JUDY PARRISH,                                 )
                                              )
      Plaintiff/Appellant,                    )    First Circuit for
                                              )    Davidson County
                                              )    No. 93C-1343
VS.                                           )
                                              )    Appeal No.
                                              )    01A01-9601-CV-00010
HOSPITAL CORPORATION OF AMERICA,              )
d/b/a CENTENNIAL MEDICAL CENTER’S             )
PARTHENON PAVILION,                           )
                                              )
      Defendant/Appellee.                     )


                    IN THE COURT OF APPEALS OF TENNESSEE

                             MIDDLE SECTION AT NASHVILLE


      APPEAL FROM THE FIRST CIRCUIT COURT OF DAVIDSON COUNTY

                               AT NASHVILLE, TENNESSEE


                 HONORABLE HAMILTON V. GAYDEN, JR., JUDGE



C. J. Gideon, Jr.
GIDEON & WISEMAN
414 Union Street
Suite 1900, NationsBank Plaza
Nashville, TN 37219
ATTORNEY FOR PLAINTIFF/APPELLEE

Sonya W. Henderson
218 W. Main Street
Suite One
Murfreesboro, Tennessee 37130
ATTORNEY FOR DEFENDANT/APPELLANT


AFFIRMED


                                         HENRY F. TODD
                                         PRESIDING JUDGE, MIDDLE SECTION


CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
JUDY PARRISH                                        )
                                                    )
       Plaintiff/Appellant,                         )       First Circuit for
                                                    )       Davidson County
                                                    )       No. 93C-1343
VS.                                                 )
                                                    )       Appeal No.
                                                    )       01A01-9601-CV-00010
HOSPITAL CORPORATION OF AMERICA,                    )
d/b/a/ CENTENNIAL MEDICAL CENTER’S
PARTHENON PAVILION,
                                                    )
                                                    )
                                                    )
                                                                    FILED
       Defendant/Appellant.                         )
                                                                          July 26, 1996

                                                                   Cecil W. Crowson
                                        OPINION
                                                                  Appellate Court Clerk
       The captioned Plaintiff has appealed from a summary judgment dismissing her suit

against the captioned Defendant for the wrongful death of Whitney Parrish by suicide while a

patient in Defendant’s hospital.



       The factual background of this controversy is:

                 Whitney Parrish was a twenty-four year old,
               overweight, dyslexic, suffered from elevated
               cholesterol and triglycerides and hyperlipoproteinemia
               pheno type IV, and was voluntarily admitted to
               Parthenon Pavilion on April 20, 1992 by his psychiatrist,
               James R. McFerrin, M.D. because of a self-administered
               overdose on his mother’s pain medication. Mr. Parrish,
               who had a family history of emotional disorders and
               sexual abuse by an older brother, had been experiencing
               crying spells, sleep changes, suicidal ideations and an
               increase in his auditory hallucinations.

                  Mr. Parrish presented with symptoms of agitation,
               delusions, dependency, hallucinations, paranoia,
               depression, and poor self-esteem. The goals established
               by Dr. McFerrin following the admission of April 20,
               1992, were to stabilize suicidality, treat Mr. Parrish’s
               psychosis and depression, and ultimately discharge Mr.
               Parrish to out-patient treatment. A treatment plan
               of milieu therapy, group therapy, activities therapy,
               family therapy, and medications was ordered and
               followed.

                  Mr. Parrish was initially placed in the Intensive
               Treatment Program. On April 27, 1992, on orders
               of Dr. McFerrin, Mr. Parrish was taken off of suicide
               precautions; and, on May 1, 1992, he was transferred
               to the General Treatment Program, which is an “unlocked
               unit,”

                                             -2-
                   On May 7, 1992, Mr. Parrish approached the staff at
                Parthenon Pavilion and expressed feelings of frustration
                over multiple hospitalizations, his fear of returning to his
                job, and his father’s death. Although Mr. Parrish was able
                to communicate some positive feelings and goals and
                although he stated to the staff after approximately thirty
                (30) minutes that he was feeling better, he was placed
                back on suicide precautions by the nursing staff.

                   On May 8, 1992, Dr. McFerrin discontinued the suicide
                and elopement precautions, and permitted Mr Parrish to
                go on a three (3) hour pass with his mother. Mr. Parrish
                returned from this visit in a bright mood and in good
                spirits, stating to the staff at Parthenon Pavilion that the
                pass had gone well.

                   On May 9, 1992, Mr. Parrish appeared somewhat
                anxious, but processed his thoughts and feelings
                appropriately. He spoke to the staff at Parthenon
                Pavilion about his plans to return to his job, stating
                that his employer had been thoughtful by sending him
                flowers. From 3:00 p.m. until 11:00 p.m., Mr. Parrish
                spent most of his time out of his room on the unit. He
                did his laundry, bathed himself, spoke to the staff again
                about his hope of returning to his job, appeared much
                less anxious, and provided no indications of a likely
                elopement or suicide attempt.

                   When Mr. Parrish was checked at 11:00 p.m. and at
                11:12 p.m. on May 9, 1992, he was in bed in his room.
                When checked just after 11:15 p.m., Mr. Parrish could
                not be found. The supervisor, Dr. McFerrin, Mr.
                Parrish’s mother, and all personnel on duty were notified
                and a search was conducted. At approximately 6:30 a.m.
                on May 10, 1992, Mr. Parrish’s body was found in a
                ditch in the construction area beside Parthenon Pavilion’s
                separate parking garage. Mr. Parrish had committed
                suicide by jumping from the sixth floor of the parking
                garage.

                   Judy Parrish, the mother of the deceased, filed this
                lawsuit and alleged that Parthenon Pavilion failed to
                use reasonable care to prevent Mr. Parrish’s suicide,
                failed to provide a secure facility to Mr. Parrish, and
                failed to provide Mr. Parrish with proper care and
                treatment during his admission at Parthenon Pavilion.
       `


       The complaint alleges that Defendant had a duty to prevent the suicide of decreased,

that it failed to perform that duty, and that the death of deceased was the proximate result of

such failure.



                                               -3-
Defendant’s motion for summary judgment states:

           Comes now the Defendant, HCA Health Services of
        Tennessee d/b/a Centennial Medical Center/Parthenon
        Pavilion and moves this Court for an Order granting
        summary judgment in its favor on the grounds that there
        is no genuine issues of material fact and the Plaintiff’s
        claims against it should be dismissed as a matter of law.

           In support of this Motion, the Defendant simultaneously
        files herewith and relies upon the following:

           1)   Memorandum of Law; and
           2)   Affidavit of James R. McFerrin, M.D.

The memorandum mentioned in the motion does not appear in the record on appeal.


The affidavit supporting defendant’s motion states:

           I was Whitney Parrish’s psychiatrist from 1985 through
        his admission at Parthenon Pavilion of April 20, 1992.
        As his treating physician, I am familiar with his psychiatric
        history, hospital course and medical record from his
        Parthenon Pavilion admission of April 20, 1992.

           I admitted Whitney Parrish to Parthenon Pavilion on
        April 20, 1992 after Mr. Parrish telephoned me to say that
        he had taken an overdose of his mother’s Tylenol #3. Mr.
        Parrish had a history of severe recurrent depression and
        multiple suicide attempts by cutting his wrists and by
        taking overdoses of drugs. The goal during his admission
        was to stabilize suicidality, treat his psychosis and
        depression, and ultimately discharge him for continuation
        of his outpatient treatment. Mr. Parrish made progress
        during his stay at Parthenon Pavilion. He was transferred
        to a unit which did not remain locked at all times and
        preparations for discharge were being made which included
        a therapeutic pass with his mother and aunt and a scheduled
        meeting with his job counselor.

            Based on my many years of treating Whitney Parrish,
        it is my opinion to a reasonable degree of medical certainty
        that it was only a matter of time before Mr. Parrish was
        successful in his endeavor to end his life. With each
        hospitalization in the past, all resulting from failed suicide
        attempts, Mr. Parrish would meticulously plan his
        elopement or overdose for several days in advance.
        Throughout the course of his treatment, Mr. Parrish
        repeatedly discussed methods of self demise.


Plaintiff filed an affidavit stating:



                                        -4-
  I, the undersigned, Ben Bursten, M.D., first being duly
sworn, make oath as follows:

 1. I am a psychiatrist and have been licensed to practice
medicine in the State of Tennessee since 1977.

   3. I have reviewed the medical records of Whitney
Parrish’s 1992 hospitalization at the Centennial Medical
Center’s Parthenon Pavilion in Nashville, Tennessee.
In addition, I have reviewed the Defendant’s Responses to
the First and Second Set of Interrogatories, the hospital’s
Policies and Procedures regarding suicide and elopement
precautions, the Defendant’s Motion for Summary
Judgment, and the Affidavit of Dr. James McFerrin. I
have also talked with Mrs. Judy Parrish.

  4. In my opinion, Whitney Parrish’s ability to exercise even
a moderately intelligent power of choice regarding his suicide
was severely compromised by his mental illness.

   5. On May 8, 1992, Dr. McFerrin discontinued
Mr. Parrish’s elopement precautions in order that he
might go out on a three hour pass with his mother.
On his return to the hospital, the doctor felt he was
sufficiently an elopement risk that he again ordered
elopement precautions. Mr. Parrish was housed on
a non-secure unit and was allowed to be out of the
sight of staff sufficiently long enough for him to
elope. This is a deviation from the standard of
practice. This deviation led to this death.

   6. It is my opinion, based upon a reasonable
degree of medical certainty, that the recognized
standard of acceptable professional practice in the
medical profession, and in particular, the standards
applicable to a psychiatric unit and hospital such as
Hospital Corporation of America d/b/a Centennial
Medical Center’s Parthenon Pavilion, both for
 Nashville, Tennessee, and for similar communities
at the time of Mr. Parrish’s death required the
 hospital to place Mr. Parrish in a secure unit, or
at the very least, under continual eye contact by
the staff. Instead, Mr. Parrish was housed (rather
than a locked door unit) in a non-secure unit and
was allowed to be out of sight of staff sufficiently
long enough permitting him to elope. He had a
history of elopement. He had a history of suicidal
ideation. This was known to Dr. McFerrin and the
hospital staff. Dr. McFerrin ordered elopement
precautions. This was known to the hospital, it was
known to the nurses, it was generally known to the
staff.

   7. Based upon my review of his history, his
chart, and otherwise my review of the entire case
as set forth in this Affidavit, it is my opinion that

                                -5-
               failure to house Mr. Parrish in a locked, secure
               unit and allowing him to be housed without 1:1
               staff eye contact on an open door unit is the
               direct and proximate cause of his death. The
               issue of Mr. Parrish recovering from his current
               mental difficulties and doing well for some length
               of time, or having to be hospitalized again and
               ultimately recover or not, it something which is
               subject to debate. (Emphasis supplied)

       The judgment of the Trial Court states:

                  Having viewed the evidence in favor of the
               nonmoving party and having allowed all reasonable
               inferences in her favor, the Court deems as a matter
               of law that Mr. Parrish’s act of suicide was a new
               and independent, efficient cause of his death which
               immediately ensured and allocated at least fifty
               percent of fault to Mr. Parrish’s intentional act of
               suicide. Accordingly, the defendant’s motion for
               summary judgment is granted.

     It appears from the foregoing that two issues were presented by the motion for
summary judgment and the evidence submitted in support of and in opposition to the motion:

       (1) Whether the Defendant exercised due care in supervising its patient; and

       (2) If not, was the effect of the negligence interrupted or liability therefore
extinguished by the independent responsible act of the patient.

       As to the first issue, the affidavit submitted by the Defendant states that the Defendant
exercised due care, and the affidavit submitted by Plaintiff states the opposite. This creates a
disputed fact as to the first issue.

        As to the second issue, the affidavit submitted by Defendant supports the finding of
the Trial Judge that the suicide was a conscientious, competent, knowing act of the deceased
which sufficiently contributed to his death to defeat a recovery by his survivors. The
affidavit submitted by Plaintiff contains the statement,

               Whitney Parrish’s ability to exercise even a moderately
               intelligent power of choice regarding his suicide was
               severely compromised by his mental illness.

       The foregoing quotation is the basis for a finding of a real dispute as to the mental
competence of the deceased to commit an act which would bar an action for his wrongful
death.

        It is the burden of a party seeking a summary judgment to show to the Court that,
under uncontradicted facts, the moving party is entitled to judgment as a matter of law by
presenting competent evidence or admissions of the responding party that such conclusive
fact or fact is undisputed. T.R.C.P. Rule 56.03; Read v. Thomas, Tenn. App. 1984, 679
S.W.2d 467; Tucker v. Metropolitan Government, Tenn. App. 1984, 686 S.W.2d 87.

       The general rule is that, on Defendant’s motion for summary judgment, the Plaintiff
has no burden to produce evidence to support any allegation of the complaint unless and until
the Defendant produces evidence to negate or avoid the effect of such allegation.


                                               -6-
         In Moman v. Walden, Tenn. App. 1986, 719 S.W.2d 531, Plaintiffs sued to avoid their
liability upon a suretyship agreement for duress. The written agreement was prima facie
evidence of an enforceable contract which shifted the burden to the Plaintiffs to produce
evidence of the duress. In Celotex Corp. V. Catrett - US - 106 S. Ct. 2548, 91 L.Ed.2d 285
(1986), cited in Moman, the Defendant relied upon the sworn testimony of Plaintiff that she
had no evidence to connect her injury to the acts or omissions of Defendant. Both of these
authorities are exceptions to the above stated rule.

      In Bryd v. Hall, Tenn 1993, 847 S.W.2d 206, the Supreme Court reversed a summary
judgment, but reviewed the law as to burdens and standards relating to summary judgments.
The Court said:

                 Celotex was an asbestos products liability case in which
              the defendant, after an appropriate period for discovery,
              moved for summary judgment on the basis that no evidence
              had been produced by the plaintiff, the nonmoving party,
              that her decedent had been exposed to the defendant’s
              asbestos products. At 319, 106 S.Ct. At 2551. The Court
              again upheld the grant of summary judgment for the
              defendant, as the moving party, because the defendant
              established the lack of a genuine issue of material fact
              on a crucial element of the plaintiff’s case (exposure
              to the product). The plaintiff was unable to meet her
              burden imposed by Rule 56.05 with regard to that
              dispositive element, an element on which she would
              have the burden of proof at trial. Id. At 323, 106 S.Ct.
              at 2553. Celotex thus stands for the proposition that,
              after the moving party has established the absence of a
              genuine issue of material fact, then summary judgment
              is appropriate when, after being given a reasonable
              opportunity to substantiate its claims, the nonmoving
              party is unable to establish any essential element of its
              case on which it will have the burden of proof at trial.
              Id. at 321-325, 106 S.Ct. At 2552-53.

                At 321-325, 106 S.Ct. at 2552-53. Justice White’s
              concurring opinion correctly places a finer point on the
              Court’s holding by observing that “[i]t is not enough to
              move for summary judgment without supporting the
              motion in any way or with a conclusory assertion that
              the plaintiff has no evidence to prove his case.” Id. at
              328, 106 S.Ct. at 2555.

                 Celotex may thus be cited for the principle that a party
              may move for summary judgment demonstrating that the
              opposing party will not be able to produce sufficient
              evidence at trial to withstand a motion for directed verdict.
              If, after a sufficient time for discovery has elapsed, the
              nonmoving party is unable to demonstrate that he or she
              can indeed do so, summary judgment is appropriate. The
              Sixth Circuit has read Celotex to mean that “the movant
              [can] challenge the opposing party to ‘put up or shut up’
              on a critical issue. After being afforded sufficient time
              for discovery ... if the [nonmoving party does] not ‘put
              up,’ summary judgment [is] proper.” Street v. J.C.
              Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989).


                                             -7-
                  In Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio
               Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538
               (1986), an antitrust suit, the Court again affirmed
               summary judgment for the defendants. The Court
               pointed out that summary judgment will be improper
               where the factual dispute is genuine and material and
               the nonmoving party comes forward with specific facts
               establishing an issue for trial. At 584-588, 106 S.Ct. at
               1355-56. “When the moving party has carried its burden
               under Rule 56(c), its opponent must do more than simply
               show that there is some metaphysical doubt as to the
               material facts.” Id. at 586, 106 S.Ct. at 1356.

                  Today, we reaffirm the summary judgment principles
               found in the Tennessee cases discussed above. We also
               embrace the construction of Rule 56 in Anderson, Celotex,
               and Matsushita to the extent discussed in the prior section
               of this opinion relating to those cases.

                  [10, 11] Fourth, the party seeking summary judgment
               has the burden of demonstrating to the court that there
               are no disputed, material facts creating a genuine issue
               for trial, as we have defined those terms, and that he is
               entitled to judgment as a matter of law. A conclusory
               assertion that the nonmoving party has no evidence is
               clearly insufficient.

                  The trial court granted the Defendants’ motion for
               summary judgment because “there was no material issue
               of fact.” The Court of Appeals affirmed, explaining that
               the Defendants “sustained their burden by interrogatories
               directed to the Plaintiff who chose not to respond thereto,
               requiring the ultimate conclusion that there was no evidence
               to support his complaint.” For the reasons discussed below,
               we reverse.

                 [14] The grant of summary judgment to the Defendants
               was improper.


               In Weathers v. Pilkington, Tenn. App. 1988, 754 S.W.2d 75, this Court

affirmed a directed verdict judgment for a physician whose patient committed suicide where

“there was no evidence that his reason and memory were, at the time, so far obscured that he

did not know and understand what he was doing and was therefore not a responsible human

agency.” In the present case, there is contradictory evidence as to the mental capacity of

deceased.




                                              -8-
       In Cochrum v. State, Tenn. App. 1992, 843 S.W.2d 438, there was no evidence that

the prison staff breached any duty to the inmate, or that the breach of any duty was the

proximate cause of death. In the present case, there is disputed evidence on both issues.



       The present case is clearly distinguishable from the authorities discussed above in that

there is contradictory evidence as to the two determinative issues.



       Doubtful issues as to due care and mental capacity are not matters of law to be

determined upon disputed evidence by summary judgment.



       The judgment of the Trial Court is reversed and vacated. Costs of this appeal are

taxed against the Defendant - Appellee. The cause is remanded to the Trial Court for further

proceedings.



REVERSED AND REMANDED.



                                      _______________________________________
                                      HENRY F. TODD
                                      PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________________
SAMUEL L. LEWIS, JUDGE


_____________________________________
BEN H. CANTRELL, JUDGE




                                              -9-
Note to Judges,

       We initially agreed to affirm because the hospital obeyed the orders of the treating
physician. Upon study of the record, I reached a different conclusion. If you disagree, lets
meet and discuss.


                                                     _____________________________
                                                     Henry F. Todd
                                                     Presiding Judge, Middle Section




                                             -10-
