# FILED
Ap ril 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk FREDA G. MOON, ) ) Executor of the ) Estate of RUTH GARRETT, ) ) Plaintiff /Appella nt, ) Appeal No.

) 01-A-01-9609-CV-00389 v. ) ) Davidson

Circuit ST . TH OMA S H OS PITA L, ) No. 87C-239 ) Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CI RCUIT COURT FOR DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE
THE HONORABLE B ARBARA N. HAYNES, JUDGE

HAR LAN D ODS ON, III ANN E C . MA RT IN JULIE K. SANDI

NE Dodson, Parker & Behm 306 Gay Street 400 Realtors Building P. O. Box 198066 Nashville, Tennessee 37219

ATTORNEYS FOR PLAI NTIFF/APPEL

LANT
MARY MARTIN SCHAFFNER Howell & Fisher Court Square Building 300 James Robertson Parkway Nashville, Tennessee 37201-1107

ATTORNEY FOR DEFENDANT/APPEL LEE

AFFIRMED AND

REMANDED

SAMUEL L . LEWIS, JUDGE1 Ms. Moo n was substi tuted f or the ori ginal pl ainti ff, Ruth F. Garrett , the s urviving widow of Ray Elmer Garret t, in 1990 f

oll owing Ms. Garr ett 's deat h. 2 Th e end otrac heal tub e was m anufac tured by B ivona , Inc. whic h was fo rmer ly a defe nda nt in this suit until the cas e aga inst it was dism issed b y summ ary jud gme nt.

3 Nurse Hoef

lei n desc ribe d the suct

ioni ng proc edure as f

oll ows: "we us e th e bag, whi ch i s hooke d up to 100 percen t oxy gen an d has a n adapt er on t he end t hat you pl ace on t

he endot rache al t ube and y ou bag t

he patient , or pum p the p atient sev eral time s to give him q uick am ounts o f oxyge n. Yo u take th at off and you ha ve a ster ile techniq ue and you slide a cathe ter do wn the e ndo trache al tube and a s you p ull bac k out yo u app ly suction which is hoo ked up to th e wall to elimina te muc ous fro m the p atient's trache a and lung are a." -2- 

## OPINION This law suit ar ose out of the death of Ray Elmer Garrett which occurred whilehe was a patient at St. Thomas Hospital, the defendant below. Finding that, as
amatter of law, the events surrounding Mr. Garrett's death w er e not r easonably fores eeable, the Davidson County Circuit Court granted the defendant hospital summary judgment. Freda M oon 1 , the decedent's daughter, has appealed to this court argu ing that this was not a proper case for summary judgment. We disagree. According ly, we affirm th e decision of the trial court.

On 6 February 1 986, Mr. Ga rrett was admitted to the defendant hospital where he underw ent corona ry bypass surgery the following day. During surgery, Mr. Garret twas ora lly intubate d with an e ndotrache al tube 2 -- a tube placed in his throat leading to hi s lung area

which wa s used to provide him with the ne cessary o xygen. After a success ful surger y, Mr. Ga rrett w as taken tothe recov ery room where his conditi on was cons idered sta ble.

Ata pproxim ately 12:00 a.m. on the morning following Mr. Garrett's surgery, the nurse a ssigned to him, P atricia Hoeflei n, observe d that Mr. Garrett became agitated a

nd restles s when she

attempte d to suction

his lungs. 3 She stated that he b it on his en dotracheal tube two times but that he ceased biting when she was finished suctioning. In respons e to Mr. G arrett' s fidgeting withthe wire s to which h e-3-

was hooked, Nurse Hoef lein put him in soft arm

restrai nts to prevent him, onc e he awakene d, from

pulling at these wires. She statedthat this was a common procedure withpost-op erative pat ients. For the next hours, while she continued to care for him, she noticed no s igns of

agitatio n. Almost two hours after Nurse Hoeflein suctioned Mr. Garrett, she left his room for approxima

tely thirty

seconds and

returned upon being ale rted that M r. Garrett had b itten his tube.

At1:40 a.m., just before Mr. Garr e tt bit his t ube, Ronal d McKay, a respiratory technicia

n, decre ased the pe

rcentage of oxy gen that Mr. Garrett was receivin g. Atthis time, Mr . McKa y checked t

he condition

of the endo trachea

l tube and noticed no i ndication of chewing or biting. Ten or eleven minutes later at 1:50 a.m., Mr. McKay responded to an alarm in Mr. Garrett's room and discove red that he had bitten his tube almos t in two. Mr. McK ay left the room seek

ing assista

nce from the supervising respiratory technicia n. When Mr. McK ay momenta rily returned

with anotherrespirat

ory technic ian, Byron Kaelin, and the respiratory therapy supervisor, GeneEmerson, M r. Gar rett had completely bitten the tube in half. Though Mr. Garrett's jaws were clamped shut, the men were able to force an airw ay tube thr ough. However, they could no t remove a piece of the sever

ed tube fr omMr. Garrett's throa

t. A physician, Dr. L ee, ar

rived and e xtracted

the sever

ed tube. Unfortunately, Mr. Garret t suffer ed a hear t attack du

ring this pr

ocess and he

was unabl e to be re vived.

Both Nurse Hoeflein and Mr. McKay testified at depositi ons that they had
neverseen a

patient bite through an endotracheal tube before, and Mr. McKay added thatthis was the fi rst time he had ever h eard of su ch an incid ent. Th ough Nurse Hoeflei n was fam

iliar wi th the use of

bite blocks to prevent

a seizing p atient fr

om biting on his endotracheal tube, she testified that she had not felt th at it was necessary-4-

to use a bite bloc k or an ora l airwa y in the cas e of Mr. Garrett. She testifie d that in her six and a half

years of critical

care nur sing, she

had only used

a bite bloc k for one type of patient -- o ne who was continuously seizing. She stated that, in her experience, the only patients who continuously chewed on their tub es were those who were seizing. For the majority of patients who were chew ing on their endotracheal tubes, N urse Hoeflei n testifie d that her a pproach w ould be to ca

lm them dow n and to orient t

hem wi th regard

to the tube. If a pat

ient wer e chewin g on a tube tothe point that they w ere incoh erent and uncoopera

tive, she might seda

te them w ith medicati on. If a pat

ient's che wing wer

e interf ering wit h the delive

ry of oxygen , she might put in an oral airway which she had commonly used "to preve nt patients who continually

bite on their endotra

cheal tube

to the point t

hey are pr eventing the

air line delivering the breath and oxygen they need."

Mr. Emerson testified that he had neve

r seen nor heard of a patient c ausing a defect in an endotracheal tube by gnawing or chewing on the tube. He stated that partof his du ty as a re spiratory therapist was to suc tion patient s who have endotracheal tubes and th at it was "fairly c ommon" for these patients to gnaw on t

he tubes while bei ng suctioned. He adde d that if a patient' s gnawing w as caused by the suctioning and if it st

opped when

the suctioning stopped, no precautions were taken to prevent the patient from biting the tube.

Nurse Hoefl ein and Mr . Emer son both testi fied that t hey did not r

ecall personally

using a bite block before the incid ent. They stated that though St. Thomas had not genera

lly used bite

blocks bef

ore the inc ident, it h ad used them with most patients since that time. Mr. E merson testifie d that, f ollowing the

incident, the hospital adopted a

policy to use a bite block or oral airway with any orally-intubated-5-

patient who has teeth. Mr. Emerson said that he had not used bite blocks or oral airways for patients with en dotrachea l tubes at either of hi s tw o plac es of prev ious employment
.

In presentin g its case, the defen dant relie d heavily upo n the aff idavit of Clifton W. Emerson, M.D. , an anesthes iologis t wi th Cardiova scula r Anesthesi ologists, P.C., and one of the doctors directly responsible for managing Mr. G arrett's anesthesi a and super vising his post -operati ve care. Dr. E merson testifie d that"patients can inter

mittently b ite on the e ndo t racheal tube and int

errupt the ventilator y flow [butthat s]uc h biting, which freq uently occurs w hen the pat ient is being suctioned, is not conside red problematic unless the anesthesiologist anticipates the patient mi ght exp e rience seizures. " Dr. E merson te stified tha

t "[i]f t he anesthesio logist

anticipates the patient may bite d own on the t ube suffic ient to interrupt air flow, he/she will order a bite bloc k or oral a

irway to b e used in

order to enablethe endotracheal tube to deliver appropriate ventilatory support to the pat ient." Such a decision

is a medic al decisio n and as suc h, ab sent an em ergency, it would have been i nappropria

te for hosp ital perso nnel to utilize a bite blockor oral airway for Mr. Garrett without an order from one o f the anesthesiologists. He added that "[b]itingon a tube dur

ing suctionin g is an ordin ary, eve ryday even

t and, in no way represe nts" such an

emergen cy.

Dr. Emerson

stated tha

t though hehad been involved in over 20,000 open heartprocedur

es, prior to Mr. Garrett’s surgery, he wa s totally unaware that a FomeCuf endotrac heal tube

could be bit

ten in two b y a patient . He "ha d never know n nor [had he] ever

heard of a

patient co mpletely t

ransecti ng an endotr acheal tu be as did Mr. Garrett." He stated that based on his experien ce and tra ining, "it was not-6-

reasonably f

oreseea bl e that Mr. Garrett would bit e his endo tracheal tu be in two." Indeed, Dr. Emerso n f

elt that the incident was "such a 'freak' accident that, even today, [he d oes] not ro utinely use bite b locks for p ost-anes thesia pat ients."

The defendant's testi mony revea led certa in disadvant ages of or al airw ays and bite blocks . Nurse Hoefl ein testif

ied that an

oral air way was not only uncomfort able but that it had the potenti al to make a patient gag which might lower h is heart and

blood pressu

re. As for a bite

block, it a

lso is uncom

fortable for a patient. Additiona

lly, prolo nged use of a bite bl ock c an cause u lceratio n of the mouth.

To support her position, the plaintiff relies upon the a ffidavits of Joseph WilliamRubin, M.D., C.M. , a cardiovascular surgical specialis t, as we ll as those o f two critica

l care nur ses, Ne ll S. George and Veronica Varallo. While both Dr. Rubin and Nurse George were contacted through an expert witness se

rvice, N urse Varallo, who actually worked at St. Thomas in the criticalcare unit from 1992 to November of 1994, was contacted through a former employer. All thre e of these experts opined thatthe bedside

care of Mr. Ga rrett fe ll below th e recogni zed standa rd of acc eptable professional practice

in the prof

ession and th e specialty of the cr itical ca re of pat ients. Each one stated in his aff

idavit that , after

reviewi ng these re cords, it was his opi nion that "[w ]hen the be dside nurse observed Mr. Gar

rett bitinghis endotracheal tube at [12:45 a.m.], she should have either used a bite blockor repositioned the tube to keep himfrom further biting or contacted the treating physician so that he could make that decision."

Dr. Rubin's second affidavit stated that "[t]he medical records i n this case-7-

indicate tha t the bedside

nurse knew

Mr. Ga rrett w as biting his endotrach eal tube during his recovery from surgery [and thatb]ased on t he recor ds, it wa s foresee able thatthe endotr acheal tu

be could bec ome occluded or impaired." In his third and final affidavi t, Dr. Ru

bin again st ated that his opinion wa s based on me dical rec ords "which indicate thatthe bedside nurse knew Mr. Ga rrett w as agitate d and biting hi s endotracheal tube during his recovery from surgery." In addition, he stated that attending medical personnel have a duty to ensure that a patient's endotracheal tube is not blocked o r damage d and that when a patient displays a gitate d and biti ng behavior, there exis ts a further duty to p revent dama ge. "One such preventive
measure is repositi oning of the endotrach e al tube, which decre ases the e xtent of damageto one specific part of the tube by teeth bitin g, there by decrea sing the likelihood of

the tube being sever

ed in two. Another preventive measure is the use of abite block." He testi fied that t he decision

of whethe

r or not to us e a protec tive device or whethe

r or not to r

eposition a tube is an appropriate decision for a critical
care nurse. In conclusion , it was Dr. Rubin's opinion that, "[u]nder the circumstances of this case, it w as reasonab ly foreseeable that Mr. Garrett would lose ventilatory support due t

o his transect

ion of the e ndotrache al tube and , as a re sult, be unable t o breathe and die."

The plaintiff

submits that

her evide nce direc tly contradicts that o f the defendant and thatit expressly demonstrates that inferences and conclusions contrary to those of the defendant’s expert witnesses have been rea sonably drawn fr om the facts of this ca se. As s uch, the p laintiff asserts th at this is not a proper case for summary judgment w hich is to "be rendere d forthwi th if the pl eadings, depositions,
answers to interr

ogatories, and admissi ons on file, together w ith the aff idavits, if any, show that there

is no genuine

issue as to any material fact and that the mo ving party-8-

is entitled toa judgment

as a matt er of law. " Tenn. R . Civ. P . 56.03. In other w ords, summary judgment is appropriate when two prer equisites a

re met. First, t

here must be n o genuine issu e as to any f act nece ssary to re solve the sub stantive c laim or defense embodied in the sum mary judg ment moti on, Byrd v. H all , 847 S.W. 2d 208, 210 (Tenn. 1993), and

second, t he moving pa

rty must be

entitled toa judgment as a matter of law. Mansfield v. Colonial Freight Sys . , 862 S.W .2d527, 530 (T enn. App. 1993). As our supreme court has stated "[t]he issues that

lie at the heart of evaluatin g a summary judgment motion are: (1) whether a factual disputeexists; (2 ) whether the disputed fa

ct is material

to the outco me of the c ase; and ( 3) whether the disputed fact creates a genuine issue for trial." Byrd , 847 S.W.2d at 2 14.

The legal principles which guide an appella

te court's review of a trial court's grant of a motion

for summary judgment are well settled. Because the trial court's decisioninvolves only

a question o f law, there is n o presumpti on of corr ectne s s attached to this decision
. Hembree v. State , 925 S.W .2d 513, 51 5 (Tenn. 1996). T his courtneed only review the record to determ ine w hether the requirem ents Rule 5 6 have been met. Ca rvell v. Bottoms , 900 S.W .2d 23, 26 ( Tenn. 199 5). In so doing,
we must view the eviden ce in the l ight most favorabl e to the nonmoving party, allow all reasonabl e inferences in fa vor of that

party, a nd discard all cou ntervaili ng evidence. Id . (citing Byrd , 847 S.W .2d at 210- 11). Sum mary judgm

ent should

be granted if the fa

cts and conc lusions p ermit a reas onable per son to reac h only one conclusi on. McCall v. Wilder , 913 S.W.2d 15 0, 152 (Tenn . 1995).

Once it is shown by th e moving par ty that ther

e is no genui ne issu e o f material fact, t

he nonmoving p arty must t hen demonst

rate, by affidavi ts or

discovery materia ls, that there is a genui ne, material fa ct dispu te to warrant a trial. Byrd , 847-9-

S.W.2 d at 211; see Tenn. R. Civ. P. 56.05. For Mr. Garrett's burden in this ca se, we turn to the substa

ntive la w regar

ding medica

l malprac tice whic h is outlined in Tennesse e Code Annotated sec tion 29-26-1 15: (a) In a malprac tice act

ion, the c laimant sh all have the bu rden of proving by evidence as provided by subsection (b): (1) The recognized standard of acceptable professional practice in the profe ssion and the specialty

th ereof, if any, t

hat the defendant practice s in the community in whic h he pract ices or in asimilar co mmunity at t he time the

alleged in

jury or wr

ongful action occ urred; ( 2) That the defendant

acted w ith less tha

n or faile d to act w it h ordinary and reaso nable car e in accor dance wi th such stand ard; and (3) As a proximate result of the defen dant' s negligent act or omission, the plainti ff suffe red injuri es which woul d not otherwis e have occ urred. (b) No person

in a he alth care profession requiring licensure underthe laws of th is stat e shall be c ompetent totestify in any courtof law toestablis h the fac ts require d to be esta blished by subsection

(a) unless he was licensed t o practic e in the state or a contiguous bordering state aprofessio n or specia lty which w ould make his expert testimony relevant to the issues in the case and had practiced this profession or special ty in one of these states during the year precedingthe date t hat the all eged injury o r wrongful act occur red. T his rule sha

ll apply to expert witnesses testifyingfor the

defendant as rebutta l witnesse s. The court may waivethis subsec tion when i t dete rmines that the a ppropriate witnesses otherwise would not be available.
The outcome of

this case is contingen

t upon the "r

ecognized

standard o f
ac ceptable

professional practice" and whether the defendant hospital ac ted i n accordance with this standard
. Id . § 29-26-115( a)(1) - (a)(2) . We note that absen

t a finding that the de fendant ow ed Mr. G arrett a duty involving the protec tion of his endotracheal tube from

being bitten in two, it is irrelevant that protective measures such as a bite b lock o r an o ral airw ay would ha ve prevent

ed the tra nsection of

the tube. The plai ntiff must

show that, under thes e facts, the defen dant hospita l owed the plaintiff a duty of care. As in all negligence cases, there is a duty to exerci se reasonabl e care under th e circumsta nces. Pittman v. Upjohn Co . , 890 S.W .2d 425, 428 (Tenn. 1994) (cit

ing Doe v. Linder Constr. Co . , 845 S.W.2 d 173 , 177-10-

(Tenn. 1992)). In Doe , the cour t explaine d: The term re asonable c are must be given mea

ning in rela

tion to the circumstan ces. Ordinary, or reasonable, care is to be estimated by the risk e ntailed thr ough probable

dangers a

ttendin g th e particular situation and is to be co mmensur ate with the risk of injury. The risk inv olved is tha t which is foresee able; a r isk is foresee able if a reasonable person could foresee the probabilit y of its occurre nce or if

the person

was on noti ce that the

likelihood of dange r to the part

y to whom is owed a dut y is probable
. Foresee abilit

y is the test of negligence. If the injury which o c curred could not hav e been re asonably fo reseen, the duty of care does not ar

ise, and e ven though the

act of the def

endant in fact caused the injury, there is no negligence a nd no liabilit y. '[T]he plaintiff must show that the i nj ury was a reasonably foresee able probability, not just a remote possibility, an d tha t some a ction within the [defendant's] power more probably than not would have

prevented the injur y.' . . . The pe rtinent que stion is whether

there w as any show ing from which it can be said that the defendant s reason ably knew or should hav e known of the probability

of an occu

rrence s uch as the o ne whi ch caused the plainti ff's injuri es. Id . at 178 (citations omi tted). See Pit tman , 890 S.W.2d at 431 (finding that defendant drug company was entitled to summary judgment as there was no gen uine issue of disputed, material fact with regard to the duty of

care it o wed to wa

rn in this case and that its warning was sufficient as a matter of law).

In this case, the risk

of injury was the risk of

the patien

t biting thro ugh his endotrach eal tube. We must determine whether the plaintiff's evidencein the form of the affi davits of N

urse George, Nurse V arallo, and Dr. Rubin establishes that there is a genuine, material fact dispute as to whether the defendants reasonably knew or shouldhave known of the probability of such an occurren ce. We begin by an examinati on of the plai ntiff's exp erts' opin ions. All three experts ga ve their op inions thatthe bedside

care of Mr. Ga rrett fe ll below th e recogni zed standa rd of acc eptable professional practice

in the prof

ession and th e specialty of the cr itical ca re of pat ients. Each stated tha

t "[w]hen the bedsi de nur se observe d Mr. Ga rrett bit ing his endotracheal tube . . ., she should have either used a bite block or re positi oned the-11-

tube to keep him

from fur ther bitingor contac ted the tre ating ph ysician so t hat he couldmake that

decision. " In additi on, Dr. Rubin state d th at attending medical personnel have a duty

to ensure t

hat a patient's endotracheal tu be is not bloc ke d o r damaged and that when a patient displays agi tated and b iting behavi or, ther e exists
afurther duty to prevent damage which ca n be satisf

ied by repositioni ng the tube or using a bite

block. O nly Dr. Rubin direc tly addres sed theissue of f oreseea bility in opining that, based on medical records which indicate that the bedside nurse knew Mr. Garrett was bit

ing his endotrac heal tube d uring his re covery fr

om surgery , it

was foreseeabl e that the en dotracheal tube coul d become oc cluded or impaired.

We find that t

he opinions e spoused in

the plaintiff's experts' affidavits are inadequate

for several reas ons, the f irst of w hich is their failur e to descr

ibe the
s tandard o f care i n Nashvill e, Tenn essee. In Moore v. Walwyn , No. 01 A01-9507- CV-00295, 1996 WL 171 43 (Tenn. App. 1996) , this c o urt upheld t he grant of summary judgment to a

defendant

doctor bas ing its deci sion in part on t he failur e of the plaintiff's expert

"to establish a material dispute as to deviation from the standard of care." Id . at *5. T

he expert stated as follows: " In my opinion , intravenous antibiotics should have been given at the time of the operation of 5/2/93, as well as the operation of 5 /5/93.... In my opinion, it fell below the standard of care for a surgeon to do these o peratio ns without standard antibiotic prophylaxis." Id . at *4. The court stat

ed that the

doctor's "st atement

does not describe the st andard in Nashville or explain

that it is th e standar

d in a sim

ilar community. Moreover , the statement does not even describe a 'standard of acceptable professional practice.'" Id . Dissentingon other gr

ounds, Judge

Koch agreedthat "the omission of any reference to the appropriate recognized standard of professional practice in Nashville or similar communities as required by Tenn. Code Ann. Sec. 29-26-115(a)(1)" w as a "material-12-

shortcom ing" in t he plaint iff's expert opinion
. Id . at *12 (Koch, J., dissenting).

In the case at bar, the pl aintiff 's evidenc e makes no reference to the appropria te re cogn ized standa

rd of prof essional practice i n Nashvill e. Inste ad, all three expert s make a general r eferenc e to the re cognized st andard of accepta ble professional practice and assert their view s of what actions the attending nurse should have taken to pr

operly ca re for Mr. Gar

rett. T his court ha s stated tha

t " [t]h e testimonyof a physic ian as to w hat he wou ld do or his opi nion of wha t should have been done does not p rove the statutory standard of medical practice." Roddy v. Volunteer

Med. Clinic, Inc . , 926 S.W .2d572, 578 (T enn. App. 1996) (quoting Lewis
v. Hill , 770 S.W. 2d 751 (Te nn. App.1988) ); see Goodman v . Phyt hyon , 803 S.W.2 d 697, 700 (Tenn . App. 1 990) (findi ng "genera liz e d stateme nts concer ning the deviation from the standard of

care fo r medica

l practic e" inadequ ate wher e the plaintiff's expert f

ailed to ad dress the defendant doctor's a ssertion that h is actions complied with the standard of care).

In comparison to the plaintiff's lack of evidence on the acceptable standard of care in N ashville, the testimon y of the defendant's experts, all of whom were employed in the Na shville ar ea, indic ates that a

cceptabl e practic e did n ot mandat e they tak e any fu rther pro tective a ction for a

patient w ho had becom

e momenta

rily agitated during suctioning and bitten down two times on his endotracheal tu be. Nur se Hoeflei n stated tha

t in her six and a half

years as a critic al care

nur s e, she had only used a bite bloc k for a pa tient who w as continuou sly seizing. Neither sh e nor Mr
. Emerson could rec all person ally using on e of these de vices nor d id the defendant hospital generall y utilize su c h devices pr ior to this i ncident. Dr. Emerson, Nurse Hoeflei n, and Mr. E

merson w ere in ac cord in

their assertion s that it w as common f or-13-

patients who wer

e being suct

ioned to gnaw

on their en dotrachea

l tubes duri ng the suctioning process. Because this gnawing was not considered problematic, both Dr. Emerson and Mr. Emer son stated that no pre cautions w ere take n when a pa tient displayed such behavior. To the contrary, Dr. Emerson considered it a "freak accident " for

a patient to bite through an endotrache al tube. Indeed, the transe ction of an en dotrachea

l tube seems to have been an unprecedented occurrence. Neither NurseHoeflein, Mr. McKay, Mr. Emer son nor Dr. Emerson, who had performed over 20,000 open heart procedures, hadever expe rienced o r heard of

an endotra

cheal tube being com pletely b itten in t wo.
Thus, a review of the defendant's expert proof reveals that the recognized standard of prof

essional practice

did not nece ssitate f

urther ac tion becaus e the transect ion of the tube

was comp letely unf

oreseea ble. As is quoted above

from our state's supreme c ourt, "[ i]f the injury whi ch occurr

ed could not

have been reasonably foresee n, the duty of care does n ot arise . . . '[T]he plaintiff must show that the injury
was a reasona

bly forese eable probabil ity, not just a remote possibility.’" Doe , 845 S.W.2 d at 178. Here, the proof does not even establish that the defendant medical staff should have considered this injury a remote possibility. Therefore, we conclude not only that the plaintiff's evidence fails to describe the standard of care in Nashville, Tennessee, but that

the defendant's uncontroverted proof demonstrates that no duty existed because no reasonable pers on co uld have foreseen the probability of Mr. Garret t biting the endotrache al tube in tw o.

In reachingthis conclu sion, we acknowle dge Dr. Rubin' s assert ion that based on medical records which indicate that the bedside nurse knew Mr. Garrett wa s biting his endotra

cheal tube during his recovery from surgery, "it was foreseeable that4 We point out that the e vidence was not tha

t Mr. Gar rett wasbiting hi s tube at 1 2:45 a.m. as stated in all three experts' opinions. Rather, Nurse Hoeflein testified tha t he bit his tube two times around 12:00 a.m. -14- the endotracheal tube could become occluded or impaired." Howeve r, we d o not find thatDr. Ru

bin's opinion

substantiates the plaintiff's burden of f oreseea bility. I ndeed, this opinion exemplifies another defect in the plaintiff's evidence -- the inaccuracy of the factu al predicat e upon whi ch the plai ntiff's exp erts drew the ir conclus ions.

The undisputed f

acts in t his case show that Mr. Garrett briefly displayed agitated behavior while his lungs were being suctione d at which time he bit

down on his endotrac heal tube t

wo times. All of the

defendant 's expert s ag ree that such agitatio n is a common r

eaction f or patient s whose lung s are bei ng suctioned . The proof showed tha

t Mr. G arrett' s agitated b ehavior c eased as s oon as the suc tioning ceased and that the

medical p ersonnel no ted no furt h er indic ation of suc h behavior until he bit the tu be in half al most two ho urs later.

As stated above, all three of the plaintiff's experts opined that "[w ]hen the bedsidenurse obser

ved Mr. G arrett b iting his endo trachea l tube at [12:45 a.m.], 4 she shouldhave either used a bite block or repositioned the tube to keep him from further biting or contac ted the tre ating physic ian so that h e c ould make that decision." In addition, Dr. Ru

bin stated t

hat attend ing medical p e rsonnel hav e a duty to pr event damageto an endotracheal tu be when a patient dis plays agita

ted and biting behavior. Indeed, he preface d his opinion in his third af

fidavit by s tating that it wa s based on Mr. Garrett's medi cal rec ords "which ind icate tha t the bedsid e nurse knew

Mr. Ga rrett
was agitated a

nd biting his e ndotrache al tube dur ing his r ecovery fro m surgery." Accordi ng to the opinions espoused by these experts, the actions they advocate are cl early contingent u

pon the patient being in a n agitated

state. H owever, the fact s-15-

were that Mr. Garrett was only momentarily in an agitated state almost two hours before the incident. His agitation was induced by a med ical procedure which typicallycaused agitation, and when the procedure was completed, Mr. Ga rre tt showed no f

urther sig ns of agita

tion.

Rule of Civil P

rocedure 56 .05 provides in p art that " [e]xper t opinion affidavi ts shall be gov erned by T ennessee Rule of Evidence 703 " which st ate s as follows: The facts or data in the particular c ase upon which an expert bases an opinion or

inferenc e may be th ose perceived by or made known to the expert at or before the hea ring. I f of a type reasonably relied upon by experts in the par ti cular fi eld in forming opinions or inference s upon the subj ect, the facts or data need not be admissible in evidence. The court shall disal lo w testimonyin the form of an opinion or infer ence if the underl ying facts or data indic ate lack of trustw orthiness. Tenn. R. Evid. 703. In thi s case, the opinions expressed by the plaintiff's experts are not based upon th e facts o f this case. If opinion testimony must be disallowed when the underlying f

acts indic ate a lac k of trustw orthiness, it certa inly must be disallowed when the underlying facts are inacc urate. Moreover, opinions which are not based upon the facts of a particular case are inadmis sible as i rrelevant ev idence. See Tenn. R. Evid. 402 . "'Re levant evi dence' m eans evide nce having a

ny tendency

to make the existence of any fa ct that is o f conseque nce to the determina tion of the action more probable or less probable than it would be without the evidence." Tenn. R . Evid. 401. Becauset he expert s' opinions r egarding th e duty owe d an agitat ed patient have no bearing on the determinat ion of whe the r there i s a duty in the present c ase, this evidence is irreleva nt. See State v. Campb ell , 904 S.W .2d 60 8, 616 (Tenn. Crim. App. 1995) (uphol ding lower court exclusion of expert testimony where "trial court correct ly found that t

he proposed

testimony of

the psycholo gist wou ld no t substantial ly assist the

jury to understand the proof that had been adduced duri ng the-16-

trial or to resolve an y fact in is sue").

In upholding the tr ial co urt's grant of summary j udgment in this ca se, we note that our co urts have long espoused the view that summa ry judgment

should be
en ter ed cautiously in particu lar kinds of cases, of which m

edical ma lpractic e is a prime example. See Bo wm an v. He nard , 547 S.W.2d 527, 530 (Tenn. 1977); Ledford v. Moskow itz , 742 S.W.2d 645, 649 (Tenn. App. 1987); see also Blocker
v . Regional Med. Ctr . , 722 S.W .2d 660, 66 2 (Tenn. 1987) (re versing th e summar y judgment in a worke

r's compensation cas e involving th e com menceme nt of the statuteof limitations and noting that such cases mos t often ar e factua l in nature ). The rationale behind this notion stems from the fact that the basic elements in a medical malpractice case must be proven by expert medical evidence in the form of opinion testimo ny. See Tenn. Code Ann. § 29-26-115(b); Payne v. Caldwe ll , 796 S.W .2d 142, 143 (Tenn . 1990); Hartsell v . Fort Sanders R eg'l Med. Ctr . , 905 S.W .2d944, 9 50 (Tenn. App. 199 5), cert. denied , 116 S. C t. 1352 (199 6). "Be cause opini on testimonyalways is subject toevaluatio n by the fac t finder, it genera lly has bee n held not an appropriate basis for summary judgment." Bowman , 547 S.W .2d at 530.

However, the court i n Bowman noted an exc eptionto this general r ule: "in those malpractice actions wherein expert medical t estimony is r

equired to establish negligence and proxima

te cause, affidavi ts by medi cal doctor s which cl early and completely refute p laintiff' s contention afford a proper ba si s for d ismissal of the actionon summary judgment, in the absence of proper responsive

proof by af

fidavit
or otherwise." Id . at 531. More recently, this court has stated that grants of summary judgment "have proven particularly useful in medical malpractice cases . . . [w] hen the issue is pro perly rai sed and it is shown prior to trial that the plaintiff cannot meet-17-

thatburden [im

posed on the p laintiff by the legislature]." Walker v. Bell , 828 S.W.2 d 409, 411 (Tenn . App. 1 991). We believe th at this is a case

where t he plaintif

f cannot meet the bu rden of sho wing medica l malpracti ce.

The plaintiff's evidence

in this case

fails to demonstrate a genuine material fact dispute wi th regard

to whethe

r the def endant com

plied with

the recog niz e d standard of acce

ptable prof

essional practice i n Nashvill e, Tennessee. The expert affidavi ts presente d by the plai ntiff do not establish t

hat theoccurrence which caused Mr. Garrett's deat

h was for

eseeable or that the

appr opri ate professional practice standard mandated further action in an effort to protect Mr. Garrett' s endotr acheal tube. Furthermore, all of the experts' opinions are premised upon the incorrect fact thatthe plaintiff was in an agitated statefollowing surgery. Accordingly, we affirm the trial co urt and tax the costs of this ap peal to th e plainti ff Freda G. Moon
.

____________________________________ CONCUR: SAMUEL L . LEWIS, JUDGE

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

_____________________________________ WILL IAM C. KOCH, JR., JUDGE