# FILED
May 3, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE LISA J. PRINCE and husband, ) RICKY PR INCE, ) ) Plaintiffs/App ellants, ) Coffee Circuit N o. 24,504 ) VS. ) A ppeal No. 01A 01-9508-CV-003 42 ) COFFEE COU NTY, TEN NESSEE ) d/b/a COFFEE MEDICAL CENTER, ) ) Defendant/Appellee. )
APPEAL FROM THE CI RCUI T COURT OF CO FFEE C OUNTY

AT MANCHESTER, TENNESSEE THE HONORABLE GERALD L. EWELL, SR., JUD GE

RICK L. MOORE RUSSELL D . HEDGES J. BROOKS F OX MOORE & H EDGES Tullahoma, Tennessee Attorneys for Appellants

RO BE RT L. TR EN TH AM MARK TYLER SEITZ TRABUE, STURDIVA NT & DEWITT Nashvil le, Tennessee Attorneys for Appellee

REVERSED A ND REMA NDED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. HEWITT P. TO MLIN, JR., SR. J.

This is a medical malpractice case. Plaintif fs, Lisa and Ricky Prince, are husband2

and wife. Lisa Prince ("Plaintiff") was injured during out-pat ient surgery, allegedly as a result of improperly administered an esthetic. In itially , the suit was brought ag ainst Coffee Medical Center, Dr . Ramprasand (t he surgeon), and Michael Cruz (the nurse anesthetist). Dr. Ramp ras and a nd C ruz settled wi th Pl aint iffsand were dis missed prior to this acti on. Plaintiff alleg es on appeal that Coffee Medical Center ("C MC") was neglig ent in failing to establi sh a dequ ate a nest heti c pol icies and p roce dure s and in fa iling to en for ce its own anesthe sia polici es and procedure s. The trial court gran ted summary j udgment in favor of CMC and Plai ntiff has appealed. For the reasons st ated below, we reverse.

Dr. Ramprasand, Pl aintiff's physi cian, admitt ed her to C MC on June 19, 1989, to undergo same-day

surgery for release of

carpal tunnel syndrome. Dr. Rampras and was to perform the surger

y and Michael C ruz, a cer tified regi stered nurse a nesthetist, was to administer

the regional anesthetic. C ruzwas employed by Warren An esthesia Associates,
an organiz ation wit h which th e CMC had a contract obligating Wa rren to provide anesthetic service s to CMC patients.

The procedure for administering the regional anest hetic entails placing a double tourniquet in th e area of the elbow while i njecting t he anesthetic ag ent (.5% Xy locaine) intravenouslyinto the patient 's arm. The hospital pharmac y was closed at the ti me of Plaintiff's surgery , and the standard anesthetic, a .5% single dose vial of Xylocai ne, was not stocked in the operating room. Conseq uently, Cr uz compounded his own solut ion of .5% Xyl ocaine.

After two attempts

to estab lish a tourni quet cuff on Plainti ff, Cruz inje cted the anesthetic so l ution that he had pr epared into Plai ntiff's arm. Foll owing s urgery , the tourniq uet was removed. Soon thereafter, multiple blue patches appeared on Plainti ff' s arm and no pulse reg istered below her elbow . Pl aintiff was ta ken by ambulance to St. Thomas Hospital for

correctiv

e surgery .

Plai ntiff was diag nosed at St. Thomas H ospital ashaving sustained acompartment3

synd rome and peripheral nerve inj ury. At S t. Thomas Hospital she underwent a fas ciot omy, where a s urgical incision i s made in the arm to relieve pressure in the fascial compartments. The fasciotomy l ef t an open wound in Plaintiff's arm that required skin grafting to correct. Pla inti ff subsequently underwent s everal sk in grafts, ex tensive phy

sical ther apy, and other

surgical procedures. Plaintiff has incur red approximately $140,000 in medical expen ses.

Dr. Ramprasand and Cruz entered into a set tlement with Plaintiff, which resulted in theirdismissal from the suit. C MC filed a M otion for Summary Judgment base d on the fact that any potent ial liability againstCMC was exting uished by th e dismissal of Cruz and Dr. Ramprasand fr

om the case. C MC re asoned that an y cl aims against i t would be b ased upon the conduct of either Dr. Rampras and or Cruz and that, therefore, the common law rule providi ng that w hen a servant is release d from liabili ty, the mast er is also released, absolved CMC of any

liabilit y. CMC also

argued that it was entitled to summary judg ment beca use t he Pl aint ifffailed to allege specific acts of negligence in the orig inal complaint

.
Conve rsely, Pla inti ff a lleged t hat Cruz and Dr. Ramprasand were independent contractors and that the claims against CMC rested solely upon i ndependent ground s, rather than upon deriv

ative li ability stemming from the acts of Cruz and Dr. Ramprasand. Spec ific ally, Plaintiff alleged that CMC was neg ligent in failing to enforce its own anesthetic policiesand procedures and in failing to estab lish anesthetic procedures that "would have insured that those with li mited staff privil eges could not have exceeded their author ity to administer anesthetics to the Plaintiff, Lisa J . Prince."

In her orig inal complaint dated June 18, 1990, Plaintiff all eged that CM C was negligent in the following respects:

(a) In failing to pr

ovide competent

medical perso nnel, includi ng doctors and nurses for t he examination and treatment of its patient, Plaintiff, Lisa J. Prince, following t he completion of her surge ry; (b) In failing to provide properly functioning eq uipment and gaugesnecessary for the performa nce of a Bier B l ock and application of a t ourniquet. (c) In failin g to pro vide an anest hesiologist to administer the4 anesthesia and tourniquet to Plaintif f whil e she underw ent surge ry; (d) By otherwise faili ng to exercise that deg ree of care to which the Defendant hospital w as bound.
After filing her

complaint, Pl aintiff moved to amend t he c omplaint to add Dr. Ram prasand as a defendant. The tria l court g ranted the motion. Thereafter, on May 19, 1994, Plaintiff again moved to amend her c omplaint in or der to add speci fic acts of negligence on the part of CM C, whic h are as follow s: (e) The Coffee Medical C enter breached i ts duty of care to its patient, Lisa Princ e, by failin g to prov ide a phy sician anesthesiologist to the patient; a nd in the abse nce of a physicia n anesthesiolog ist, the Coffee Medi cal Center failed to assure t hat the operatingsurgeon, D r. Mittur Ramprasand, wa s qua lifi ed and aware of hi s obligati on to superv ise the nurs e ane sthe tist , Mr. Mi chae l Cruz. (f) The Coffee Medical ce nter breached i ts duty of care to its patient, Lisa Princ e, by allowi ng a Certi fied Register ed Nurse Anesthetist to pract ice anes thesio logyi n its hospital in an unsu pervi sed c apa city. (g) The Coffee Medical C enter breached i ts duty to i ts patient, Lisa Prince, by

failing to stock the appr opriate anestheti c at the time of he rsurgery ; and by all owing a registered nurse to independently prepare, com pound and dispense drugs. (h) The Coffee Medical C enter breached i ts duty to its patien t, Lisa Prince, by

neglige ntly faili ng to assure that Mrs. Prince's anesth esia c are was s upervised by an appropr iate physi cian with spec ial know ledge of anesthesi a.
Init ially, the tr ial court g ranted Plainti ff's's motion to amend, bu t later vacated its decision and denied the motion. In its me morandum opinion , the trial court reviewed the exten sive discover

y and pleadi ngs that had oc curred in th e case and held that justice did not mandate the gr

anting of the amendment. The trial cour t stated: If, as counsel for t he plaintiffs stat es on oral argument , the amendment does not chan ge the cause or causes of action against the defendant, Coffee County Hospital, i t i s unn eces sary. If i t doe s ch ang e or add t he ca use of a ction, it triggers additional di scovery and proof, and while the Court is aware that amendmen ts are to be fre ely grante d, it is, in this case, the opinion of the C ou rt t hat justice do es not mandate that the amendment shoul d be granted.

Rule 15.01 Tenn . R . Civ. P . provides , "A party may amend his pl eadings once a s a matter of course at any time before a responsive plead ing is served...[o]therwise a party
ma yamend his pleadi ngs only by wr itten consent of the adverse par ty or by lea ve o f5

court..." Although the r ule provi des that permissi on to amend may be l iberally granted, the decision to amend lieswithin the sound discretion of the trial court, and w ill not be revers ed absenta showingof abuse of discreti on. Welch v. Thuan , 882 S.W. 2d 792, 793 (Tenn. App. 19 94); Wilson v. Ricciar di , 778 S.W. 2d 450, 453 (Tenn. App. 1989); Merri man v. Smith , 599 S.W . 2d 548, 559 (Tenn . App. 1979).

The Tennessee Supreme Cou rt has established s everal per tinent factors th at a trial court should c onside r in decid ing whethe r to gr ant or de ny a motion to amend. Th ese factors include "[u]ndue dela y in filing; lack of notice to the opposing party; bad faith by the moving party, repeated failure to c ure deficiencie s by prev ious amendments, undue prejudice to th e opp osin g part y, and futility of amendment." Merriman , 599 S.W. 2d at 559.

After an extens ive rev iew of the record, we do not find any indication that the trial court abused its dis cretion in denying the motion to amend. E xamining this case in the l ig ht of the above deli neated factors, we find ample justi fication for the act ion of the trial court in deny ing such moti on.
With respect to Plaintiff's all egations that CMC was neglig ent in failing to implement proper anesthetic st andards and proc edu re s, we hold that the original allegation, which
s tated that CMC was n egligent " by otherwise failing t o exercise that de gr ee of care t o which the Defendant hospita l was bound, " was sufficien t to put CMCon notice ofPlaintiff's claim

. Tennessee's notice pleadi ng requi res a complain t to contain onl y minimum g eneral fa cts that w ould support pote ntial cause of act ion under Tennessee substantive law. A complaintis general ly sufficient if it statesfacts supportingany theory of relief, even if the theoryis different from that upon which theplaintiff intended to rely. L AW RENCE A. P IV NICK , T ENNESSEE C IRC UIT C OURT P RACTI CE § 7-2, at 244-45 (3rd ed. 1991). Conse quen tly, to permit Plaintiff to amend her complaint in order toallege that CMC was neglig ent in failing to establish adequate anesth etic policies an d procedures would be a futile ef fort because it is u nne cess ary.6 To the extent

that Plainti ff attempts to amend her complain t in order t o state
a negligent credentialing claim against CMC, we agree with the trial courtthat granti ng the amendment would re sult in substantial prej udice to CMC . Plaintiff's moti on to amend was filed more than four years after her or iginal complaint was filed. It is our opinion th at the general allegation of failure to exercise due care did not serve to place CMC on noti ce of Plaintiff's intent to pursue a negli gent cred entialing claim. A cla im for neglig ent credentiali ng is distin ct from a malpract ice action and requires separate elements ofpro of. The trial cour

t did not abuse i ts discreti on in prohibi ting Plai ntiff from pursuing a new avenue of liability

in litig ation thathas been pending for over fo ur years in light of the fact that Plai ntif f was p revio usly a llowe d to a men d her comp lain t and volum inou s disc overy, motions, and pleadi ngs have b een filed.

The next iss ue for revie w is w hether the trial cour t erred in granti ng CMC' s motion for summary ju dgment.
Summary judgm ent i s to b e ren dere d by a trial cour t onl y when i t is sh own that there is no genuine is sue as to any material fact and the moving party is entitled toa judgment
as a matter of law

. Tenn. R. Civ. P. 56.03. W hen a motion fo r summaryjudgment is used def ensi vely, th e p laintiff must presen t evidence s ufficient to establi sh the essential elements of the claim on w hich he wi ll bear the bur den of proof at trial

. Blai r v. Alli ed Maintenance Corp. , 756 S.W . 2d 267, 269-270 (Te nn. App. 1988) In ruling on a motion forsummary judgment, the trial court and the Court of Appe als must consi der the matter in the same manner as a moti on for a directed verdict made at the close of the plaintif f's proof. All of the evidence must be viewed in the lig ht most favorabl e to the opponent of the motion and all legitimate conclusions of f act must be drawn in favor of the op ponent. It is onlywhen there is no disputed issue of material fact that a summary judgment shoul d be granted by

the trial court and sustai ned by the Cou rt ofAppeals. Byrd v. Hall , 8 4 7 S

. W. 2d 208, 211 (Tenn. 1993) . If the court enter tains any do ubt as to wh ether a genui ne issue of material fact ex ists, it i s the court's duty to overrule the moti on. Id. This court may not weigh the evi dence when ev aluating a moti on for summary j udgment. Id. Wh en it is7

necessarythat the evi dence be wei ghed, a trial should ensue because such issues are not properly capable of resol ution on the basi s of affidavits al one. Id. at 216.

The duty of a hospi tal is to exercise such reasonable car e toward pat ients as the patients' conditions r

equire. Keet on v. Maury C ounty Hospi tal , 713 S.W. 2d 314, 316 (Tenn. App. 1986). In order to r ecover, a p laintiff must show that the hospital violated that standard of care. Id. at 317. The burden of proof is on the plaintiff to prove the standard of care, vi olation of that stan dard, and causati on. T.C.A. § 29-26- 115. Unless t he alleged malpractice lies within the ordinary knowledg e of a layman, ther e must be exper

t testimony
as to the standard of care, breach of that standard, and ca usation. C oyle v. Prie to , 822 S.W.2d 596, 598 (Tenn. App. 1 991); Stokes v. L eung , 651 S.W.2d 704, 706 (Tenn. App. 1982).

CMC supported its motion for summary

judgmentwith the affidavit of Jane Hamb y, R.N., w ho stated that CMC' s nursing staff complied fully w ith the recog nized standar d of acceptable prac

tice for nurses

and that the tourn iquet functioned properly

.

In oppo sitio n to C MC's m otio n fo r sum mary j udgment, Plaintiff filed the affidav its and d eposition testimony of thr ee experts. Dr. James A. Ramsey, a n anesthesiolog ist wh o treated Plaintiff while she was hospitalized at St. Thom as Hospital, is a board ce r tified anesthesiologist who pract ices in Nas hville, Tennessee. He executed two affidavi ts, one of which states in pertinent part as f ollows:

The Coffee Medical C enter was negligent in failing to ass ure that Micha el Cru z, Certified Registered Nurse Anesthetist, w as supervis ed by an appropriate physician with sp ecial knowledge of anesthesia. Dr. Ramsey stated in another aff idavit as follows:

In my op ini on, t he in jury to Lisa Princ e woul d not have occurred if the Coffee Medical Center had n ot bre ached its duty of care that it owed to its patien t Lisa Princ e, and assured that the operating surgeon was qualified to supervise the nurse a nesthetist, and fu rther, a ssured t hat the operat ing surge o n realized his oblig ation to superv ise the nurse anesthetist...8

Dr. William Bradley Worthington, another anesthesiolog ist who cared for Plaint if f testified that in the prese nt situa tion, the standar d of care requi red the surg eon to be responsible for

supervis ing the CR NA.

James L. Mass ey, II, pr ofessor of hospital and heal th administration at Governors State University in Illinois, was the third expert to testify for Plaintiff . Mr. Massey t estified that CMC was negligent in credentialing Dr. Ramprasand and Michael Cruz. Mr. Massey also testified that C MC breached t he standard of care for hospita ls through failing to revie w, update, and abide by the medi cal sta ff by-laws on credential ing, by failing to establish rules and regulations f or anesthesia servic es and surgeon supervision of CRNA's, byfailing to mak

e certain that all surg eons wer e qualified su fficiently i n anesthesia, by failing to establish pol icies and pr ocedures for anest hesia serv ices, by failing to insure that pre-surg ical checks by

nurses were made, an d by failing to establish proper controls on the use of equipment.

Bec aus e we haveruled that Pl aintiff may not pur sue her negl igent crede ntialing t heoryof recovery , Massey' s testimony relating to a claim for ne gligent crede ntialin g i s immate rial. However, Massey also stated in his affidavit that CMC deviated fro m th e standard ofcare throug h its "[f]ailure to specify t hat each surgeon has a responsi bility to supervise anes thes ia," its "[ f]a ilure to ha ve policies an d procedures for anesthesia," and its "[f]ailure to provide Lisa J. Prince w ith a preanesthes ia evaluati on." Massey's affidavit provides: Coffee Medical Center in this c ase failed to implement the

proper stan dard s bot h int erna lly and nati ona lly. ..[ I]t is my opinion that those causal factors woul d hav e bee n avoided if proper hospital pr

ocedur es and credentialing had been in place. As a direc

t result of

Coffee Medical Cente r's breach of the appropriate hos pital standar ds Lisa Prince susta ined injur y.

It is inappropriate for this Court to weigh the evidence in evalu ating a mo tion for summary judgment. When the above ev idence is v iewed in a light most

fav orable to Plai ntiff and all countervailing evidence is discarded, a genuine iss ue of material fact exists9

in the present case.

Acco rdin gly, we are of t he opinion that th e affidavits and t estimony offered by Plai ntiff in opposition to CMC's motion for summary

judgment establ ish that there exists
a genuine iss ue of material fact, thereby rendering summary judg ment inappropri ate. The order granting CMC summary judgment is reversed and this case i s remanded to the trial court forsuch other

and further proceedin gs as may be necessary. Costs on appeal are assessed equally against the parties.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

TOMLIN, Sr. J.