                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 19, 2011 Session

   CATHY VICE, ET AL. v. ELMCROFT OF HENDERSONVILLE, ET AL.

                  Appeal from the Circuit Court for Sumner County
                     No. 2008-CV-32073      C. L. Rogers, Judge


                No. M2010-01148-COA-R3-CV - Filed August 22, 2011

The daughter of an eighty-seven year old woman was looking for an assisted living
facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville
assured the daughter that it could care for her mother and admitted her after the daughter
informed it of her concern about her mother’s risk for falls. Three weeks following her
admission the mother fell, and then fell three more times before the daughter moved her
out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain
and decreased mobility for the rest of her life. The daughter, as her mother’s
representative, sued Elmcroft and its administrator for negligence and negligent
admission and retention of her mother. A jury awarded a judgment against the defendants
for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft’s fall
prevention policies and procedures. Elmcroft argued that all claims filed against it
involved matters of medical science or art requiring specialized skills not ordinarily
possessed by lay persons, and, therefore, this was a medical malpractice which should
have been dismissed since the statutory requirements for such a claim had not been met.
We conclude, based on the evidence herein, that the claims were ordinary negligence
claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the
negligence of the daughter and a physician from another state who indicated the mother
may be cared for by an assisted living facility and (2) that the jury award was excessive,
contained a punitive component, and was the result of passion, prejudice and caprice. We
conclude the court did not err in refusing to charge the jury on the physician’s
comparative fault or the daughter’s comparative negligence. We also conclude there was
material evidence to support the jury’s award of damages. Consequently, we affirm.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and R ICHARD H. D INKINS, JJ., joined.

Steven H. Trent, Chad E. Wallace, Christie M. Hayes, Johnson City, Tennessee, for the
appellants, Elmcroft of Hendersonville; Senior Care, Inc.; AL Hendersonville Operations,
LLC; and Lisa Harrison.
James B. McHugh, Michael J. Fuller, Amy J. Quezon, D. Bryant Chaffin, Hattiesburg,
Mississippi, for the appellee, Cathy Vice, as daughter and Administratrix of the Estate of
Julia C. Bynum a/k/a Juliet J. Bynum.

                                        OPINION

       This case centers around whether or not the assisted living facility known as
Elmcroft of Hendersonville, together with its related entities Senior Care, Inc. and AL
Hendersonville Operations, LLC (all entities will be referred to as “Elmcroft”), and its
administrator, Lisa Harrison, were negligent in their care of Julia C. Bynum while she
was a resident at Elmcroft. The case was tried before a jury, which found Elmcroft and
Ms. Harrison negligent and awarded damages to Ms. Bynum’s administratrix, Cathy
Vice, in the amount of $250,000. Elmcroft appeals the trial court’s judgment accepting
the jury verdict and entering it as an order, alleging the trial court erred in a variety of
ways. For the reasons set forth below, we affirm the trial court’s judgment in all respects.

                          I. E VIDENCE INTRODUCED AT T RIAL

       A. The Decision to Move Ms. Bynum to Elmcroft

       Ms. Bynum was eighty-seven years old when her daughter Cathy Vice and
granddaughter Celena Nance began looking for an assisted living facility for her that was
near Ms. Nance’s house in White House, Tennessee. Ms. Bynum had been diagnosed
with dementia in 2005 and required more care than her daughter or granddaughter could
provide on their own. Ms. Bynum spent some time at a nursing home in Mississippi
called Pine Meadows, near Ms. Vice’s house, but Ms. Vice and Ms. Nance wanted to
move her to a facility closer to Ms. Nance’s residence in middle Tennessee.

       Ms. Vice and Ms. Nance testified they wanted a facility where Ms. Bynum could
move around on her own and be as independent as possible. When she first considered
moving her mother into Elmcroft, Ms. Vice met with Nelda Rapp, the community
relations director. Ms. Rapp was in charge of marketing Elmcroft to doctors and
agencies, and she was the one who led families on tours of the facility. Ms. Rapp’s job
included meeting with families who were considering moving a family member into
Elmcroft to answer questions about the Elmcroft facility and what it provided. She did
not have any medical training.

        Lisa Harrison was the administrator of Elmcroft, and she was responsible for
determining if a potential resident was appropriate to be admitted into Elmcroft. She
testified that she normally relied on the recommendation of the nurse who conducted the
resident’s assessment in making this determination. She also testified it was her
responsibility to determine whether a current resident should continue to live at Elmcroft
if the resident’s needs increased over time to the point that Elmcroft was not able to

                                             2
provide the requisite level of care to that individual. Finally, Ms. Harrison was
responsible for determining the appropriate staffing level at Elmcroft based on the needs
of the residents.

       Ms. Harrison testified that she was not involved with Ms. Bynum’s admission.
She explained that the community relations director, Ms. Rapp, completed Ms. Bynum’s
admission paperwork. Vanessa Wilson, who was a licensed practical nurse at Elmcroft,
conducted the pre-admission resident level of care assessment for Ms. Bynum a couple of
weeks before Ms. Bynum moved into Elmcroft, while Ms. Bynum was still at Pine
Meadows. Ms. Wilson conducted the assessment over the telephone with someone at
Pine Meadows who apparently told Ms. Wilson that Ms. Bynum had not experienced any
falls while at Pine Meadows.1 Other than the pre-admission assessment Ms. Wilson
conducted over the telephone, no other assessment was done to determine whether Ms.
Bynum was in fact an appropriate resident for Elmcroft before Ms. Bynum was admitted
to Elmcroft on December 1, 2007.

       Elmcroft has two separate living spaces for its residents: an assisted care side and
an Alzheimer’s side called Heartland Village. Ms. Vice knew her mother had fallen while
she was at Pine Meadows, and she testified that she told Ms. Rapp her main concern was
her mother’s risk for falls. Ms. Rapp assured Ms. Vice her mother would be well cared
for at Elmcroft. Ms. Vice thought her mother should be placed in the Heartland Village
side because she had been diagnosed with Alzheimer’s, but Ms. Rapp convinced Ms.
Vice that her mother would be better off on the assisted care side.

      Ms. Rapp testified she had a financial incentive to admit residents into Elmcroft,
and that both she and Lisa Harrison received $400 for each individual they admitted to
Elmcroft.

        B. Elmcroft’s Policies and Procedures

       Elmcroft had in place certain policies and procedures to address individual
residents’ fall risks. Upon admission to Elmcroft, the Elmcroft staff is supposed to assess
each resident for his or her risk of falls by filling out Elmcroft’s “Falls Screening Tool.”
The “Falls Screening Tool” indicates how many falls a resident has suffered in the last 90
days as well as the resident’s level of mobility, vision, and overall health. This


        1
          There was evidence, however, that a couple of weeks after this conversation, while she was still at
Pine Meadows, Ms. Bynum fell on two separate occasions. Ms. Bynum suffered a softball sized lump to her
head as the result of one of these falls. Notes of these falls were in Ms. Bynum’s records from Pine Meadows,
but there was no evidence that anyone at Elmcroft ever reviewed these notes or learned of these falls either
prior to Ms. Bynum’s admission into Elmcroft or after she moved in. If anyone at Elmcroft was aware of Ms.
Bynum’s falls at Pine Meadows, the evidence does not show that any action was taken to prevent future falls
while Ms. Bynum was at Elmcroft.

                                                     3
assessment is to be performed again thirty days after admission, quarterly, and upon any
change of condition. For any resident scoring a 4 or higher on the “Falls Screening
Tool,” the “Falls Prevention Tool” is supposed to be completed. This tool is used to
determine the interventions the facility can put into place to lessen the risk of a resident’s
fall. The “Falls Prevention Program” clearly states: “Following any resident fall, the
‘Falls Investigation Tool’ must be used to help determine what caused the fall in order to
reduce the risk of a future fall. This tool should be used for ANY resident fall, regardless
of whether that resident is on the ‘Falls Prevention Program.’”

        The “Falls Investigation Tool” requires the Elmcroft employee filling out the form
to determine to the extent possible whether environmental factors or healthcare factors led
to the resident’s fall, and to determine what can be done to lessen the risk of future falls.
Environmental factors include such things as water spills, throw rugs, availability of grab
bars, clutter on the floor, improper lighting, and phone or electrical cords in the resident’s
path. Environmental factors also include determining such things as whether the resident
was in a hurry, whether the resident was using her ambulation device, whether she was
tangled in clothing, or whether she was reaching for items when she fell. The section
titled “Resident Healthcare Factors” asks whether the resident has had a change in her
medication or blood pressure, whether she has recently returned from the hospital,
whether she has suffered weight loss, whether she has recently had a fever or cough, and
whether there was a change in her mental status, change in her mobility status, or change
in her behavior when she fell. There is also a section in the “Falls Investigation Tool” for
the employee to indicate whether the resident has had more than one fall, and if so, how
many, whether the falls are similar in nature, what the resident was doing when she fell,
what actions can be taken to reduce the resident’s risk in the future, whether there is a
need to reassess this resident, and whether there is a need to make a change to the
resident’s Care Plan.

       Elmcroft also had a policy regarding “Incident Reporting.” The stated policy for
“Incident Reporting” was to report and file “incident reports on any incident which is
unexpected, unintended, undesirable and/or departs from the routine behavior of a
resident.” The policy makes clear that an Incident Report should be filed whenever a
resident “is involved in an unexpected event resulting in minor injury or no injury.” As
part of completing an incident report, Elmcroft employees were supposed to report the
incident to the healthcare director or her designee, go to the location where the incident
occurred, and protect the resident’s safety and comfort. The employee was supposed to
document all action taken, including where the resident was found, what sort of footwear
she was wearing, the condition of the floor, and whether she was put back into bed.

        If a resident suffers an acute adverse incident, such as a fall with a significant skin
tear, the Health Care Director or her designee is supposed to initiate a 72-Hour Acute
Monitoring Report. The 72-Hour Acute Monitoring Report is supposed to be kept in the
front of the medication administration record for any resident who suffers an acute

                                              4
adverse incident and filled out at least once per shift, more often as necessary. Resident
aides who fill out the 72-Hour Acute Monitoring Report are supposed to identify any
problems the resident is having, note any interventions taken, and evaluate the resident’s
condition. Issues or concerns related to the resident during the 72-hour time period are
supposed to be communicated immediately to the health care director or her designee.

        C. Ms. Bynum’s Falls at Elmcroft

       When she was admitted to Elmcroft, the healthcare director assessed Ms. Bynum
for her risk of falls. Ms. Bynum scored a 14 on the “Falls Screening Tool.” The
healthcare director noted on this form that Ms. Bynum had suffered no falls in the
preceding 90 days, but that she depended on a device such as a walker to get around, was
easily distracted, and was incontinent. Pursuant to Elmcroft’s policy, since Ms. Bynum
scored 4 or above on the “Falls Screening Tool,” a “Falls Prevention Tool” was then
completed for Ms. Bynum.2 In accordance with Elmcroft’s stated policy, Ms. Bynum was
assessed again thirty days later using the “Falls Screening Tool.” This time the healthcare
director noted Ms. Bynum had fallen in the last 90 days, causing her to score an 18. Even
though Ms. Bynum’s score was higher than before, indicating a higher risk for falls, the
“Falls Prevention Tool” was not completed at this time as it should have been based on
Elmcroft’s stated policy.

       While she was at Elmcroft, Ms. Bynum fell on four separate occasions, December
23, 2007, and then again on January 5, 6, and 9, 2008. The fall on December 23 was
noted in Ms. Bynum’s “Progress Notes,” where a resident aide wrote that Ms. Bynum
was found on the floor with no apparent injuries. Elmcroft’s policy is to complete a
“Falls Investigation Tool” whenever a resident falls, but no “Falls Investigation Tool” or
“Incident Report” was filled out after Ms. Bynum’s fall on December 23.3 As discussed,
the purpose of the “Falls Investigation Tool” is to document exactly where the fall
occurred, to determine what led to the fall, and what Elmcroft could do to prevent
additional falls in the future.

        Thirteen days following her fall on December 23, Ms. Bynum fell again on
January 5, 2008. Ms. Bynum’s “Progress Notes” reveal again that she was found on the
floor with no injuries. As was the case following her fall on December 23, no one at
Elmcroft filled out a “Falls Investigation Tool” to determine the cause of Ms. Bynum’s
fall on January 5 or to determine what could be done to reduce the chance of future falls.


        2
        The healthcare director noted on this form that Ms. Bynum had issues with mobility and continence,
and suggested Ms. Bynum’s room be assessed for pathway obstructions, especially from the bed to the
bathroom and from the bed to the door.

        3
          While Elmcroft’s policy does not specify that an “Incident Report” is to be prepared for each fall
a resident suffers, a jury could reasonably find that Ms. Bynum’s falls were “unexpected events,” and that
each fall warranted a separate “Incident Report.”
                                                     5
Moreover, no one filled out an “Incident Report” following Ms. Bynum’s fall on January
5.

       The following day, January 6, Ms. Bynum fell again, but this time she suffered a
skin tear on her right elbow as well as a large hematoma on the right side of her forehead.
Ms. Bynum was sent to the emergency room following this fall, and an Incident Report
was filled out as contemplated by Elmcroft’s policy. However, no one at Elmcroft filled
out the “Falls Investigation Tool” following Ms. Bynum’s fall on January 6 or initiated
the 72-Hour Acute Monitoring Report as Elmcroft’s policy dictates.

        By the time she fell on January 6, Ms. Bynum had been moved over to Heartland
Village, the Alzheimer’s side of Elmcroft. The supervisor/manager of Heartland Village
testified that after Ms. Bynum returned from the hospital following her fall on January 6,
the Elmcroft staff moved Ms. Bynum’s mattress to the floor. The supervisor/manager
testified that the resident aides were supposed to check on Ms. Bynum every hour, but the
nurse’s notes do not reflect that these hourly checks were actually performed.

       Three days following her fall on January 6, Ms. Bynum fell again on January 9.
Ms. Bynum’s “Progress Notes” indicate she was found on the floor, and this time she
suffered a hematoma to the left side of her forehead. The evidence showed Ms. Bynum
complained of pain to her left shoulder following this fall. She again was taken to the
emergency room, where Ms. Bynum was checked over and her left shoulder was x-rayed.
The emergency room doctor did not notice a fracture at that time. Ms. Bynum’s
granddaughter, Celena Nance, took Ms. Bynum to her house from the hospital, and Ms.
Bynum did not return to Elmcroft again.

       Ms. Nance kept Ms. Bynum with her at her house for one night before transporting
Ms. Bynum to Ms. Vice’s house. Ms. Nance testified that Ms. Bynum shouted out in
pain whenever she tried to move her left arm or when Ms. Nance or her husband tried to
lift Ms. Bynum to move her from one place to another.

        From Ms. Nance’s house Ms. Bynum went directly to the home of her daughter,
Cathy Vice. Ms. Vice testified that her mother could not move her left arm at all when
she arrived at her house. When she continued to complain of pain in her left shoulder,
Ms. Vice made an appointment for her mother to see a physician named Dr. Shaun
Helmhout on January 16, seven days following her fall on January 9. Dr. Helmhout had
Ms. Bynum’s left shoulder and clavicle x-rayed, and this x-ray showed Ms. Bynum had a
distal clavicle fracture that was displaced on the left side. Dr. Helmhout told Ms. Vice
that no medical procedures were available to speed the healing of the fractured clavicle.

       Ms. Vice wanted a second opinion because her mother was in so much pain, so on
February 7, 2008 she took her mother to see Dr. Cooper Terry, an orthopedic surgeon. Dr.
Terry ordered additional x-rays to be taken of Ms. Bynum’s left clavicle and agreed with

                                            6
Dr. Helmhout’s diagnosis that Ms. Bynum had a distal clavicle fracture that was
displaced. Dr. Terry confirmed that surgery was not an option to treat this fracture. Dr.
Terry believed the best treatment was to immobilize the left arm in a sling to give Ms.
Bynum the maximum comfort.

       When he was asked to explain the initial x-ray’s failure to show a fracture of Ms.
Bynum’s clavicle on January 9, Dr. Terry testified that the initial x-rays may not have
been taken of Ms. Bynum’s clavicle specifically, but of a different part of her shoulder
that did not reveal the clavicle’s fracture. Dr. Terry also testified that Ms. Bynum’s
fracture may have become displaced subsequent to the time her shoulder was x-rayed on
January 9, and that the fracture may not have been obvious on the x-rays taken on January
9. Dr. Terry believed Ms. Bynum suffered the fracture approximately four weeks before
he saw her on February 7 due to the amount of callus that had already formed around the
fracture. Dr. Terry explained that the amount of callus surrounding the fracture indicated
the fracture occurred three to four weeks earlier, but that he could not state with any
certainty the exact date of the fracture.

       Ms. Vice testified that her mother continued to suffer pain from the fractured
clavicle and was unable to use her left arm for the remainder of her life. Ms. Bynum was
moved to a hospice facility in March 2008 and passed away in May 2009.

                            II. T RIAL C OURT P ROCEEDINGS

        Ms. Vice filed a complaint in the capacity of “next friend” to her mother. After the
death of Ms. Bynum, Ms. Vice proceeded as the Administratrix of Ms. Bynum’s estate.
The suit against Elmcroft and Ms. Harrison was filed in September 2008 and alleged
ordinary negligence and medical malpractice, along with claims for breach of resident
rights, malice and/or gross negligence, fraud, breach of fiduciary duty, premises liability,
and violation of the Tennessee Consumer Protection Act. All claims other than the
ordinary negligence claims were dismissed either by Ms. Vice or by the court before the
case was sent to the jury. As a result, the only cause of action the jury was charged with
deciding was ordinary negligence.

       Following the close of evidence, Elmcroft and Ms. Harrison asked the trial court to
instruct the jury on comparative fault, arguing that if the jury found them liable for
negligence, the evidence showed that both Dr. Conerly and Ms. Vice were negligent as
well.

       Dr. Conerly was a physician who saw Ms. Bynum when she was living at Pine
Meadows in Mississippi. There was evidence that Dr. Conerly signed a letter dated
November 28, 2007, stating that Ms. Bynum did not need continuous skilled nursing care,
and that “[b]ased on the type of care an assisted living care residence may provide, [Ms.
Bynum’s] needs may be met by this community.” Dr. Conerly was not named or added

                                             7
as a defendant in this case, he was not deposed by any party, and he did not testify during
the trial. The trial court declined to instruct the jury on the comparative fault of Dr.
Conerly, finding there was insufficient evidence to support any claims of negligence
against him. As to Ms. Vice, the court agreed to instruct the jury on a plaintiff’s
obligation to mitigate damages, but declined to instruct on any negligence she may have
engaged in.

       The court instructed the jury on negligence, stating:

              We start out with a mere fall alone does not raise a presumption of
       negligence. Just because somebody falls, you don’t start out with, Well,
       somebody must have done something wrong or the defendant was
       negligent. Not so. So don’t start out that way.

             What is negligence? Under the law, it’s the failure to use ordinary or
       reasonable care under the circumstances of this particular case. It’s doing
       something that a reasonably careful person would not do or failing to do
       something a reasonably careful person would do.

                                           .....

             Once you are - - or while you are looking at negligence, you may
       look at someone and say, Well, that was careless, but now we have to
       answer the second part of negligence: Causation.

              Now, what do we mean by causation? A defendant’s negligence
       would be conduct that is a cause in fact of the injury, that it directly
       contributed to the injury, and without it the plaintiff’s injury would not have
       occurred. So that’s what you’re looking for when you deal with this
       causation issue.

             I can be negligent and not cause injury, so don’t stop at negligence.
       Go on to the causation situation.

              The second part to causation really adds a little bit. That negligence
       must have been a substantial factor in bringing about the harm and the harm
       that occurred was reasonably foreseeable, that - - or it should have been
       reasonably foreseeable or anticipated, could happen.

                                           .....

            Now, the last one I haven’t discussed with you yet is damages. If
       you have gone through the process, you have found the defendant’s

                                             8
negligent and you have found the causation is there and you have found that
the plaintiff has carried the burden to show the injury, then it’s up to you to
decide the issue of damages. There’s no formula. There are no guidelines. .
. . You are to determine a reasonable amount of damages that you think is
fair in light of the evidence.

       Now, here are the elements that you should consider in this case, of
course. Medical expenses, goes without saying, cost of medical care,
services and supplies that were required and actually given in this case. The
law also allows a recovery for physical pain that a person actually suffers
when they have been injured, and also when they have been injured the
mental impact that it has on a person that is suffering from physical pain.

       You are looking to make reasonable compensation for this pain, be it
physical or mental. Mental pain obviously means someone that’s been
injured may have had anguish, grief, shame or worry. So those are some
elements to look at.

        You would then move to a third element and look at the permanency
of the injury that the plaintiff received, if any, that means, was the injury
permanent and the plaintiff would have to live with it for the rest of their
life, resulting in inconvenience and things that go along with that.

        Let’s see. Loss of enjoyment of life. That is different than physical
pain and your mental anguish or worry or - - or loss of enjoyment of life is
the loss of the normal things and pleasures in life that you enjoyed before
the injury and the new limitations on that lifestyle resulting from that injury.

       Again, plaintiff is entitled to recover for these losses only if you find
that the plaintiff has proven these by a preponderance of the evidence, that
each was caused by the defendants’ negligence.

The court also instructed the jury on the duty to mitigate damages as follows:

        Now, an injured party who may have damages has the duty to
mitigate damages by using reasonable diligence, reasonable care in taking
care of that injury and also employing reasonable means to accomplish
healing. If you find that a person did not use reasonable care in taking care
of the injuries or they have aggravated the result by their failure to take care
of the injuries, then you will adjust the damages accordingly, looking at that
factor.



                                       9
       The jury returned a verdict for Ms. Bynum’s estate, finding Elmcroft and Lisa
Harrison negligent and awarding damages in the amount of $250,000. The jury
completed a generalized verdict form and was not asked to specify for which claims it
found the defendants liable, or how much it was awarding for Ms. Bynum’s pain and
suffering as opposed to compensatory damages, permanency of the injury, or loss of life
enjoyment.

       Elmcroft and Ms. Harrison filed a timely post-trial motion for judgment
notwithstanding the verdict, for a new trial, or alternatively, for suggestion of a remittitur.
The trial court issued an order denying the motions for a new trial and judgment
notwithstanding the verdict. The court found the verdict amount to be “well within the
range of reasonableness” and denied the request for remittitur. Elmcroft and Ms.
Harrison duly filed a notice of appeal.

                                    III. I SSUES ON A PPEAL

       Elmcroft and Ms. Harrison raise several issues on appeal. First, they argue Ms.
Vice’s exclusive remedy should have been a medical malpractice claim because the acts
and omissions she complained of involved matters of medical science or art requiring
specialized skills not ordinarily possessed by lay persons. Next, they argue the trial court
erred in refusing to instruct the jury on Dr. Conerly’s and Ms. Vice’s comparative fault
and negligence, and not allowing the jury to apportion fault to these two individuals on
the jury verdict form in the event the jury found Elmcroft and Ms. Harrison liable.
Finally, Elmcroft and Ms. Harrison argue the court erred in failing to grant Elmcroft and
Ms. Harrison’s motion for judgment notwithstanding the verdict, motion for a new trial,
or alternatively, for suggestion of a remittitur because the jury’s verdict was excessive,
was tainted with error or confusion, contained an impermissible punitive component, and
was replete with passion, prejudice and caprice.

                                         IV. A NALYSIS

       A. Standard of Review

        The applicable standard of review of a jury verdict is set out in Tennessee Rule of
Appellate Procedure 13(d), which provides, “[f]indings of fact by a jury in civil actions shall be
set aside only if there is no material evidence to support the verdict.” As a practical matter this
means:

       [I]f there is material evidence to support the jury verdict, we “take the
       strongest legitimate view of all the evidence in favor of the verdict, assume
       the truth of all evidence that supports the verdict, allow all reasonable
       inferences to sustain the verdict, and discard all countervailing evidence.”


                                                10
Barkes v. River Park Hospital, 328 S.W.3d 829, 833 (Tenn. 2010) (quoting Whaley v.
Perkins, 197 S.W.3d 665, 671 (Tenn.2006) (itself quoting Barnes v. Goodyear Tire &
Rubber Co., 48 S.W.3d 698, 704–05 (Tenn.2000)).

      B. Ordinary Negligence Claims

       We will first address Elmcroft and Ms. Harrison’s argument that the trial court
erred in failing to dismiss Ms. Vice’s ordinary negligence claim. Elmcroft and Ms.
Harrison argue Ms. Vice’s complaint should have been limited to medical malpractice
and should not have been submitted to the jury on ordinary negligence. Medical
malpractice is a type of negligence, but involves damages resulting from negligent
medical treatment. The Tennessee Supreme Court has explained the distinction as
follows:

      [W]hen a claim alleges negligent conduct which constitutes or bears a
      substantial relationship to the rendition of medical treatment by a medical
      professional, the medical malpractice statute is applicable. Conversely,
      when the conduct alleged is not substantially related to the rendition of
      medical treatment by a medical professional, the medical malpractice
      statute does not apply.

Estate of French v. Stratford House, 333 S.W.3d 546, 555 (Tenn. 2011) (quoting Gunter
v. Lab. Corp. of Am., 121 S.W.3d 636, 640 (Tenn. 2003)). A medical malpractice action
is subject to a number of statutory requirements which this lawsuit did not meet. Among
other requirements, a plaintiff must submit qualified expert testimony to prove specific
elements of medical malpractice, whereas there is no need for expert testimony to prove
ordinary negligence. Tenn. Code Ann. § 29-26-115.

       In her complaint, Ms. Vice alleged Elmcroft and Ms. Harrison were negligent in
admitting Ms. Bynum into Elmcroft and in retaining her there as her condition
deteriorated and she fell more and more often. Ms. Vice also based her negligence claim
on Elmcroft and Ms. Harrison’s failure to provide adequate staff necessary to assist the
residents with their needs; their failure to protect Ms. Bynum from harm; their failure to
maintain appropriate records, including the failure to monitor and document significant
changes in Ms. Bynum’s condition; and their failure to implement and ensure that an
adequate nursing care plan for Ms. Bynum was followed by the nursing personnel.

        The issue of whether an action should be limited to a medical malpractice claim
and proceed according to the dictates of the Tennessee Medical Malpractice Act, or
whether the claim should proceed as an ordinary negligence claim, has received a lot of
attention in recent years by the Tennessee appellate courts. The Tennessee Supreme
Court has most recently addressed this issue in Estate of French v. Stratford House, 333
S.W.3d 546 (Tenn. 2011). The administratrix in that case filed a wrongful death action

                                           11
against a nursing home, alleging damages as the result of ordinary negligence, negligence
per sé, and violations of the Tennessee Adult Protection Act. Id. at 549. The nursing
home moved for partial summary judgment on the ground that the Tennessee Medical
Malpractice Act applied to the ordinary negligence claims, precluding the administratrix
from pursuing the ordinary negligence claims. The trial court granted the nursing home
partial summary judgment, and the Court of Appeals affirmed this judgment. Id. at 549-
50. The administratrix appealed to the Tennessee Supreme Court, which reversed the
lower courts’ decisions because the administratrix had alleged violations of the standard
of care relating to both medical treatment and routine care. Id. at 550. The Supreme
Court wrote:

      If the alleged breach of the duty of care set forth in the complaint is one that
      was based upon medical art or science, training, or expertise, then it is a
      claim for medical malpractice. If, however, the act or omission complained
      of is one that requires no specialized skills, and could be assessed by the
      trier of fact based on ordinary everyday experiences, then the claim sounds
      in ordinary negligence.

Id. at 556 (citing Conley v. Life Care Ctrs. of Am., 236 S.W.3d 713, 729-30 (Tenn. Ct.
App. 2007)). The Estate of French court quoted with approval this court’s distinction
between medical malpractice claims and ordinary negligence claims as set forth in Peete
v. Shelby Cnty. Health Care Corp., 938 S.W.2d 693, 696 (Tenn. Ct. App. 1996). Estate
of French, 333 S.W.3d at 556. As we explained in Peete:

      Medical malpractice cases typically involve a medical diagnosis, treatment
      or other scientific matters. The distinction between ordinary negligence and
      malpractice turns on whether the acts or omissions complained of involve a
      matter of medical science or art requiring specialized skills not ordinarily
      possessed by lay persons or whether the conduct complained of can instead
      be assessed on the basis of common everyday experience of the trier of fact.

938 S.W.2d at 696 (quoting Graniger v. Methodist Hosp. Healthcare Sys., 1994 WL
496781, at *3 (Tenn. Ct. App. Sept. 9, 1994)).

      In Estate of French, the Tennessee Supreme Court wrote:

      The [Tennessee Medical Malpractice Act] applies only to those alleged acts
      that bear a substantial relationship to the rendition of medical treatment by a
      medical professional, or concern medical art or science, training, or
      expertise.

Estate of French, 333 S.W.3d at 557. In Estate of French, the court determined that the
following allegations would state a claim for medical malpractice: claims of negligence

                                            12
in assessing an individual’s condition, developing her initial plan of care, and properly
updating that plan to conform to changes in her condition. Id. at 558. On the other hand,
claims that the nursing home’s certified nursing assistants (“CNAs”) failed to administer
basic care in compliance with both the established care plan and doctors’ orders state a
claim for ordinary negligence. Id. The court explained:

       While CNAs are required to receive a course of training that is regulated by
       the state, they are not medical professionals and their qualifications do not
       approach the more extensive and specialized training of a doctor or
       registered nurse. The Administratrix claims that the failure of the CNAs to
       provide basic services resulted, at least in part, from chronic understaffing
       of which senior management at the Stratford House was aware. In our
       assessment, these alleged acts and omissions pertain to basic care and do
       not substantially relate to the rendition of medical treatment by a medical
       professional. Because no specialized medical skill is required to perform
       those tasks, the trier of fact could assess the merits of the claim based upon
       everyday experiences.

Id.

       1. Counts Against Ms. Harrison For Wrongful Admission And Retention

       In this case, Ms. Vice complained of negligence by Ms. Harrison and Elmcroft’s
staff of residential assistants, also known as resident aides, (“RAs”) and CNAs. The
claims against Ms. Harrison were that she negligently determined Ms. Bynum was an
appropriate resident for Elmcroft to begin with, and that Ms. Harrison was negligent in
determining that Ms. Bynum should remain at Elmcroft after her falls on December 23,
January 5, and January 6. Ms. Harrison confirmed that throughout Ms. Bynum’s
residency at Elmcroft she was responsible for determining whether a potential resident
was appropriate to live at Elmcroft and for determining whether a current resident
remained appropriate over time. Ms. Harrison testified she is not a medical professional
and does not perform medical services.

       Elmcroft and Ms. Harrison rely on Conley v. Life Care Centers of America, 236
S.W.3d 713 (Tenn. Ct. App. 2007), to support their argument that the decision to admit
Ms. Bynum to Elmcroft and the decision to retain her there necessarily involved medical
science or art requiring specialized skills. The individual at issue in Conley was admitted
to a nursing home, not an assisted living facility. Nursing homes have stricter regulations
for admission than assisted living facilities and require that “[e]very person admitted for
care or treatment shall be under the supervision of a physician who holds a license in
good standing to practice in Tennessee.” Tenn. Comp. R. & Regs. §1200-8-6-.05(1).
The regulations also require that “[a] diagnosis . . . be entered in the admission records of
the nursing home for every person admitted for care or treatment.” Tenn. Comp. R. &

                                             13
Regs. §1200-8-6-.05(2). The regulations relating to nursing homes prohibit a resident
from being discharged without a written order from the attending physician or through
legal processes. Tenn. Comp. R. & Regs. §1200-8-6-.05(8); accord Conley, 236 S.W.3d
at 730 (physician must personally approve written recommendation that individual be
admitted to nursing home and remain under care of physician while at nursing home).

       The Conley court determined that the decision to admit the individual at issue in
that case was a matter of medical science or art requiring specialized skills and was
therefore subject to the Tennessee Medical Malpractice Act:

       In spite of Plaintiff’s contentions that the decisions to admit and retain Mr.
       Johnson were administrative decisions that were based on economics, we
       have concluded that the key decision, whether Mr. Johnson was appropriate
       for placement . . . , involved matters of the medical arts and/or sciences,
       requiring specialized skills not ordinarily possessed by a lay person. The
       fact that the Administrator . . . was also involved in the decisions to admit
       and retain Mr. Johnson as a resident does not eviscerate the decisions and
       recommendations by the medical personnel that Mr. Johnson was
       appropriate for placement . . . .

Conley, 236 S.W.3d at 730.

        Assisted living facilities are treated differently from nursing homes, and the
applicable regulations permit these facilities to admit and retain an individual if “[t]he
resident’s treating physician certifies in writing that the resident’s needs, including
medical services, can be safely and effectively met by care provided in the [facility] . . . .”
Tenn. Comp. R. & Regs. §1200-08-25-.08(3)(a). Dr. Conerly was Ms. Bynum’s
physician in Mississippi while she was residing at Pine Meadows. Dr. Conerly signed a
letter dated November 28, 2007, indicating that Ms. Bynum did not need continuous
skilled nursing care, and that “based on the type of care an assisted living care residence
may provide, [Ms. Bynum’s] needs may be met by this community.” Dr. Conerly was
not deposed and did not testify at trial. No evidence was introduced suggesting that Dr.
Conerly had ever visited Elmcroft or that he was familiar with the services and care
Elmcroft offered its residents. However, the form on which Dr. Conerly stated Ms.
Bynum’s needs may be met by an assisted care facility was provided to Dr. Conerly by
Elmcroft.

       While we agree with Ms. Vice that the regulations governing the admission of
individuals into nursing homes are stricter than those governing the admission of
individuals into assisted living facilities, the regulations for assisted living facilities
require some action be taken by the individual’s treating physician. However, Ms.
Harrison did not indicate that she relied on the letter from Dr. Conerly in determining that
Ms. Bynum was an appropriate resident for Elmcroft. While Ms. Wilson, who was a

                                              14
nurse, conducted a pre-admission assessment of Ms. Bynum before she moved in, this
assessment was done over the telephone two weeks before Ms. Bynum was admitted to
Elmcroft. There was no evidence that a nurse or other medical professional conducted an
in-person assessment of Ms. Bynum prior to her admission into Elmcroft or reviewed her
records from Pine Meadows, which would have alerted them to the fact that Ms. Bynum
had fallen twice since Ms. Wilson’s pre-admission assessment and since Dr. Conerly had
dictated his letter.

       Therefore, because Ms. Harrison was the person who was ultimately responsible
for determining whom should be admitted into Elmcroft, and since she testified she did
not rely on either Dr. Conerly’s letter or any nurse’s recommendation in determining
whether Ms. Bynum was an appropriate resident for Elmcroft, we believe these facts
support treating Ms. Vice’s negligent admission claim as an ordinary negligence claim
rather than as a medical malpractice claim. The result may be different in another case
where the administrator of an assisted living facility does in fact rely on the treating
physician’s certification and/or on the nurse’s recommendation in deciding to admit an
individual, but that is not the case here.

        We turn now to Ms. Harrison’s decision to retain Ms. Bynum after her falls on
December 23, January 5, and January 6. While the regulations indicate an assisted living
facility “may admit and permit the continued stay of an individual” if the individual’s
treating physician provides a written certification, there is no indication in this case that a
physician treated Ms. Bynum after her fall on December 23 or January 5. Following her
fall on January 6 Ms. Bynum was taken to the hospital, but no evidence was introduced
that a physician considered whether Elmcroft was able to continue to meet Ms. Bynum’s
needs at that time. Ms. Harrison testified she was responsible for determining whether a
resident should continue to reside at Elmcroft after they were admitted. Therefore, we
believe the jury could consider whether Ms. Harrison was negligent in retaining Ms.
Bynum, or whether she was negligent in failing to ask a physician to determine whether
Ms. Bynum continued to be an appropriate resident for Elmcroft following her falls on
December 23, January 5, and January 6.4

        2. COUNTS AGAINST E LMCROFT

       Ms. Vice alleged Elmcroft’s CNAs and RAs failed to note Ms. Bynum’s falls in
her chart and failed to follow the fall protocol Elmcroft established for any resident who
suffered any falls. The evidence showed Elmcroft’s CNAs and RAs failed to complete
the Fall Investigations Tool after any of Ms. Bynum’s falls, and they failed to complete
the Incident Report after her falls on December 23 and January 5. Like Ms. Harrison,
Elmcroft’s RAs and CNAs are not medical professionals.

        4
         As is the case with Ms. Vice’s negligent admission claim, the result may be different in a case where
the administrator does in fact rely on a physician’s written certification that a resident can be properly cared
for by an assisted living facility following a fall or other incident, but that is not the case here.
                                                      15
       Each of Ms. Bynum’s falls at Elmcroft occurred during the day. The evidence Ms.
Vice introduced regarding Elmcroft’s inadequate staffing levels addressed the staffing
levels overnight. The evidence of inadequate staffing levels at night are not relevant to
the staffing levels during the daytime, when Ms. Bynum fell, and therefore does not
support Ms. Vice’s allegation that her mother’s injuries resulted from inadequate staffing
levels at Elmcroft.

       Ms. Vice’s allegations that Elmcroft and Ms. Harrison failed to maintain
appropriate records, including failing to monitor and document significant changes in
Ms. Bynum’s condition, does not call into play acts that bear a substantial relationship to
the rendition of medical treatment by a medical professional, or concern medical art or
science, training, or expertise. Moreover, Ms. Vice’s allegations do not include acts or
omissions involving a matter of medical science or art requiring specialized skills not
ordinarily possessed by lay persons.

        The testimony presented was that RAs and CNAs were responsible for checking
on the residents and for making notes in the residents’ charts. Elmcroft’s policies were
clear that upon any fall by a resident, certain protocols were supposed to be followed, as
set forth in the Falls Prevention Tool and in the Falls Intervention Tool. No medical art
or science, training, or expertise was required or called for in following these procedures,
filling out the paperwork, and taking the necessary steps required by the protocol to
lessen the chance that a resident who had fallen would fall again. Accordingly, the
negligence claims Ms. Vice alleged against Ms. Harrison and Elmcroft were not medical
in nature and thus were not precluded by the Medical Malpractice Act. See Todd v.
Weakley County, 1998 WL 395172, at *5 (Tenn. Ct. App. July 16, 1998) (holding that
“nurse’s aides are not health care practitioners because they are not licensed to practice
professional nursing pursuant to Title 63 and because their job is to perform unspecialized
services for which a licensed practitioner is not needed”).

       Having determined that Ms. Vice set forth a claim for ordinary negligence against
Ms. Harrison and Elmcroft, we must determine whether the evidence presented at trial
was sufficient to support the jury verdict. “A claim of common law negligence requires
proof of the following elements: a duty of care owed by the defendant to the plaintiff;
conduct falling below the applicable standard of care that amounts to a breach of that
duty; an injury or loss; cause in fact; and proximate or legal cause.” Gunter v. Laboratory
Corp. of America, 121 S.W.3d 636, 639 (Tenn. 2003) (citing White v. Lawrence, 975
S.W.2d 525, 529 (Tenn. 1998)).

        Elmcroft and Ms. Harrison do not deny they owed a duty of care to their resident
Ms. Bynum. Ms. Vice presented evidence that the CNAs and RAs breached their duty to
Ms. Bynum by not following Elmcroft’s protocol of documenting Ms. Bynum’s falls and
filling out the necessary paperwork following each of her falls. The evidence was
sufficient for the jury to find that had the CNAs and RAs properly documented Ms.

                                            16
Bynum’s falls and followed the directions set out in those forms, they may have
determined the cause of her falls on December 23, January 5, and January 6, which may
have prevented her fall on January 9. The jury could have further found, based on the
evidence, that had Ms. Bynum not fallen on January 9, she would not have fractured her
clavicle.

       While Elmcroft and Ms. Harrison argue that the x-rays taken on January 9
immediately following Ms. Bynum’s fall did not indicate a fractured clavicle, Ms. Vice’s
witness Dr. Terry testified the callus that had formed around the fracture suggested the
trauma leading to the fracture occurred around January 9. Dr. Terry explained that the x-
rays dated January 9 may have been taken from angles that did not show the fracture, or
that the fracture may have become displaced subsequently, making the fracture difficult
to see on the x-rays taken on January 9. Further, testimony from Ms. Bynum’s daughter
and granddaughter was sufficient for the jury to find that someone was with Ms. Bynum
at all times and that she did not fall and injure her shoulder from the time her
granddaughter picked her up from the hospital on January 9 until the time Dr. Terry saw
her on February 7.

       We therefore conclude that taking the strongest legitimate view of all the evidence
in favor of the verdict, assuming the truth of all the evidence that supports the verdict, and
allowing all reasonable inferences to sustain the verdict, discarding all evidence to the
contrary, the record contains material evidence to support the verdict. Consequently, we
affirm the trial court’s judgment that Elmcroft and Ms. Harrison were negligent in their
care of Ms. Bynum and that Ms. Vice is entitled to damages as a result.


        C. Comparative Fault

        Elmcroft and Ms. Harrison next argue the trial court erred when it failed to instruct
the jury on the negligence of Dr. Conerly and Ms. Vice.5 Elmcroft and Ms. Harrison
asserted as an affirmative defense that Dr. Conerly and Ms. Vice were completely or
partially responsible for Ms. Bynum’s injuries and damages. Following the close of
evidence at trial, the trial court declined to instruct the jury on either Dr. Conerly’s or Ms.
Vice’s relative fault.

        With regard to Dr. Conerly, the court said:


        5
         Elmcroft and Ms. Harrison describe both Ms. Vice’s and Dr. Conerly’s alleged negligence as
“comparative fault.” The law in Tennessee is that “comparative fault” allocates damages among multiple
tortfeasors according to their percentages of fault, whereas “comparative negligence” measures a plaintiff’s
negligence against the defendant(s)’ negligence for the purpose of reducing the plaintiff’s recovery.
Grandstaff v. Hawks, 36 S.W.3d 482, 491 n.12 (Tenn. Ct. App. 2000), citing Coln v. City of Savannah, 966
S.W.2d 34, 40 (Tenn. 1998).

                                                    17
        I find that a claim was made of his negligence in the answer, but I find no
        further proof that would begin to bring us within any kind of medical
        malpractice against this doctor, proof to get us started even, much less
        completed.

       With regard to Ms. Vice, the court agreed to instruct the jury on Ms. Vice’s
obligation to mitigate damages6 but declined to instruct the jury about any negligence on
her part. The court said, “I just can’t find any negligence to support comparative fault.”

       With regard to Dr. Conerly, Tennessee follows the majority of jurisdictions and
allows a trier of fact to allocate fault to nonparties when a defendant alleges a nonparty
was liable, in whole or part, for the plaintiff’s alleged damages. Austin v. State of
Tennessee, 222 S.W.3d 354, 357-58 (Tenn. 2007); Dotson v. Blake, 29 S.W.3d 26, 28
(Tenn. 2000); Tenn. Code Ann. §20-1-119. The plaintiff has the option of adding the
nonparty to the case as a defendant, but even if the plaintiff chooses not to add the
nonparty as a defendant, the jury may still apportion fault to the nonparty if the evidence
supports this allocation.

       The only evidence in the record concerning Dr. Conerly is that he signed a letter
indicating that as of November 2007, Ms. Bynum’s needs could be met by an assisted
care residence. Dr. Conerly was not deposed, he did not testify at trial, and there was no
evidence implicating him in any tortious conduct. Dr. Conerly was a physician in
Mississippi, and there was no evidence that Dr. Conerly was aware of the services
Elmcroft provided. Dr. Conerly did not specify that Ms. Bynum was appropriate for
Elmcroft; rather, he merely indicated that Ms. Bynum may be appropriate for the type of
care an assisted living residence could provide.7

     Additionally, there was no evidence that Dr. Conerly was aware of any of Ms.
Bynum’s falls when he signed the letter in November 2007. The evidence suggested Ms.
Bynum’s falls at Pine Meadows occurred after Dr. Conerly dictated the letter Elmcroft
and Ms. Harrison refer to. In addition, the evidence was uncontroverted that Ms.
        6
         It is not clear how a third party who suffered no damages can have a duty to mitigate damages. We
presume the trial court intended that the obligation apply to Ms. Vice as the attorney-in-fact of her mother,
since Ms. Bynum had not been competent to take measures to mitigate her own damages, such as going to
another doctor sooner. No issue has been raised on appeal regarding the instruction on mitigation. To the
extent that defendants claim independent negligent acts of Ms. Vice, such claims would be subject to an
analysis under comparative fault principles.

        7
          Elmcroft and Ms. Harrison argue Ms. Harrison relied on Dr. Conerly’s letter in deciding to admit
Ms. Bynum into Elmcroft. However, even if the jury had accepted that evidence, such reliance is irrelevant
to the issue whether Ms. Harrison was negligent in retaining Ms. Bynum at Elmcroft following her falls on
December 23, January 5, and January 6, and whether Elmcroft’s CNAs and RAs were negligent in failing to
follow Elmcroft’s fall protocol by documenting her falls and determining what may have led to her falls in
an effort to prevent future falls.

                                                     18
Bynum’s health deteriorated after she moved into Elmcroft, that she did not begin to fall
until she had been at Elmcroft for three weeks, and that by the time she fell on January 9
her dementia was much more severe than when she moved in on December 1. Elmcroft
and Ms. Harrison failed to present evidence of any conduct by Dr. Conerly that fell below
the applicable standard of care he owed to Ms. Bynum. More importantly, they failed to
present evidence connecting Ms. Bynum’s injuries to any act or failure to act by Dr.
Conerly.

       The trial court has the duty to instruct the jury on questions of law raised by the
proof. Blackwell v. Westerwall, 1995 WL 153351, at *4 (Tenn. Ct. App. April 7, 1995).
Since there was no proof Dr. Conerly was responsible in any way for the injuries Ms.
Bynum suffered while at Elmcroft, the trial court did not err in refusing to instruct the
jury on Dr. Conerly’s comparative fault.

       With regard to Ms. Vice, Elmcroft argues that Ms. Vice was negligent in placing
her mother at Elmcroft and in failing to remove her earlier. The evidence showed that
Ms. Vice was looking for an assisted living facility that could care for her mother and that
Ms. Vice told Ms. Rapp, who was Ms. Vice’s only contact at Elmcroft, of her concern
about her mother’s falls. Ms. Rapp assured Ms. Vice that her mother would be well cared
for at Elmcroft, and Ms. Vice believed her. Ms. Vice did not interfere with any of
Elmcroft’s policies or procedures that might have contributed to Ms. Bynum’s falls. She
merely trusted that her mother would receive good care at Elmcroft.

        Elmcroft and Ms. Harrison introduced no evidence that Ms. Vice neglected any
duty she might have had to her mother that contributed to her falls while at Elmcroft.
Additionally, with regard to her conduct after her mother left Elmcroft, Ms. Vice
introduced testimony that her mother was with someone at all times from the time she left
the hospital following her fall on January 9 until the time she saw Dr. Helmhout on
January 16, when additional x-rays revealed a broken and displaced clavicle. There was
no evidence that Ms. Bynum suffered any falls that might have caused her to fracture her
clavicle from January 9 to January 16. Accordingly, we conclude the trial court did not
err in refusing to instruct the jury on Ms. Vice’s comparative negligence.

       D. Damages

       Following the presentation of evidence, the trial court instructed the jury that if it
found Elmcroft and Ms. Harrison liable for negligence, it was to determine the
appropriate amount of damages to award Ms. Bynum’s estate for Ms. Bynum’s injuries.
The court instructed the jury it could award Ms. Bynum’s estate damages for the cost of
Ms. Bynum’s medical care resulting from Elmcroft’s and Ms. Harrison’s negligence as
well as for her pain and suffering, mental as well as physical. The court also instructed
the jury it could award Ms. Bynum’s estate damages for the permanency of Ms. Bynum’s


                                             19
injuries that she was required to endure for the remainder of her life and for her loss of
enjoyment of life.

       The jury awarded Ms. Vice, as Administratrix of Ms. Bynum’s estate, damages in
the amount of $250,000. The jury was provided with a general verdict form rather than a
special verdict form, so they did not specify how they arrived at this figure. Elmcroft and
Ms. Harrison argue on appeal that the jury award of $250,000 was based on passion,
prejudice, and caprice because the “blackboard” compensatory damages totaled only
$3,625.80.

      This court addressed the issue of jury awards in the case Palanki v. Vanderbilt
University, 215 S.W.3d 380 (Tenn. Ct. App. 2006), where we wrote:

              In a civil trial, the trial court acts as the thirteenth juror and therefore
       may set aside a jury’s verdict and order a new trial when justice so requires.
       Alternatively, the court may suggest a remittitur of the jury award, Tenn.
       Code Ann. §20-10-102(a), to correct an excessive jury verdict without the
       time and expense of a new trial. Although the amount of an award is
       primarily a consideration for the jury to determine, the trial court may
       suggest a remittitur when the amount of the verdict is excessive, beyond the
       range of reasonableness, or is excessive as the result of passion, prejudice,
       or caprice. However, there is no precise mathematical formula which the
       court can use to assure that judgments in negligence cases are uniform.

Id. at 386 (citations omitted); see Overstreet v. Shoney’s, 4 S.W.3d 694, 717 (Tenn. Ct.
App. 1999) (thirteenth juror rule requires trial court to weigh the evidence independently,
determine the issues, and decide whether the verdict is supported by the evidence).

       The Palanki court continued:

       There is no exact yardstick, or measurement, which this court may use as a
       guide to determine the size of verdicts which should be permitted to stand
       in cases of this kind. Each case must depend upon its own facts and the test
       to be applied by us is not what the amount the members of the court would
       have awarded had they been on the jury, or what they, as an appellate court,
       think should have been awarded, but whether the verdict is patently
       excessive. The amount of damages awarded in similar cases is persuasive
       but not conclusive, and, in evaluating the award in other cases, we should
       note the date of the award, and take into consideration inflation and the
       reduced value of the individual dollar.

Palanki, 215 S.W.3d at 386 (quoting S. Ry. Co. v. Sloan, 407 S.W.2d 205, 211 (Tenn.
App. Ct. 1965)(emphasis added).

                                               20
       The statute addressing remittiturs provides:

       (a) In all jury trials had in civil actions, after the verdict has been rendered
       and on motion for a new trial, when the trial judge is of the opinion that the
       verdict in favor of a party should be reduced and a remittitur is suggested by
       the trial judge on that account, with the proviso that in case the party in
       whose favor the verdict has been rendered refuses to make the remittitur, a
       new trial will be awarded, the party in whose favor such verdict has been
       rendered may make such remittitur under protest, and appeal from the
       action of the trial judge to the court of appeals.

Tenn. Code Ann. §20-10-102. The Tennessee Supreme Court has explained the rationale
for determining whether a remittitur is proper:

       (T)he Court . . . review(s) and correct(s) the judgment rendered to the extent
       of the excess as to which it may very well be said there is no evidence to
       sustain it, and that while no court has any right to substitute its own
       estimate of the damages for that of a jury, yet it has the right to determine
       the amount beyond which there is no evidence, upon any reasonable view
       of the case, to support the verdict.

Ellis v. White Freightliner Corp., 603 S.W.2d 125, 126 (Tenn. 1980) (emphasis added).

        In this case there was testimony by several individuals that Ms. Bynum suffered
substantial pain as the result of her injuries that lasted for the remainder of her life. Ms.
Vice’s daughter and son-in-law testified that Ms. Bynum grimaced in pain whenever her
shoulder was touched or she had to be moved from one place to another. Ms. Vice
testified that Ms. Bynum would cry out in pain when she was lifted up to be fed, and that
she suffered a significant amount of pain up until the time she died, approximately 500
days following her last fall at Elmcroft. In addition, Dr. Terry testified that a non-union
fracture like Ms. Bynum’s may not ever heal completely, in part due to her age, and that
she could continue to suffer pain and discomfort for the rest of her life.

        We have recently discussed damages for pain and suffering, loss of enjoyment of
life, and permanent injury in the case Smartt v. NHC Healthcare/McMinnville, LLC, 2009
WL 482475 (Tenn. Ct. App. Feb. 24, 2009). In that opinion we stated:

       Pain and suffering encompasses the physical and mental discomfort caused
       by an injury. It includes the wide array of mental and emotional responses
       that accompany the pain, characterized as suffering, such as anguish,
       distress, fear, humiliation, grief, shame, or worry.

                                            .....

                                             21
       Damages for loss of enjoyment of life compensate the injured person for the
       limitations placed on his or her ability to enjoy the pleasures and amenities
       of life. This type of damage relates to daily life activities that are common
       to most people. . . .

                                            .....

       A permanent injury differs from pain and suffering in that it is an injury
       from which the plaintiff cannot completely recover. It prevents a person
       from living his or her life in comfort by adding inconvenience or loss of
       physical vigor. . . . Permanent injury may relate to earning capacity, pain,
       impairment of physical function or loss of the use of a body part . . ., or to a
       mental or psychological impairment.

Smartt, 2009 WL 482475, at *22 ns.16, 17, and 18 (citations and quotations omitted).

      We also addressed the issue of how a factfinder is to assign a value to these sorts
of damages:

               The determination of such non-pecuniary losses as pain and
       suffering damages involves a subjective element not present in the
       determination of ordinary facts. The jury trial guarantee requires that the
       subjective element involved be that of the community and not of judges.
       Damages for pain and suffering and for the loss of enjoyment of life are not
       easily quantified and do not lend themselves to easy valuation.
       Determining the amount of these damages is appropriately left to the sound
       discretion of the jury or the judicial finder-of-fact. When appellate courts
       are called upon to review a jury’s award of non-economic damages, it is not
       their prerogative to determine whether the award strikes them as too high or
       too low. Rather the reviewing court must review the evidence in the record
       to determine whether material evidence supports a finding that the jury
       award is within the range of reasonableness and not excessive.

Id. at *21 (citations and quotations omitted) (emphasis added).

       Based on the evidence presented at trial, we conclude that the evidence supports
the jury award, that it is within the range of reasonableness, and that it is not excessive.
Contrary to the argument by Elmcroft and Ms. Harrison, we find no basis to conclude
that the jury award was excessive, was tainted with error or confusion, contained an
impermissible punitive component, or was the result of passion, prejudice or caprice.
Accordingly, we affirm the trial court’s judgment in all respects.



                                             22
                                    V. C ONCLUSION

       For the reasons stated above, we conclude the trial court did not err when it
permitted the ordinary negligence claims to go to the jury, when it refused to charge the
jury on the comparative fault of Dr. Conerly or Ms. Vice, or when it denied Elmcroft and
Ms. Harrison’s motions for judgment notwithstanding the verdict or for a new trial, or
alternatively, for suggestion of a remittitur. Costs of the appeal are taxed to Elmcroft of
Hendersonville, Senior Care, Inc., AL Hendersonville Operations, LLC, and Lisa
Harrison, for which execution shall issue if necessary.



                                                 _________________________________
                                                 PATRICIA J. COTTRELL, JUDGE




                                            23
