have opined that Mrs. Young’s
              acts or failure to act contributed to the injury that is the subject of this
              lawsuit.
       9.     Although Plaintiffs’ expert pharmacist, James Brown, PharmD,
              testified Mrs. Young was non[-]compliant with recommended follow-
              up, he was not able to determine to a reasonable degree of medical
              certainty that Mrs. Young’s outcome would have been different had she
                                              -7-
              complied.
       10.    Plaintiffs have affirmatively negated the element of causation in regard
              to Defendants’ affirmative defense of comparative fault.
       11.    In response to Plaintiffs’ properly supported motion for partial
              summary judgment, Defendants are required to show that a genuine
              issue of material fact exists regarding their affirmative defense of
              comparative fault.

                                            ***

       13.    Defendants have not otherwise carried their burden of producing
              evidence of specific facts regarding Plaintiff Stephny Young’s
              comparative fault.
       14.    Viewing the facts in Defendants’ favor, it is clear that no genuine issue
              of material fact exists with respect to Defendants’ comparative fault
              defense.
       15.    Plaintiffs are entitled to summary judgment as regards Defendants’
              affirmative defense of comparative fault.

       Appellants argue that the affirmative defense of comparative fault is supported by the
testimony of Appellees’ expert witnesses, all of whom opined that Mrs. Young was non-
compliant by failing to return to the Stern Clinic for an INR level test within the prescribed
time. Specifically, Appellants cite to the deposition testimony of Dr. James R. Brown,
Appellees’ expert pharmacist. Dr. Brown testified, in pertinent part, as follows:

       Q.     [Mrs. Young] was seen at the [Stern] [C]linic on, what, February the
              25th of 2011?

       A.     Yes.

       Q.     And she was instructed to return in 7 to 10 days?

       A.     Yes.

       Q.     Did you find any evidence that she returned within that period of time?

       A.     No.

                                            ***

       Q.     Can we then agree that[,] at least on the February 25 visit[,] she was not
              compliant with her instructions to return within 7 to 10 days?
                                             -8-
      A.     She didn’t go back.

                                            ***

      Q.     Is that a yes?

      A.     That’s a yes.

During the deposition, Appellants also asked Dr. Brown to opine as to what would have
occurred had Mrs. Young returned to the Stern Clinic for her follow-up appointment:

      Q.     All right. And if she had come in, if she had been compliant and had
             followed the instructions, then you are certain they would have checked
             her INR when she returned, aren’t you?

      A.     I think I can say that, yes.

                                            ***

      Q.     And if she had come in and if asked, are you on any medications and if
             she had said Fioricet, in your opinion, the doctor or nurse practitioner or
             whoever she spoke with at Stern would have said, we need to take a
             look at this, or words to that effect?

      A.     Yes.

                                            ***

      Q.     Okay. And in your opinion, if she was taking the Fioricet, that would
             have adversely impacted her Coumadin and thus her INR level?

      A.     Yes.

      Q.     And adversely impacted, by that I mean it would have been lower, it
             would have still been sub-therapeutic?

      A.     In all likelihood.

      Q.     Okay. And then the doctor or nurse practitioner or whoever at Stern
             Coumadin Clinic could have dealt with the issue at that point, right?

                                            -9-
       A.     Yes.

                                           ***

       Q.     Okay. But I want to make it clear that I understand you. That if she had
              come in to the Stern Clinic as instructed, okay, on or before March the
              7th of 2011, okay, then some change, in your opinion, would have been
              made and she wouldn’t be in the condition she’s in today?

       A.     In all likelihood.

       Q.     Okay. Because her stroke didn’t occur for two more weeks?

       A.     Right.

      Appellees’ expert witness, Dr. Richard Stein, also provided an opinion as to what
would have occurred had Mrs. Young returned to the Stern Clinic for her follow-up
appointment:

       Q.     If she had come in, in your opinion, during that March 4 through the
              7th, and if this subject had been broached, okay, and they had become
              aware of it at the Stern Clinic and she had been instructed to stop it,
              okay, stop the Fioricet, she never would have had the stroke; you agree
              with that?

       A.     Under the assumption that it comes up in discussion and they advise her
              to stop it, and she stops it, just like it would if it had never been
              prescribed, she wouldn’t have had the stroke. . . .

Dr. Stein’s opinion gives rise to a reasonable inference, which (at the summary judgment
stage) must be given in favor of the nonmoving party, that if Mrs. Young had returned for her
appointment to the Stern Clinic as instructed, her stroke would not have occurred. See
Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (concluding that, when
considering a motion for summary judgment, courts must consider the evidence in a light
most favorable to the nonmoving party and draw reasonable inferences from the evidence in
the nonmoving party’s favor). Inferentially, Mrs. Young’s non-compliance was a likely
cause of her stroke. In other words, based on the testimony of Dr. Brown and Dr. Stein, we
conclude that “reasonable minds could justifiably reach different conclusions based on the
evidence at hand” as to whether Mrs. Young’s failure to comply with her doctor’s
instructions in returning to Stern for an INR level follow-up appointment contributed to her
stroke. Green v. Green, 293 S.W.3d 493, 514 (Tenn. 2009).

                                           - 10 -
       Contrary to the trial court’s findings, supra, Dr. Brown clearly agrees that Mrs. Young
was non-compliant in failing to follow her doctors’ instructions in keeping a follow-up
appointment to check her INR level, and he further opines that “had [Mrs. Young] come in to
the Stern Clinic as instructed… on or before March the 7th of 2011… then some change…
would have been made and she wouldn’t be in the condition she’s in today.”

        Here, Appellants argue two alternative theories of their case. First, Appellants argue
that the Fioricet prescription from Dr. Jordan did not affect Mrs. Young’s INR level and,
thus, did not cause her stroke. In the alternative, Appellants contend that Mrs. Young’s
comparative fault, by non-compliance in failing to return to the Stern Center for an INR level
check, at least contributed to her stroke. The trial court’s grant of partial summary judgment
on the affirmative defense of comparative fault forecloses the Appellants from presenting
this alternative theory of the case, which arguably is supported by the expert proof. Both Dr.
Brown and Dr. Stein testified, either directly or inferentially, that Mrs. Young was non-
compliant in failing to follow medical advice and that her non-compliance could have
contributed to her stroke; this testimony creates a clear dispute of material fact, which related
directly to Appellants’ alternative theory of the case. Accordingly, Appellees’ argument that
summary judgment is proper because the Appellants have not provided proof that Mrs.
Young was non-compliant is unpersuasive. In light of the dispute of material fact raised by
the evidence, summary judgment is precluded. We pretermit Appellants’ remaining issue
concerning the motion to reconsider.

                                       VI. Conclusion

       For the foregoing reasons, we reverse the order of the trial court granting partial
summary judgment in favor of the Appellees. The case is remanded for such further
proceedings as may be necessary and are consistent with this opinion. Costs of this appeal
are assessed against the Appellees, Stephny Denise Young and Ben Young, for all of which
execution may issue if necessary.




                                                      _________________________________
                                                      KENNY ARMSTRONG, JUDGE




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