FILED

April 25, 1997

Cecil W. Crowson

Appellate Court Clerk

FREDA G. MOON, )

)

Executor of the )

Estate of RUTH GARRETT, )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9609-CV-00389

v. )

) Davidson Circuit

ST. THOMAS HOSPITAL, ) No. 87C-239

)

Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE BARBARA N. HAYNES, JUDGE

HARLAN DODSON, III

ANNE C. MARTIN

JULIE K. SANDINE

Dodson, Parker & Behm

306 Gay Street

400 Realtors Building

P. O. Box 198066

Nashville, Tennessee 37219

ATTORNEYS FOR PLAINTIFF/APPELLANT

MARY MARTIN SCHAFFNER

Howell & Fisher

Court Square Building

300 James Robertson Parkway

Nashville, Tennessee 37201-1107

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
1Ms. Moon was substituted for the original plaintiff, Ruth F. Garrett, the surviving widow of Ray Elmer

Garrett, in 1990 following Ms. Garrett's death.

2

The endotracheal tube was manufactured by Bivona, Inc. which was formerly a defendant in this suit until

the case against it was dismissed by summary judgment.

3Nurse Hoeflein described the suctioning procedure as follows: "we use the bag, which is hooked up to 100

percent oxygen and has an adapter on the end that you place on the endotracheal tube and you bag the patient, or

pump the patient several times to give him quick amounts of oxygen. You take that off and you have a sterile

technique and you slide a catheter down the endotracheal tube and as you pull back out you apply suction which is

hooked up to the wall to eliminate mucous from the patient's trachea and lung area."

-2-

OPINION

This law suit arose out of the death of Ray Elmer Garrett which occurred

while he was a patient at St. Thomas Hospital, the defendant below. Finding that, as

a matter of law, the events surrounding Mr. Garrett's death were not reasonably

foreseeable, the Davidson County Circuit Court granted the defendant hospital

summary judgment. Freda Moon1, the decedent's daughter, has appealed to this court

arguing that this was not a proper case for summary judgment. We disagree.

Accordingly, we affirm the decision of the trial court. 

On 6 February 1986, Mr. Garrett was admitted to the defendant hospital

where he underwent coronary bypass surgery the following day. During surgery, Mr.

Garrett was orally intubated with an endotracheal tube2 -- a tube placed in his throat

leading to his lung area which was used to provide him with the necessary oxygen.

After a successful surgery, Mr. Garrett was taken to the recovery room where his

condition was considered stable. 

At approximately 12:00 a.m. on the morning following Mr. Garrett's

surgery, the nurse assigned to him, Patricia Hoeflein, observed that Mr. Garrett

became agitated and restless when she attempted to suction his lungs.3

 She stated that

he bit on his endotracheal tube two times but that he ceased biting when she was

finished suctioning. In response to Mr. Garrett's fidgeting with the wires to which he
-3-

was hooked, Nurse Hoeflein put him in soft arm restraints to prevent him, once he

awakened, from pulling at these wires. She stated that this was a common procedure

with post-operative patients. For the next hours, while she continued to care for him,

she noticed no signs of agitation. Almost two hours after Nurse Hoeflein suctioned

Mr. Garrett, she left his room for approximately thirty seconds and returned upon

being alerted that Mr. Garrett had bitten his tube. 

At 1:40 a.m., just before Mr. Garrett bit his tube, Ronald McKay, a

respiratory technician, decreased the percentage of oxygen that Mr. Garrett was

receiving. At this time, Mr. McKay checked the condition of the endotracheal tube

and noticed no indication 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 discovered that he

had bitten his tube almost in two. Mr. McKay left the room seeking assistance from

the supervising respiratory technician. When Mr. McKay momentarily returned with

another respiratory technician, Byron Kaelin, and the respiratory therapy supervisor,

Gene Emerson, Mr. Garrett had completely bitten the tube in half. Though Mr.

Garrett's jaws were clamped shut, the men were able to force an airway tube through.

However, they could not remove a piece of the severed tube from Mr. Garrett's throat.

A physician, Dr. Lee, arrived and extracted the severed tube. Unfortunately, Mr.

Garrett suffered a heart attack during this process and he was unable to be revived.

Both Nurse Hoeflein and Mr. McKay testified at depositions that they had

never seen a patient bite through an endotracheal tube before, and Mr. McKay added

that this was the first time he had ever heard of such an incident. Though Nurse

Hoeflein was familiar with the use of bite blocks to prevent a seizing patient from

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

to use a bite block or an oral airway in the case of Mr. Garrett. She testified that in

her six and a half years of critical care nursing, she had only used a bite block for one

type of patient -- one who was continuously seizing. She stated that, in her

experience, the only patients who continuously chewed on their tubes were those who

were seizing. For the majority of patients who were chewing on their endotracheal

tubes, Nurse Hoeflein testified that her approach would be to calm them down and

to orient them with regard to the tube. If a patient were chewing on a tube to the

point that they were incoherent and uncooperative, she might sedate them with

medication. If a patient's chewing were interfering with the delivery of oxygen, she

might put in an oral airway which she had commonly used "to prevent patients who

continually bite on their endotracheal tube to the point they are preventing the air line

delivering the breath and oxygen they need." 

Mr. Emerson testified that he had never seen nor heard of a patient causing

a defect in an endotracheal tube by gnawing or chewing on the tube. He stated that

part of his duty as a respiratory therapist was to suction patients who have

endotracheal tubes and that it was "fairly common" for these patients to gnaw on the

tubes while being suctioned. He added that if a patient's gnawing was caused by the

suctioning and if it stopped when the suctioning stopped, no precautions were taken

to prevent the patient from biting the tube.

Nurse Hoeflein and Mr. Emerson both testified that they did not recall

personally using a bite block before the incident. They stated that though St. Thomas

had not generally used bite blocks before the incident, it had used them with most

patients since that time. Mr. Emerson testified that, following 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 endotracheal tubes at either of his two places of previous

employment.

In presenting its case, the defendant relied heavily upon the affidavit of

Clifton W. Emerson, M.D., an anesthesiologist with Cardiovascular

Anesthesiologists, P.C., and one of the doctors directly responsible for managing Mr.

Garrett's anesthesia and supervising his post-operative care. Dr. Emerson testified

that "patients can intermittently bite on the endotracheal tube and interrupt the

ventilatory flow [but that s]uch biting, which frequently occurs when the patient is

being suctioned, is not considered problematic unless the anesthesiologist anticipates

the patient might experience seizures." Dr. Emerson testified that "[i]f the

anesthesiologist anticipates the patient may bite down on the tube sufficient to

interrupt air flow, he/she will order a bite block or oral airway to be used in order to

enable the endotracheal tube to deliver appropriate ventilatory support to the patient."

Such a decision is a medical decision and as such, absent an emergency, it would

have been inappropriate for hospital personnel to utilize a bite block or oral airway

for Mr. Garrett without an order from one of the anesthesiologists. He added that

"[b]iting on a tube during suctioning is an ordinary, everyday event and, in no way

represents" such an emergency.

Dr. Emerson stated that though he had been involved in over 20,000 open

heart procedures, prior to Mr. Garrett’s surgery, he was totally unaware that a FomeCuf endotracheal tube could be bitten in two by a patient. He "had never known nor

[had he] ever heard of a patient completely transecting an endotracheal tube as did

Mr. Garrett." He stated that based on his experience and training, "it was not
-6-

reasonably foreseeable that Mr. Garrett would bite his endotracheal tube in two."

Indeed, Dr. Emerson felt that the incident was "such a 'freak' accident that, even

today, [he does] not routinely use bite blocks for post-anesthesia patients."

The defendant's testimony revealed certain disadvantages of oral airways

and bite blocks. Nurse Hoeflein testified that an oral airway was not only

uncomfortable but that it had the potential to make a patient gag which might lower

his heart and blood pressure. As for a bite block, it also is uncomfortable for a

patient. Additionally, prolonged use of a bite block can cause ulceration of the

mouth. 

To support her position, the plaintiff relies upon the affidavits of Joseph

William Rubin, M.D., C.M., a cardiovascular surgical specialist, as well as those of

two critical care nurses, Nell S. George and Veronica Varallo. While both Dr. Rubin

and Nurse George were contacted through an expert witness service, Nurse Varallo,

who actually worked at St. Thomas in the critical care unit from 1992 to November

of 1994, was contacted through a former employer. All three of these experts opined

that the bedside care of Mr. Garrett fell below the recognized standard of acceptable

professional practice in the profession and the specialty of the critical care of patients.

Each one stated in his affidavit that, after reviewing these records, it was his opinion

that "[w]hen the bedside nurse observed Mr. Garrett biting his endotracheal tube at

[12:45 a.m.], she should have either used a bite block or repositioned the tube to keep

him from 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 in this case
-7-

indicate that the bedside nurse knew Mr. Garrett was biting his endotracheal tube

during his recovery from surgery [and that b]ased on the records, it was foreseeable

that the endotracheal tube could become occluded or impaired." In his third and final

affidavit, Dr. Rubin again stated that his opinion was based on medical records

"which indicate that the bedside nurse knew Mr. Garrett was agitated and biting his

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 or damaged and that when a patient displays agitated and biting

behavior, there exists a further duty to prevent damage. "One such preventive

measure is repositioning 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 two. Another preventive measure is the use

of a bite block." He testified that the decision of whether or not to use a protective

device or whether or not to reposition 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 was reasonably foreseeable that Mr. Garrett would lose ventilatory

support due to his transection of the endotracheal tube and, as a result, be unable to

breathe and die."

The plaintiff submits that her evidence directly contradicts that of the

defendant and that it expressly demonstrates that inferences and conclusions contrary

to those of the defendant’s expert witnesses have been reasonably drawn from the

facts of this case. As such, the plaintiff asserts that this is not a proper case for

summary judgment which is to "be rendered forthwith 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
-8-

is entitled to a judgment as a matter of law. " Tenn. R. Civ. P. 56.03. In other words,

summary judgment is appropriate when two prerequisites are met. First, there must

be no genuine issue as to any fact necessary to resolve the substantive claim or

defense embodied in the summary judgment motion, Byrd v. Hall, 847 S.W.2d 208,

210 (Tenn. 1993), and second, the moving party must be entitled to a judgment as a

matter of law. Mansfield v. Colonial Freight Sys., 862 S.W.2d 527, 530 (Tenn. App.

1993). As our supreme court has stated "[t]he issues that lie at the heart of evaluating

a summary judgment motion are: (1) whether a factual dispute exists; (2) whether

the disputed fact is material to the outcome of the case; and (3) whether the disputed

fact creates a genuine issue for trial." Byrd, 847 S.W.2d at 214. 

The legal principles which guide an appellate court's review of a trial court's

grant of a motion for summary judgment are well settled. Because the trial court's

decision involves only a question of law, there is no presumption of correctness

attached to this decision. Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996). This

court need only review the record to determine whether the requirements Rule 56

have been met. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). In so doing,

we must view the evidence in the light most favorable to the nonmoving party, allow

all reasonable inferences in favor of that party, and discard all countervailing

evidence. Id. (citing Byrd, 847 S.W.2d at 210-11). Summary judgment should be

granted if the facts and conclusions permit a reasonable person to reach only one

conclusion. McCall v. Wilder, 913 S.W.2d 150, 152 (Tenn. 1995). 

Once it is shown by the moving party that there is no genuine issue of

material fact, the nonmoving party must then demonstrate, by affidavits or discovery

materials, that there is a genuine, material fact dispute to warrant a trial. Byrd, 847
-9-

S.W.2d at 211; see Tenn. R. Civ. P. 56.05. For Mr. Garrett's burden in this case, we

turn to the substantive law regarding medical malpractice which is outlined in

Tennessee Code Annotated section 29-26-115:

(a) In a malpractice action, the claimant shall have the burden of

proving by evidence as provided by subsection (b):

(1) The recognized standard of acceptable professional practice

in the profession and the specialty thereof, if any, that the

defendant practices in the community in which he practices or in

a similar community at the time the alleged injury or wrongful

action occurred;

(2) That the defendant acted with less than or failed to act with

ordinary and reasonable care in accordance with such standard;

and

(3) As a proximate result of the defendant's negligent act or

omission, the plaintiff suffered injuries which would not

otherwise have occurred.

(b) No person in a health care profession requiring licensure

under the laws of this state shall be competent to testify in any

court of law to establish the facts required to be established by

subsection (a) unless he was licensed to practice in the state or a

contiguous bordering state a profession or specialty which would

make his expert testimony relevant to the issues in the case and

had practiced this profession or specialty in one of these states

during the year preceding the date that the alleged injury or

wrongful act occurred. This rule shall apply to expert witnesses

testifying for the defendant as rebuttal witnesses. The court may

waive this subsection when it determines that the appropriate

witnesses otherwise would not be available.

The outcome of this case is contingent upon the "recognized standard of

acceptable professional practice" and whether the defendant hospital acted in

accordance with this standard. Id. § 29-26-115(a)(1) - (a)(2). We note that absent a

finding that the defendant owed Mr. Garrett a duty involving the protection of his

endotracheal tube from being bitten in two, it is irrelevant that protective measures

such as a bite block or an oral airway would have prevented the transection of the

tube. The plaintiff must show that, under these facts, the defendant hospital owed the

plaintiff a duty of care. As in all negligence cases, there is a duty to exercise

reasonable care under the circumstances. Pittman v. Upjohn Co., 890 S.W.2d 425,

428 (Tenn. 1994) (citing Doe v. Linder Constr. Co., 845 S.W.2d 173, 177
-10-

(Tenn.1992)). In Doe, the court explained:

The term reasonable care must be given meaning in relation to the

circumstances. Ordinary, or reasonable, care is to be estimated

by the risk entailed through probable dangers attending the

particular situation and is to be commensurate with the risk of

injury. The risk involved is that which is foreseeable; a risk is

foreseeable if a reasonable person could foresee the probability of

its occurrence or if the person was on notice that the likelihood of

danger to the party to whom is owed a duty is probable.

Foreseeability is the test of negligence. If the injury which

occurred could not have been reasonably foreseen, the duty of

care does not arise, and even though the act of the defendant in

fact caused the injury, there is no negligence and no liability.

'[T]he plaintiff must show that the injury was a reasonably

foreseeable probability, not just a remote possibility, and that

some action within the [defendant's] power more probably than

not would have prevented the injury.' . . . The pertinent question

is whether there was any showing from which it can be said that

the defendants reasonably knew or should have known of the

probability of an occurrence such as the one which caused the

plaintiff's injuries. 

Id. at 178 (citations omitted). See Pittman, 890 S.W.2d at 431 (finding that

defendant drug company was entitled to summary judgment as there was no genuine

issue of disputed, material fact with regard to the duty of care it owed to warn 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 patient biting through his

endotracheal tube. We must determine whether the plaintiff's evidence in the form

of the affidavits of Nurse George, Nurse Varallo, and Dr. Rubin establishes that there

is a genuine, material fact dispute as to whether the defendants reasonably knew or

should have known of the probability of such an occurrence. We begin by an

examination of the plaintiff's experts' opinions. All three experts gave their opinions

that the bedside care of Mr. Garrett fell below the recognized standard of acceptable

professional practice in the profession and the specialty of the critical care of patients.

Each stated that "[w]hen the bedside nurse observed Mr. Garrett biting his

endotracheal tube . . ., she should have either used a bite block or repositioned the
-11-

tube to keep him from further biting or contacted the treating physician so that he

could make that decision." In addition, Dr. Rubin stated that attending medical

personnel have a duty to ensure that a patient's endotracheal tube is not blocked or

damaged and that when a patient displays agitated and biting behavior, there exists

a further duty to prevent damage which can be satisfied by repositioning the tube or

using a bite block. Only Dr. Rubin directly addressed the issue of foreseeability in

opining that, based on medical records which indicate that the bedside nurse knew

Mr. Garrett was biting his endotracheal tube during his recovery from surgery, it was

foreseeable that the endotracheal tube could become occluded or impaired. 

We find that the opinions espoused in the plaintiff's experts' affidavits are

inadequate for several reasons, the first of which is their failure to describe the

standard of care in Nashville, Tennessee. In Moore v. Walwyn, No. 01A01-9507-

CV-00295, 1996 WL 17143 (Tenn. App. 1996), this court upheld the grant of

summary judgment to a defendant doctor basing its decision in part on the failure of

the plaintiff's expert "to establish a material dispute as to deviation from the standard

of care." Id. at *5. The 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 operations without standard antibiotic prophylaxis." Id. at *4.

The court stated that the doctor's "statement does not describe the standard in

Nashville or explain that it is the standard in a similar community. Moreover, the

statement does not even describe a 'standard of acceptable professional practice.'" Id.

Dissenting on other grounds, Judge Koch agreed that "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)" was a "material
-12-

shortcoming" in the plaintiff's expert opinion. Id. at *12 (Koch, J., dissenting).

In the case at bar, the plaintiff's evidence makes no reference to the

appropriate recognized standard of professional practice in Nashville. Instead, all

three experts make a general reference to the recognized standard of acceptable

professional practice and assert their views of what actions the attending nurse should

have taken to properly care for Mr. Garrett. This court has stated that "[t]he

testimony of a physician as to what he would do or his opinion of what should have

been done does not prove the statutory standard of medical practice." Roddy v.

Volunteer Med. Clinic, Inc., 926 S.W.2d 572, 578 (Tenn. App. 1996) (quotingLewis

v. Hill, 770 S.W.2d 751 (Tenn. App.1988)); see Goodman v. Phythyon, 803 S.W.2d

697, 700 (Tenn. App. 1990) (finding "generalized statements concerning the

deviation from the standard of care for medical practice" inadequate where the

plaintiff's expert failed to address the defendant doctor's assertion that his actions

complied with the standard of care).

In comparison to the plaintiff's lack of evidence on the acceptable standard

of care in Nashville, the testimony of the defendant's experts, all of whom were

employed in the Nashville area, indicates that acceptable practice did not mandate

they take any further protective action for a patient who had become momentarily

agitated during suctioning and bitten down two times on his endotracheal tube. Nurse

Hoeflein stated that in her six and a half years as a critical care nurse, she had only

used a bite block for a patient who was continuously seizing. Neither she nor Mr.

Emerson could recall personally using one of these devices nor did the defendant

hospital generally utilize such devices prior to this incident. Dr. Emerson, Nurse

Hoeflein, and Mr. Emerson were in accord in their assertions that it was common for
-13-

patients who were being suctioned to gnaw on their endotracheal tubes during the

suctioning process. Because this gnawing was not considered problematic, both Dr.

Emerson and Mr. Emerson stated that no precautions were taken when a patient

displayed such behavior. To the contrary, Dr. Emerson considered it a "freak

accident" for a patient to bite through an endotracheal tube. Indeed, the transection

of an endotracheal tube seems to have been an unprecedented occurrence. Neither

Nurse Hoeflein, Mr. McKay, Mr. Emerson nor Dr. Emerson, who had performed over

20,000 open heart procedures, had ever experienced or heard of an endotracheal tube

being completely bitten in two. 

Thus, a review of the defendant's expert proof reveals that the recognized

standard of professional practice did not necessitate further action because the

transection of the tube was completely unforeseeable. As is quoted above from our

state's supreme court, "[i]f the injury which occurred could not have been reasonably

foreseen, the duty of care does not arise . . . '[T]he plaintiff must show that the injury

was a reasonably foreseeable probability, not just a remote possibility.’" Doe, 845

S.W.2d 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 person could have foreseen the probability of Mr.

Garrett biting the endotracheal tube in two.

In reaching this conclusion, we acknowledge Dr. Rubin's assertion that

based on medical records which indicate that the bedside nurse knew Mr. Garrett was

biting his endotracheal tube during his recovery from surgery, "it was foreseeable that
4We point out that the evidence was not that Mr. Garrett was biting his tube at 12:45 a.m.

as stated in all three experts' opinions. Rather, Nurse Hoeflein testified that he bit his tube two

times around 12:00 a.m. 

-14-

the endotracheal tube could become occluded or impaired." However, we do not find

that Dr. Rubin's opinion substantiates the plaintiff's burden of foreseeability. Indeed,

this opinion exemplifies another defect in the plaintiff's evidence -- the inaccuracy

of the factual predicate upon which the plaintiff's experts drew their conclusions. 

The undisputed facts in this case show that Mr. Garrett briefly displayed

agitated behavior while his lungs were being suctioned at which time he bit down on

his endotracheal tube two times. All of the defendant's experts agree that such

agitation is a common reaction for patients whose lungs are being suctioned. The

proof showed that Mr. Garrett's agitated behavior ceased as soon as the suctioning

ceased and that the medical personnel noted no further indication of such behavior

until he bit the tube in half almost two hours later. 

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

bedside nurse observed Mr. Garrett biting his endotracheal tube at [12:45 a.m.],4

 she

should have either used a bite block or repositioned the tube to keep him from further

biting or contacted the treating physician so that he could make that decision." In

addition, Dr. Rubin stated that attending medical personnel have a duty to prevent

damage to an endotracheal tube when a patient displays agitated and biting behavior.

Indeed, he prefaced his opinion in his third affidavit by stating that it was based on

Mr. Garrett's medical records "which indicate that the bedside nurse knew Mr. Garrett

was agitated and biting his endotracheal tube during his recovery from surgery."

According to the opinions espoused by these experts, the actions they advocate are

clearly contingent upon the patient being in an agitated state. However, the facts
-15-

were that Mr. Garrett was only momentarily in an agitated state almost two hours

before the incident. His agitation was induced by a medical procedure which

typically caused agitation, and when the procedure was completed, Mr. Garrett

showed no further signs of agitation.

Rule of Civil Procedure 56.05 provides in part that "[e]xpert opinion

affidavits shall be governed by Tennessee Rule of Evidence 703" which states as

follows:

The facts or data in the particular case upon which an expert

bases an opinion or inference may be those perceived by or made

known to the expert at or before the hearing. If of a type

reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject, the facts or data

need not be admissible in evidence. The court shall disallow

testimony in the form of an opinion or inference if the underlying

facts or data indicate lack of trustworthiness.

Tenn. R. Evid. 703. In this case, the opinions expressed by the plaintiff's experts are

not based upon the facts of this case. If opinion testimony must be disallowed when

the underlying facts indicate a lack of trustworthiness, it certainly must be disallowed

when the underlying facts are inaccurate. Moreover, opinions which are not based

upon the facts of a particular case are inadmissible as irrelevant evidence. See Tenn.

R. Evid. 402. "'Relevant evidence' means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence." Tenn. R. Evid. 401.

Because the experts' opinions regarding the duty owed an agitated patient have no

bearing on the determination of whether there is a duty in the present case, this

evidence is irrelevant. See State v. Campbell, 904 S.W.2d 608, 616 (Tenn. Crim.

App. 1995) (upholding lower court exclusion of expert testimony where "trial court

correctly found that the proposed testimony of the psychologist would not

substantially assist the jury to understand the proof that had been adduced during the
-16-

trial or to resolve any fact in issue"). 

In upholding the trial court's grant of summary judgment in this case, we

note that our courts have long espoused the view that summary judgment should be

entered cautiously in particular kinds of cases, of which medical malpractice is a

prime example. See Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn. 1977);

Ledford v. Moskowitz, 742 S.W.2d 645, 649 (Tenn. App. 1987); see also Blocker

v. Regional Med. Ctr., 722 S.W.2d 660, 662 (Tenn. 1987) (reversing the summary

judgment in a worker's compensation case involving the commencement of the

statute of limitations and noting that such cases most often are factual 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

testimony. See Tenn. Code Ann. § 29-26-115(b); Payne v. Caldwell, 796 S.W.2d

142, 143 (Tenn. 1990); Hartsell v. Fort Sanders Reg'l Med. Ctr., 905 S.W.2d 944,

950 (Tenn. App. 1995), cert. denied, 116 S. Ct. 1352 (1996). "Because opinion

testimony always is subject to evaluation by the fact finder, it generally has been held

not an appropriate basis for summary judgment." Bowman, 547 S.W.2d at 530.

However, the court in Bowman noted an exception to this general rule: "in

those malpractice actions wherein expert medical testimony is required to establish

negligence and proximate cause, affidavits by medical doctors which clearly and

completely refute plaintiff's contention afford a proper basis for dismissal of the

action on summary judgment, in the absence of proper responsive proof by affidavit

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 properly raised and it is shown prior to trial that the plaintiff cannot meet
-17-

that burden [imposed on the plaintiff by the legislature]." Walker v. Bell, 828 S.W.2d

409, 411 (Tenn. App. 1991). We believe that this is a case where the plaintiff cannot

meet the burden of showing medical malpractice. 

The plaintiff's evidence in this case fails to demonstrate a genuine material

fact dispute with regard to whether the defendant complied with the recognized

standard of acceptable professional practice in Nashville, Tennessee. The expert

affidavits presented by the plaintiff do not establish that the occurrence which caused

Mr. Garrett's death was foreseeable or that the appropriate professional practice

standard mandated further action in an effort to protect Mr. Garrett's endotracheal

tube. Furthermore, all of the experts' opinions are premised upon the incorrect fact

that the plaintiff was in an agitated state following surgery. Accordingly, we affirm

the trial court and tax the costs of this appeal to the plaintiff Freda G. Moon. 

____________________________________

CONCUR: SAMUEL L. LEWIS, JUDGE

_____________________________________

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

_____________________________________

WILLIAM C. KOCH, JR., JUDGE