                   IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT NASHVILLE


LISA J. PRINCE and husband,             )
RICKY PRINCE,                           )
                                        )
             Plaintiffs/Appellants,     ) Coffee Circuit No. 24,504
                                        )
VS.                                     ) Appeal No. 01A01-9508-CV-00342
                                        )
COFFEE COUNTY, TENNESSEE
d/b/a COFFEE MEDICAL CENTER,
                                        )
                                        )
                                        )
                                                                           FILED
             Defendant/Appellee.        )
                                                                              May 3, 1996

            APPEAL FROM THE CIRCUIT COURT OF COFFEE COUNTYCecil W. Crowson
                      AT MANCHESTER, TENNESSEE           Appellate Court Clerk
               THE HONORABLE GERALD L. EWELL, SR., JUDGE



RICK L. MOORE
RUSSELL D. HEDGES
J. BROOKS FOX
MOORE & HEDGES
Tullahoma, Tennessee
Attorneys for Appellants



ROBERT L. TRENTHAM
MARK TYLER SEITZ
TRABUE, STURDIVANT & DEWITT
Nashville, Tennessee
Attorneys for Appellee



REVERSED AND REMANDED




                                                            ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HEWITT P. TOMLIN, JR., SR. J.




      This is a medical malpractice case. Plaintiffs, Lisa and Ricky Prince, are husband
and wife. Lisa Prince ("Plaintiff") was injured during out-patient surgery, allegedly as a

result of improperly administered anesthetic. Initially, the suit was brought against Coffee

Medical Center, Dr. Ramprasand (the surgeon), and Michael Cruz (the nurse anesthetist).

Dr. Ramprasand and Cruz settled with Plaintiffs and were dismissed prior to this action.

Plaintiff alleges on appeal that Coffee Medical Center ("CMC") was negligent in failing to

establish adequate anesthetic policies and procedures and in failing to enforce its own

anesthesia policies and procedures. The trial court granted summary judgment in favor

of CMC and Plaintiff has appealed. For the reasons stated below, we reverse.



       Dr. Ramprasand, Plaintiff's physician, admitted her to CMC on June 19, 1989, to

undergo same-day surgery for release of carpal tunnel syndrome. Dr. Ramprasand was

to perform the surgery and Michael Cruz, a certified registered nurse anesthetist, was to

administer the regional anesthetic. Cruz was employed by Warren Anesthesia Associates,

an organization with which the CMC had a contract obligating Warren to provide anesthetic

services to CMC patients.



       The procedure for administering the regional anesthetic entails placing a double

tourniquet in the area of the elbow while injecting the anesthetic agent (.5% Xylocaine)

intravenously into the patient's arm.   The hospital pharmacy was closed at the time of

Plaintiff's surgery, and the standard anesthetic, a .5% single dose vial of Xylocaine, was

not stocked in the operating room. Consequently, Cruz compounded his own solution of

.5% Xylocaine.



       After two attempts to establish a tourniquet cuff on Plaintiff, Cruz injected the

anesthetic solution that he had prepared into Plaintiff's arm. Following surgery, the

tourniquet was removed. Soon thereafter, multiple blue patches appeared on Plaintiff's

arm and no pulse registered below her elbow. Plaintiff was taken by ambulance to St.

Thomas Hospital for corrective surgery.



       Plaintiff was diagnosed at St. Thomas Hospital as having sustained a compartment



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syndrome and peripheral nerve injury.         At St. Thomas Hospital she underwent a

fasciotomy, where a surgical incision is made in the arm to relieve pressure in the fascial

compartments. The fasciotomy left an open wound in Plaintiff's arm that required skin

grafting to correct. Plaintiff subsequently underwent several skin grafts, extensive physical

therapy, and other surgical procedures. Plaintiff has incurred approximately $140,000 in

medical expenses.



       Dr. Ramprasand and Cruz entered into a settlement with Plaintiff, which resulted in

their dismissal from the suit. CMC filed a Motion for Summary Judgment based on the

fact that any potential liability against CMC was extinguished by the dismissal of Cruz and

Dr. Ramprasand from the case. CMC reasoned that any claims against it would be based

upon the conduct of either Dr. Ramprasand or Cruz and that, therefore, the common law

rule providing that when a servant is released from liability, the master is also released,

absolved CMC of any liability. CMC also argued that it was entitled to summary judgment

because the Plaintiff failed to allege specific acts of negligence in the original complaint.



       Conversely, Plaintiff alleged that Cruz and Dr. Ramprasand were independent

contractors and that the claims against CMC rested solely upon independent grounds,

rather than upon derivative liability stemming from the acts of Cruz and Dr. Ramprasand.

Specifically, Plaintiff alleged that CMC was negligent in failing to enforce its own anesthetic

policies and procedures and in failing to establish anesthetic procedures that "would have

insured that those with limited staff privileges could not have exceeded their authority to

administer anesthetics to the Plaintiff, Lisa J. Prince."



       In her original complaint dated June 18, 1990, Plaintiff alleged that CMC was

negligent in the following respects:

              (a) In failing to provide competent medical personnel, including
              doctors and nurses for the examination and treatment of its
              patient, Plaintiff, Lisa J. Prince, following the completion of her
              surgery;
              (b) In failing to provide properly functioning equipment and
              gauges necessary for the performance of a Bier Block and
              application of a tourniquet.
              (c) In failing to provide an anesthesiologist to administer the


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             anesthesia and tourniquet to Plaintiff while she underwent
             surgery;
             (d) By otherwise failing to exercise that degree of care to
             which the Defendant hospital was bound.


      After filing her complaint, Plaintiff moved to amend the complaint to add Dr.

Ramprasand as a defendant. The trial court granted the motion. Thereafter, on May 19,

1994, Plaintiff again moved to amend her complaint in order to add specific acts of

negligence on the part of CMC, which are as follows:

             (e) The Coffee Medical Center breached its duty of care to its
             patient, Lisa Prince, by failing to provide a physician
             anesthesiologist to the patient; and in the absence of a
             physician anesthesiologist, the Coffee Medical Center failed to
             assure that the operating surgeon, Dr. Mittur Ramprasand, was
             qualified and aware of his obligation to supervise the nurse
             anesthetist, Mr. Michael Cruz.
             (f) The Coffee Medical center breached its duty of care to its
             patient, Lisa Prince, by allowing a Certified Registered Nurse
             Anesthetist to practice anesthesiology in its hospital in an
             unsupervised capacity.
             (g) The Coffee Medical Center breached its duty to its patient,
             Lisa Prince, by failing to stock the appropriate anesthetic at the
             time of her surgery; and by allowing a registered nurse to
             independently prepare, compound and dispense drugs.
             (h) The Coffee Medical Center breached its duty to its patient,
             Lisa Prince, by negligently failing to assure that Mrs. Prince's
             anesthesia care was supervised by an appropriate physician
             with special knowledge of anesthesia.


      Initially, the trial court granted Plaintiff's's motion to amend, but later vacated its

decision and denied the motion. In its memorandum opinion, the trial court reviewed the

extensive discovery and pleadings that had occurred in the case and held that justice did

not mandate the granting of the amendment. The trial court stated:

             If, as counsel for the plaintiffs states on oral argument, the
             amendment does not change the cause or causes of action
             against the defendant, Coffee County Hospital, it is
             unnecessary. If it does change or add the cause of action, it
             triggers additional discovery and proof, and while the Court is
             aware that amendments are to be freely granted, it is, in this
             case, the opinion of the Court that justice does not mandate
             that the amendment should be granted.



      Rule 15.01 Tenn. R. Civ. P. provides, "A party may amend his pleadings once as

a matter of course at any time before a responsive pleading is served...[o]therwise a party

may amend his pleadings only by written consent of the adverse party or by leave of



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court..." Although the rule provides that permission to amend may be liberally granted, the

decision to amend lies within the sound discretion of the trial court, and will not be reversed

absent a showing of abuse of discretion. Welch v. Thuan, 882 S.W. 2d 792, 793 (Tenn.

App. 1994); Wilson v. Ricciardi, 778 S.W. 2d 450, 453 (Tenn. App. 1989); Merriman v.

Smith, 599 S.W. 2d 548, 559 (Tenn. App. 1979).



       The Tennessee Supreme Court has established several pertinent factors that a trial

court should consider in deciding whether to grant or deny a motion to amend. These

factors include "[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the

moving party, repeated failure to cure deficiencies by previous amendments, undue

prejudice to the opposing party, and futility of amendment." Merriman, 599 S.W. 2d at 559.



        After an extensive review of the record, we do not find any indication that the trial

court abused its discretion in denying the motion to amend. Examining this case in the

light of the above delineated factors, we find ample justification for the action of the trial

court in denying such motion.



       With respect to Plaintiff's allegations that CMC was negligent in failing to implement

proper anesthetic standards and procedures, we hold that the original allegation, which

stated that CMC was negligent "by otherwise failing to exercise that degree of care to

which the Defendant hospital was bound," was sufficient to put CMC on notice of Plaintiff's

claim. Tennessee's notice pleading requires a complaint to contain only minimum general

facts that would support potential cause of action under Tennessee substantive law. A

complaint is generally sufficient if it states facts supporting any theory of relief, even if the

theory is different from that upon which the plaintiff intended to rely. LAW RENCE A. PIVNICK,

TENNESSEE CIRC UIT COURT PRACTICE § 7-2, at 244-45 (3rd ed. 1991). Consequently, to

permit Plaintiff to amend her complaint in order to allege that CMC was negligent in failing

to establish adequate anesthetic policies and procedures would be a futile effort because

it is unnecessary.




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              To the extent that Plaintiff attempts to amend her complaint in order to state

a negligent credentialing claim against CMC, we agree with the trial court that granting the

amendment would result in substantial prejudice to CMC. Plaintiff's motion to amend was

filed more than four years after her original complaint was filed. It is our opinion that the

general allegation of failure to exercise due care did not serve to place CMC on notice of

Plaintiff's intent to pursue a negligent credentialing claim. A claim for negligent

credentialing is distinct from a malpractice action and requires separate elements of proof.

The trial court did not abuse its discretion in prohibiting Plaintiff from pursuing a new

avenue of liability in litigation that has been pending for over four years in light of the fact

that Plaintiff was previously allowed to amend her complaint and voluminous discovery,

motions, and pleadings have been filed.



       The next issue for review is whether the trial court erred in granting CMC's motion

for summary judgment.



       Summary judgment is to be rendered by a trial court only when it is shown that there

is no genuine issue as to any material fact and the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.03. When a motion for summary judgment is used

defensively, the plaintiff must present evidence sufficient to establish the essential

elements of the claim on which he will bear the burden of proof at trial. Blair v. Allied

Maintenance Corp., 756 S.W. 2d 267, 269-270 (Tenn. App. 1988) In ruling on a motion

for summary judgment, the trial court and the Court of Appeals must consider the matter

in the same manner as a motion for a directed verdict made at the close of the plaintiff's

proof. All of the evidence must be viewed in the light most favorable to the opponent of the

motion and all legitimate conclusions of fact must be drawn in favor of the opponent. It is

only when there is no disputed issue of material fact that a summary judgment should be

granted by the trial court and sustained by the Court of Appeals. Byrd v. Hall, 847 S.W.

2d 208, 211 (Tenn. 1993). If the court entertains any doubt as to whether a genuine issue

of material fact exists, it is the court's duty to overrule the motion. Id. This court may not

weigh the evidence when evaluating a motion for summary judgment. Id. When it is



                                               6
necessary that the evidence be weighed, a trial should ensue because such issues are not

properly capable of resolution on the basis of affidavits alone. Id. at 216.



         The duty of a hospital is to exercise such reasonable care toward patients as the

patients' conditions require. Keeton v. Maury County Hospital, 713 S.W. 2d 314, 316

(Tenn. App. 1986). In order to recover, a plaintiff must show that the hospital violated that

standard of care. Id. at 317. The burden of proof is on the plaintiff to prove the standard

of care, violation of that standard, and causation. T.C.A. § 29-26-115. Unless the alleged

malpractice lies within the ordinary knowledge of a layman, there must be expert testimony

as to the standard of care, breach of that standard, and causation. Coyle v. Prieto, 822

S.W.2d 596, 598 (Tenn. App. 1991); Stokes v. Leung, 651 S.W.2d 704, 706 (Tenn. App.

1982).



         CMC supported its motion for summary judgment with the affidavit of Jane Hamby,

R.N., who stated that CMC's nursing staff complied fully with the recognized standard of

acceptable practice for nurses and that the tourniquet functioned properly.



         In opposition to CMC's motion for summary judgment, Plaintiff filed the affidavits and

deposition testimony of three experts. Dr. James A. Ramsey, an anesthesiologist who

treated Plaintiff while she was hospitalized at St. Thomas Hospital, is a board certified

anesthesiologist who practices in Nashville, Tennessee. He executed two affidavits, one

of which states in pertinent part as follows:

                The Coffee Medical Center was negligent in failing to assure
                that Michael Cruz, Certified Registered Nurse Anesthetist, was
                supervised by an appropriate physician with special knowledge
                of anesthesia.

Dr. Ramsey stated in another affidavit as follows:

                In my opinion, the injury to Lisa Prince would not have
                occurred if the Coffee Medical Center had not breached its
                duty of care that it owed to its patient Lisa Prince, and assured
                that the operating surgeon was qualified to supervise the nurse
                anesthetist, and further, assured that the operating surgeon
                realized his obligation to supervise the nurse anesthetist...




                                                7
       Dr. William Bradley Worthington, another anesthesiologist who cared for Plaintiff

testified that in the present situation, the standard of care required the surgeon to be

responsible for supervising the CRNA.



        James L. Massey, II, professor of hospital and health administration at Governors

State University in Illinois, was the third expert to testify for Plaintiff. Mr. Massey testified

that CMC was negligent in credentialing Dr. Ramprasand and Michael Cruz. Mr. Massey

also testified that CMC breached the standard of care for hospitals through failing to

review, update, and abide by the medical staff by-laws on credentialing, by failing to

establish rules and regulations for anesthesia services and surgeon supervision of CRNA's,

by failing to make certain that all surgeons were qualified sufficiently in anesthesia, by

failing to establish policies and procedures for anesthesia services, by failing to insure that

pre-surgical checks by nurses were made, and by failing to establish proper controls on the

use of equipment.



       Because we have ruled that Plaintiff may not pursue her negligent credentialing

theory of recovery, Massey's testimony relating to a claim for negligent credentialing is

immaterial. However, Massey also stated in his affidavit that CMC deviated from the

standard of care through its "[f]ailure to specify that each surgeon has a responsibility to

supervise anesthesia," its "[f]ailure to have policies and procedures for anesthesia," and

its "[f]ailure to provide Lisa J. Prince with a preanesthesia evaluation." Massey's affidavit

provides:

              Coffee Medical Center in this case failed to implement the
              proper standards both internally and nationally...[I]t is my
              opinion that those causal factors would have been avoided if
              proper hospital procedures and credentialing had been in
              place. As a direct result of Coffee Medical Center's breach of
              the appropriate hospital standards Lisa Prince sustained injury.




       It is inappropriate for this Court to weigh the evidence in evaluating a motion for

summary judgment. When the above evidence is viewed in a light most favorable to

Plaintiff and all countervailing evidence is discarded, a genuine issue of material fact exists


                                               8
in the present case.



      Accordingly, we are of the opinion that the affidavits and testimony offered by

Plaintiff in opposition to CMC's motion for summary judgment establish that there exists

a genuine issue of material fact, thereby rendering summary judgment inappropriate. The

order granting CMC summary judgment is reversed and this case is remanded to the trial

court for such other and further proceedings as may be necessary. Costs on appeal are

assessed equally against the parties.




                                                      HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




TOMLIN, Sr. J.




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