# FILED
March 31, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

JOANN WHITE MOONEY, ) Individually and as Guardian a nd ) Next Friend of ALEX

ANDER ) FINDLAY MARTIN MOONEY, ) A Minor, ) ) Plaintiffs/Appella

nts, ) Shelby Law No. 62305

) v. ) ) Appeal No. 02A01-9709-CV-00210 JOE SNEED, A. ATKINSON, ) JOHN DOE and THE CITY OF ) MEMPHIS, ) ) Defendants/App

ellees. )

APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE THE HONORABLE D’ARMY BAILEY, JUDGE

For the Plaintiffs/A

ppellants : For the Defendants/Appellees : Gary K. Smith David A. King Darrell E. Baker, Jr. E. Todd Presnell Estelle C. Gaerig Nashville, Tennessee Memphis, Tennessee Buckner Wellford Memphis, Tennessee

REVERSED AND REMAN DED

HOLLY KIRBY LILL

ARD, J.

CONCUR: W. FRANK CRAWFORD, P.J., W.S. DAVID R. FARMER, J.OPINION

This is a su i t against two emergency medical service technician-paramedics for alleged negligent performance of emergency services. The plaintiff asserts that an improperly place d endotrachealtube caused oxygen deprivation and aggravated the patient’s injuries. The trial court grantedsummary judgment in favor of the defendant technicians, holding that they are not “he

alth

care practitioners” under Tennessee Code Annotated § 29-30-310(b), and thus are immune from

suit under the Tennessee Governmental Tort Liability Act (TGTLA). We reverse. On June 12, 1993, Alexander Mooney, a minor, was injured in a one car accident when the driver, Andrew M. Olney, lost control of the car. The City of Memphis (“City”) dispatched tw o

eme r gency medical technician-paramedics (“EMT-Ps”), Joe Sneed and Glen Atkinson, to the scene. The EMT-Ps found the inj ured minor unconscious with serious head injuries. The patient was transported to the

hospital. The two defendant EMT-Ps and onenon-defendant EMT-P, George Edwards, who was

also dispatchedto the scene, gave depositions about Alexander’s treatment. Joe Sneed stated that, upon arrival at the accident, he and his partner, Glen Atkinson, found Alexander slumped over and bleeding from his head. They immedi ately immobilized h

im by placing a C-co

llar around his

neck and strapping him to a back board. After Alexander was immobilized on the board, he aspirated or vomited and then inhaled the vomitus into his lungs. Sneed noted that Alexander had a slow breath rate in an irregular breathing pattern, which would prevent the required amoun t of oxygen from reaching the lungs. Consequently, Sneed testified that he made the decision to insert an endotracheal tube (“ET tube”), wh

ich delivers high a

mounts o f ox ygen directly to th e lungs. Edwards f

irst attempted to insert the ET tube but was unsuccessful. Atkinson then took over the insertion, stating that during the insertion, he ha d to const antly suction vomitus out of Alexander

’s mouth. While Atkinson inserted the tube between the vocal cords, Sneed listened to Alex an der’s breath sou nds, which indicates whethe

r the tube is

properly placed

in the trachea ra

ther than imprope

rly placed in the esophagus. Sneed reported that Alexander’s breath sounds were “diminished”and that his lungs

were filled with liquid. During transport to the hospital, the tube had to be suctioned several times due to the prior aspiration. Both Sneed and Atkinson testified that if th

e ET tube is incorr

ectly placed in

the esophagus, the abdomen “blows up like a balloon” due to o xygen flowing into

the stomach. Sneed stated that2

Alexander’s stomach never inflated as it would have if the ET tube was improperly placed. At no time did Alexander turn cyanotic or blue-gray around the lips from lack of oxygen. Subsequently, Jo Ann White Mo oney (“Mooney”) filed this lawsuit individually and as Alexander’s guardian and next friend. In the lawsuit, Mooney alleged that the E MT-Ps negligently placed the tube in the minor’s esophagus rather than his trachea, causing oxygen deprivation during transport to the hospital and aggravation of Alexander’s condition. The suit was filed a gainst the City, the two EMT-Ps, and a Joh n Doe who was responsible for the training of EMT personnel. A summary judgment mot ion was filed on be

half of the defendant-EMT-Ps. In their motion, the EMT-Ps argued

that they are not “health care practitioners” under Tennessee Code Annotated § 29-30-310(b) and are therefore immune from suit under the TGTLA. In their depositions, the EMT-Ps both testified that they are paramedics or EMT-Ps. Sneed stated that his job du

ties are to give me

dical treatment t

o the patient

from the time the paramedics arrive at the scene until the patient is delivered to the hospi tal . Sneed testified that he attended Shelby State Co mmunity College for two years to obtain

training as a par

amedic. Atkinson a

lso attended a two-year program for his paramedic training at Delta Vo-Tech in Jonesboro, Arkansas. Sneed explained that a p

aramedic is

certified upon completion of the course work. Both Sneed and George Edwards testifie

d that, every two years , paramedics must be recertified, which requires the completion of a specified number of class hours and an exam. The classes cover subjects such as closed-head

trauma, respiration, and heart proble ms. Sneed testified th

at the paramedic

s can call a physician while they are at the sc ene or on route to the hospital to get information on emergency medical services. In this

case, however

, the paramedics

didnot contact a

physician before or during the intubation proc

ess. The tri al court dismissed t h e John Doe defendant. In addition, the trial court granted summary judgment for the defendant EMT-Ps, finding that emergency medical technicians are not “health care practitioners” under the TGTLA, and thus are immune from suit. Mooney now appeals the trial c ourt’s dismissal of the EMT-Ps. The sole issue on appeal is whether the EMT-Ps are “health care practitioners” under the TGTLA, Tennessee Code Annotated § 29-20-310(b)

. A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of materia l fact and that the

moving party is

entitled to a judgment as a matter of law. See Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of1 The pertinent provisions of the TGTLA are found in Tennessee Code Annotated §

29-20-310(b) and (c):

(b) No claim may be bro ught against an emp

loye e or judgment entered against an employee for d

amages for whic

h the immunity of the g

overnmental enti

ty is removed by this chapter unless the claim is one for medical malpractice brought against a health care practitioner. No claim for medical malpractice may be brought against a health care practitioner or judgment entered aga inst a he alth care practitioner

f or d amages for whic

h the governmenta

l entity is liable und

er this chapter, unless the amount of damages sought or judgment entered e xceeds the minimum limits set out in § 29-20-403 or the amount of insurance co

verage actuall

y carried by the government

al entity, whichev

er is greater, and

the governmental

entity is also made a party defendant to the action. (c) No claim may be brought against an employee or judgment entered against an empl oyee for in

jury proximately caused by an act or omission of the em ploye e within the scope of the employee's employment for which the governmental entity is immune in any amount in exc ess of the amounts

established for governmental e

n tities in § 29-20-40

3, unless the act or

omission was willful

, malicious, criminal, or performed for pers onal financial gain, or unless the act or omission was one of medical malpractice committed by a health care practitioner and the claim is brought against such health care practitioner. Tenn. Code Ann. § 29-20-310(b) (Supp. 1998).

2 Section 29-20-403(b)(2)(A) sets forth the minimum limits as “not less than one hundred thirty thou

sand dollars ($130

,000) for bodily inj ury or death of a ny one (1) person

in any one (1) accident, occurrence or act.” Tenn. Code Ann. § 29-20-403(b) (2)(A) (Supp. 1998). 3 demonstrating that no genuine issue of material fact exists. See Byrd v. Hall

, 847 S.W.2d 208, 211 (Tenn. 1993). On a motion f or summary judgmen

t, the court must take the strongest legitimate view of the evidence i n fa vor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing eviden ce. See id. at 210-11. Summary judgment is only appropriate

when the facts a

nd the legal conc

lusions drawn fro

m the facts reaso

nably permit only

one conclusion. See Carvell v. Botto ms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. See id. Therefore, our review of the tri

al court’s grant

of summary judgmen

t is de novo on the record before this Court. See id. Under the Tennessee G

overnmental Tort

L iabilit y Act, most government employees are immune from liability. 1 There is an e xception for “he alth care prac

titioner[s]” aga

inst whom a medical malpractice ac

tion is filed in which

the amount of damag es sought or judgment entered exceeds the TGTLA’s minimum limits set out in section 29-20-403. 2 The TGTLA does not define the term “health care practitioner.” In the instant case, therefore, we must de ter mine whether the EMT-Ps would be considered “health care practitioners” under the TGTLA.4

The EMT-Ps attempt to rely on Willis v. Kirk , No. 01A01-9312-CV-00537, 1994 WL 265835 (Tenn. App. June 17, 1994), app. denied, concurring in resu lts only , (Tenn. Oct. 31, 1994), to support the argument

that they are not “health care practitioners.” In Willis the Tennessee Court of Appeals dismissed the plaintiff’s negligenceclaim against an ambulance service employee based

on the lack of

evidence that the attendant was negligent or violated any applicable standard of care. In dicta, however, the Willis court stated that

the record contained insufficient evidence of “the work of an ambulance attendant” to conclude that the attendant was a “health care prac titioner” under the TGTLA. We note, however, that the Tennessee Sup

reme concurre

d in the results only

in Willis , and ther efore we are not bound by its reasoning. See Rule 4.4, Rules of Te nn. Sup. Ct. (stating t

hat a concurrence in results only prohibits publication of the intermediate

appellate court

decision); see also Memphis Publ’g Co. v. T ennessee Petrole

um Underground

Storage Tank Bd. , 975 S.W.2d 303, 307 (Tenn. 1998). We must c onsid er a case recently decided by this Court and unavailable to the trial court when it rendered its deci sion, T odd v. Weakley Count

y , No. 02A01-9708-CV-00197, 1998 WL 395172 (Tenn. App. Jul.

16, 1998), for the definition of the term “health care practitioner.” At issue in Todd was the immunity of two nurses and two nurses aides who worked for a co unty nursing home. The defendants argued that they were protected by the TGTLA’s immunity provisions because they were not “health care practitioners.” See id. at *1. Since the term is undefined under the TGTLA, the appellate court considered in depth the meaning of “health care practitioner” in the context of the statute. See id. at *4. A f ter consulting dictionaries and reviewing Title 63 of the Tennessee Code Annotated dealing with the healing arts, the court concluded that the term “health care practitione r” m eans one who is engaged in the exercise or employ m ent

of a health care vocation or occupation which requires advanced or specialized

education, knowledge, and skill, and which re q uires licensure or certification under the provisio ns of Title 63. This d

efiniti on i ncludes, but is not limited t o, physicians, physician assistants, pharmacists, psychologists, physical therapists, and registered nurses. Id. Thus, after cons

i der ing the ordinary meaning of the term “health care practitioner” and the Legislature’s use of the term in the Tennessee Code, the Todd court interpreted the term somewhat broadly, with appropriate parameters. The Todd Court then applied the definition of “health care

practitioner” to the facts in that

case. Considering the defendant licensed practical nurse (LPN), the Court noted that the defendant5

LPN attended nursing school, completed a practical experience requirement and passe d a written examinati on to become an LPN. See id. at *5. The Court also considered the defendant licensed nursing home operator, who was required to work for a period of time with another licensed nursing home operator, took a correspondence course through a recognized university

and passed a written examination. See id. Based on these fa cts, the Court conc

luded that these

two defendants would be considered “health care practitioners” within the meaning of the TGTLA. In contrast, the Todd

Court found that tw o defendant nurse’s aides would not be deemed health care practitioners. See id. The aides wereunlicensed personnel who performed unspecialized servi ces such as making beds and giving baths. See id. Their function wa s to “assist” licen

se d personnel in patient care. See id. In Todd , the Court conside red in depth the meaning of the term “health care practitioner” but didnot specifically c

onsider EMTs. In this case, the definition of “health care practitioner” adopted in Todd is controlling and must be applied to the evidence in the record. EMTs are licensed under the Emergency Medical Services Act of 1983, Tenne ssee Cod e Annotated §§ 68-140-501 to 68-140-518. EMT is defined as a person “licensed to pra ctic e

em ergency medical care.” See Tenn. Code Ann. § 68-140-502(12) (Su pp. 1998). An EMT-

P i s definedas “an individual licensed to practice advanced emergency medical care.” See Tenn. Code Ann. § 68-140-502(13) (S upp. 1998). “Emergency medical services” is defined as providing “immediate

medical care in order to prevent loss of life or ag gravation of illness or injury.” See Tenn. C ode Ann. § 68-140-502(11) (Supp. 1998). The Act provides that a patient transported by ambulance must be accompanied by “an EMT, physician or nurse.” See Tenn. Code Ann. § 68-140- 509(a) (Supp. 1998). The EMTs are licensed under Title 68. See Tenn. Code Ann. § 68-140-508 (1996). Extensive informa tion concerning th

e certification

requirements fo

r EMTs and EMT-Ps is found in the Tennessee Rules and Regulations. See Tenn. Comp. R. & Regs. 1200-12-1-.04 & 1200- 12-1-.13. EMTs must successf ully complete

an approved basic EMT course along with written and practical examinations within on e year of co mpletion of training. See Tenn. Comp. R. & Regs. 1200-12-1-.04(1) (revised 1994). EMT-Ps must meet al l the requirement s for an EMT and, in addition, must

complete an EMT-

P course along with

written and practical examinations. See Tenn. Comp. R. & Regs. 1200-12-1-.04(2) (revised 19 96). For c ertification purposes, therefore, an EMT-P3 The definition of “ medical control”

is: [T]he instructio

n and advice prov

ided by a physicia

n, and the orders

by a physician or n

urse authorized under written agreement which define the treatment of a patient; where direc t communication, written protocols, or standing orders are provided; and that such procedures are in accordance

with locally or re

gionally approve

d medical practic

es. Tenn. Comp. R. & Regs. 1200-12-1-.04(3)(a)(1)(i) (revised 1996).

6 is defined as: A person who has successfully compl eted a n accredited program in Tennessee for emergency medical technician-paramedics . . . and received endorsement from the training institution; who has completed written and practical qualifying examinations;

and certified to practice

advanced emergency medical care upon the order or under the supervision of a physician or authorized nurse. Tenn. Comp. R. & Regs. 1 200-12-1-.04(4) (b) (revised 199 0). EMTs can perf

orm extended skill

s

or procedures after trainingwhen such treatment is conducted under authorized medical control or under the instruction and advice of a physician. See Tenn. Comp. R. & Regs. 1200-12-1-.04(3 )(a)(i) (revised 1996). 3 The areas and skills in which EMTs may receive training involve the treatment of anaphylaxis

with epinephrine, respiratory distress with broncho dilat ors, chest pain with aspirin, cardiac conditions with nitroglycerine, airway retention procedures, intravenous fluid therapy, and defibrillation wi th an automatic mode device. See Tenn. Comp. R. & Regs. 1200-12-1-.04(3)(2) (revised 1996). EMT-Ps can also perform electrocardiogr ap hic monitoring, recognize and treat cardiac dysrhythmias, perform gast ric, esophageal, or tracheal intubation and suction, administer blood products, perfo

rm chest decompr

ession, perform c

ricoth r yotomy, and administer several classes of drugs. See Tenn. Comp. R. & Regs. 1200-12-1-.04(3)(3) (revised 1994). For recertification, EMTs must complete two continuing education u nits or two college

credit hours in EMT studies or successful ly compl ete a patient care-oriented certification renewal examination with a minimum score of 80%. See Tenn. Comp. R. & Regs. 1200-12-1-.0 4(6)(a ) (revised 1994). EMT-Ps must complete three continuing education u nits or three colle ge credit hours or complete a certification renewal examination with a minimum s core of 80%. See Tenn. Comp. R. & Regs. 1200-12-1-.04(6)(b) (revised 1994). In this case, the EMT-Ps were clearly providing specialized medical care requiring knowledge and skill, namely, the insertion of an endotracheal tube into the pa tient. To become EMT -Ps, Sneed a nd Atkinson completed written and practical examinations, as well as classes at7

vocational schools. Under all o f these circumstances, and under the definition set forth in Todd , EMT-Ps must be considered “health care practitioners” within the meaning of the TGTLA. Because EMT-Ps are “health care practitione rs,” they a re not protected by the immunity provisions of the TGTLA where the amount of damages sought or the judgment entered exceeds the minimum limits of the TGTLA. There remains a genuine issue of materi al fact as to whether the EMT-Ps breached their standard of care. Consequently, the grant of summary judgment in favor of the EMT-Ps must be reversed. The decision of

the trial court is reversed and the cause is remanded for further proceedings consi stent with this Opinion. Costs ar e taxed to Appelle

es, for which exe

cution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

DAVID R. FARMER, J.