                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    April 11, 2007 Session

     AMBER HOBBS, ET AL. v. SETON CORPORATION d/b/a BAPTIST
                         HOSPITAL, ET AL.

                     Appeal from the Circuit Court for Davidson County
                         No. 03C-3238     Marietta Shipley, Judge



                   No. M2006-01548-COA-R3-CV - Filed January 27, 2009


This is a companion case to Filson v. Seton Corp. d/b/a Baptist Hospital, No. M2006-02301-COA-
R9-CV. Both cases were brought by mothers of newborns against the hospital where the babies were
born, and both arose from the same incident. Employees of the hospital mistakenly brought the
wrong infant to a mother for feeding. In the case before us, Ms. Hobbs, the mother of the child who
was mistakenly taken to the wrong mother, claimed emotional distress on her own behalf and
negligence and battery on behalf of her child. The hospital admitted a breach of the standard of care,
but argued that the plaintiffs did not suffer any actual damages because the mistake was corrected
within a very short time after it was made. The trial court dismissed all the claims on summary
judgment. Ms. Hobbs argues on appeal that the trial court erred in dismissing the claims for
negligence and battery that she filed on behalf of her infant child. We affirm the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., joined. WILLIAM B. CAIN , J., not participating.

Richard L. Colbert, Courtney Lynch Wilbert, Nashville, Tennessee, for the appellants, Amber
Hobbs and Chloe King.

Mary Martin Schaffner, Nashville, Tennessee, for the appellee, Seton Corporation, d/b/a Baptist
Hospital.
                                                      OPINION

                                        I. AN ERROR AT THE HOSPITAL

         On August 15, 2003, Amber Hobbs gave birth to her first child, Chloe King, in Baptist
Hospital. On the same day, Sonja Filson delivered a child in the same hospital. In the early morning
hours of August 17, a nurse at Baptist mistakenly delivered Chloe from her crib in the Baptist
Hospital nursery to the room of Sonja Filson. Believing that the infant was her own child, Ms.
Filson attempted to nurse her.1 Chloe had not previously been breastfed and was cranky and
irritable. After a few minutes Ms. Filson realized that the infant she was feeding was not her own.

        When Sonja Filson informed the nurses of her discovery, they checked Chloe’s identification
bracelets and realized there had been a mistake. They changed Chloe’s clothes and linen, and a nurse
then suctioned Chloe’s stomach to remove Ms. Filson’s breast milk. The purpose of the suctioning
was to reduce the time that the infant was exposed to foreign breast milk, because infection can be
transmitted by body fluids.

        After Chloe’s stomach was suctioned, two nurses took Chloe to Amber Hobbs’ room, woke
her, and told her what had happened. The nurses apologized and told Ms. Hobbs a pediatrician had
been called. Ms. Hobbs stated in deposition that when Chloe was returned to her, the infant was very
uneasy, physically exhausted, irritable, fussy, on edge, and shaken up. The doctor who was called,
Dr. Hain, assured Ms. Hobbs that Chloe was all right and that they were going to do blood work on
the woman who had breast fed her baby to detect any possibility of infection. The subsequent blood
work performed on Ms. Filson showed no risks of infection or other problems.

                                            II. COURT PROCEEDINGS

         On November 12, 2003, Amber Hobbs filed a complaint against Baptist Hospital in the
Circuit Court of Davidson County. She sought relief on her own behalf for negligent and intentional
infliction of emotional distress and on her baby’s behalf for negligence and battery. Her complaint
was subsequently amended to name Seton Corporation, the owner of Baptist Hospital, as the proper
defendant.

         Sonja Filson and her husband subsequently filed their own complaint in the same court. See
Filson v. Seton Corp. d/b/a Baptist Hospital, No. M2006-02301-COA-R9-CV. The trial court
ordered that the two cases be consolidated for discovery purposes. The hospital filed motions for
summary judgment in both cases. The hospital argued in part that actions for negligent or intentional
infliction of emotional distress were only available for plaintiffs who could prove “serious or severe
emotional injury” and that the claim of Ms. Hobbs did not rise to that level, relying on Ramsey v.
Beavers, 931 S.W.2d 527 (Tenn. 1996) and Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996).



       1
           Ms. Filson testified by deposition that Chloe and her own child were of almost identical weight and hair color.

                                                           -2-
        On February 24, 2006, the trial court conducted a hearing on the pending motions for
summary judgment. The court’s memorandum opinion addressed both the Filson case and the
present case. The court granted summary judgment to the hospital on Ms. Hobbs’ claims for
intentional and negligent infliction of emotional distress, finding “by an objective standard that she
did not sustain a severe or serious emotional injury.” However, the court left intact the minor child’s
claim for negligence and battery arising from having her stomach suctioned to remove the foreign
breast milk.

        The hospital subsequently filed a motion to alter or amend the trial court’s order asking the
court to dismiss the child’s battery and negligence claims. After another hearing, the trial court
granted the hospital’s motion and dismissed the claims. The court found that “the nurses did not
intend to make a harmful contact with the baby by suctioning the baby to clear any foreign breast
milk from the baby’s stomach,” that a general consent form had been executed allowing procedures
to be performed on the baby, and that the physician’s orders allowed suctioning as needed. This
appeal followed.

                                     III. STANDARD OF REVIEW

       The standards for granting summary judgment are well-known. A party is entitled to
summary judgment 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 material fact and that
the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04; Blair v. West
Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004); Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d
614, 620 (Tenn. 2002); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). A trial court’s decision
on a motion for summary judgment enjoys no presumption of correctness on appeal. Draper v.
Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005); BellSouth Advertising & Publishing Co. v. Johnson,
100 S.W.3d 202, 205 (Tenn. 2003).

        A party seeking summary judgment must demonstrate the absence of any genuine and material
factual issues. McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998) (citing
Byrd v. Hall, 847 S.W.2d at 214). To be entitled to summary judgment, a defendant moving party
must either (1) affirmatively negate an essential element of the non-moving party’s claim or (2) show
that the nonmoving party cannot prove an essential element of the claim at trial. Hannan v. Alltel
Publishing Co., 270 S.W.3d 1, 9 (Tenn. 2008). As to the second method, the standard is whether the
moving party establishes that the nonmoving party cannot establish an essential element at trial, not
whether the nonmoving party’s evidence at the summary judgment stage is sufficient to establish an
essential element. Id., at 7.

       However, “[w]hen the party seeking summary judgment makes a properly supported motion,
the burden shifts to the nonmoving party to set forth specific facts establishing the existence of
disputed, material facts which must be must be resolved by the trier of fact.” Staples v. CBL &
Associates, 15 S.W.3d 83, 86 (Tenn. 2000) (citing Byrd v. Hall, 847 S.W.2d at 215). If, and only if,
the moving party successfully negates an essential element of the nonmoving party’s claim or


                                                  -3-
demonstrates the nonmoving party’s inability to prove an essential element at trial, the burden shifts
to the non-moving party to at least create a dispute of fact as to the element. It may do so in several
possible ways, such as by

       (1) pointing to evidence establishing material factual disputes that were over-looked
       or ignored by the moving party;
       (2) rehabilitating the evidence attacked by the moving party;
       (3) producing additional evidence establishing the existence of a genuine issue for
       trial; or
       (4) submitting an affidavit explaining the necessity for further discovery pursuant to
       Tenn. R. Civ. P., Rule 56.06.

McCarley v. West Quality Food Service, 960 S.W.2d at 588.

       If the moving party does not meet its burden, however, there is no shifting of the burden to
produce evidence, and it is premature to examine the sufficiency of the evidence presented by the
nonmoving party, here the plaintiff, at the summary judgment stage. Hannan v. Alltel Publishing Co.,
270 S.W.3d at 7 (discussing its decision in McCarley).

       In this case, as we shall see, the hospital presented evidence that successfully negated an
element of the child’s battery and negligence claims, and the mother, on her child’s behalf, was
unable to rehabilitate her own evidence or to point to or produce additional evidence that could have
enabled her to avoid summary judgment.

                                   IV. THE NEGLIGENCE CLAIM

        The only issue Ms. Hobbs raises on appeal is the trial court’s decision to grant the hospital
summary judgment on the negligence and battery claims she filed on behalf of her daughter, Chloe
King. Thus, Ms. Hobbs’ own claims for the emotional distress she may have suffered upon learning
of the hospital’s mistake are not before us. We will discuss the child’s negligence claim first.

         In order to prevail on a negligence claim, the plaintiff must establish all the elements of the
alleged tort. Those elements have been described as follows: (1) a duty of care owed by defendant
to plaintiff; (2) conduct below the applicable standard of care that amounts to a breach of that duty;
(3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. Hale v. Ostrow, 166 S.W.3d
713, 716 (Tenn. 2005); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

       There can be no doubt that Baptist Hospital owed a duty to ensure the safety of all the infants
under its care, including Chloe King. Further, the hospital has admitted that it was negligent in
bringing the infant to Ms. Filson’s hospital room. To put it another way, it admitted that its conduct
breached the duty of care. The hospital argues, however, that it is entitled to summary judgment
because Chloe King suffered no injury or loss.



                                                  -4-
         Ms. Hobbs alleges that the injury suffered by Chloe was the pain the infant experienced from
the suctioning of her stomach. The hospital submitted evidence to negate this element of negligence
in the affidavit of Dr. Jorge Rojas, a physician certified in neonatal and perinatal medicine. Dr. Rojas
reviewed the hospital records for Amber Hobbs and Chloe King, as well as Chloe’s pediatric records
for her first year. Among other things, his affidavit stated that “[s]uctioning is performed on virtually
every newborn and does not cause the baby any pain or suffering or any emotional or physical strain.”
Ms. Hobbs did offer any evidence to refute the affidavit of Dr. Rojas.

        Ms. Hobbs testified in her deposition that when Chloe was brought to her after the suctioning,
she was “uneasy, physically exhausted, irritable, fussy, on edge, and shaken up,” and she concludes
that this was because of the pain of suctioning. However, Ms. Hobbs had no knowledge of the
infant’s disposition before her stomach was suctioned. According to the deposition testimony of
Sonja Filson, the infant was crying when she was brought to Ms. Filson’s room, and the nurses told
her that they were bringing her to nurse at that time because she was crying and the nurses had not
been able to get her to stop. Ms. Filson also testified that Chloe remained cranky and irritable during
breastfeeding. Ms. Hobbs was therefore unable to show that the suctioning increased the infant’s
discomfort.

         Ms. Hobbs also argues that her baby girl must have suffered pain from the suctioning because
of the very nature of the procedure that was performed. In referring to the procedure, the mother
states that the nurses “pumped” the infant’s stomach. However, the deposition testimony of neonatal
nurse Caroline Humphries, who performed the procedure, describes it quite differently.

        Ms. Humphries testified that she “suctioned” the infant’s stomach using a small, flexible tube
that’s “very tiny, about a quarter of the diameter of my pinky, and it’s real soft. You can wrap it
around your finger.” Using the tube, the stomach contents were slowly suctioned out, with “less
pressure than sucking on a straw.” The nurse testified that the procedure was not a painful one, in
part because she was able to do it very slowly, which would probably not be true in the case of an
emergency, such as a choking incident. Dr. Rojas’ expert testimony also showed that the suctioning
does not cause pain.

        Ms. Hobbs also cites the hospital’s “Care Path Orders” to support her contention that the
suctioning that Chloe experienced had to have been painful to her. These standing orders for all
newborns state that “prior to pain causing procedure (heel-lancing, IM injection, blood draw,
suctioning, urinary cath, other pain causing event)” a solution of sugar water is to be administered to
the infant.

        The hospital observes, however, that the order does not reference the distinction between
suctioning of the trachea and lungs on the one hand, and suctioning of the stomach on the other. The
hospital contends that the order cannot be construed to refer to stomach suctioning because the effect
of such a procedure would be to remove the sugar water from the baby’s stomach. Ms. Hobbs did
not offer any affidavits to contradict the hospital’s interpretation of its own standing order.



                                                  -5-
        In sum, the hospital has presented evidence to refute every argument presented by Ms. Hobbs
to prove that her baby suffered injury from the suctioning performed on her on August 17, 2003. The
hospital has, through its evidence, negated the essential element of injury. Ms. Hobbs has not been
able to rehabilitate her evidence or to present additional evidence of injury. For the purposes of
summary judgment, the failure of proof concerning an essential element of a case renders all other
facts immaterial. Alexander v. Memphis Individual Practice Ass'n, 870 S.W.2d 278, 280 (Tenn.
1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729 (Tenn. Ct. App.
1995). We therefore conclude that the trial court correctly granted the hospital summary judgment
on the appellant’s negligence claim.

                                          V. THE BATTERY CLAIM

        Ms. Hobbs also argues that by suctioning Chloe, the hospital committed a battery against the
infant. In the context of medical care, “[a] medical battery occurs when a physician performs an
unauthorized procedure.”2 Church v. Perales, 39 S.W.3d 149, 159 (Tenn. Ct. App. 2000). Since the
issue hinges on what the patient knew, a medical battery claim does not require expert proof to
support the claim. Id. The inquiry is generally understood to be whether the patient was aware the
procedure was going to be performed and whether the patient authorized the procedure. Blanchard
v. Kellum, 975 S.W.2d at 524. If the answer to either of these questions is no, then the claim is
classified as a medical battery. Id.

        The nurses in this case did not ask Ms. Hobbs for her specific consent before suctioning
Chloe. However, they were operating under a General Consent for Medical Care that Ms. Hobbs
executed when she was admitted to the hospital. The form authorized the hospital and its employees
to perform any tests or procedures authorized by her doctor. Further, according to the affidavit of Dr.
Rojas,

        the Newborn Care Path used at Baptist Hospital and ordered by each patient’s
        physician contains a standard order allowing the nurses to suction a baby when, in the
        judgment of the nurse, it is considered necessary or desirable. Thus, suctioning a
        baby’s stomach does not require the informed consent of the mother, a specific order
        from the baby’s physician, or the physician’s supervision.

         Nurse Humphries suctioned Chloe’s stomach pursuant to a physician’s “PRN” order. The
letters PRN stand for a Latin term that means “as needed” or “when necessary.” Ms. Hobbs contends
that the nurse’s actions exceeded the scope of the consent she executed because suctioning was not




         2
          This cause of action is not to be confused with the tort involving lack of informed consent which occurs “when
the patient is aware that a procedure is going to be performed but is unaware of the potential risks associated with the
procedure.” Church, 39 S.W .3d at 159; Blanchard v. Kellum, 975 S.W .2d 522, 524 (Tenn. 1998). See Tenn. Code Ann.
§ 29-26-118 (pertaining to consent in a medical malpractice action.)

                                                         -6-
necessary. However, the evidence indicates otherwise.3 Ms. Hobbs focuses on the use of the word
“desirable” in the above passage from the affidavit of Dr. Rojas to suggest that he mischaracterized
the Newborn Care Path by implying that it permits suctioning when it is not necessary, but merely
desirable. However, she does not even attempt to explain how that distinction applies to the present
case. Ms. Hobbs also relies on another portion of the affidavit of Dr. Rojas to argue that the
suctioning was unnecessary:

       In all probability, Chloe did not sustain any injury as the result of ingesting breast milk
       from a woman who was not her mother or as a result of having her stomach suctioned
       to remove the breast milk. Chloe will not require further medical attention due to
       unknown effects or potential diseases or disorders that might possibly have been
       transmitted from the woman who mistakenly breastfed her. Thus Chloe’s mother will
       not incur future costs for additional care for Chloe as the result of ingestion of breast
       milk.

        Dr. Rojas’ affidavit was prepared after he reviewed Baptist Hospital’s records and the records
of Chloe’s pediatrician. By that time it had been determined that there were no pathogens in Ms.
Filson’s breast milk and Chloe’s subsequent history gave additional assurances of her normal
development. By viewing the events of August 17, 2003 in hindsight, one could possibly say that the
suctioning had been unnecessary. But at the time the decision to suction was made, it was unclear
whether or not the infant had been exposed to the possibility of infection, and the nurses on duty
determined that the procedure was needed for Chloe’s protection. Ms. Hobbs’ attorney even admitted
at oral argument that the Newborn Care Path placed the decision to suction within the nurse’s
discretion. We therefore conclude the trial court did not err in dismissing the child’s battery claim.

                                                        IV.

      The judgment of the trial court is affirmed. We remand this case to the Circuit Court of
Davidson County for any further proceedings necessary. Tax the costs on appeal to the appellant,
Amber Hobbs.



                                                               ___________________________________
                                                               PATRICIA J. COTTRELL,




         3
           Ms. Hobbs’ attorney contended during oral argument that it is inherently harmful for a newborn to be breast
fed by a stranger, thus suggesting that such feeding in and of itself amounts to a battery. While we do not necessarily
agree with that statement, it appears to us that such a contention undercuts her argument that the suctioning was
unnecessary.

                                                         -7-
