# FILED
December 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE (Heard at Jackson)

FOR PUBLICA

TION Filed: December 21, 1998

FREDA G. MOON, EXEC UTOR OF ) THE ESTATE OF R UTH GARRETT, ) ) PLAINTIFF/A PPELLANT, ) DAVIDSON CIRCUIT ) v. ) Hon. Barbara N. Haynes ) ST. THOMAS HOSPITAL, ) No. 01S01-9710-CV-00218 ) DEFENDANT/APPELLEE. )

FOR APPELLANT : FOR APPELLEE : Harlan Dodson III Mary Martin Schaffner Anne C. Martin Nashville Julie K. Sandine Nashville FOR AMICUS CURIAE : Richard L. Duncan Knoxville



# O P I N I O N

REVERSED AND REMAND ED HOLDER, J.1 An endotrachealtube is a tube placed i n the pati ent's th roat to pr ovide the p atient 's lungs with oxy gen. 2 OPINION
We granted this appeal to address whether a hospital's general dut y to exercise reasonable and or dinary care to maintain an open airway in an intubated patient is negated mer ely because the transecti on of an endotracheal tube is an uncommon occurrence. W e hold: (1) that under the circumstances, a factual question exists concerning whether the standard of care required placement of an oral airway or bite block when the p atient exhibited agitation and began biting on the endotrac heal tube; (2) that the foreseeability of the intubated and restrained patient's actions are relev ant when assessing the appropriate standard of care and deviation from that standard of care; and (3) that the affidavits of the plaintiff 's experts created genuine issues of material fact concerning the standard of car e and breach of that standard. The appell ate court's decision affirming the trial court's dismissal is reversed. The case is remanded to the trial court for proceedings consistent w ith this opinion.

BACKGROUND
On February 6, 1986, Ray Garrett was admitted to St. Thomas Hospital, the defendant. Mr. Garrett under went successful coronary bypass surgery on February 7. During

surgery, Mr. Ga rrett was intubated w ith an endotracheal tube to provide ventilati on. 1 After surgery, Mr. Garrett was taken to the recovery room where his condition w

as considered stable.

Nurse Patricia Hoeflein w as assigned to Mr. Gar rett in the recovery

room. Nurse Hoeflein's notes indicated Mr. Garrett "nods yes & no, but [was] very agitated and restless w hen awake." The notes further indi cated that Mr. Garrett2 The c aptioned plaintiff, Fred a Moo n, was s ubstituted for the origin al plaintiff, Ruth Garre tt, who wa s Ray G arrett's wife . Ruth G arrett died a fter suit wa s filed. 3 denied pain but was "figiti ng [sic] at pacer wires" and "biting" his endot racheal tube. Nurse Hoeflein placed Mr. Garrett in soft arm restraints.
At approximately 1:05 a.m. , Ronald McKay, a respi ratory technician, changed Mr. Garrett's

ventilator. Around 1:40 a.m., McKay decreased the percentage of oxygen th at Mr. Garrett was receiving. McKay checked the condition of Mr. Garrett's endotracheal tube and saw no i ndication of chewing or biting. Approximately ten minutes later, McKay responded to an alarm in Mr. Garrett's room and discov ered that Mr. Garrett had b itten and nearly sever ed the endotracheal tube. McKay s ought assistance from respir atory therapy supervisor, Gene Emerson.When they returned to Mr. Garrett's room, McKay observed Mr. Garrett

completely sever the tube, and a portion of the tube was lodged in his throat. After several unsuccessful attempts to ope n Mr. Garrett's mouth, the two men forced a device known as an oral airway into Mr. Garrett's mouth to open his clamped jaws . A physician arri ved and extracted the sev ered portion of the tube from Mr. Garr ett's throat. Although M r. Garrett was successfully reintubated,he had suffered a fatal heart attack duri ng the reintubation procedure.
The plai ntiff

2 filed suit against the defendant al leging that the hospital : failed to provide adequate supervision and staffing during Mr. Garrett's recovery from surgery; had prior notice of the possible complic ations with the endotracheal tube and failed to take ap propriate action; and failed to provide the necessary and proper "mouth br ace" to protect the endotracheal tube. The plaintiff alleged that the hospital's failure to prop erly supervise and care for Mr. Garrett was the prox

imate cause of his death.4 The defendant hospital filed a motion for summary judgment. The defendant argued that: (1) the transection of th e tube was unforeseeable; (2) the defendant provided appropriat e staffing and supervision of M r. Garrett; and (3) because the failure of the endotr acheal tube was unforeseeable and no mouth brace or other devic e had been ordered by a phys ician, the defendant was under no duty to supp ly such a device. The defendant's motion relied upon affidavits of Patricia Hoeflein,R.N., and Ronald McKay , R.R.T. Both Hoeflin and McKay testified that they had ne ver previously witnessed a patient bite t hrough an endotracheal tube. McKay further testified that this w as the first time he had ever heard of a patient sev ering an endotracheal tube. Hoeflein testified that she only used bite blocks on patients who were continuously having s eizures. Hoeflein testified that she wo uld attempt to calm the patient and or ient the patient to the tube if a patient chew ed on an endotracheal tube. Hoeflein stated that medication may be used to s edate incoherent or uncooperati ve patients biting or chewing

on their endotracheal tubes. Hoeflein further stated that she had commonly used oral airw ays "to prevent patients who continually bite on their endotracheal tube to the poi nt they are preventing the air line deliver

ing the breath and oxygen they need."

The defendant offe red the testimony of a respiratory therapy supervisor, Gene Emerson, in support of its moti on for summary judgment. Emers on testified that he had neither seen no r heard of a patient causing a defect in an endotracheal tube by chew ing or biting on the tu be. He stated that it was common for patients to gnaw or chew on tubes while their lungs were bei ng suctioned. He opined that no pr ecautions were necessar y to prevent a patient from biting on an endotracheal tu be provided the biting stopped upon cessation of the suction ing.5 The defendant also relied on the af fidavit of Clifton Emerson, M.D., in support of its motion for summary judgment. Dr. Emerson w as the anesthesiologist responsible for Mr. Garrett's care during and after surgery. Dr. Emerson stated that he was aw are that patients can intermittently bite on the endotra cheal tub e and int errupt th e ventilat ory flow.
Such biting, which fre

quently occurs w

hen the patient is being suctioned, is not considere d problematic unless the anesthesiologist anticipates the patient might experience seizures. . . . If the anes thesiologist anticipat

es the patient may bite down on the tube sufficient (sic) to interrupt air flow, he/she will order a bite block or or al airway to be used in order to enable the endotracheal tube to deliver appropriate ventilator

y support to the patient. The decision to order a bite block or oral airway is a medical decision.

Dr. Emer son testified th at he "ha d never known n or ever

heard of a patient comp letely transectin g an endotrache al tube as did Mr. G arrett" althou gh he has been involved in over 20,000 open heart procedures. Based upon Dr. Emerson's experience and training, "it was not reasonably foreseeable that Mr. Garrett would bite his

endotracheal tube in two." Dr. Emerson felt that the incident was "such a freak accident that, even today, [he does] not routin ely use bite blocks for post-anesthesi a patients." He added that "bitin g on a tube during suctioning is an ordina ry, every day event and in no way represents" the type of emergency that would make a bite block or oral ai rway appropriate. Finally, the president of the company that manuf actured the endotracheal tube that Mr. Garrett transected testified that although he believed that endotracheal tubes can be both bitten "into" and "in two," he was unaware of any other instance where a patient had transec ted an endotracheal tube.
In oppos ition t

o the defe ndant's

motion fo r summar

y judg ment, the

plainti ff relied upon the affidavits of a car diovascular surgi cal specialist, Joseph William Rubin, M.D., and two critical care nurses, Nell S. George and Veroni ca Varallo.6 All three of the plaintiff's ex perts stated that "[w]hen the bedside nurse observed Mr. Garrett biting his endotracheal tube . . . she should have either used a bi te block or repositioned the tube to keep him from further biting or contacted the treating physician so that he could make that decisi on." Dr. Rubin opined that "[t]he medical records in this case indicate that the bedside nu rse knew Mr. Garrett was biting

his endotracheal tube during his recovery from s urgery [and that] based on the records, it was foreseeable that the end otracheal tube could become occluded or impaired."
Dr. Rubin premised his opinion on Mr. Garrett's medical records "which indicate that the bedside nurse knew Mr. Garrett was agitated and biting his endotracheal tube during recovery from surger y." Dr. Rubin stated that attending medical personnel have a duty to ensure that a patient's endotr acheal tube is not blocked or damaged when the intubated patient displays an agitated behavior or begins biting down on the tube. "One such preventi ve measure is repositi oning of the endotracheal tube, which decreases the extent of damage to one specific part of the tube by teeth biting , thereby decreasing the likelihood of the tube being severed in tw

o. Another preventive measure is the use of a bite block."
The defendant was permitted to off er a supplementary affidavit of Dr. Clifton Emerson . In this a ffidavi t, Dr. Eme rson took issue with t he altern ative actions plaintiff's experts stated should have been taken. In addition, he stated that had he been contacted by the nurse, as plaintif f's experts suggested, Dr. Emerson "would not have or dered a biteblock, oral ai rway, or any oth er measures in order to prev ent Mr. Garrett from biting the tube." The affidavit went on to state, "Thus, even had the nur se caring for Mr. Gar

rett contacted me in the early morn ing hours o f Februa ry 8, 1986, the outc ome of t his case wo uld have been no different." By so opining , the defendant argues that Dr. E merson has3 Althou gh the appe llate cou rt addr esse d an iss ue co ncern ing the failure o f the pla intiff's experts to expl icit ly ref erence in t heir affidavits t he standard of car e in Nashvil le or i n a similar community, the defendant neit her fil ed a motion to st rike the af fidavi ts in t he trial

court nor r

aised the issue i n its motionfor summary judgment. The trial court's order did n ot address the content of the affid avits. This issue, the refore, s hould no t have be en raised for the first tim e on app eal. Harrison v. Schrader , 569 S.W .2d 822 ( Tenn . 1978); Mor an v. C ity of Kn oxville , 600 S.W.2d 725 (Te nn. C t. App . 197 9). W e wo uld no te, ho weve r, that both partie s' aff idavits were com para ble in that nei ther expli citl y referen ced the standar d of care appl icable i n Nashvill e, Tennessee. 7 interjected "causation" into the summary judgment mo tion as an additional basis for the motion for summary judgment

.
The trial court granted th e defendant's motion for summary judg ment. The judge opined that no showing had been made fro m which it could be said that the defendant reasonably knew or should have known o f the probability of an occurrence such as the one that caused Mr. Garrett's death. The trial court, therefore, held that Mr. Garr ett's death was unforeseeable an d that the defendant had no duty to take precauti ons against such an unforeseeable injury. The trial court did not rul e on the "causation" issue, preferr ing to rest its decis ion on the determination that no duty was owed to Mr. G arrett.
The plaintiff appealed to the appellate cour t arguing that her affidav its created genuine issues of mater ial fact. The appellate court affirmed the trial court's dismissal and hel d that the defendant did not have a duty to prevent the transection "because the transection of the tube was completel y unforeseeable." The court also opined that the plaintiff 's experts failed to describe the applicable standard of professional care in Nashville or in a s imilar community as req uired by Tenn. Code Ann. § 29-26-115(a)(1). 3 Finally, the court faulted the expert proof of the plaintiff because the opinions of thos e experts were based o n an inaccurate factual predicate, i.e., that Mr. Garrett w as in an agitated state followin g surgery.8 ANAL YSIS
Summary judgment is appropr iate if the movant can demonstrate the absence of any genuine issues of material fact and that the movant is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The non-movant is entitled to the strongest legitimate view of the evidence and is entitled to all reasonable inferences which may be drawn from the evidence, discarding all countervailing ev

idence. Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998) (citing Byrd v. Hall , 847 S.W.2d 208, 21 0-11 (Tenn. 1993)).

The deceased was intubated, restrained, and in critical care. W hile physicians cannot ensure either recovery from surgery or succes s of medical treatment, hospitals owe a general duty to prev ent patients from injuring themselves following

surgical procedures. Keeton v. Maury County Hosp. , 713 S.W. 2d 314 (T enn. Ct. A pp. 1986 ) (stating hospital 's "prime responsi bility" includes reasonable attendance to prevent patients f rom injuring themselves);
see also W. Page Keeton et al., Prosser and Keeton on Torts , § 53, at 357 (5th ed. 1984) (stating duty

may be analyzed as to "whether the plaintiff's inter ests are entitled to legal pr

otection against the defendant's c onduct."). Clearly, a duty is owed to an intubated and r estrained patient to maintain a clear and unobstructed breathing passa ge through an endotracheal tube. See generally Hughes v. Hastings , 469 S.W.2d 378, 38 1 (Tenn. 1971) (noting use of plastic airwa y to pr event t ongue fr om obstr ucting air pas sage and

"to prev ent plai ntiff from biting . . . the endotracheal tube.").
The defendant argues that the deceased's act was so unusual and extraordinary that the act was unforeseeable; ther efore, the defendant was under no duty to guard against such an act. Accidents, however, "almost invariably are surprises, in the sense that the precise manner of their occurrence4 "Th e rec ogn ized s tand ard o f acc epta ble pr ofes sion al pra ctice . . . in the com mu nity in which he practices or in a similar com munity." Tenn. Code Ann . § 29-26-115(a)(1). 9 cannot be foreseen." Spivey v. St. Thomas H ospital , 211 S.W.2d 450, 455 (Tenn. Ct. App. 1947). Accordi ngly, the particular harm need not have been foreseeable if another "harm of a like general character was reasonably foreseeable." Id . at 457.

The defendant stresses that the acciden t was not foreseeable, since there is no indication that another patient had ever sever ed an endotracheal tube. The record, however, i s clear that a risk of some har m is foreseeable if an endotracheal tube is occluded o r impaired. The plaintiff's ex perts, relying on Nurse Hoeflein's notes and other evidence, create a genui ne issue of material fact concerning whether the defendant should have been awar e of this risk of occlusion due to Mr. Garrett's behavior. If a jury were to find that some harm resulting from occlusion was foreseeable in lig ht of the circumstances, then the defendant would also owe a dut y to protect Mr. Gar

rett from completely sev ering the endotracheal tube, even thoug h this specific harm was never foreseen. Spivey , 211 S.W.2d at 457.
Perhaps more important to our dec ision, however, i s that the case now before us is specifically controlled by the medical malpractice statute. The statutory elements of a medical malpractice action are cod ified at Tenn. Code Ann. § 29-26-115. The relevant inquiries under this

statute are: the standard of care; 4 a deviation from the standard of c are; and causation. Tenn. Code Ann. § 29-25-115(a)(1)-(3). Expert testimony is required to prove each of these elements. Tenn. Code Ann. § 29-25-115(b). The standard of care and the deviatio n from th e standa rd of care , theref ore, are n ot estab lished by a reasonable person standard as in other areas of negligence law. Summary judgment, the refore, is inap propriate if co mpetent expert testimony is conf licting.10 The proper inquiry i n this case is simply whether the defendant's failure to order a bite block or or al airway, reposi

tion the endotracheal tube, or c ontact the treating physician deviated from the recogniz ed standard of care. The defendant has filed a mo tion for summ ary judgment with sup porting affid avits alleging:
(1) "the endotracheal tube['s] . . . failure in this case wa s unforeseeable;" (2) "the defendant provided appropriat e staffing and supervision of Mr. Garrett;" and (3) because the "failure of the endotracheal tube was not foreseeable and no mouth brace or other device had been ordered by a physician, the defendant had no duty to supply suc h a device."
In response, the plaintiff countered with affidavits from Nell S. George, R.N., B.S.N., M.S.N., Dr. J oseph William Rubin, M.D., C.M., and Veronica Varallo, R.N. The affidavits of the plaintiff's experts ma y be summarized as follows:

the beside nurse's care of Mr. Garrett fell below the recognized standard of care when failing to order a bite block, r eposition the tube, or contact the treating physician upon observ ing Mr. Garrett biting his endotracheal tube as occlusion or impair ment of the tube was foreseeable.
The hospital record and Nurs e Hoeflein's testimony indi cate that Mr. Garrett w as biting on his tube on tw o occasions occurring

within less than a tw

o-hour period of time. Mr. Garrett became ag itated and had to be restrained. The conflicting expert testimony as w

ell as the inferences to be draw n from the record create genuine issues of material fact as to the standard of care and whether a deviation from the standard of car e occurred. Resolution of mater ial issues of11 fact concerning possible deviations from the standard of care is generally within the purview of the trier of fact. Summary judgment, therefore , was improperly granted.
Costs of this appeal shall be taxed against the defendan t for which executio n may issue if neces sary.

JANICE M. HOLDER, JUSTICE
Concurring: Anderson, C.J. Drowota and Birch, J.J.