MARY ALICE BOLTON PRINCE,       )
by and through her conservator, )
James M. Bolton,                )
                                )
     Plaintiff/Appellant,       )        Appeal No.
                                )        01-A-01-9604-CV-00184
v.                              )
                                )        Davidson Circuit
ST. THOMAS HOSPITAL; HOSPITAL   )        No. 90C-4082
CORPORATION OF AMERICA;         )
HOSPITAL CORPORATION OF AMERICA )
dba HCA EDGEFIELD HOSPITAL;
MILLER MEDICAL GROUP; JACK T.
SWAN,M.D.; THOMAS C. FARRAR,
                                )
                                )
                                )
                                                  FILED
M.D.; and LANGDON G. SMITH,M.D. )
                                )                 November 1, 1996
     Defendants/Appellees.      )
                                                Cecil W. Crowson
                                               Appellate Court Clerk

                  COURT OF APPEALS OF TENNESSEE

                    MIDDLE SECTION AT NASHVILLE


    APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

                      AT NASHVILLE, TENNESSEE


        THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE




RANDALL L. KINNARD                     ROBERT E. HOEHN
DANIEL L. CLAYTON                      4527 A Highway 70 East
Kinnard & Clayton                      White Bluff, Tennessee 37187
The Woodlawn                           ATTORNEY FOR THOMAS C. FARRAR,M.D.
127 Woodmont Boulevard
Nashville, Tennessee 37205
ATTORNEYS FOR Mrs. Prince/APPELLANT



ROSE P. CANTRELL                       DAVID L. STEED
Parker Lawrence Cantrell & Dean        Cornelius & Collins
200 Fourth Avenue North                2700 Nashville City Center
Fifth Floor                            511 Union Street
Nashville, Tennessee 37219             Nashville, Tennessee 37219
ATTORNEY FOR ST. THOMAS HOSPITAL       ATTORNEY FOR LANGDON G. SMITH,M.D.
  and JACK T. SWAN, M.D.                 and MILLER MEDICAL GROUP

C.J. GIDEON, JR.
Gideon & Wiseman
NationsBank Plaza
Suite 1900
Nashville, Tennessee 37219
ATTORNEY FOR HOSPITAL CORPORATION
  of AMERICA




                          REVERSED AND REMANDED
                                               SAMUEL L. LEWIS, JUDGE
                              O    P I N I O N


     This is an appeal by plaintiff/appellant, Mary Alice Bolton

Prince, from the decision of the trial court granting the motions

for summary judgment of defendants/appellees.              The trial court

based its decision on its finding that Mrs. Prince was fifty

percent or more at fault.         The facts out of which this controversy

arose are as follows.



I.   Facts and Procedural History



     On 20 June 1986, Mrs. Prince, a twenty-seven year-old woman,

took an unknown number of pills at approximately 9:00 p.m.              Mrs.

Prince's husband, Russell Prince, called the Vanderbilt Poison

Control Center.   The center told Mr. Prince that the pills were a

combination of caffeine and ephedrine and advised him to give Mrs.

Prince ipecac to induce vomiting.          Mr. Prince drove Mrs. Prince to

a pharmacy where he purchased the ipecac.             Without reading the

instructions, Mr. Prince had Mrs. Prince drink the ipecac.              Mrs.

Prince began to vomit around 9:30 p.m.          Mr. Prince estimated that

there were a "half a dozen or so" pills in the vomitus.                 Mrs.

Prince continued to vomit after the couple returned home.                Mr.

Prince decided    to   take   Mrs.    Prince   to   the   nearest   hospital,

Hendersonville Hospital.



     Hendersonville Hospital refused to admit Mrs. Prince because

of her insurance so Mr. Prince took her to St. Thomas Hospital.

Dr. Jack Swan attended to Mrs. Prince in the emergency room and

took her and Mr. Prince's histories.           Although it is unclear who

told Dr. Swan, at some point, Dr. Swan was told that Mrs. Prince

had taken between twenty and forty pills.           Dr. Swan examined Mrs.

Prince, but did not order an IV to replace lost fluids, antiemetics


                                       2
to stop the vomiting, a drug screen, lab tests, a urinalysis, or a

serum electrolyte. After his examination, Dr. Swan discharged Mrs.

Prince    and    instructed    Mr.   Prince     to   drive   her   to    Edgefield

Hospital, a provider approved by Mrs. Prince's insurer.



      Still vomiting, Mrs. Prince entered the Edgefield emergency

room one hour after being admitted to the St. Thomas emergency

room.     Dr. Farrar examined Mrs. Prince and noted that she had a

rapid heart beat with premature ventricular beats.                      He ordered

numerous tests which revealed that Mrs. Prince's potassium level

was dangerously low.          Dr. Farrar contacted Dr. Langdon Smith to

inform him of Mrs. Prince's condition, but did not tell him of the

low levels of potassium.           Dr. Farrar admitted Mrs. Prince to ICU

and ordered that she receive ten milliequivalents of potassium per

hour.



        Dr. Smith conducted an examination of Mrs. Prince at 6:30 a.m.

on 21 June 1986.        He did not issue any new orders at that time.            A

second potassium check revealed that Mrs. Prince's potassium level

was 2.4.1     Dr. Smith returned at 7:30 a.m. and cut the third run of

potassium in half.           At approximately 11:49 a.m., Mrs. Prince

suffered a cardiac arrest followed by a coma.                 As a result, she

suffered permanent brain damage and recent memory loss.



        On 19 February 1991, Mrs. Prince filed a complaint alleging

medical malpractice and naming multiple defendants.                     The court

entered an order dismissing numerous defendants on 2 October 1991.

The remaining defendants were Hospital Corporation of America, Dr.

Smith, Miller Medical Group, Dr. Farrar, St. Thomas Hospital, and

Dr.   Swan.       All   of   the   defendants    filed   motions    for    summary

judgment.       Mrs. Prince responded to the motions with three expert



      1
          Normal potassium levels are between 3.5 and 4.5.

                                        3
depositions.   On 30 November 1994, the court entered a preliminary

order which overruled the motions, but which reserved the issue of

whether Mrs. Prince's conduct constituted fifty percent or more of

the fault in the case.



      Defendants filed a joint memorandum renewing their summary

judgment motions, and Mrs. Prince responded.     The parties orally

argued the issue of fault on 9 February 1996.   The court held that

Mrs. Prince's percentage of fault was fifty percent or more and

granted summary judgment to defendants.     Thereafter, Mrs. Prince

filed her notice of appeal.



II.   Standard of Review



      The sole issue on this appeal is whether the trial court erred

in granting the defendant's motion for summary judgment.

           Tenn.R.Civ.P. 56.03 contains two requirements for
      granting a summary judgment. First, there must be no
      genuine issue with regard to the material facts relevant
      to the claim or defense embodied in the motion. Second,
      the moving party must be entitled to a judgment as a
      matter of law based on the undisputed facts.

Pacific E. Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952

(Tenn. App. 1995)(citations omitted).

           In determining whether or not a genuine issue of
      material fact exists for purposes of summary judgment,
      courts in this state have indicated that the question
      should be considered in the same manner as a motion for
      directed verdict made at the close of the plaintiff's
      proof, i.e., the trial court 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. Then, if
      there is a dispute as to any material fact, or any doubt
      as to the conclusions to be drawn from that fact the
      motion must be denied. The court is not to "weigh" the
      evidence when evaluating a motion for summary judgment.

Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993)(citations omitted).

This court must use the same standard in reviewing a trial court's

judgment granting summary judgment.

      Our standard of review, and that of the trial court, on


                                 4
     a motions for summary judgment is the same: we must take
     the strongest legitimate view of the evidence in favor of
     the nonmoving party, allow all reasonable inferences in
     their favor and discard all countervailing evidence. If
     we determine that a dispute exists as to any material
     fact or any doubt as to the conclusions to be drawn from
     that fact, we must deny the motion.

Clifton v. Bass, 908 S.W.2d 205, 208 (Tenn. App. 1995)(citations

omitted).



III. Disputed Factual Issues



     The trial court found "that reasonable minds could not differ

that Mary Alice Prince intentionally ingested a lethal dose of a

toxic substance knowing that the ingestion created an unreasonable

risk of harm."         Our review of this record shows that the trial

court's finding takes assumptions or inferences to be undisputed

facts.    We respectfully disagree.



     A.     Number of Pills Taken



     The trial court found as an undisputed fact that Mrs. Prince

took a "lethal dose" of pills.           The record, however, reveals that

Mrs. Prince could have taken as many as twenty to forty pills or as

few as six.     Given the evidence, it is the opinion of this court

that either inference is reasonable.



     The relevant evidence included the following.                   Dr. Swan

testified that he did not know whether Mrs. Prince had taken any

pills.    He also testified that he obtained a history from both Mr.

and Mrs. Prince and that the estimate of twenty to forty pills

could    have   come    from    either   of   them.   Given   Mrs.   Prince's

condition, it is reasonable to infer that Mr. Prince gave Dr. Swan

the estimate.      Mr. Prince, however, was not present when Mrs.

Prince took the pills.         The only thing Mrs. Prince told her husband



                                         5
in reference to the quantity of pills was that she had taken some

pills.      Mr. Prince testified that he may have guessed at the

numbers based on the number of pills he saw in the bathroom and the

size of the bottle he found.     When Mr. Prince entered the bathroom

he found pills "in the toilet, in the sink, in the floor . . . all

over the bathroom."    In addition, Mr. Prince found a bottle in the

trash which he estimated to be two and one-half inches high by one

inch in diameter.     It is reasonable to infer that with pills "in

the toilet, in the sink, in the floor . . . all over the bathroom"

the number actually taken was quite small.             Also, Mr. Prince

testified that there were only a "half a dozen or so" pills in Mrs.

Prince's vomitus.      Finally, Mr. Prince had threatened to leave

home.    Given such a threat, it is reasonable to infer that the act

of taking the pills was a grandstand play intended to keep Mr.

Prince from leaving, not an attempt to commit suicide.          Thus, the

evidence as to the number of pills taken is in dispute and is

subject to numerous inferences.



      B.     “Lethal Dose”



      There is also a dispute as to whether the number of pills

taken by Mrs. Prince was a lethal dose.        Assuming that Mrs. Prince

ingested twenty to forty pills, that the Vanderbilt Poison Control

Center correctly identified the pills as Caphedrine, and that each

pill contained 200 milligrams of caffeine, Mrs. Prince initially

ingested four to eight grams of caffeine. The experts, however, do

not agree as to whether this constitutes a lethal dose.                   Dr.

Richard S. Crampton, Mrs. Prince's expert, testified that the

lethal dose ranges from five to ten grams.         In addition, Dr. Karl

J.   Crossen,    defendants'   expert,    testified   that   there   is    no

agreement as to the lethal dose.         He testified as follows:

           Q.    Do you know what the lethal dose of caffeine
           is?


                                    6
       A.    Depends on which text. I've seen it written
       down as approximately ten grams.

The possibility that the dose was lethal is even less when one

considers that it is reasonable to conclude that Mrs. Prince took

only six pills.     To explain, six pills contain only 1.2 grams of

caffeine.     Thus, there is a dispute as to whether the number of

pills taken by Mrs. Prince was a lethal dose, and assuming that she

only took six pills, it is reasonable to infer that the dose was

not lethal.



       C.       Sequence of Events and Cause of Acute Event



       There are other disputed factual issues related to the

precipitating cause of Mrs. Prince's permanent injuries.                     With

regard to the sequence of events at the time of Mrs. Prince's acute

event, defendants have attempted to establish that Mrs. Prince

suffered a seizure before going into ventricular fibrillation.

They use this theory to support their argument that the amount of

caffeine ingested was the primary agent in causing Mrs. Prince's

injuries.    Dr. George Klein and Dr. George Podgorny, Mrs. Prince's

experts, both testified that the ventricular fibrillation preceded

the seizure.



       There is also a dispute as to the cause of the acute event.

One theory, that of defendants, is that a caffeine overdose caused

the cardiac arrest.      Mrs. Prince's theory is that hypokalemia, low

potassium,     caused   plaintiff's         injuries.     Both   theories     are

supported by expert testimony.               Dr. Crossen testified that a

caffeine    overdose    without   any       secondary   condition   caused    the

cardiac arrest. Both Dr. Podgorny and Dr. Klein testified that the

low potassium was the result of prolonged and copious vomiting.

The prolonged vomiting resulted from Mr. Prince giving Mrs. Prince

ipecac without water.       We find nothing in the record to suggest


                                        7
that ingestion of caffeine or caffeine with ephedrine caused the

vomiting.



        D.          Standard of Care



        Defendants also contend that because Mrs. Prince took the

pills she was likely to have been injured whether defendants were

negligent or not. Dr. Klein's testimony is clear, however, that if

neither defendants nor Mr. Prince had acted after Mrs. Prince took

the   pills   the     caffeine   would        not   have   caused    her   injuries.

Defendants take the position that once Mrs. Prince took the pills

all that followed was inevitable. The record does not support this

assertion without dispute.



        There is a material question of whether the failure of the

health care providers to properly deal with the consequences of the

prolonged and copious vomiting caused Mrs. Prince's injuries.

There is evidence that the defendants were negligent in their care

of Mrs. Prince and that Mrs. Prince would not have sustained

injuries had defendants complied with the standard of care.                     While

at St. Thomas, despite a history of drug overdose and copious

vomiting for a period of some four hours, Dr. Swan did not order an

IV to replace lost fluids, did not order antiemetics to stop the

vomiting, and did not order a drug screen or other lab tests such

as a blood count, a urinalysis, or a serum electrolyte.                     There is

evidence     that    the   failure   to   order      these   tests    or   to   order

antiemetics deviated from the accepted standards of medical care.

There is also evidence of a continued deviation from the acceptable

standards of medical care after Mrs. Prince left St. Thomas and Mr.

Prince took her to Edgefield Hospital.



        E.          Proximate Cause and Apportionment of Fault



                                          8
         In the order granting summary judgment the trial court

referred to decisions of our supreme court.          Specifically, the

court relied on Gray v. Ford Motor Company, 914 S.W.2d 464 (Tenn.

1996), for the proposition that the principles of comparative fault

apply to medical malpractice actions so that the fault of a patient

can be compared to the fault of the treating health care providers.

The first case in which the Tennessee Supreme Court approved the

application of comparative fault principles in medical malpractice

cases was Volz v. Ledes, 895 S.W.2d 677 (Tenn. 1995).          In both

Gray and Volz, the determination of apportionment of fault was left

to the jury.   Gray, 914 S.W.2d at 266; Volz, 895 S.W.2d at 677.    We

find no fault with the trial court's conclusion that principles of

comparative fault are applicable in medical malpractice cases, but

we are of the opinion that the trial court erred in making this

comparison rather than having the jury do so.      “In a jury case, the

issues of negligence and proximate cause are generally for the

jury.    Such issues may be pre-empted by the Trial Judge only where

the evidence and reasonable inferences therefrom are so free of

conflict that all reasonable minds would agree with the decision of

the Trial Judge.” Husted v. Echols, 919 S.W.2d 43, 45 (Tenn. App.

1995).    Such is not the case here.



         The trial court in its judgment stated that "[i]n reaching

this conclusion, the Court has carefully considered the factors

that are relevant for determining the percentage of fault that

should be assigned to a party . . . ."      One of the relevant factors

used when apportioning fault is "the relative closeness of the

causal relationship between the conduct of the defendant and the

injury to the plaintiff . . . ."       Eaton v. McLain, 891 S.W.2d 587,

592 (Tenn. 1994).    Here, there is a very real question of whether

Mrs. Prince's act of taking an unknown quantity of pills was the

proximate cause of her injuries.       Mrs. Prince argues that the act


                                   9
of making her take ipecac and the subsequent negligent treatment

combined to intervene between Mrs. Prince's act of taking some

pills and her final injuries.   We do not think it is necessary to

consider the case from the perspective of "intervening cause." The

question is simple.   Whose fault was more proximate?   Most often,

this is a question of fact to be determined by a jury.     Based on

the record and the reasonable inferences to be drawn therefrom, a

jury could conclude that defendants' fault was more proximate to

Mrs. Prince's injuries and that the act of Mrs. Prince was not

proximate at all.



         In the majority of cases, the   McIntyre v. Ballentine, 833

S.W.2d 52 (Tenn. 1992), comparison and allocation of fault issues

are properly left to the jury.        The court in Eaton makes this

clear:

           Under the pre-McIntyre fault system, the question
         for the, trial court on a motion for directed
         verdict/JNOV alleging contributory negligence was:
         if, after taking the strongest legitimate view of
         the evidence in the plaintiff's favor, could it be
         determined beyond question that the plaintiff was
         guilty of any negligence that proximately caused
         the resulting injuries?     If the answer to this
         question was "yes," then a directed verdict was
         proper. This situation was rare, however, for as
         we emphasized in Frady v. Smith, 519 S.W.2d 584
         (Tenn. 1974):

               Negligence, contributory negligence,
               and proximate cause are ordinarily
               issues to be decided by the jury, and
               can be withdrawn from the jury and
               decided by the court only in those
               cases where the facts are established
               by evidence free from conflict, and
               the inference from the facts is so
               certain that all reasonable men, in
               the exercise of a free and impartial
               judgment, must agree upon it.

             This Court's adoption of the doctrine of
         comparative fault in McIntyre does not change these
         standards governing the trial court's assessment of
         the evidence; nor does it change the established
         standard governing the trial court's ultimate
         decision of whether to grant the motion. The trial
         court still must take the strongest legitimate view
         of the evidence in favor of the non-movant; and it
         must grant the motion only if reasonable minds

                                 10
        could not differ as to the legal conclusion to be
        drawn from that evidence.

Eaton, 891 S.W.2d at 590(citations omitted)(bold emphasis added).



        The defendants assert and the trial court found that "as a

matter of law" Mrs. Prince's fault was at least fifty percent.                  In

defendants' view, if the court determines that Mrs. Prince's act

was intentional and that defendants' acts were negligent, the

analysis comes to an end.     That is, defendants contend the finding

that   one   acted   intentionally     and    the      other   negligently      is

sufficient for the court to render judgment as a matter of law in

favor of the negligent party.              We are of the opinion that a

comparison   of   supposed   levels    of    conduct     without   determining

proximate cause is not presently the law in Tennessee.                          The

asserted level of fault of a party is a circumstance for the finder

of fact to consider when determining the percentage of fault of

each party in producing the injury.          It is not a bar to recovery.



IV.     Conclusion



        A review of the record reveals there are numerous material

facts in dispute and that genuine doubt exists with regard to the

conclusions and inferences to be drawn from the facts.                 Reasonable

minds could conclude that Mrs. Prince did not intend to harm

herself, that the pills she took would not have caused her harm,

that her husband's act of making her take ipecac without water was

the act which caused the need for medical care, and that Mrs.

Prince would not have sustained any injuries had she received

proper medical care.



        Therefore, it results that the judgment of the trial court

is reversed, and the case is remanded to the trial court for

further necessary     proceedings.         Cost   on    appeal   are    taxed    to


                                      11
defendants/appellees.




                                __________________________________
                                SAMUEL L. LEWIS, J.




CONCUR:



_________________________________
HENRY F. TODD, P.J., M.S.



_________________________________
WILLIAM C. KOCH, JR., J.




                               12
