                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                         May 2, 2011 Session

 JEFFEREY D. KEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE
     OF RANDALL EUGENE KEY ET AL.1 v. BLOUNT MEMORIAL
                     HOSPITAL, INC. ET AL.

                       Appeal from the Circuit Court for Blount County
                        No. L-15795     Jon Kerry Blackwood, Judge


                   No. E2010-00752-COA-R3-CV- FILED - MAY 31, 2011


This is an appeal from a grant of summary judgment to the defendant hospital in a medical
malpractice wrongful death case. The trial court struck as untimely the materials filed by the
plaintiff in opposition to the defendant’s motion for summary judgment. The responsive
materials were filed less than five days before the date originally scheduled for a hearing on
the defendant’s motion; however the hearing was continued for several months. Having
struck the plaintiff’s filings, the court held that the motion negated violation of the standard
of care and causation and granted the motion as unopposed. The plaintiff contends on
appeal that the defendant did not negate either violation of the standard of care or causation;
that the materials responsive to the motion should not have been stricken; and that, if the
materials filed in opposition to the motion are considered, the plaintiff presented issues of
material fact for trial. We vacate the trial court’s grant of summary judgment and remand
for further proceedings.


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

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



        1
          In the plaintiff’s various filings, the first names of the plaintiff Mr. Key and the decedent are each
spelled in two different ways. The plaintiff Mr. Key’s first name is shown both as “Jeffery” and “Jefferey.”
The decedent’s first name is sometimes spelled “Randal” and on other occasions it is spelled “Randall.”
From our review of the whole record, we are persuaded that the correct spellings are “Jefferey” and
“Randall” and those are the ones we have used in this opinion.
John C. Duffy, Knoxville, Tennessee, for the appellants, Jefferey D. Key, individually and
as administrator of the Estate of Randall Eugene Key, deceased, William Key, Betty Key,
Amanda J. Key and Sondra Clark.

Diane M. Hicks, Maryville, Tennessee, for the appellee, Blount Memorial Hospital, Inc.

                                                OPINION

                                                      I.

        This wrongful death action was filed against Blount Memorial Hospital, Inc. (“BMHI”
or “the Hospital”) by Jefferey Key, individually and as the administrator of the estate of the
decedent, Randall Eugene Key (“the decedent”), and others related to the decedent2
(collectively “the Plaintiff”). The decedent presented to the Hospital on May 13, 2006, as
an outpatient. He was admitted shortly after lunchtime at 12:45 p.m. Previously, from April
25 through May 12, 2006, he had been hospitalized at the University of Tennessee Medical
Center (“UTMC”) for complications of long-term insulin dependent diabetes. Complications
from his diabetes had included amputation of a leg, four previous heart attacks, neuropathy,
and end-stage renal disease requiring dialysis. He had also contracted a treatment-resistant
microorganism commonly known as MRSA. He came to the Hospital by private automobile
after receiving dialysis. He was to receive two units of “packed red blood cells” and go
home. The reason for the order for infusion of blood was a low hemoglobin level discovered
by the staff at the dialysis clinic based on testing performed at UTMC prior to the discharge
of the decedent. The transfusion was never completed. The decedent’s primary care
physician, Dr. Serrell3 ordered him transferred from BMHI to UTMC at 8:00 p.m. the day
of his admission. He died four days later at UTMC.




        2
          A word of clarification about the various parties is in order. There was some disagreement in the
trial court about which of the named plaintiffs were proper parties. The record indicates that the opposing
sides reached an agreement regarding who are the real and proper parties in this wrongful death action.
Where the context permits, we will refer to the names as listed in the caption of the amended complaint
collectively as “the Plaintiff.” Also, Dialysis Clinic, Inc., was a defendant in the original complaint. After
the Plaintiff settled with that defendant, the court allowed the Plaintiff to amend the complaint to delete the
clinic as a party.
        3
         Dr. Serrell’s name is spelled in a variety of ways. After consulting the medical records, we believe
the correct spelling is “Serrell.”

                                                     -2-
                                                   A.

       The core theme of the Plaintiff’s case is that the nurses employed by the Hospital
simply ignored an admittedly sick but otherwise functional man and allowed his condition
to deteriorate to the point that he had a heart attack while waiting for a blood transfusion.
The Hospital’s position, as expressed in its summary judgment motion, is that the decedent’s
condition did not deteriorate while he was at BMHI, that his heart attack resulting in death
happened after he left BMHI, and that, even if he suffered his heart attack while at BMHI,
nothing the nurses did or failed to do precipitated the heart attack. Furthermore, the Hospital
contends his heart condition was not treatable.

        BMHI’s motion for summary judgment contained a section labeled “concise statement
of undisputed material facts.” That section is primarily directed at explaining the decedent’s
condition when he presented to BMHI, his condition when he left BMHI, and the delay in
giving him blood. We believe it will be helpful in solving this puzzling case if we set forth
those “facts” verbatim along with the Plaintiff’s response and the Plaintiff’s supplemental
“facts.” We have taken the parties’ respective “facts”4 from the brief of the plaintiff Mr. Key
because this information is set forth in his brief in a parallel format. BMHI does not contend
that its “facts” as stated in Mr. Key’s brief are incorrect. After we have dealt with these
facts, we will discuss later whether the Plaintiff’s filings will remain stricken or be
considered as countervailing proof. The material as taken from Mr. Key’s brief is as follows:

                6. [Mr. Key’s] blood sugar level was tested by Dialysis Clinic
                staff by glucometer on May 13, 2006, and it registered as being
                high. A blood sample was drawn . . . and was sent to BMHI
                Outpatient Laboratory for testing. The result of the blood
                glucose test was 551, a critical value. That result was called to
                the Dialysis Clinic staff as a critical value. The person at the
                Dialysis Clinic, “Stephanie,” received the information and read
                back the results to the caller, acknowledging the critical value
                information.

                Response. Admitted for purposes of summary judgment only.
                As [a] counter-statement of material facts, the result of the
                critical value blood glucose test performed by [BMHI]
                Laboratory, having the correct patient name, date of birth and



        4
          All of the “facts” listed by both sides cite supporting documents in the record. We have omitted
all of those citations except those that are particularly pertinent to our analysis.

                                                   -3-
account number, was not relayed by the lab to the nurses who
cared for Key later that day.

                            *   *     *

8. None of the information about Mr. Key’s critical blood
glucose level, his Hemoglobin level, or his complaints of
weakness, nausea and vomiting that morning, were reported to
BMHI staff, either verbally, or in written form.

Response. Denied. The doctor’s order states a hemoglobin
level of 7.9 and reports a history of blood-tinged em[e]sis. The
nurse performing Key’s intake spoke with Key regarding his
conditions, including weakness, and she noted lethargy and
sleepiness. The critical blood glucose level was in fact
determined by the [BMHI] Laboratory and the Hospital was on
notice of this information.

9. On arrival to the BMHI floor where Mr. Key was taken to
receive the packed red blood cells, he was assessed by Nurse
Anna Williams, RN. He was found to be lethargic, but oriented,
and weak and sleepy. Mr. Key’s blood pressure was 93/53 at
1:00 p.m.

Response. Admitted but denied that this is all the information
noted by Nurse Williams.

10. Due to Mr. Key’s many medical [conditions] . . . it was
difficult to obtain blood from Mr[.] Key’s veins . . . in order for
the lab to be able to p[er]form a type and cross, and other
ordered blood tests. Several attempts were required by BMHI
staff.

Response. It is admitted Key’s veins were difficult to obtain a
blood sample from. Precisely what role Key’s diseases played
in this is uncertain.

11. Prior to the blood [being] started, Mr. Key developed a
fever, and Nurse Williams called his doctor, Dr. Serrell, to
obtain an Order to transfuse the blood, in the presence of fever.

                                -4-
Several attempts were made to speak with Dr. Serrell, before Dr.
Serrell returned the calls.

Response. Admitted, except denied that the nurse made several
attempts to page Dr. S[e]rrell, as such attempts were not
separately charted.

12. Orders were received from Dr. Serrell to give Tylenol, to
give the blood, to do blood cultures, and to test for a
Vancomycin level. The blood had to be stopped several times,
in order to obtain blood to do the blood cultures and test the
Vancomycin level, as ordered by Dr. Serrell.

Response. The first sentence concerning orders from Dr.
S[e]rrell is admitted. The second sentence is denied in that the
blood samples for the lab to do cultures and test a vancomycin
level could and should have been done prior to the beginning of
the transfusion. Dr. S[e]rrell’s orders were given at 5:10 p.m.
Nurse Williams obtained blood from the lab at 5:29 p.m. and
started the transfusion at 6:20 p.m. There is no explanation
offered for why a blood sample ordered at 5:10 p.m. was not
taken during the hour and ten minutes prior to the nurse starting
the transfusion.

13. Mr. Key remained lethargic, and Dr. Serrell was again
paged several times, before he returned the calls. Dr. Serrell
was paged at 6:25 p.m., at 6:55 p.m., at 7:00 p.m., and 7:30 p.m.
He returned the page at 8:00 p.m., and was given an update with
regard to Mr. Key’s status, the fact that he remained lethargic,
that his blood pressure remained low, as well as that his
temperature had decreased to 99.3.

Response. [The Plaintiff] [d]en[ies] Mr. Key merely “remained
lethargic.” Nurse Williams charted that he was “more lethargic
and confused now, unable to keep him awake.” Moreover,
Key’s condition was crashing. The failure of BMHI nursing
staff to observe the deterioration of Randall’s condition and
failure to communicate this to Dr. S[e]rrell deprived Randall of
critically necessary medical care. The nurse failed to follow
acceptable profession[al] standards of nursing care with respect

                               -5-
to the monitoring, assessment, charting of her patient’s
condition, and failing to communicate to the doctor the
deterioration in his condition. It is admitted Dr. S[e]rrell was
paged several times before he returned the call. It is admitted
Nurse Williams claims to have related the stated information to
the doctor, but denied that she properly communicated critical
information about the patient to Dr. S[e]rrell. It is denied the
“update with regard to Mr. Key’s status” accurately relayed the
deterioration of Key’s condition. There was a continual
deterioration of Key’s condition. The patient would have died
if not transferred. Key was chronically ill before admission to
BMHI; he was acutely ill at BMHI. Nurse Williams failed to
comprehend that her patient urgently needed a doctor’s care
before his condition became irreversible.

                            * * *

15. Mr. Key was monitored by Rural Metro Ambulance in
transit from BMHI to [UTMC]. His Glasgow Coma Scale was
assessed as being 11, and his blood pressure was found to be
80/60 en route to [UTMC], and 96/47 at 9:20 p.m., at [UTMC].

Response. Admitted that Rural Metro Ambulance personnel
entered this information on records. However, the EMT also
noted: “patient unresponsive.” The EMT noted as Key’s state
of consciousness “altered mental status.” The EMT noted Key’s
skin was pale, hot, and moist, with a pulse of 94. Upon arrival
at the [UTMC] Emergency Room, Key’s pulse fluctuated the
first hour from 96/47 to 88/50.

                           *    * *

                [Plaintiff’s Counter Statement]

1. According to the patient chart, no one checked on the
condition of Mr. Key between 12:45 p.m. and 5:10 p.m.

2. The first unit of blood was ready to be picked up from the
BMHI Lab at 2:10 p.m., but Nurse Williams did not retrieve the
blood until 5:29 p.m.

                               -6-
3. Nurse Williams failed to comprehend that her patient’s
condition was rapidly deteriorating, indeed “crashing.”

4. The failure of BMHI nursing staff to follow acceptable
standards of professional practice respecting the timely
implementation of the doctor’s orders, failing to monitor Key,
failure to detect the deterioration of his condition, and the failure
to communicate this information to Key’s doctor caused the
suffering and ultimately the death of Randall Key which would
not have occurred if BMHI staff followed acceptable standards
of professional practice. (Ward Affidavit, Paragraph 5; Ford
Affidavit, Paragraphs 6, 8-9.)

5. At the time Key’s sister[, who had transported him to the
Hospital,] returned to the hospital at approximately 7:00 p.m.,
she found her brother alone in a room with his eyes rolling up to
the back of his head and burned up with fever. Clark went
straight to the nursing station directly across from Key’s room
and asked, “What the hell is wrong with my brother.” One of
the nurses walked to the door and shouted “Oh my God,” at
which time 4 others rushed into the room and began hovering
over Key.

6. Clark demanded that the nurse call an ambulance because she
was taking him out of [BMHI] and to [UTMC]. . . .

                              * * *

9. The charge nurse and other personnel violated numerous
applicable standards of professional nursing care in the
community in May, 2006, with respect to the monitoring,
detection of Key’s deteriorating condition, failure to
communicate Key’s deteriorating conditions to his doctor,
failing to perform blood glucose tests when needed,
unreasonably delaying the blood transfusion, failing to stop the
blood transfusion after changes in vital signs dictated this,
failure to communicate these changes to the doctor, failing to
follow standards with respect to the transfusion and
documentation thereof, all of which resulted in Key’s condition
going from comparatively stable at the time of admission to

                                 -7-
              critical by the time of transfer to [UTMC]. (Affidavit of Christy
              Ford.).

              10. Key suffered a myocardial infarction while at [BMHI].
              (Ward Affidavit, Paragraph 5.) What transpired at [BMHI], due
              to the inattention of the nursing personnel, led to Key’s death
              from a myocardial infarction that led to pulmonary edema and
              finally to cardiopulmonary collapse, which would otherwise not
              have occurred had Key received proper care at [BMHI]. (Id.)

        In addition to the “undisputed facts” listed in its motion for summary judgment, the
Hospital discussed numerous affidavits and deposition excerpts attached to the motion as a
basis for summary judgment. One of the affidavits was from Dr. Aaron Bussey who
practices in Maryville at BMHI. He is board certified in internal medicine with a second
certification in endocrinology, diabetes and metabolism. Among other things, his affidavit
states,

              While at [BMHI], Mr. Key exhibited lethargy, but was
              otherwise asymptomatic. His blood pressure was within his
              usual range, and was consistent with the blood pressures
              documented for him, over the prior week. He did not complain
              of pain, and had no acute changes, other than an elevated
              temperature. The temperature was addressed by receiving an
              Order for Tylenol, and Mr. Key’s elevated temperature
              responded fully to the Tylenol administration.

                                         *   *     *

              The [UTMC] chart for May 13, 2006, reflects that, just after
              arrival to the Emergency Department, Mr. Key’s blood pressure
              was 96/47, which was virtually unchanged from his blood
              pressure of 99/47, taken at [BMHI], prior to the commencement
              of the blood transfusion, on May 13 2006, and 93/53, which had
              been his blood pressure when he was assessed at 1:00 p.m. The
              [UTMC] chart further reflects that Mr. Key was alert, oriented,
              and conversant in the days following his transfer. Mr. Key’s
              blood glucose levels normalized within 24 hours after he left
              [BMHI]. This conclusively demonstrates the absence of any
              irreparable harm during the time he was an outpatient at
              [BMHI], on May 13, 2006.

                                             -8-
              When Mr. Key was readmitted to [UTMC] on May 13, 2006,
              cultures were obtained from his blood and his sputum, which
              ultimately showed that he was infected by the resistant organism
              referred to as MRSA. The MRSA infection in Mr. Key’s blood
              caused him to become septic.

                                          *   *     *

              It is my opinion, within a reasonable degree of medical
              probability, that Mr. Key’s sepsis was a significant factor in his
              sudden decompensation at approximately 11:00 p.m., on May
              16, 2006, and subsequent death on May 17, 2006. His death was
              not causally related to anything that occurred, or did not occur,
              while Mr. Key was an outpatient at [BMHI], on May 13, 2006.

(Paragraph numbering in original omitted.)

       Another physician who supplied an affidavit in support of the Hospital’s motion is Dr.
Taylor C. Weatherbee. Dr. Weatherbee is a cardiologist who practices at BMHI. His
affidavit states in pertinent part:

              Based on my review of the records and studies relating to Mr.
              Key, and my professional experience, it is my opinion that the
              care rendered to Mr. Randall E. Key at [BMHI], on May 13,
              2006, was appropriate.

              Mr. Key underwent a cardiac catheterization at [UTMC], on
              October 16, 2005, seven (7) months prior to coming to [BMHI],
              on May 13, 2006 as an outpatient. Mr. Key’s coronary arteries,
              in my opinion, would not have changed greatly during that time,
              from that seen in the cardiac catheterization of October 16,
              2005.

              Randall Key had very diffuse heart disease, with multiple areas
              that had 80 to 90 percent occlusion, and very small coronary
              arteries. With his underlying arterial stenoses, and small
              vessels, no stenting or coronary artery bypass procedures could
              be performed, as no stent would fit into the vessels that had
              significant stenosis, and there were no coronary arteries to



                                              -9-
which a graft could be connected. He also had a history of four
(4) previous heart attacks, with no surgical interventions.

There were no signs or symptoms that an acute myocardial
infarction occurred while Randall Key was at [BMHI], or while
he was being transferred from [BMHI] to the [UTMC], on May
13, 2006.

Mr. Key’s elevated blood sugar, while he was at [BMHI], would
not have caused a myocardial infarction.

There were also no signs of ketoacidosis while Mr. Key was at
[BMHI], on May 13, 2006. His respiratory rate was not rapid.

Troponin levels were obtained on May 13, 2006, after Mr. Key
was transferred back to [UTMC]. There was only a small
elevation in the level on arrival to [UTMC], which could have
been caused by his chronic renal disease, or the patient’s
underlying stenosis and heart disease.

When Mr. Key was readmitted to [UTMC] on May 13, 2006,
cultures were obtained from his blood and his sputum, which
ultimately showed that he was infected by the resistant organism
referred to as MRSA. The MRSA infection in Mr. Key’s blood
caused him to become septic. The blood culture done at BMHI
was negative, and did not show any growth of MRSA.

It is my opinion, within a reasonable degree of medical
probability, that Mr. Key’s sepsis was a significant factor in his
death, and that his sudden decompensation at approximately
11:00 p.m., on May 16, 2006, and subsequent death on May 17,
2006, was not causally related to anything that occurred, or did
not occur, while Mr. Key was an outpatient at [BMHI], on May
13, 2006.

Due to the patient’s chronic illness, cardiac status and other
comorbidities, even if Mr. Key had experienced a heart attack on
or about May 13, 2006, and there was no evidence of this, there
would be no medical intervention possible to improve his
condition.

                               -10-
(Paragraph number in original omitted.)

       Finally, Donna J. Boyd, MSN, APRN-BC, CNS, CCRN, supplied an affidavit. In
addition to establishing her qualifications, her affidavit states,

             It is my opinion, within a reasonable degree of professional
             nursing probability, based on my review of documents and
             records, my expertise and experience in the field of nursing, and
             as a Professor of Nursing, my familiarity with the standard of
             care for Blount County, Tennessee, and in particular, BMHI,
             that the nurses who cared for Randall Key on May 13, 2006,
             while he was an outpatient at BMHI, did not fall below the
             applicable professional standard of nursing care.

(Paragraph numbering omitted.)

       Dr. Nina H. Ward, whom the Plaintiff had disclosed by answer to interrogatories as
an expert, supplied an affidavit in opposition to the motion for summary judgment. As we
have stated, this affidavit was filed on September 28, 2009, and faxed to counsel for the
Hospital. The substance of the affidavit is repeated below.

             4. It is my opinion within a reasonable degree of medical
             certainty that [BMHI] nurses and staff fell below applicable
             standards of hospital care regarding timely implementation of
             Dr. Serrell’s orders.

             The dialysis unit faxed Dr. Serrell’s orders to [BMHI] at 8:40
             am. A [BMHI] lab record reflects receipt of a blood sample at
             8:31 am. Results included critical values for blood glucose,
             prothrombin time and INR. . . . [T]hese results were not put on
             Randal[l] Key’s chart on admission at 12:45 pm and were never
             communicated by the lab to the hospital floor or to the nurse
             caring for the patient.

             Dr. Serrell’s orders included a specific list of the serious
             medical conditions Mr. Key had which required that he be more
             frequently monitored than someone merely with anemia. The
             charge nurse admitted awareness of Mr. Key’s medical
             conditions on intake of the patient. However, she did not chart
             any monitoring of Mr. Key between 12:45 pm and 5:10 pm. It

                                           -11-
is questionable whether any monitoring occurred. Even if it did,
nursing staff failed to properly assess Mr. Key or they would
have become aware that he suffered a myocardial infarction
while under their care and had a consistently deteriorating
condition. [BMHI] nursing staff failed to properly monitor and
assess Mr. Key’s deteriorating medical condition resulting from
an MI. Even if they had monitored him, they failed to
communicate to Dr. Serrell necessary information about Mr.
Key’s condition that would have enabled Dr. Serrell to give
appropriate orders for Mr. Key’s care before his condition
became irreversible.

Notwithstanding that [BMHI] received a blood sample long
before Mr. Key’s admission at 12:45 pm, the transfusion ordered
by Dr. Serrell and faxed by the dialysis unit to [BMHI] at 8:40
am, was not even started until 6:20 pm. This leaves an
unexplained delay of over five hours. . . .

                           *    *     *

The only deterioration in condition reported by the charge nurse
to Dr. Serrell at 5:10 pm was a slight temperature elevation.
The failure of [BMHI] nursing staff to observe the deterioration
of Mr. Key’s condition and failure to communicate this to Dr.
Serrell or his covering physician deprived Randal[l] Key of
necessary critical medical care. By the time Randall arrived at
[UTMC], his condition had become irreversible.

5. It is my opinion within a reasonable degree of medical
certainty that the failure of [BMHI] nursing staff and others to
follow acceptable standards of professional practice respecting
the timely implementation of Dr. Serrell’s orders, failure to
monitor Mr. Key while awaiting transfusion, failure to detect the
deterioration of his condition and failure to communicate this
information to Dr. Serrell or his covering physician caused
suffering and . . . the death of Randal[l] Key. The death of Mr.
Key would not have occurred had [BMHI] nursing staff and
others followed acceptable standards of professional practice.




                               -12-
After Mr. Key arrived at [UTMC], his troponin level at 9:22 pm
was 0.58, at 2:25 am on 5/14/06 it was 6.54, at 8:55 am it was
8.45. A troponin of 8.45 is a significant elevation and indicates
a heart attack. As it takes approximately six hours for troponin
levels to rise following myocardial damage, Mr. Key had the
heart attack while he was at [BMHI].

Mr. Key’s chest X-ray at [UTMC] showed acute heart failure.
The combination of low blood pressure, heart failure and
elevated troponin indicated a significant heart attack that made
him unable to pump blood adequately – hence his blood pressure
was low and he had pulmonary edema as the fluid backed up
into his lungs.

It is my opinion within a reasonable degree of medical certainty
that the sub-standard care of Key and failure to communicate
patient information to the doctor by [BMHI] nurses and staff
caused Key’s condition to become irreversible leading to his
death, which would not have otherwise occurred.

While at [BMHI] Mr. Key suffered a heart attack, a myocardial
infarction that led to his death at [UTMC]. It is my opinion
within a reasonable degree of medical certainty that what
transpired at [BMHI], due to the inattention of the nursing
personnel, did lead to Mr. Key’s death from a myocardial
infarction that led to pulmonary edema and finally to
cardiopulmonary collapse, which would otherwise not have
occurred. I agree with final diagnosis of the physicians who
were taking care of Randal[l] Key at [UTMC], that he had an
acute myocardial infarction with subsequent cardiopulmonary
collapse and death.

6. With respect to the Affidavit of [BMHI]’s physician
witnesses, I point out the following: Dr. Weatherbee states that
Mr. Key did not have a myocardial infarction but died of sepsis.
The discharge/death summary from [UTMC] lists the discharge
diagnosis to be “Acute myocardial infarction with
cardiopulmonary collapse.”        This diagnosis is from the
physicians who were taking care of this patient at [UTMC]
during his admission after his transfer from [BMHI]. The chart

                              -13-
              also indicates that a cardiology consult was obtained during Mr.
              Key’s stay from May 13 to May 17, 2006.

              The patient had a fever but little other evidence of sepsis. His
              blood cultures were negative at the time he was at [BMHI] and
              for this admission at [UTMC]. His chest X-ray indicated lower
              lobe pneumonia. Dr. Weatherbee indicates a “small elevation in
              the level” of his troponin. He must not have read the rest of the
              record which, in fact, documents that Mr. Key had a significant
              elevation of his troponin to 8.45, a level well above that which
              would be expected because of Key’s chronic renal failure.

              The affidavit of Dr. Bussey indicates, “While at [BMHI], Mr.
              Key exhibited lethargy but was otherwise asymptomatic.” In
              fact, Mr. Key was confused, somnolent, febrile, hypotensive
              with a Glasgow Coma Scale of 11 at the time of his ambulance
              transport to [UTMC].

        Christy Ford, R.N., who works at Baptist West Hospital in Farragut, supplied a
lengthy affidavit that speaks of numerous violations of the applicable standard of care by the
BMHI nurses. We will summarize them. The nurses failed to perform a “Chem strip blood
glucose” test until after they had called the doctor at 5:10 p.m. The nurses “unreasonably
delayed the blood transfusion order by Mr. Key’s doctor.” It should have begun no later than
2:30 p.m. The Hospital’s explanations for the delay are unacceptable. The nurses failed to
monitor, assess, chart, and communicate the patient’s condition to the doctor. There is no
indication in the chart that the patient was checked between 1:00 p.m. and 5:10 p.m. The
chart contains suspicious entries that appear to have been made after the fact. There were
numerous deficiencies in the transfusion. It was done by a nurse assistant and should have
been performed only in the presence of an R.N. There were significant changes in the vital
signs, including the respiratory rate, that the nurse assistant did not appreciate. Also, the
patient should have been on oxygen during the transfusion.

       In addition to the record materials we have identified thus far, the Plaintiff referred
the court to the answers to interrogatories as record support for finding genuine issues of
material fact. The Plaintiff argued they were part of the record well in advance of the hearing
date and were substantially identical to the later filed affidavits of Dr. Ward and nurse Ford.
The Plaintiff made the same argument in writing in the pleadings filed after the hearing on
the Hospital’s motion but before entry of the order granting summary judgment.




                                             -14-
                                              B.

        As we have stated, the court struck the Plaintiff’s filings in opposition to the
Hospital’s motion for summary judgment as untimely because they were not filed five days
before October 2, 2009, the date on which the Hospital originally set the motion for hearing
by unilateral notice. However, the hearing on the motion for summary judgment did not go
forward on October 2; it was continued to February 19, 2010. By then, the Plaintiff’s filings
in opposition to the motion for summary judgment had been on file for approximately four
months. The parties’ filings between September 1, 2009, the date the Hospital filed its
motion for summary judgment, and the entry of the order granting summary judgment on
March 4, 2010, are important to the resolution of this appeal and will be delineated in some
detail.

        The Plaintiff filed the original complaint on May 14, 2007, after Randall Key’s death
on May 17, 2006. On August 18, 2009, the trial court entered an amended scheduling order
setting the case for trial on October 13, 2009. The scheduling order set September 1, 2009,
as the deadline for filing motions for summary judgment. The Hospital filed its motion for
summary judgment on the last day allowed, and gave notice to the Plaintiff that the motion
would be heard on October 2, 2009.

        On September 28, 2009, four days before the noticed hearing date, the Plaintiff filed
and served by facsimile the affidavit of Nina Ward, M.D., in opposition to the motion for
summary judgment. The fax transmission began at exactly 5:00 p.m., but did not arrive in
the office of the Hospital’s counsel until shortly after 5:00, an hour at which, according to
the Hospital’s counsel, the office closes for business. Later that same day, the Plaintiff faxed
to the Hospital’s counsel the affidavit of his nurse expert, Christy Ford, R.N., in opposition
to the motion for summary judgment. Both affidavits were essentially a repeat of the
Plaintiff’s answers to expert interrogatories filed several months before the motion for
summary judgment was set for hearing. The next day, September 29, 2009, three days before
the noticed hearing date, the Plaintiff filed the affidavit of the nurse expert as well as a
response to the Hospital’s statement of undisputed facts. On September 30, 2009, the
Plaintiff also filed and served a notice of hearing on his motion to file an amended complaint,
which motion to amend had been filed August 14, 2009. The notice set the hearing on
October 2, the same day as the motion for summary judgment.

        On the day of the hearing, the Hospital filed a motion asking, in the words of the
motion’s caption, that the trial court “ignore and not consider” all the pleadings filed by the
Plaintiff in opposition to the motion for summary judgment and that the court “only consider
Defendant’s Concise Statement of Undisputed Facts.” The Hospital also filed a motion to
strike the affidavit of the Plaintiff’s expert, Dr. Ward. The Plaintiff filed on the same day a

                                              -15-
response to the Hospital’s motion to ignore and a motion to “File Instanter” the previously-
filed materials in opposition to summary judgment. Some of the pleadings filed the day of
the hearing were exchanged by fax the day before the hearing. This exchange prompted
counsel for the Plaintiff to offer to continue the hearing date even if that meant giving up the
case’s trial date.

        The Hospital did not agree to the continuance. The parties appeared and argued their
positions. Although the record does not contain a transcript of the hearing, the parties agree
the trial court announced that it was continuing the hearing and the trial. The Hospital then
made an oral motion that the court “freeze the case” as it existed on October 2, 2009. The
court granted the motion in an order entered October 13, 2009, that (1) continued the trial
indefinitely “until all pending Motions are heard”; (2) prohibited the filing of any additional
motions “absent prior leave of Court”; (3) directed the parties to schedule hearing on all
motions filed through October 2, 2009, through the judge’s secretary on a day “other than
Monday or Friday”; and (4) froze the case “in all regards as it existed on October 2, 2009,
subject to further Order of the Court.”

       Judge W. Dale Young presided over the case through the date of entry of the order
freezing the case. After that date the case was reassigned to senior judge, Jon Kerry
Blackwood. Judge Blackwood heard argument on all pending motions on February 19, 2010.
He announced from the bench that the court was granting the Plaintiff’s motion to amend,
granting the Hospital’s motion to ignore the filings made in opposition to the motion for
summary judgment, and taking the motion for summary judgment under advisement. The
court specifically stated that the faxed affidavit of Nina Ward, M.D., would be stricken
because it arrived after 5:00 p.m. on September 28, 2009.

       The Plaintiff’s counsel filed a motion for reconsideration of the order granting the
motion to ignore the Plaintiff’s pleadings. It was supported by the affidavit of counsel
which, essentially, accepted blame for not filing the pleadings on time but offered excuses
for the delay including (1) counsel’s busy professional schedule during the month of
September 2009, (2) the variable schedule of one of the Plaintiff’s experts, an emergency
room physician, which made it difficult to coordinate the preparation and signing of an
affidavit, (3) the information in the affidavits of the Plaintiff’s experts was substantially
identical to the answers to expert interrogatories, and (4) counsel’s experience that the time
requirements of Tenn. R. Civ. P. 56.03 had not been strictly construed in favor of striking
untimely pleadings but had routinely resulted in allowing a continuance. Counsel also stated
that he had offered to continue the hearing even though that meant losing the trial date.




                                              -16-
        On March 4, 2010, the court entered an order denying the motion for reconsideration
without explanation. With regard to the court’s announcement from the bench that it was
striking the Plaintiff’s pleadings, the order offered the following explanation:

              A non moving party’s failure to comply with Tenn. R. Civ. P.
              [56.03] may result in the trial court’s failure to consider the
              factual contentions of the non moving party even though those
              facts could be ascertained from the record. The statement of
              material facts filed by the parties on a motion for summary
              judgment are not merely superfluous abstracts of the evidence.
              Rather they are intended to alert the court to precisely what
              factual questions are in dispute and point the court to the
              specific evidence in the record that supports a party’s position
              on each of these questions. They are, in short, a roadmap, and
              without them the court should not have to proceed further,
              regardless of how readily it might be able to distill the relevant
              information from the record on its own. Owens v. Bristol Motor
              Speedway, 77 S.W.3d 771, [774] (Tenn. Ct. App. 2001)[;]
              Holland v. City of Memphis, 125 S.W.3d 425, [428] (Tenn. Ct.
              App. 2003).

              The requirements of Rule 56.03 are mandatory and it is not the
              duty of the court, trial or appellate to search the record in order
              to find a disputed fact. Williams v. Watson, (2007 Tenn. LEXIS
              521 Tenn. June 2007). The mandatory aspects of Tenn. R. Civ.
              P. 56.03 requires that the non moving party file their response
              and concise statement of disputed facts within the time frame
              prescribed by the Rule. In the case at Bar, [the P]laintiff failed
              to file their response within the appropriate time. Therefore, the
              Court Orders that [the P]laintiff’s late filed response is stricken
              from the Record.

After setting forth the law with regard to summary judgment motions, the court stated its
reason for granting summary judgment in this case.

              In reviewing [BMHI’s] statement of undisputed facts and the
              affidavits of Drs. Bussey and Weatherbee, the Court finds that
              the [Hospital has] met [the] burden of production by negating
              essential elements of [the P]laintiff’s claim. Both Doctors opine
              that [Mr. Key’s] death was not causally related to any actions

                                             -17-
       taken by the [Hospital]. Furthermore, Dr. Weatherbee opines
       that the medical treatment provided to [Mr. Key] by the
       [Hospital] was appropriate. The affidavit of Donna J. [Boyd]
       establishes that the [Hospital] did not deviate from the
       applicable standard of care. The filings of the [Hospital] in
       support of [the] motion for summary judgment negates a
       violation of the standard of care and causation which are
       elements of [the P]laintiff’s case. Having determined that [the
       P]laintiff’s late filed documents should be stricken, the
       [P]laintiff fails in his burden. Consequently, this Court finds
       that summary judgment is appropriate.

                                       II.

The Plaintiff has appealed. The issues he raises, as rephrased by this Court, are,

       Whether the court erred in holding that the Hospital negated one
       or more elements of the Plaintiff’s case.

       Whether the trial court erred in striking the Plaintiff’s pleadings
       in opposition to the motion for summary judgment.

       Whether the court erred in denying the Plaintiff’s motion for
       reconsideration.

       Whether the Plaintiff’s materials filed in opposition to the
       motion for summary judgment establish a genuine issue of
       material fact.

                                      III.

These issues invoke two very different standards of review.

       The granting or denying of a motion for summary judgment is
       a matter of law, and our standard of review is de novo with no
       presumption of correctness. Blair v. W. Town Mall, 130
       S.W.3d 761, 763 (Tenn. 2004). Summary judgment should be
       rendered “forthwith if the pleadings, depositions, answers to
       interrogatories, and admissions on file, together with the
       affidavits, if any, show that there is no genuine issue as to any

                                      -18-
               material fact and that the moving party is entitled to judgment as
               a matter of law.” Tenn. R. Civ. P. 56.04.

Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010). The decision whether to
strike materials filed in opposition to a motion for summary judgment as non-compliant with
Tenn. R. Civ. P. 56.03 is reviewed for abuse of discretion. Owens v. Bristol Motor
Speedway, Inc., 77 S.W.3d 771, 774-75 (Tenn. Ct. App. 2001).

                                               IV.

                                                A.

       We begin our discussion with the issue of whether the court erred in holding that the
Hospital negated one or more elements of the Plaintiff’s case. If the Hospital did not negate
one or more elements of the Plaintiff’s case, then the Plaintiff did not come under the burden
of showing that a genuine issue of material fact exists. Hannan v. Alltel Publishing Co., 270
S.W.3d 1, 7-8 (Tenn. 2008)(citing McCarley v. West Quality Food Service, 960 S.W. 2d 585
(Tenn 1998); Blair v. W. Town Mall, 130 S.W.3d 761 (Tenn. 2004)).

        The Plaintiff does not argue that the affidavits submitted by the Hospital fail to negate
the elements of causation and violation of the standard or care. Rather, the Plaintiff argues
(1) that the Hospital’s concise statement of facts should be ignored because it was a part of
the motion itself and was not a separate document and (2) that the affidavits of the Hospital’s
experts should not be considered because they were not mentioned or cited in the Hospital’s
concise statement of facts. The Plaintiff acknowledges that the argument is based on a strict
reading of Tenn. R. Civ. P. 56.03, but argues that, if it is fair to read the Rule strictly against
him, then fairness requires that the Rule be strictly construed against the Hospital. The
language pertinent to both perspectives is as follows:

               In order to assist the Court in ascertaining whether there are any
               material facts in dispute, any motion for summary judgment
               made pursuant to Rule 56 of the Tennessee Rules of Civil
               Procedure shall be accompanied by a separate concise statement
               of the material facts as to which the moving party contends there
               is no genuine issue for trial. Each fact shall be set forth in a
               separate, numbered paragraph. Each fact shall be supported by
               a specific citation to the record.

               Any party opposing the motion for summary judgment must, not
               later than five days before the hearing, serve and file a response

                                               -19-
              to each fact set forth by the movant either (i) agreeing that the
              fact is undisputed, (ii) agreeing that the fact is undisputed for
              purposes of ruling on the motion for summary judgment only, or
              (iii) demonstrating that the fact is disputed. Each disputed fact
              must be supported by specific citation to the record. Such
              response shall be filed with the papers in opposition to the
              motion for summary judgment.

              In addition, the non-movant's response may contain a concise
              statement of any additional facts that the non-movant contends
              are material and as to which the non-movant contends there
              exists a genuine issue to be tried. Each such disputed fact shall
              be set forth in a separate, numbered paragraph with specific
              citations to the record supporting the contention that such fact
              is in dispute.

              If the non-moving party has asserted additional facts, the
              moving party shall be allowed to respond to these additional
              facts by filing a reply statement in the same manner and form as
              specified above.

Tenn. R. Civ. P. 56.03. The thrust of the Plaintiff’s argument is that the court construed the
rule too strictly against him, therefore it should have construed the rule too strictly against
the Hospital. This is akin to arguing that, in this particular situation, two wrongs will make
one right. We decline the Plaintiff’s invitation into error in favor of simply trying to
determine and follow the law with regard to each party.

        We agree with the Plaintiff that the language of Rule 56.03 implies that the “concise
statement of facts” will be made in a document that is “separate” from the motion for
summary judgment. The word “accompanied” also suggests that the motion will be one
document and the statement of concise facts will be another document. However, we can see
no good reason for holding that a judge, in the exercise of its sound discretion, cannot
consider a “concise statement of facts” simply because it is incorporated into the actual
motion for summary judgment. This is especially true where, as here, the concise statement
is conspicuously identified by a heading within the one document. We note that our decision
here is not in any way inconsistent with our decision in Owens v. Bristol Motor Speedway,
77 S.W.3d 771 (Tenn. Ct. App. 2001). In Owens we held that the trial court acted within
its discretion to disregard materials filed in opposition to a motion for summary judgment,
but we also recognized that the trial court had the discretion to waive the technical
requirements of the rule and consider non-compliant materials. Id. at 774-75. Further,

                                             -20-
Owens presented a party’s failure to file any document that specifically provided the
“roadmap” needed by the court to determine whether or not there was a genuine issue of
material fact. Id. In the present case, the Hospital identified the key facts in its motion for
summary judgment.

       The Plaintiff is correct that the affidavits of the Hospital’s experts, which the trial
court relied on in granting summary judgment, were not cited or discussed in the Hospital’s
concise statement of facts. This failure implicates the language in Tenn. R. Civ. P. 56.03
providing that, “Each fact [in the concise statement of undisputed facts] shall be supported
by a specific citation to the record.” However, as we have indicated, the affidavits of Dr.
Weatherbee and Dr. Bussey were attached to the Hospital’s motion and were discussed, with
accompanying citations, in the motion. This is not preferred practice, but, in our view, it
substantially complied with Rule 56.03 and the purposes behind the Rule. Even if the
Hospital’s motion did not substantially comply with Tenn. R. Civ. P. 56.03, we do not find
that the trial court erred in holding that the Hospital negated the essential elements of
causation and deviation from the standard of care. The court specifically stated that it read
and considered the affidavits of the Hospital’s experts. It was within the court’s discretion
to do so, even if the materials being considered did not comply with Rule 56.03. Bristol
Motor Speedway, 77 S.W.3d at 774-75. Accordingly, we hold that the trial court did not err
in finding that the Hospital had negated the elements of causation and deviation from the
standard of care.

                                              B.

        We turn now to the Plaintiff’s arguments that the trial court erred in striking the
materials filed in opposition to the motion for summary judgment and in refusing to grant
relief on reconsideration. We do not reach the second point because we hold that the trial
court abused its discretion in striking the documents as untimely filed. We have quoted Rule
56.03 in its entirety above. We are concerned now with the language which requires that the
“response to each fact set forth by the movant” be filed “not later than five days before the
hearing.” Similar language is repeated in Tenn. R. Civ. P. 56.04 which requires the adverse
party to a motion for summary judgment to “serve and file opposing affidavits not later than
five days before the hearing.” We agree with the Plaintiff that the trial court abused its
discretion because “the hearing” on the motion for summary judgment was not October 2,
2009. The order granting summary judgment on its face establishes that the hearing was held
on February 19, 2010, and that the materials filed by the Plaintiff in opposition to the motion
for summary judgment were all filed by September 30, 2009. By any method of counting,
the Plaintiff’s materials were filed more than five days before the February 2010 hearing.




                                             -21-
       The only explanation for the trial court’s ruling is that it construed the term, “the
hearing,” to be the previously set hearing date of October 2, 2009. The record is silent as to
why the court continued the October hearing, and there is no argument being made in this
case that the trial court erred in continuing the hearing. It is true that the trial court “froze”
the record as it existed on October 2 in its order continuing the motion for summary judgment
hearing and the trial. However, we see little or no significance in that peculiar circumstance
because, by October 2, 2009, the Plaintiff had filed his materials responding to the motion
for summary judgment. The Hospital cannot complain of the record being frozen as it asked
in an oral motion that the record be frozen.

        Neither party offers any cases interpreting whether “the hearing,” as used in Tenn. R.
Civ. P. 56.03 and 56.04, means the actual date the motion for summary judgment is heard as
opposed to a previously scheduled date that is continued. We believe the plain meaning of
the language is abundantly clear that it refers to the date the motion for summary judgment
is argued on the merits. See Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.
2004)(When a statute is clear, courts apply the plain meaning without complicating the task.).
In Kenyon v. Handal, 122 S.W.3d 743 (Tenn. Ct. App. 2003), we discussed at length the
“timeliness of Ms. Kenyon’s response to Dr. Handal’s motion for summary judgment”
without seeing the need to engage in statutory construction as to whether “the hearing” was
the date of February 18, 2000, when the motion for summary judgment was originally
scheduled for hearing, as opposed to February 25, 2000, when it was actually heard. Id. at
750 (capitalization omitted). In our lengthy analysis, we remarked that “[a]fter opposing
counsel agreed to reschedule the hearing for February 25, 2000, the deadline for filing Ms.
Kenyon’s response and opposing affidavits became February 18, 2000.” Id. at 752. Thus,
Kenyon supports our holding that “the hearing” in the present case was February 19, 2010,
the actual date of the argument on the merits of the motion for summary judgment. The trial
court applied an incorrect legal standard in treating October 2, 2009, as the hearing date for
purposes of determining the timeliness of the Plaintiff’s response to the Hospital’s motion
for summary judgment. It is axiomatic that application of an incorrect legal standard to the
detriment of a party can constitute an abuse of discretion. See Lee Medical, Inc. v. Beecher,
312 S.W.3d 515, 524 (Tenn. 2010)(discussing parameters of abuse of discretion standard).
We hold that the trial court’s application of an incorrect legal standard which resulted in the
striking of the Plaintiff’s filings constituted an abuse of discretion.

                                               C.

      Finally, we must decide whether the Plaintiff’s filings in opposition to the motion for
summary judgment were sufficient to identify genuine issues of material fact. In making this
determination, we must be cognizant of some well-established principles that govern
summary judgments.

                                               -22-
                 Summary judgment operates to dispose of a case only when it
                 presents no genuine issue of material fact and when the moving
                 party is entitled to judgment as a matter of law. Tenn. R. Civ.
                 P. 56.04. Rule 56 therefore precludes trial courts from deciding
                 issues of material fact in ruling on a motion for summary
                 judgment. Mills v. CSX Transp., Inc., 300 S.W.3d 627, 631
                 (Tenn. 2009). . . . .

                                                   *    *     *

                 . . . . Under well-established law, a court considering a summary
                 judgment motion “must take the strongest legitimate view of the
                 evidence in favor of the nonmoving party, allow all reasonable
                 inferences in favor of that party, and discard all countervailing
                 evidence.” Blair, 130 S.W.3d at 768 (quoting Byrd, 847 S.W.2d
                 at 210–11). Summary judgment is warranted [only] if the facts
                 and inferences from those facts “permit a reasonable person to
                 reach only one conclusion.” Staples[ v. CBL & Assocs., Inc.],
                 15 S.W.3d [83, 89 (Tenn. 2000)].

Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777, 782-84 (Tenn. 2010).

        The Hospital does not argue in its brief that the Plaintiff, through his “late” filings,
failed to establish a genuine issue of material fact as to a deviation from the standard of care.
The Hospital does present lengthy argument that even if the affidavit of Dr. Ward 5 is
considered, the Plaintiff failed to establish a genuine issue of material fact as to causation.
The Hospital argues that even if a jury heard testimony consistent with Dr. Ward’s affidavit
testimony it could not conclude that the actions or omissions of the nurses at BMHI caused
Mr. Key to suffer any harm that he would not have otherwise suffered. See Kilpatrick v.
Bryant, 868 S.W.2d 594, 602 (Tenn. 1993)(must be more likely than not that conduct of the
defendant was a cause in fact of the result).

        We have previously quoted from Dr. Ward’s affidavit at length in this opinion. Taken
on its face, it would allow a jury to conclude the following. The nurses at BMHI knew
enough about Mr. Key’s condition when he presented that they were required to monitor his


        5
         The Hospital also argues that the Plaintiff’s answers to interrogatories disclosing the substance of
Dr. Ward’s expected testimony are insufficient evidence of causation. Since the basis for even considering
the answers to interrogatories in the discussion is that they are substantially identical to the affidavit, we will
focus on the affidavit.

                                                       -23-
condition closely and report any changes to his doctor. Notwithstanding Mr. Key’s
significant problems, the nurses at BMHI simply ignored him for five hours, all the while his
condition deteriorated in several respects. His blood glucose reached dangerous levels. He
incurred a fever. His heart rate dropped. He experienced respiratory problems. The
transfusion was not started in a timely manner. Even after the transfusion was started, it was
not done properly and Mr. Key was not given the oxygen he should have received. His
condition was already fragile and became worse while waiting on the transfusion. Some of
his problems could have been treated if the nurses had reported them to Mr. Key’s doctor in
a timely fashion. Proper treatment, more likely than not, would have kept Mr. Key from
sustaining another heart attack. The heart attack began while Mr. Key was at BMHI. Unless
the Hospital’s arguments convince us that one or more of these factual links must be ignored,
we conclude that the Plaintiff, by Dr. Ward’s affidavit, presented genuine issues of material
fact as to causation.

        One argument the Hospital makes against Dr. Ward’s affidavit is that it does not
refute the cardiologist’s opinion that Mr. Key’s heart condition was not medically treatable.
In truth, it is more accurate to say that the cardiologist only demonstrated that Mr. Key’s
heart condition was not treatable surgically. The cardiologist gives reasons why the heart
condition could not be treated surgically, but nothing other than a conclusion with regard to
the broader realm of the heart condition being subject to “medical intervention.” At any rate,
the simple answer is that if the actions or inactions of the nurses precipitated the heart attack,
Mr. Key sustained harm that he otherwise would not have sustained. It may well be that the
“untreatability,” assuming that is true, is part and parcel of the harm that Mr. Key sustained.

        The Hospital also argues that its cardiology expert and the medical records
“establish[] conclusively . . . that no heart attack occurred while [Mr. Key] was at [BMHI].”
This argument does not withstand scrutiny. It is based upon the idea that the troponin level
of .58 when Mr. Key arrived at UTMC at 9.22 p.m. is inconsistent with a heart attack. The
record establishes that a patient’s troponin level is an important marker for a heart attack.
A level of .58 is only slightly elevated. However, by 2:25 a.m., less than six hours after Mr.
Key arrived at UTMC, his troponin level had climbed to 6.54. Dr. Ward’s testimony states
that it takes “approximately six hours for troponin levels to rise following myocardial
damage.” Further, in addition to the rise in troponin level, Dr. Ward states in her affidavit
that “Mr. Key’s chest X-ray at University of Tennessee showed acute heart failure” which
was also indicative that Mr. Key suffered the heart attack before he left BMHI. In short, the
Plaintiff established an issue of material fact as to whether Mr. Key sustained his heart attack
at BMHI before he was transferred to UTMC at the insistence of his sister.

       The Hospital also makes much of Dr. Ward’s concession in her deposition that the
nurses would not necessarily have known that Mr. Key was having a heart attack or that the

                                              -24-
symptoms he was experiencing were symptoms of a heart attack. The Hospital even goes so
far as to argue that this concession is contradictory to the testimony in her affidavit that the
actions of the nurses, or inactions, caused Mr. Key to sustain a heart attack. We are not
convinced by the Hospital’s argument. We agree with the Plaintiff that the limitations in the
nurses’ abilities, as compared to the familiarity and expertise of Mr. Key’s doctor who
ultimately ordered him transferred to UTMC, is exactly why the nurses should be expected
to monitor and timely record and report any changes in the patient’s condition. Stated
another way, since the nurses could not necessarily be expected to recognize a heart attack
in the making or in progress, they could be expected to closely monitor a patient and report
any changes to the doctor. Further, the simple fact that the nurses would not have been able
to recognize a heart attack in progress that resulted from allowing the patient to slip into a
precarious condition would not relieve them or their employer from the obligation to provide
the care that would have prevented the patient from reaching that precarious condition in the
first place.

       To summarize, we have considered the Hospital’s various arguments, the more salient
of which we have discussed and some of which we have not, as to why Dr. Ward’s affidavit
did not create a genuine issue of material fact. They do not convince us that Dr. Ward’s
affidavit can be ignored. Accordingly, we hold that the Plaintiff established genuine issues
of material fact as to both causation and standard of care that preclude summary judgment.
We must then hold that the trial court erred in granting summary judgment in favor of the
Hospital.

                                              D.

        Before concluding, we recognize that both parties have submitted lengthy briefs that
present arguments we have not discussed. For example, the Plaintiff asks us to hold that
Nurse Ford was qualified to testify to the standard of care. The Hospital has not argued to
the contrary. We have held that the Plaintiff presented genuine issues of material fact on
both causation and standard of care. We need go no further. Similarly, we have not
addressed arguments that would not, in our opinion, affect the outcome. For example, we
do not think it advisable to decide whether the Plaintiff made a showing of excusable neglect
for failing to timely file his materials in opposition to the motion for summary judgment since
we have held that the materials were timely filed.

                                              V.

        The trial court’s grant of summary judgment in favor of the Hospital is vacated. Costs
on appeal are taxed to the appellee, Blount Memorial Hospital, Inc. This matter is remanded
to the trial court, pursuant to applicable law, for further proceedings.

                                              -25-
       _______________________________
       CHARLES D. SUSANO, JR., JUDGE




-26-
