### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E May 26, 2 01 0 S es si on

SHI RLEY ANN ATKI NSON, ADMINI STRATO R OF THE E STATE OF ROBE RT LEE PATTEE, J R., DECEASED v. ST ATE OF TE NNESSEE

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D A V ID R

. F A R M E R , J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h A LA N E

. H IG H E R S , P

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. R a y b i n a n d S a r a h R i c h t e r P e r k y , N a s h v i l l e , T e n n e s s e e , f o r t h e a p p e l l a n t , S h i r l e y A n n A t k i n s o n

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R o b e r t E

. C o o p e r , J r

. , A t t o r n e y G e n e r a l a n d R e p o r t e r , M i c h a e l E

. M o o r e , S o l i c i t o r G e n e r a l
, a n d M a r k A

. H u d s o n , S e n i o r C o u n s e l
, f o r t h e a p p e l l e e , S t a t e o f T e n n e s s e e

.O P I N I O N

I. Background and Proc edural History

This appea l conce rns the suicide death of Robert L ee Pattee J r., a prisoner who was serving

a life sentenc e at the L ois M. DeB err y Special Nee ds Fa cility (“D eB err y ”) in Nashville, Tenne ssee. Mr. Pattee was initially place d at DeB err y , a prison with medical and mental health fac iliti es, afte r he attempted suicide while awa iting trial on first deg ree murder char g es. Following his conviction, Mr. Pattee was perma

nently assig ned to DeB err y , wher e a team of mental health p ro fe s s i o nals,
nurses, a nd prison officia ls e nsured that he rec eived reg ular trea tment to addre ss his mental health i s s u es , which included anxiety and depre ssion. Over the next few y ear s, Mr. Pattee had a fa i rl y 1

unrema rkable course clinically and prog resse d from an initial p l ac em ent in Unit 7C, an acute psy chiatric unit, to Unit 6B, an open unit in which inmates he ld jobs and dined in the ca fete ria.

On Aug ust 9, 2002, Mr. Pattee was transfe rre d from Unit 6B to Unit 7B, a restric ted unit for chronic ally depre ssed inmates, in o rd er to resolve a g rowing secur ity conce rn arising out of his “close ” rela tionship with co rr ectional office r Mary Hilla. Although not deter mined to be “inappr opriate,” the rela tionship betwee n Mr. Pattee and Ms. Hilla g ave the appea ranc e to some that Ms. Hilla was protec ting or favor ing Mr. Pattee, which cause d dissension in the unit. Eventually
, 2

a rift develope d and an “us versus them” mentality emer g ed, with inmate s choosing sides betwee n Ms. Hilla and the rest of the staff. Prison officia ls co n s i d er ed transfe rring Ms. Hilla to Unit 5 to resolve the situation, but the trea tment team ultimately rec ommended Mr. Pa tt e e ’ s transfe r to another unit. Wit hin just one wee k of his transfe r to Unit 7B, Mr. Pattee committed suicide, hang ing himself from an a ir vent with his shoe lace s.

Mr. Pattee’s fianc é, Sherry Ann Atkinson, filed this wrong ful death claim with the Division of Claims Adm i n i s t ra t ion, which transfe rre d her claim to the Tenne ssee Claims Commi ssion (“Commission”). See Tenn. Code Ann. § 9-8- 402(c) (Supp. 2009). She alleg ed in he r complaint 3 that the neg lige nce of state employ ees char g ed with the car e, custody
, and control of Mr. Pattee was the proxi mate cause of his death. She contende d that state administrative personne l, employ ees, and other state ag ents neg lige ntly failed to provide rea sonably nece ssary

medical c are to Mr. Pattee so

as to preve nt his suicide; failed to timely and rea sonably respond to clea r signs of potential suicide;

Mr

. Pat te e’ s tr eat m ent te am app ear s to have at vario us ti m es con si st e d o f a p s ychiat ri st , a 1 psychol ogist , a medic al nur se, a p sychol ogical soc ia l wo rker, a nu rs e pr act it ion er , an d a sec uri ty off ic er

.

J aso n Wo oda ll
, a spe ci al agent in cha rge of the inves ti gatio n of Mr

. Pat te e’ s dea th for the I nte rna l 2 Aff ai rs Divisi on of the T enn ess ee Depa rt m ent of Corr ect ion (“ T DOC”), fou nd ins uff ic ie nt e videnc e to

sus ta in a fi ndi ng tha t Mr

. Pat te e and Ms

. Hil la had for m ed an “i nap pro pri at e re la ti ons hip ,” whic h he def ine d
to inc lud e e it her a r om ant ic or se xua l r el at ion shi p.

Ms

. Atkins on fi le d thi s cl ai m as the admini st ra tor of Mr . Pat te e’ s e st at e. See T enn

. Code Ann. § 3 20- 5- 106( a) (2 009)

.
-2-and neg lected to take nece ssary pre cautions reg arding Mr. Pattee’s safe ty and secur ity
, including

placing Mr. Pattee on suicide watch following his transfe r. Her complaint reque ste d a fa i r and

rea sonable amount of compensa tory damag es n o t to exceed the statutory limit of $300,000. See Tenn. Code Ann. § 9-8-307( e) (Supp. 2009). The State of Tenne ssee (“State” ) filed an answer deny ing Ms. Atkinson’s substantive allega t i o n s and setting forth sever al defe nses, including its contention that no act or omission of a state employ ee was the proxi mate cause of the alleg ed harm to Mr. Pattee.

At the subsequent hear ing of her claim, Ms. Atkinson offe red the fac t and expert testimony of nurse Mary Griff

is-Parrish as the principal proof in support of her position. Ms. Griff is-Parrish, in her capa city as an adult psy chiatric nurse, made rounds on all of t he unit s at DeBe rry , prepa red
repor ts on eac h patient ever

y thirty day s, conducte d fac e-to-f ace visits with eac h patient ever y ninety day s, met with patients individually
, mana ged problems with medication, and attended some meeting s of the prison tre atment team. She testified tha t Mr. Pattee’s tra nsfer cause d a noticea

ble chang e in his behavior and that he “dec ompensated,” becoming sever ely depre ssed and suicidal. She specific ally attributed this chang e to Mr. Pattee’s transfe r from Unit 6 to Unit 7 and testified that the

war ning signs would h av e b ee n n o ticeable to any person with a mental health backg round. Ms. 4 Griff is-Parrish repor

ted her conce rns to the trea tment team, but she was ultimately in the minority

. 5 After consultation, the trea tment te am rea ched a consensus that Mr. Pattee was not a t an incre ased risk of suicide and that additional suici d e p rec autions wer e not require d. I mportantly
, the
psy chiatrist with authority to place Mr. Pattee on suicide watch, Dr. Casey Arne y , ag ree d that it was

unnece ssary

to implement additional suicide prec autions. 6

T he tr ans fe r to Unit 7B car ri ed wit h it sever al con seq uen ces for Mr

. Pat te e; he was re m oved fr om 4 his pos it ion as a cl er k, sep ar at ed fr om Ms

. Hil la
, and pla ced in a cel l wher e he was “l ocked up al l the ti m e.”

Alt hough expre sse d to the tre at m ent te am, Ms. Gr if fi s- Par ri sh’ s c onc er n was nev er doc um ent ed. 5 Wi th re gard t o he r d eci si on t o no t d ocu m ent Mr . Pat te e’ s s uic ide ri sk, she st at ed:

I ’m car ef ul abo ut what I doc um ent for a lot of re aso ns. And a lot of ti m es in m y

- - in m y do cumenta ti on, you have to re ad it cl ose ly and the re ’s m ore th an wh at I ’m a ct ual ly sayin g becau se I ’m trying to say somethi ng with out ac tua ll y saying it.

Once I doc um ent thi s

- - tha t I thi nk thi s man is a high ri sk sui ci de, I am le gally

re spo nsi ble at tha t poi nt to do somethi ng. I ’m going to be li abl e if I say in a doc um ent tha t he is sui ci dal

. So tha t was why I did not do tha t. Beca use the re was not hin g tha t I cou ld do. So why doc um ent th at ? I t wa s j ust going to c aus e a lo t o f t rou ble fo r a lo t o f p eop le

.

T he Com m is si on not ed tha t “[ Ms .] Gri ff is

- Par ri sh’ s te st imony tha t she did not bot her to cha rt thi s obvious ly import ant as ses sment be cau se she bel ie ved it woul d mak e he r l egall y resp ons ibl e t o ac t i s ba ff li ng.”

T he te st imony at the hea ri ng sugge s t e d tha t onl y a physic ia n or psychi at ri st cou ld ord er sui ci de 6

pre cau ti ons

. Ms

. Gri ff

is

- Par ri sh acknowl edged tha t she had no aut hor it y t o pla ce Mr

. Pat te e on sui ci de
wat ch. I n he r wo rds , sh e “ was a glor if ie d pe nci l p ush er

. . . . [wi th] no a uto nomy and no p ower .”

-3-At the hea ring , Ms. Griffis-Par

rish testified that something more “ should have been done”
to preve nt Mr. P attee’ s deat h and that “[i] t would be indi cate d” that putting Mr. Pattee on suicide watch would have been withi n t h e re al istic, acc eptable standard of car e. Ms. Griff is-Parrish, howeve r, did not specific ally testify as to the standards of car e members of the trea tment team owed to Mr. Pattee, either

from the pe rspec tive of t he medical profe ssionals or the prison offic ials. She did not testify
, for example, about the standard of car e Dr. Arne y , as a psy chiatrist with authority to order suicide prec autions, owed to Mr. Pattee. Although she indicated that prison officia ls also could have rec ommended suicide prec autions, Ms. Griff is-P ar ri sh did not outline the policies and
proce dures that g overne d the car e and control of inmates at DeB err y , addre ss the rea sonablene ss of these policies and proce dures, or identify any conduct on behalf of the TDOC’s employ ees that fell below the acc eptable standard of car e. When asked whether there was something more the TDOC 7 or the tre atment team c ould have done to preve nt Mr. Pattee’s suicide , she vag uely responde d:

I -- it’s better to be safe than sorry

. Yes, they could -- but hindsight is 20/20. You could look back and say they should have taken it more seriously

. They should have had him on suicide watch. They should have seen him more fre quently
, but

-- I mean, prac tically
, y es, looking back, there was a lot of things a lot of people could have done differ ently

.

But Ms. Griff

is-Parrish, who was the only witness tender ed as an expert, never specific ally define d the applicable standards of car e with respe ct to the individuals involved in the decision not to place Mr. Pattee on suicide prec autions, never outlined what options wer e available to these individuals, and neve r testified that these individuals ex hibited unrea sonable c onduct under the fa cts.

I t was this shortcoming in Ms. Atkinson’s case —the failure to produce any expert testimony

on the standards of car e—that the Commi ssion primarily found controlling

. I n a leng thy and detailed judgme nt acc ounting f

o r M r

. Pa tt e e ’ s p r io r s u ic ide attempt, extended history of trea tment at DeB err y , and the specific fac ts surrounding his transfe r; the Commi ssion h el d t h at Ms. Atkinson failed to proved the essential ele ments of her claim. The judg ment stated, in pertinent pa rt:

Although Ms. Gr iffis-Parr ish testified that in he r opinion Mr. Pattee should have been place d on suicide prec autions, her testimony fails to set forth the standard of car e, either for the corr ectional officia ls responsible for his incar cer ation or for the medical staff responsible for his trea tment, by which the rea s o n ab leness of their actions ca n be judg ed.

M s. Griff is-Parrish is not a corr ectional office r and there was no s h o wi n g made that she had knowledg e or training with resp ec t to corr ectional prac tices or

Ms

. Gri ff is

- Par ri s h te st if

ie d tha t the fi rs t pre cau ti on for inmate s who ar e at a high ri sk o f sui ci de 7 is ar ound

- the

- cl ock sui ci de m oni tor ing, whic h re qui re s pri son off ic er s to cl ear the inmate ’s cel l of pot ent ia ll y har m ful it ems, re m ove the inmate ’s sho el ace s and bel ts , and obs er ve the inmate every fi ft een m inu te s. T his is th e e xte nt of her te st imony re gardi ng the pot ent ia l r esp ons es to Mr . Pat te e’ s pe rc ei ved ri sk for sui ci de.

-4-proce dures rela tive to the protec tion of inmates from self-injury

. To the extent that

Griff is-Parrish’s testimony might be rele vant to the duty owed Pattee by the mental health profe ssionals outside the nursing field, t h er e wa s no showing that she was qualified to re nder a

n opinion as to the car e and tr eatment that they provided.

This is not a ca s e i n whi ch the dece dent’s depre ssion went unnoticed and
untrea ted. Mr. Pattee had been und er co n t i nuous trea tment for depre ssion for the entirety of his incar cer ation in the TDOC, a period of more than three y ear s. Ms. Atkinson does not claim and the proof did not show that Pattee should have been on suicide watch for the entire period of his incar cer ation. The questions [si c] raised here is whether it should have been fo reseen that Pattee’s transfe r back to unit 7, wher e h e h ad l i v ed for approximately two y ear s, would pose an imminent risk of suicide. S u ch a deter

mination, the Commi ssion finds, is outside the common knowledg e and experience of lay people and require s expert proof that Ms. Atkinson did not provide.

The Commi ssion further held that the State could not be held liable under a theory of vicar ious liability for the a lleg ed neg lige nce of Ms. Griffis-Par

rish and Dr . Arne y , who wer e employ ed by a p ri vate vendor that contra cted with the State to provide mental health service s to inma t es

. As a 8 result, the Commi ssion conclude d that Ms. At k i n s o n failed to satisfy her burden of providing competent evidenc e to show that state employ ee s fa i led to take rea sonable action to protec t Mr. Pattee fr om the risk of self- inflicted injury . Ms. Atkinson ti mely appea led.

II. Issu e P rese nted

Ms. Atkinson presents the following issues, as we pe rce ive them, for our revie w:

(1) wh ether the Commi ssion err ed when it excluded instant messag e an d elec tronic mail corr espondenc e betwe en Ms. Hilla and Ms. Atkinson;

(2) whether the Commi ssion err ed when it deter mined Mrs. Griff

is-Parrish was not co m p et en t to testify about the TDOC’s suicide preve ntion policies and
proce dures or the rea sonablene ss of the trea tment team’s decision not to implement heig htened suicide prec autions for Mr. Pattee ;

(3) whether the Commi ssion err ed in enter ing judgme nt for the State beca use the
trea tment team knew or s h o u ld have known that Mr. Pattee was at risk for suicide and the employ ees a nd ag ents responsible f

or his car e, custody , and control fa iled to act re asonably to protect the pr isoner.

Beca use we af

fi rm the Com m is si on’ s rul ing tha t Ms

. Atkins on did not pro vide the re qui si te exp er t 8

te st imony to est abl is h her negli gence cl ai m , we need not re ach the que st ion of whet her Ms

. Gri ff is

- Par ri sh and Dr. Arne y shoul d be con si der ed “ employees” of th e St at e.

-5-The dispositi ve issue in this appea l, howeve r, is wh ether Ms. Atkinson provided competent

testimony to establish the essential ele ments of her claim for ne g lige nce.

III. Stand ard of Review

Ex cept wher e otherwise provided, “[t] he decisions of the individual commissioners or, when rende red, decisions of the entire commission reg arding claims on the reg ular docket may be appea led
to the Te n n essee court of appea ls pursuant to the s ame rules of appellate procedure which gover n interlocutory appea ls and appea ls from final judgme nts in trial court civil actions.” Tenn. Code Ann. § 9-8-403( a)( 1) (Supp. 2009). Acc ording ly
, we revie w the Commi ssion’s finding s of fa ct and conclusions of law pursuant to Rule 13(d) of the Tenne ssee Rules of Appellate Procedur e. Bowman

v. State
, 206 S.W .3d 467, 472 (Tenn. Ct. App. 2006) (citation omitted). The Commi ssion’s fac tual finding s rec eive a presumption of corr ectnes s an d wi l l not be overturne d unless the evidenc e preponde rate s to t h e co n t ra ry

. Id. (citing Beare Co. v. State
, 814 S.W .2d 715, 717 (Tenn. 1991); Dobson v. State
, 23 S.W .3d 324, 328-29 (Tenn. Ct. App. 1999); Sanders v. State
, 783 S.W .2d 948, 951 (Tenn. Ct. App. 1989)). T h e C o m mission’s leg al conclusions are revie wed de novo with no presumption of corr ectne ss. Id. (citing Turner v. State
, 184 S.W .3d 701, 704 (Tenn. Ct. App. 2005); Crew One Productions, Inc. v. State
, 149 S.W .3d 89, 92 (Tenn. Ct. App. 2004); Belche r v. State
, No. E2003-00642-COA- R3-CV, 2003 WL 22794479, at *4 (Te nn. Ct. App. Nov. 25, 2003)).

IV. Analysis

The principal questio n befor e this Court is whether Ms. Atkinson, as the claimant, has establish e d the essential elements of her neg lige nce claim. The Commi ssion is vested with exclusive jurisdictio n t o deter

mine monetary claims ag ainst the State based on the alleg ed neg lige nt acts or omissions of st ate em ploy ees charg ed with the care, custody
, and control of persons. Tenn. Code Ann. § 9-8-307( a)( 1)(E)

. Tenne ssee Code Annotated section 9-8-307( c) provides that the S t at e’ s liability for neg lige nce “shall be based on the traditional tort conce pts of duty an d t h e re asonably prudent person’ s standard of car e.” Tenn. Code Ann. § 9-8-307( c) (Supp. 2009). Under traditional
tort conce pts, a plainti ff in a neg lige nce action m ust prove the following essential elements of t he claim: duty
, brea ch of duty
, causa t i o n i n fa ct, proxi mate causa tion, and damag es. Kilpat rick v. Bryant , 868 S.W .2d 594, 598 (Tenn. 1993). I n order to e stablish a brea ch of duty
, a plaintiff must demonstrate “conduc t by the defe ndant falling below the standard of car e.” Satterfield v. Breeding Insulation Co.
, 266 S.W .3d 347, 355 (Tenn. 2008) (citing Naifeh v. Valley Forge Life Ins. Co.
, 204 S.W .3d 758, 771 (Tenn. 2006) ; Draper v. W esterfield , 181 S.W .3d 283, 290 (Tenn. 2005) ).

Under cer tain circ umstances, the suicide death of an inmate can g ive rise to a compensa ble claim for neg lige nce. “Prison officia ls have a duty to exercise ordinary and rea sonable car e for the protec tion of the persons in their custody .” Cockrum v. State
, 843 S.W .2d 433, 436 (Tenn. Ct. App. 1992) (citing Kane v. State
, 1989 WL 1 3 6 9 63, at *2 (Tenn. Ct. App. Nov. 15, 1989); Langley v. Metro. Gov't
, 1988 WL 123001, at *5 (Tenn. Ct. App. Nov. 18, 1988)), perm. app. denied (Tenn. Dec

. 7, 1992)). “The scope of this duty does not g ene ra l ly extend to protec ting prisoners from self-inflicte d injury or death.” Id. (citing Pretty on Top v. Hardin
, 597 P.2d 58, 60-61 (Mont. 1979);

-6-Delasky v. Village of Hinsdale
, 441 N.E.2d 367, 370-71 (I ll. App. Ct. 1982); Lucas v. City of Long

Beac h
, 1 3 1 Cal. Rptr. 470, 474 (Cal. Ct. App. 1976)). “Howe ver, it can be expanded to include self-inflicte d injury or death when the prison officia ls know or should know that the prisoner might harm himself or herse lf.” Id. (citing Mack v. Knox County
, 1989 WL 105653, at *2 (Tenn. Ct. App. Sept. 13, 1989), perm. app. de nied (Tenn. Jan. 2, 1990); Kane , 1989 WL 136963, at *5).

Neve rtheless, it is not e noug h simply to e stablish that prison officia ls kne w or should have known that a prisoner was at risk for self harm; a plaintiff must also establish a brea ch of the resulting duty

. As this Court has rec og nized, “[p] rison offic i al s ar e n ot insurers of a prisoner’ s safe ty .” Id. at 438 (c iting Figueroa v. State , 604 P.2d 1198, 1205 (Ha w. 1979); Hardin
, 597 P.2d
at 60-61). “The ir conduct must only be re as o n ab l y commensura te with the inmate’s known condition.” Id. (citing Stokes v. Leung , 651 S.W .2d 704, 708 (Tenn. Ct. App. 1982)). “Except in the most obvious case s, whether the prison offic ials acte d rea sonably to pr otect a prisoner’ s safe ty require s expert proof or other supporting evidenc e.” Id. (citing Hughes v. District of Columbia
, 425 A.2d 1299, 1303 (D.C. 1981))

. I f t he conduct of prison staff is not clear ly improper, e x pert proof delineating the pre cise scope of the staff’ s duty and eva luating the adequa cy of the staf

f’s c onduct is essential; the claimant c annot re cover without it. Id.

This Court articula ted and applied these principles in Cockrum v. State
, 843 S.W .2d 433, 436 (Tenn. Ct. App. 1992), perm. app. denied (Tenn. Dec

. 7, 1992), another case involving the suicide

o f an inmate at DeB err

y

. The prisoner in Cockrum
, L eona Cockrum, was sentenc ed to life i m p ri s o nment and soon there afte r transfe rre d to DeB err y beca use of “‘de pression and suicidal thoughts.’” Id. at 434-35. Whil e at DeB err y , Ms. Cockrum continued to exhibi t a signific ant need for mental health trea tment. She rema ined withdrawn and asocia l; consistently complained of depre ssion, nervousne ss, insomnia, and hopelessness; repe atedly inflicted phy sical injury to herse lf; actively discussed committing suicide; and eventua lly attempted suicide. Id

. As a re sult of her actions, De berr

y ’s staff more than onc e plac ed Ms. Cockrum on suicide pr eca utions. Id.

I n an attempt to assist Ms. Cockrum, one of the counselors enter ed into a “mental health
contra ct” with her

. Id

. T h is contra ct require d Ms. Cockrum to attend counseling and thera py , become more involved in prison life, and discontinue her self-de structive behavior

. Id. Adher ence to this contra ct allowed Ms. Cockrum an opportunity to speak with her husband via telephone once

a month. Id. L ater , an attempt was made to arr ang e a fac e-to-f ace visit betwee n Ms. Cockrum and her husband as part of her ong oing thera py

. Id. The visit, howeve r, was not immediately approve d, leading Ms. Cockrum to quit her individual counseling sessions and to inflict injury to herse lf. Id. Ms. Cockrum, who was alre ady under incre ased observa tion, beca me enra ged when she was informed that she would no longe r be able to telephone her husband beca use she violated her mental health contra ct. Id. Neve rtheless, Ms. Cockrum calmed afte r a few day s and pris o n officia ls

remove d her from incre ased observa tion status. Id

. There afte r, members of DeB err y ’s staff conducte d a meeting to revie w her mental health status and to deter mine her trea tment options. Id. When Ms. Cockrum ref

used further trea tment, it was rec ommended that she be transfe rre d back to the gene ral population at t he women’s prison. Id. J ust three day s later, Ms. Cockrum co m m i tted suicide by

overdose

. Id. at 436.

-7-Ms. Cockrum’s husband f il e d a c la im w it

h the Commi ssion alleg ing that the State’s neg lige nt supervision cause d the untimely death of his wife. Id. at 434. This Court acknow ledg ed on appea l
t h at De Be rry ’s staff “knew or should have known that discontinuing her telephone calls and transfe rring her to the women’s prison could have prompted Ms. Cockrum to attempt to harm herse lf in reta liation.” Id. at 437. Acc ording ly
, we ag ree d that DeB err y ’s staff had a duty to take rea sonable
prec autions to preve nt Ms. Cockrum from injuring herse lf. Id. We nonetheless held that her husband could not r ecove r beca use he failed to pr ovide expert evidenc e to e stablish the applicable standard of

car e:

We ha ve piece d toge ther from the rec ord that DeB err y ’s proce dures call for heig htened prec autions whene ver the trea tment s t aff deter mined that additional
prec autions wer e nece ssary in order to protec t the inmate from self-inflicte d injury

. T h ese prec autions included incre ased observa tion, cell sear ches, incre ased restra ints, incre ased med i ca t i o n, remova l of pot entially harmful objects, and the use of paper clothing. What the rec ord lacks is any proof conce rning the criter ia for deter mining when these prec autions should be used or conce rning whether the s t aff acte d

unrea sonably

by not imposi ng any

or all of these restra ints after [t he date on whic h prison officia ls notified Ms. Cockrum of her pote ntial transfe r].

. . . .

The DeB err

y staff’ s conduct in this case was not s o cl ea rly improper that claims commissioners or appellate j udg es can conclude that t h e staff breac hed any duty it owed to Ms. Cockrum. Acc ording ly
, ex p er t proof delineating the prec ise
scope of the staff’ s duty an d ev al u ati ng the adequa cy of the staff’ s conduct was

nece ssary . Mr. Cockrum ca nnot rec over w ithout it

.

Id. at 438.

We find no basis up o n wh i ch t o distinguish the prese nt case

. The rec ord shows that Mr. Pattee rec eived continual car e for his mental health needs and denied suicidal ideation on a multit ude of occasions. The recor d further shows that a nurse m et wi t h M r. P att ee following his transfe r t o Unit 7B and found that he was “ale rt, verba l, [and] appea r[ed] to be in no distress.” J ust three day s later, Dr. Arne y met with Mr. Pattee and rec orded the following : “[Patient] seen. He is quiet [and] sullen. No acute chang e in his condition seen. Over all stable. Continue curr ent [t rea tment] .” This is important beca

use Ms. Griff

is-Parrish testified that “[i] f Dr. Arne y thought [Mr. Pattee] was a high ri s k fo r suicide, he would have put him on suicide prec autions.” Although Ms. Griff is-Parri s h
repor ted to the trea

tment team that she believed Mr. Pattee was at an incre ased risk for suicide, the
trea tment team decide d afte r delibera tion that additional prec autions wer e unnec es sary

. We are unable to conc lude that the dec ision of the trea tment team was so c lear ly improper unde r the fa cts that expert testimony

was not re quired to establish a br eac h of duty

.
Thus, the controlling question is whether Ms. At k inson prese nted the expert testimony

-8-require d to support h er claim. She did not. The only expert testimony addre ssing the standard of

car e owed to Mr. Pattee establishes that it would have been rea sonable to place Mr. Pattee on suicide watch; it does not establish the standards of car e by which to evalua te the trea tment team’s decision, addre ss whether other alterna tives wer e available and appropr iate, or examine the rea sonablene ss

o f t h e trea tment team’s actions in light of prison proce dures and policies. Fur thermore
, Ms. Atkinson’s counsel conce ded at oral arg uments that placing Mr. Pattee on suicide watch was not the only potential action the trea tment team or prison officia ls c ould ha ve taken to pr otect Mr. Pattee. He went so far as to label that sug g estion “absur d” and stated “ther e’s a hundred way s that they could have kept him from killing himself; suicide watch was one of them.” There is, howeve r, absolutely

no evi d en ce d et ai ling what these other possible course s of action entailed. Even if the trea tment team knew or should have known that transfe rring Mr. Pattee to Unit 7B could have prompted him
to inflict self-injury
, the rec ord simply lack s proof conce rning the criter ia for deter mining when suicide precautions shoul d be used and whether the s t af f acted unrea sonably by not imposing any or all of these restra ints after Mr . Pattee’s tra nsfer

.

Ms. Atkinson seeks t o cu re t h i s defic iency by arg uing that the Commi ssion err ed when it found Ms. Griff

is-Parrish was unq ualified to testify as an expert about the TDOC’s suicide
preve ntion policies and proce dures or the rea sonablene ss of the trea tment team’s conduct in failing
to implement heig htened suicide prec au t i ons. She submits that Ms. Griff is-Parrish worke d exclusively at DeB err

y from 2000 until 2002, during which she serve d as a member of Mr. Pattee’s
trea tment team. Be cause the trea tment team had the responsibility to advise prison officia ls on whether an inmate should be place d under heig hten e d s u ic id e p r e c a u ti o ns and what those prec autions should consist of, Ms. Atkinson submits that Ms. Griff is-Parrish was qualified to testify as an expert about the TDO C’s suicide pre vention policies and proce dures. The appellant also arg ues that Ms. Griff is-Parr i sh had the requisite knowledg e, skill, experience
, training
, and education to testify

conce rning th e d ec ision to implement heig htened suicide prec autions. She maintains that Ms. Griff is-Parrish was particula

rly qualified to testify about the rea sonablene ss of the trea tment team’s decision not to implement suicide prec autions beca use Ms. Griff

is-Parrish interac te d with Mr. Pattee

on a more reg ular basis than any other mental health profe ssional at DeB err y

. Ms. Atkinson rea sons “[i] t is incong ruous for the State to sug g est that the TDOC employ Ms. Griff is-Parrish as an expert in a prison setting and g ive her training and experience in same and then asser t she is not competent to testify as to these . . . . matter s.”

We are not persua ded by Ms. Atkinson’s arg ument. First, it does n o t appea r that Ms. Atkinson expressly offe red or that the Comm i s s i o n ex p ressly reje cted Ms. Griff is-Parrish as an expert outside the are a of psy chiatric nursing during the hear ing. The following exchang e occur red at the hea ring :

Mr. Ray

bin: Your Honor, we would ask that the Court permit Ms. Parrish to testify as an e x pert witness a

nd also a tre ating person of Mr. Pattee.

The Court: I s there a

ny thing f rom the State?

-9-Mr. Hudson: I g uess it depends on what she is g oing to testify about or g ive

her ex pert opini on about. I f i t’s an ex pert opini on with reg ard to -- in her c ap acity

as an advanc ed prac tice nurse and those things that are incident to that, I think that’s
appropr iate, but bey ond that, I d o n ’t k n ow. I haven’ t hear d any thing that would

nece ssarily

qualify her to g ive an opinion bey ond those aspec ts of her pr ofession.

The Court: Okay

.

Mr. Hudson: She’s not a psy chiatrist. She’s n o t a m ed ical doctor or any thing.

The Court: Mr. Ray

bin, what do y ou s ee as b ei ng the thrust of Ms. Parrish’s testimony ?

Mr. Ray bin: Two g rounds. One will be as a fac t witness beca use she had
many interac tions with Mr. Pattee, an d al s o t o g iving an opinion as to the
appropr iateness or inappropria teness of his trea tment leading to his death, or lack of
trea tment. The ultimate issue of whether the Depa rtment of C o rr ection[s] was neg lige nt or not is for the C ourt to decide

. She’ll not voice an opinion about t hat. But the standard of car e and what the Depa rtm en t co u l d have done differ ently or better to have preve nted M r. P attee’ s death, I think she can voice an opinion about that, n o t o n l y beca

use she’s an ex pert and psy chiatric nurse, she was there and she
trea ted him.

Mr. Hudson: Ag ain, in r esponse, I would say that her expertise may be in providing car e as a nurse, but not nece ssarily in providing in the trea tment of inmates in the corr ections setting, to take into acc ou n t those things that are g erma ne to

corr ections, to secur ity and things of that nature and to opine as to what secur ity staff and thing s of that nature should have done

.

She may be qualified to speak to what may be other mental health profe ssionals of -- with her qualifica tions might have been able to do, but insofar as she is g oing to testify with reg ard to what response the corr ection officia ls should have been to -- in the situation, I don’t think t h at she is qualified to g ive such an opinion.

The Court: Now, y ou indicated she was certified as a psy chiatric -- a dult
psy chiatric nurse?

Mr. Ray bin: Yes.

The Court: And now is it y our contention that her testimony will g o outside of the a rea of the standa

rd of c are with respec t to adult psy chiatric nursing ?

-10-Mr. Ray bin: I t’s not going to go outside of that.

The Court: Okay

.

Mr. Ray bin: Now, as far as the corr ectional component of this - - well, let me just develop her

testimony , if Imight.

The Court: Okay

.
Mr. Ray bin: And I would sug g est the gover nment can obje ct spec ifically if Ig et into prohibited terra in.

This exchang e indicates that Ms. Atkinson only initially offe red the testimony of Ms. Griff is-Parrish

as an expert in the field of psy chiatric nursing

. Our revie w of the rec ord reve als that the Commi ssion

never reje cted or limit ed the testimony of Ms. Griff is-Parr i s h o n any other subject. Rather, she simply did not testif

y ab o u t t h e standards of car e that members of the trea tment team—whe ther mental health profe ssionals or prison staff—ow ed to Mr. Pattee, nor did she sufficie ntly develop her qualifica tions to do so. And it is undisputed that only these individuals, or possibly highe r ranking prison officia ls who w er e n o t members of the t rea tment team, had authority to implement suicide
prec autions.

Even a ssuming the Com mission impliedly reje cted Ms. Griff is-Parrish as an ex pert on the rele vant standards of car e during the hear ing, Ms. Atkinson ma de no offe r of proof to de monstrate what Ms. Griff

is-Parrish’s testimony would have been reg arding these issues. The Tenne ssee Rules of Evidence
, which g overn hear ings befor e the Commi ssion, see Tenn. Code Ann. § 9-8-403( a)( 1); Tenn. Comp. R. & Reg s. 0310-1-1- .01(11)( a)( 1), provide that “[e]rror may not be predic ated upon a ruling which admits or excludes evide nce unle ss a substantial rig ht of the par ty is affe cted, a

nd .

. . the substance of the evidenc e and the specific evidentiar y basis supporting admission wer e made known to the cour

t by offe r or we re a

ppare nt from the conte x t,” Tenn. R. Evid. 103(a )(2) . Unless

an offe r of proof is made, this Court is without sufficie nt information to deter mine whether exclusion of the evidenc e was reve rsible err or. This is espec ially true when the excluded evidenc e consists of oral testimony

. See State v. Goad
, 707 S.W .2d 846, 853 (Tenn. 1986). I f the requisite offe r of proof is absent from the rec ord, t his Court will not reve rse an evidentiar y ruling

. Dicke

y v. M cCord , 63 S.W .3d 714, 723 (Tenn. Ct. App. 2001) (citing Shepherd v. Perkins Builders
, 968 S.W .2d 832, 834 (T en n

. C t. App. 1997)). Be cause Ms. Atkinson made no offe r of proof conce rning Ms. Griffi s

Parrish’s int ended expert testimony on the TDOC’s suicide preve ntion policies and proce dures or the re asonable ness of the tre atment team’ s conduct, we find no reve rsible er ror.

As a final matter, Ms. Atkinson arg ues that the Commi ssion err ed when it excluded instant

me s s a g e a n d e lectronic mail corr espondenc e betwee n her and Ms. Hilla. Acc ording to Ms. Atkinson, the excluded corr espondenc e establishes: (1) an ong oing patter n o f co mmunication betwee n Ms. Atkinson and Ms. Hilla dating back to 2001, (2) the TDOC’s knowledg e of a chang e in Mr. Pattee’s

-11-behavior t he day befor e his death, and (3) the TDOC’s knowledg e that transfe rring Mr. Pattee

heig htened his risk for suicide. Although this corr espondenc e corr oborate s the testimony of Ms. Griff is-Parrish, it is not entirely clea r what benef

it the ap p el l an t stands to g ain if these communications are admitted. The Commi ssion ruled in favor of the State beca use Ms. Atkinson 9 failed to offe r expert testimony on the standards of car e, not beca use it disbelieved the testimony of Ms. G riffis-Par

rish on the question of notice. Admission of this corr espondenc e would only serve to bolster unimpeache d evidenc e alre ady in the rec ord. Assuming for the sake of arg ument that the Commi s s i o n erred when it excluded this evidenc e, the decision did not aff ect its judgme nt or prejudice the judicial proce ss. We acc ording ly hold that the alleg ed err or was harmless. See Tenn. R. App. P. 36(b); Blackburn v . Murphy
, 737 S.W .2d 529, 534 (Tenn. 1987) (citation omitted).

Ms. Atkinson has failed to provide expert t es t i mony require d to establish the applicable standards of ca re by which we can judge the actions of the prison officia ls and mental health profe ssionals involved in the decision not to implement suicide precautions. Certainl y , h i n d s ight

reve als that placing Mr. Pattee under suicide prec autions likely would have aver ted his death during the period in question. But the fac t that Mr. Pattee succe eded in his attempt to commit suicide does
not in and of itself establish that members of the trea tment team or other prison officia ls failed to act

rea sonably u n d er t h e circ umstances. And the persons responsible for evalua ting Mr. Pattee and d etermining whether he should be place d on suicide prec autions did not have the benef it of thi s hindsight when car

ry ing out their responsibili ties; they could oper ate only within their considered judgme nt. Whether t hese persons acted neglig ently in evaluating Mr. Pattee a nd perf orming their duties is not rea dily appar ent; it is for this rea son that expert proof is require d to establish the criter ia by which thi s Court can de termine whe ther a brea ch of duty

has occ urre d. Absent such proof, we

are without standards by which we can judge the collective dec i s ion of the trea tment team, the actions of i n d ividual members of the trea tment team in their various capa cities, or the conduct of prison officia ls char g ed with Mr. Pattee’s car e and custody

. Acc ording ly
, we cannot find a brea ch of duty and must hold that Ms. Atkinson has failed to establish an essential element of her neg lige nce claim. As a result, the judgme nt of the Commi ssion is aff irmed. All other issues are prete rmitted.

Ms

. Atkins on’ s cou nse l con ced ed at the hea ri ng tha t the fi rs t set of cor re spo nde nce onl y ser ves to 9

cor rob ora te Ms

. Atkins on’ s te st imony re gardi ng the ongoing re la ti ons hip bet ween her and Ms

. Hil la and tha t the thi rd set of cor re spo nde nce onl y ser ves to cor rob ora te Ms

. Gri ff is

- Par ri sh’ s te st imony tha t she inf ormed the tr eat m ent te am of her con cer ns r egardi ng Mr. Pat te e. T he r emaini ng set of cor re spo nde nce app ear s t o have bee n pri m ar il y off

er ed to fur the r demonst ra te tha t the tr eat m ent te am sho uld have known tha t Mr

. Pat te e

was at an inc re ase d r is k of su ic ide fo ll owin g his t ra nsf er

.
-12-V. Conclusion

For the fore g oing rea sons, w e aff irm the decision of the Commi ssion. Costs of this appe al

ar e t ax ed t o the appellant, Shirley Ann Atki nson, and her surety for which execution may issue if

nece ssary

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ D A V I D R

. F A R M E R
, J U D G E

-13-