Jeffrey D. Key, Individually and as Administrator of the Estate of Randall Eugene Key v. Blount Memorial Hospital, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 2, 2011 Session

JEFFEREY D. KEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE

OF RANDALL EUGENE KEY ET AL.1 v. BLOUNT MEMORIAL

HOSPITAL, INC. ET AL.

Appeal from the Circuit Court for Blount County

No. L-15795 Jon Kerry Blackwood, Judge

No. E2010-00752-COA-R3-CV- FILED - MAY 31, 2011

This is an appeal from a grant of summary judgment to the defendant hospital in a medical

malpractice wrongful death case. The trial court struck as untimely the materials filed by the

plaintiff in opposition to the defendant’s motion for summary judgment. The responsive

materials were filed less than five days before the date originally scheduled for a hearing on

the defendant’s motion; however the hearing was continued for several months. Having

struck the plaintiff’s filings, the court held that the motion negated violation of the standard

of care and causation and granted the motion as unopposed. The plaintiff contends on

appeal that the defendant did not negate either violation of the standard of care or causation;

that the materials responsive to the motion should not have been stricken; and that, if the

materials filed in opposition to the motion are considered, the plaintiff presented issues of

material fact for trial. We vacate the trial court’s grant of summary judgment and remand

for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Vacated; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.

F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

1

In the plaintiff’s various filings, the first names of the plaintiff Mr. Key and the decedent are each

spelled in two different ways. The plaintiff Mr. Key’s first name is shown both as “Jeffery” and “Jefferey.”

The decedent’s first name is sometimes spelled “Randal” and on other occasions it is spelled “Randall.”

From our review of the whole record, we are persuaded that the correct spellings are “Jefferey” and

“Randall” and those are the ones we have used in this opinion.

John C. Duffy, Knoxville, Tennessee, for the appellants, Jefferey D. Key, individually and

as administrator of the Estate of Randall Eugene Key, deceased, William Key, Betty Key,

Amanda J. Key and Sondra Clark.

Diane M. Hicks, Maryville, Tennessee, for the appellee, Blount Memorial Hospital, Inc.

OPINION

I.

This wrongful death action was filed against Blount Memorial Hospital, Inc. (“BMHI”

or “the Hospital”) by Jefferey Key, individually and as the administrator of the estate of the

decedent, Randall Eugene Key (“the decedent”), and others related to the decedent2

(collectively “the Plaintiff”). The decedent presented to the Hospital on May 13, 2006, as

an outpatient. He was admitted shortly after lunchtime at 12:45 p.m. Previously, from April

25 through May 12, 2006, he had been hospitalized at the University of Tennessee Medical

Center (“UTMC”) for complications of long-term insulin dependent diabetes. Complications

from his diabetes had included amputation of a leg, four previous heart attacks, neuropathy,

and end-stage renal disease requiring dialysis. He had also contracted a treatment-resistant

microorganism commonly known as MRSA. He came to the Hospital by private automobile

after receiving dialysis. He was to receive two units of “packed red blood cells” and go

home. The reason for the order for infusion of blood was a low hemoglobin level discovered

by the staff at the dialysis clinic based on testing performed at UTMC prior to the discharge

of the decedent. The transfusion was never completed. The decedent’s primary care

physician, Dr. Serrell3 ordered him transferred from BMHI to UTMC at 8:00 p.m. the day

of his admission. He died four days later at UTMC.

2

A word of clarification about the various parties is in order. There was some disagreement in the

trial court about which of the named plaintiffs were proper parties. The record indicates that the opposing

sides reached an agreement regarding who are the real and proper parties in this wrongful death action.

Where the context permits, we will refer to the names as listed in the caption of the amended complaint

collectively as “the Plaintiff.” Also, Dialysis Clinic, Inc., was a defendant in the original complaint. After

the Plaintiff settled with that defendant, the court allowed the Plaintiff to amend the complaint to delete the

clinic as a party.

3

Dr. Serrell’s name is spelled in a variety of ways. After consulting the medical records, we believe

the correct spelling is “Serrell.”

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A.

The core theme of the Plaintiff’s case is that the nurses employed by the Hospital

simply ignored an admittedly sick but otherwise functional man and allowed his condition

to deteriorate to the point that he had a heart attack while waiting for a blood transfusion.

The Hospital’s position, as expressed in its summary judgment motion, is that the decedent’s

condition did not deteriorate while he was at BMHI, that his heart attack resulting in death

happened after he left BMHI, and that, even if he suffered his heart attack while at BMHI,

nothing the nurses did or failed to do precipitated the heart attack. Furthermore, the Hospital

contends his heart condition was not treatable.

BMHI’s motion for summary judgment contained a section labeled “concise statement

of undisputed material facts.” That section is primarily directed at explaining the decedent’s

condition when he presented to BMHI, his condition when he left BMHI, and the delay in

giving him blood. We believe it will be helpful in solving this puzzling case if we set forth

those “facts” verbatim along with the Plaintiff’s response and the Plaintiff’s supplemental

“facts.” We have taken the parties’ respective “facts”4 from the brief of the plaintiff Mr. Key

because this information is set forth in his brief in a parallel format. BMHI does not contend

that its “facts” as stated in Mr. Key’s brief are incorrect. After we have dealt with these

facts, we will discuss later whether the Plaintiff’s filings will remain stricken or be

considered as countervailing proof. The material as taken from Mr. Key’s brief is as follows:

6. [Mr. Key’s] blood sugar level was tested by Dialysis Clinic

staff by glucometer on May 13, 2006, and it registered as being

high. A blood sample was drawn . . . and was sent to BMHI

Outpatient Laboratory for testing. The result of the blood

glucose test was 551, a critical value. That result was called to

the Dialysis Clinic staff as a critical value. The person at the

Dialysis Clinic, “Stephanie,” received the information and read

back the results to the caller, acknowledging the critical value

information.

Response. Admitted for purposes of summary judgment only.

As [a] counter-statement of material facts, the result of the

critical value blood glucose test performed by [BMHI]

Laboratory, having the correct patient name, date of birth and

4

All of the “facts” listed by both sides cite supporting documents in the record. We have omitted

all of those citations except those that are particularly pertinent to our analysis.

-3-

account number, was not relayed by the lab to the nurses who

cared for Key later that day.

* * *

8. None of the information about Mr. Key’s critical blood

glucose level, his Hemoglobin level, or his complaints of

weakness, nausea and vomiting that morning, were reported to

BMHI staff, either verbally, or in written form.

Response. Denied. The doctor’s order states a hemoglobin

level of 7.9 and reports a history of blood-tinged em[e]sis. The

nurse performing Key’s intake spoke with Key regarding his

conditions, including weakness, and she noted lethargy and

sleepiness. The critical blood glucose level was in fact

determined by the [BMHI] Laboratory and the Hospital was on

notice of this information.

9. On arrival to the BMHI floor where Mr. Key was taken to

receive the packed red blood cells, he was assessed by Nurse

Anna Williams, RN. He was found to be lethargic, but oriented,

and weak and sleepy. Mr. Key’s blood pressure was 93/53 at

1:00 p.m.

Response. Admitted but denied that this is all the information

noted by Nurse Williams.

10. Due to Mr. Key’s many medical [conditions] . . . it was

difficult to obtain blood from Mr[.] Key’s veins . . . in order for

the lab to be able to p[er]form a type and cross, and other

ordered blood tests. Several attempts were required by BMHI

staff.

Response. It is admitted Key’s veins were difficult to obtain a

blood sample from. Precisely what role Key’s diseases played

in this is uncertain.

11. Prior to the blood [being] started, Mr. Key developed a

fever, and Nurse Williams called his doctor, Dr. Serrell, to

obtain an Order to transfuse the blood, in the presence of fever.

-4-

Several attempts were made to speak with Dr. Serrell, before Dr.

Serrell returned the calls.

Response. Admitted, except denied that the nurse made several

attempts to page Dr. S[e]rrell, as such attempts were not

separately charted.

12. Orders were received from Dr. Serrell to give Tylenol, to

give the blood, to do blood cultures, and to test for a

Vancomycin level. The blood had to be stopped several times,

in order to obtain blood to do the blood cultures and test the

Vancomycin level, as ordered by Dr. Serrell.

Response. The first sentence concerning orders from Dr.

S[e]rrell is admitted. The second sentence is denied in that the

blood samples for the lab to do cultures and test a vancomycin

level could and should have been done prior to the beginning of

the transfusion. Dr. S[e]rrell’s orders were given at 5:10 p.m.

Nurse Williams obtained blood from the lab at 5:29 p.m. and

started the transfusion at 6:20 p.m. There is no explanation

offered for why a blood sample ordered at 5:10 p.m. was not

taken during the hour and ten minutes prior to the nurse starting

the transfusion.

13. Mr. Key remained lethargic, and Dr. Serrell was again

paged several times, before he returned the calls. Dr. Serrell

was paged at 6:25 p.m., at 6:55 p.m., at 7:00 p.m., and 7:30 p.m.

He returned the page at 8:00 p.m., and was given an update with

regard to Mr. Key’s status, the fact that he remained lethargic,

that his blood pressure remained low, as well as that his

temperature had decreased to 99.3.

Response. [The Plaintiff] [d]en[ies] Mr. Key merely “remained

lethargic.” Nurse Williams charted that he was “more lethargic

and confused now, unable to keep him awake.” Moreover,

Key’s condition was crashing. The failure of BMHI nursing

staff to observe the deterioration of Randall’s condition and

failure to communicate this to Dr. S[e]rrell deprived Randall of

critically necessary medical care. The nurse failed to follow

acceptable profession[al] standards of nursing care with respect

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to the monitoring, assessment, charting of her patient’s

condition, and failing to communicate to the doctor the

deterioration in his condition. It is admitted Dr. S[e]rrell was

paged several times before he returned the call. It is admitted

Nurse Williams claims to have related the stated information to

the doctor, but denied that she properly communicated critical

information about the patient to Dr. S[e]rrell. It is denied the

“update with regard to Mr. Key’s status” accurately relayed the

deterioration of Key’s condition. There was a continual

deterioration of Key’s condition. The patient would have died

if not transferred. Key was chronically ill before admission to

BMHI; he was acutely ill at BMHI. Nurse Williams failed to

comprehend that her patient urgently needed a doctor’s care

before his condition became irreversible.

* * *

15. Mr. Key was monitored by Rural Metro Ambulance in

transit from BMHI to [UTMC]. His Glasgow Coma Scale was

assessed as being 11, and his blood pressure was found to be

80/60 en route to [UTMC], and 96/47 at 9:20 p.m., at [UTMC].

Response. Admitted that Rural Metro Ambulance personnel

entered this information on records. However, the EMT also

noted: “patient unresponsive.” The EMT noted as Key’s state

of consciousness “altered mental status.” The EMT noted Key’s

skin was pale, hot, and moist, with a pulse of 94. Upon arrival

at the [UTMC] Emergency Room, Key’s pulse fluctuated the

first hour from 96/47 to 88/50.

* * *

[Plaintiff’s Counter Statement]

1. According to the patient chart, no one checked on the

condition of Mr. Key between 12:45 p.m. and 5:10 p.m.

2. The first unit of blood was ready to be picked up from the

BMHI Lab at 2:10 p.m., but Nurse Williams did not retrieve the

blood until 5:29 p.m.

-6-

3. Nurse Williams failed to comprehend that her patient’s

condition was rapidly deteriorating, indeed “crashing.”

4. The failure of BMHI nursing staff to follow acceptable

standards of professional practice respecting the timely

implementation of the doctor’s orders, failing to monitor Key,

failure to detect the deterioration of his condition, and the failure

to communicate this information to Key’s doctor caused the

suffering and ultimately the death of Randall Key which would

not have occurred if BMHI staff followed acceptable standards

of professional practice. (Ward Affidavit, Paragraph 5; Ford

Affidavit, Paragraphs 6, 8-9.)

5. At the time Key’s sister[, who had transported him to the

Hospital,] returned to the hospital at approximately 7:00 p.m.,

she found her brother alone in a room with his eyes rolling up to

the back of his head and burned up with fever. Clark went

straight to the nursing station directly across from Key’s room

and asked, “What the hell is wrong with my brother.” One of

the nurses walked to the door and shouted “Oh my God,” at

which time 4 others rushed into the room and began hovering

over Key.

6. Clark demanded that the nurse call an ambulance because she

was taking him out of [BMHI] and to [UTMC]. . . .

* * *

9. The charge nurse and other personnel violated numerous

applicable standards of professional nursing care in the

community in May, 2006, with respect to the monitoring,

detection of Key’s deteriorating condition, failure to

communicate Key’s deteriorating conditions to his doctor,

failing to perform blood glucose tests when needed,

unreasonably delaying the blood transfusion, failing to stop the

blood transfusion after changes in vital signs dictated this,

failure to communicate these changes to the doctor, failing to

follow standards with respect to the transfusion and

documentation thereof, all of which resulted in Key’s condition

going from comparatively stable at the time of admission to

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critical by the time of transfer to [UTMC]. (Affidavit of Christy

Ford.).

10. Key suffered a myocardial infarction while at [BMHI].

(Ward Affidavit, Paragraph 5.) What transpired at [BMHI], due

to the inattention of the nursing personnel, led to Key’s death

from a myocardial infarction that led to pulmonary edema and

finally to cardiopulmonary collapse, which would otherwise not

have occurred had Key received proper care at [BMHI]. (Id.)

In addition to the “undisputed facts” listed in its motion for summary judgment, the

Hospital discussed numerous affidavits and deposition excerpts attached to the motion as a

basis for summary judgment. One of the affidavits was from Dr. Aaron Bussey who

practices in Maryville at BMHI. He is board certified in internal medicine with a second

certification in endocrinology, diabetes and metabolism. Among other things, his affidavit

states,

While at [BMHI], Mr. Key exhibited lethargy, but was

otherwise asymptomatic. His blood pressure was within his

usual range, and was consistent with the blood pressures

documented for him, over the prior week. He did not complain

of pain, and had no acute changes, other than an elevated

temperature. The temperature was addressed by receiving an

Order for Tylenol, and Mr. Key’s elevated temperature

responded fully to the Tylenol administration.

* * *

The [UTMC] chart for May 13, 2006, reflects that, just after

arrival to the Emergency Department, Mr. Key’s blood pressure

was 96/47, which was virtually unchanged from his blood

pressure of 99/47, taken at [BMHI], prior to the commencement

of the blood transfusion, on May 13 2006, and 93/53, which had

been his blood pressure when he was assessed at 1:00 p.m. The

[UTMC] chart further reflects that Mr. Key was alert, oriented,

and conversant in the days following his transfer. Mr. Key’s

blood glucose levels normalized within 24 hours after he left

[BMHI]. This conclusively demonstrates the absence of any

irreparable harm during the time he was an outpatient at

[BMHI], on May 13, 2006.

-8-

When Mr. Key was readmitted to [UTMC] on May 13, 2006,

cultures were obtained from his blood and his sputum, which

ultimately showed that he was infected by the resistant organism

referred to as MRSA. The MRSA infection in Mr. Key’s blood

caused him to become septic.

* * *

It is my opinion, within a reasonable degree of medical

probability, that Mr. Key’s sepsis was a significant factor in his

sudden decompensation at approximately 11:00 p.m., on May

16, 2006, and subsequent death on May 17, 2006. His death was

not causally related to anything that occurred, or did not occur,

while Mr. Key was an outpatient at [BMHI], on May 13, 2006.

(Paragraph numbering in original omitted.)

Another physician who supplied an affidavit in support of the Hospital’s motion is Dr.

Taylor C. Weatherbee. Dr. Weatherbee is a cardiologist who practices at BMHI. His

affidavit states in pertinent part:

Based on my review of the records and studies relating to Mr.

Key, and my professional experience, it is my opinion that the

care rendered to Mr. Randall E. Key at [BMHI], on May 13,

2006, was appropriate.

Mr. Key underwent a cardiac catheterization at [UTMC], on

October 16, 2005, seven (7) months prior to coming to [BMHI],

on May 13, 2006 as an outpatient. Mr. Key’s coronary arteries,

in my opinion, would not have changed greatly during that time,

from that seen in the cardiac catheterization of October 16,

2005.

Randall Key had very diffuse heart disease, with multiple areas

that had 80 to 90 percent occlusion, and very small coronary

arteries. With his underlying arterial stenoses, and small

vessels, no stenting or coronary artery bypass procedures could

be performed, as no stent would fit into the vessels that had

significant stenosis, and there were no coronary arteries to

-9-

which a graft could be connected. He also had a history of four

(4) previous heart attacks, with no surgical interventions.

There were no signs or symptoms that an acute myocardial

infarction occurred while Randall Key was at [BMHI], or while

he was being transferred from [BMHI] to the [UTMC], on May

13, 2006.

Mr. Key’s elevated blood sugar, while he was at [BMHI], would

not have caused a myocardial infarction.

There were also no signs of ketoacidosis while Mr. Key was at

[BMHI], on May 13, 2006. His respiratory rate was not rapid.

Troponin levels were obtained on May 13, 2006, after Mr. Key

was transferred back to [UTMC]. There was only a small

elevation in the level on arrival to [UTMC], which could have

been caused by his chronic renal disease, or the patient’s

underlying stenosis and heart disease.

When Mr. Key was readmitted to [UTMC] on May 13, 2006,

cultures were obtained from his blood and his sputum, which

ultimately showed that he was infected by the resistant organism

referred to as MRSA. The MRSA infection in Mr. Key’s blood

caused him to become septic. The blood culture done at BMHI

was negative, and did not show any growth of MRSA.

It is my opinion, within a reasonable degree of medical

probability, that Mr. Key’s sepsis was a significant factor in his

death, and that his sudden decompensation at approximately

11:00 p.m., on May 16, 2006, and subsequent death on May 17,

2006, was not causally related to anything that occurred, or did

not occur, while Mr. Key was an outpatient at [BMHI], on May

13, 2006.

Due to the patient’s chronic illness, cardiac status and other

comorbidities, even if Mr. Key had experienced a heart attack on

or about May 13, 2006, and there was no evidence of this, there

would be no medical intervention possible to improve his

condition.

-10-

(Paragraph number in original omitted.)

Finally, Donna J. Boyd, MSN, APRN-BC, CNS, CCRN, supplied an affidavit. In

addition to establishing her qualifications, her affidavit states,

It is my opinion, within a reasonable degree of professional

nursing probability, based on my review of documents and

records, my expertise and experience in the field of nursing, and

as a Professor of Nursing, my familiarity with the standard of

care for Blount County, Tennessee, and in particular, BMHI,

that the nurses who cared for Randall Key on May 13, 2006,

while he was an outpatient at BMHI, did not fall below the

applicable professional standard of nursing care.

(Paragraph numbering omitted.)

Dr. Nina H. Ward, whom the Plaintiff had disclosed by answer to interrogatories as

an expert, supplied an affidavit in opposition to the motion for summary judgment. As we

have stated, this affidavit was filed on September 28, 2009, and faxed to counsel for the

Hospital. The substance of the affidavit is repeated below.

4. It is my opinion within a reasonable degree of medical

certainty that [BMHI] nurses and staff fell below applicable

standards of hospital care regarding timely implementation of

Dr. Serrell’s orders.

The dialysis unit faxed Dr. Serrell’s orders to [BMHI] at 8:40

am. A [BMHI] lab record reflects receipt of a blood sample at

8:31 am. Results included critical values for blood glucose,

prothrombin time and INR. . . . [T]hese results were not put on

Randal[l] Key’s chart on admission at 12:45 pm and were never

communicated by the lab to the hospital floor or to the nurse

caring for the patient.

Dr. Serrell’s orders included a specific list of the serious

medical conditions Mr. Key had which required that he be more

frequently monitored than someone merely with anemia. The

charge nurse admitted awareness of Mr. Key’s medical

conditions on intake of the patient. However, she did not chart

any monitoring of Mr. Key between 12:45 pm and 5:10 pm. It

-11-

is questionable whether any monitoring occurred. Even if it did,

nursing staff failed to properly assess Mr. Key or they would

have become aware that he suffered a myocardial infarction

while under their care and had a consistently deteriorating

condition. [BMHI] nursing staff failed to properly monitor and

assess Mr. Key’s deteriorating medical condition resulting from

an MI. Even if they had monitored him, they failed to

communicate to Dr. Serrell necessary information about Mr.

Key’s condition that would have enabled Dr. Serrell to give

appropriate orders for Mr. Key’s care before his condition

became irreversible.

Notwithstanding that [BMHI] received a blood sample long

before Mr. Key’s admission at 12:45 pm, the transfusion ordered

by Dr. Serrell and faxed by the dialysis unit to [BMHI] at 8:40

am, was not even started until 6:20 pm. This leaves an

unexplained delay of over five hours. . . .

* * *

The only deterioration in condition reported by the charge nurse

to Dr. Serrell at 5:10 pm was a slight temperature elevation.

The failure of [BMHI] nursing staff to observe the deterioration

of Mr. Key’s condition and failure to communicate this to Dr.

Serrell or his covering physician deprived Randal[l] Key of

necessary critical medical care. By the time Randall arrived at

[UTMC], his condition had become irreversible.

5. It is my opinion within a reasonable degree of medical

certainty that the failure of [BMHI] nursing staff and others to

follow acceptable standards of professional practice respecting

the timely implementation of Dr. Serrell’s orders, failure to

monitor Mr. Key while awaiting transfusion, failure to detect the

deterioration of his condition and failure to communicate this

information to Dr. Serrell or his covering physician caused

suffering and . . . the death of Randal[l] Key. The death of Mr.

Key would not have occurred had [BMHI] nursing staff and

others followed acceptable standards of professional practice.

-12-

After Mr. Key arrived at [UTMC], his troponin level at 9:22 pm

was 0.58, at 2:25 am on 5/14/06 it was 6.54, at 8:55 am it was

8.45. A troponin of 8.45 is a significant elevation and indicates

a heart attack. As it takes approximately six hours for troponin

levels to rise following myocardial damage, Mr. Key had the

heart attack while he was at [BMHI].

Mr. Key’s chest X-ray at [UTMC] showed acute heart failure.

The combination of low blood pressure, heart failure and

elevated troponin indicated a significant heart attack that made

him unable to pump blood adequately – hence his blood pressure

was low and he had pulmonary edema as the fluid backed up

into his lungs.

It is my opinion within a reasonable degree of medical certainty

that the sub-standard care of Key and failure to communicate

patient information to the doctor by [BMHI] nurses and staff

caused Key’s condition to become irreversible leading to his

death, which would not have otherwise occurred.

While at [BMHI] Mr. Key suffered a heart attack, a myocardial

infarction that led to his death at [UTMC]. It is my opinion

within a reasonable degree of medical certainty that what

transpired at [BMHI], due to the inattention of the nursing

personnel, did lead to Mr. Key’s death from a myocardial

infarction that led to pulmonary edema and finally to

cardiopulmonary collapse, which would otherwise not have

occurred. I agree with final diagnosis of the physicians who

were taking care of Randal[l] Key at [UTMC], that he had an

acute myocardial infarction with subsequent cardiopulmonary

collapse and death.

6. With respect to the Affidavit of [BMHI]’s physician

witnesses, I point out the following: Dr. Weatherbee states that

Mr. Key did not have a myocardial infarction but died of sepsis.

The discharge/death summary from [UTMC] lists the discharge

diagnosis to be “Acute myocardial infarction with

cardiopulmonary collapse.” This diagnosis is from the

physicians who were taking care of this patient at [UTMC]

during his admission after his transfer from [BMHI]. The chart

-13-

also indicates that a cardiology consult was obtained during Mr.

Key’s stay from May 13 to May 17, 2006.

The patient had a fever but little other evidence of sepsis. His

blood cultures were negative at the time he was at [BMHI] and

for this admission at [UTMC]. His chest X-ray indicated lower

lobe pneumonia. Dr. Weatherbee indicates a “small elevation in

the level” of his troponin. He must not have read the rest of the

record which, in fact, documents that Mr. Key had a significant

elevation of his troponin to 8.45, a level well above that which

would be expected because of Key’s chronic renal failure.

The affidavit of Dr. Bussey indicates, “While at [BMHI], Mr.

Key exhibited lethargy but was otherwise asymptomatic.” In

fact, Mr. Key was confused, somnolent, febrile, hypotensive

with a Glasgow Coma Scale of 11 at the time of his ambulance

transport to [UTMC].

Christy Ford, R.N., who works at Baptist West Hospital in Farragut, supplied a

lengthy affidavit that speaks of numerous violations of the applicable standard of care by the

BMHI nurses. We will summarize them. The nurses failed to perform a “Chem strip blood

glucose” test until after they had called the doctor at 5:10 p.m. The nurses “unreasonably

delayed the blood transfusion order by Mr. Key’s doctor.” It should have begun no later than

2:30 p.m. The Hospital’s explanations for the delay are unacceptable. The nurses failed to

monitor, assess, chart, and communicate the patient’s condition to the doctor. There is no

indication in the chart that the patient was checked between 1:00 p.m. and 5:10 p.m. The

chart contains suspicious entries that appear to have been made after the fact. There were

numerous deficiencies in the transfusion. It was done by a nurse assistant and should have

been performed only in the presence of an R.N. There were significant changes in the vital

signs, including the respiratory rate, that the nurse assistant did not appreciate. Also, the

patient should have been on oxygen during the transfusion.

In addition to the record materials we have identified thus far, the Plaintiff referred

the court to the answers to interrogatories as record support for finding genuine issues of

material fact. The Plaintiff argued they were part of the record well in advance of the hearing

date and were substantially identical to the later filed affidavits of Dr. Ward and nurse Ford.

The Plaintiff made the same argument in writing in the pleadings filed after the hearing on

the Hospital’s motion but before entry of the order granting summary judgment.

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B.

As we have stated, the court struck the Plaintiff’s filings in opposition to the

Hospital’s motion for summary judgment as untimely because they were not filed five days

before October 2, 2009, the date on which the Hospital originally set the motion for hearing

by unilateral notice. However, the hearing on the motion for summary judgment did not go

forward on October 2; it was continued to February 19, 2010. By then, the Plaintiff’s filings

in opposition to the motion for summary judgment had been on file for approximately four

months. The parties’ filings between September 1, 2009, the date the Hospital filed its

motion for summary judgment, and the entry of the order granting summary judgment on

March 4, 2010, are important to the resolution of this appeal and will be delineated in some

detail.

The Plaintiff filed the original complaint on May 14, 2007, after Randall Key’s death

on May 17, 2006. On August 18, 2009, the trial court entered an amended scheduling order

setting the case for trial on October 13, 2009. The scheduling order set September 1, 2009,

as the deadline for filing motions for summary judgment. The Hospital filed its motion for

summary judgment on the last day allowed, and gave notice to the Plaintiff that the motion

would be heard on October 2, 2009.

On September 28, 2009, four days before the noticed hearing date, the Plaintiff filed

and served by facsimile the affidavit of Nina Ward, M.D., in opposition to the motion for

summary judgment. The fax transmission began at exactly 5:00 p.m., but did not arrive in

the office of the Hospital’s counsel until shortly after 5:00, an hour at which, according to

the Hospital’s counsel, the office closes for business. Later that same day, the Plaintiff faxed

to the Hospital’s counsel the affidavit of his nurse expert, Christy Ford, R.N., in opposition

to the motion for summary judgment. Both affidavits were essentially a repeat of the

Plaintiff’s answers to expert interrogatories filed several months before the motion for

summary judgment was set for hearing. The next day, September 29, 2009, three days before

the noticed hearing date, the Plaintiff filed the affidavit of the nurse expert as well as a

response to the Hospital’s statement of undisputed facts. On September 30, 2009, the

Plaintiff also filed and served a notice of hearing on his motion to file an amended complaint,

which motion to amend had been filed August 14, 2009. The notice set the hearing on

October 2, the same day as the motion for summary judgment.

On the day of the hearing, the Hospital filed a motion asking, in the words of the

motion’s caption, that the trial court “ignore and not consider” all the pleadings filed by the

Plaintiff in opposition to the motion for summary judgment and that the court “only consider

Defendant’s Concise Statement of Undisputed Facts.” The Hospital also filed a motion to

strike the affidavit of the Plaintiff’s expert, Dr. Ward. The Plaintiff filed on the same day a

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response to the Hospital’s motion to ignore and a motion to “File Instanter” the previously-

filed materials in opposition to summary judgment. Some of the pleadings filed the day of

the hearing were exchanged by fax the day before the hearing. This exchange prompted

counsel for the Plaintiff to offer to continue the hearing date even if that meant giving up the

case’s trial date.

The Hospital did not agree to the continuance. The parties appeared and argued their

positions. Although the record does not contain a transcript of the hearing, the parties agree

the trial court announced that it was continuing the hearing and the trial. The Hospital then

made an oral motion that the court “freeze the case” as it existed on October 2, 2009. The

court granted the motion in an order entered October 13, 2009, that (1) continued the trial

indefinitely “until all pending Motions are heard”; (2) prohibited the filing of any additional

motions “absent prior leave of Court”; (3) directed the parties to schedule hearing on all

motions filed through October 2, 2009, through the judge’s secretary on a day “other than

Monday or Friday”; and (4) froze the case “in all regards as it existed on October 2, 2009,

subject to further Order of the Court.”

Judge W. Dale Young presided over the case through the date of entry of the order

freezing the case. After that date the case was reassigned to senior judge, Jon Kerry

Blackwood. Judge Blackwood heard argument on all pending motions on February 19, 2010.

He announced from the bench that the court was granting the Plaintiff’s motion to amend,

granting the Hospital’s motion to ignore the filings made in opposition to the motion for

summary judgment, and taking the motion for summary judgment under advisement. The

court specifically stated that the faxed affidavit of Nina Ward, M.D., would be stricken

because it arrived after 5:00 p.m. on September 28, 2009.

The Plaintiff’s counsel filed a motion for reconsideration of the order granting the

motion to ignore the Plaintiff’s pleadings. It was supported by the affidavit of counsel

which, essentially, accepted blame for not filing the pleadings on time but offered excuses

for the delay including (1) counsel’s busy professional schedule during the month of

September 2009, (2) the variable schedule of one of the Plaintiff’s experts, an emergency

room physician, which made it difficult to coordinate the preparation and signing of an

affidavit, (3) the information in the affidavits of the Plaintiff’s experts was substantially

identical to the answers to expert interrogatories, and (4) counsel’s experience that the time

requirements of Tenn. R. Civ. P. 56.03 had not been strictly construed in favor of striking

untimely pleadings but had routinely resulted in allowing a continuance. Counsel also stated

that he had offered to continue the hearing even though that meant losing the trial date.

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On March 4, 2010, the court entered an order denying the motion for reconsideration

without explanation. With regard to the court’s announcement from the bench that it was

striking the Plaintiff’s pleadings, the order offered the following explanation:

A non moving party’s failure to comply with Tenn. R. Civ. P.

[56.03] may result in the trial court’s failure to consider the

factual contentions of the non moving party even though those

facts could be ascertained from the record. The statement of

material facts filed by the parties on a motion for summary

judgment are not merely superfluous abstracts of the evidence.

Rather they are intended to alert the court to precisely what

factual questions are in dispute and point the court to the

specific evidence in the record that supports a party’s position

on each of these questions. They are, in short, a roadmap, and

without them the court should not have to proceed further,

regardless of how readily it might be able to distill the relevant

information from the record on its own. Owens v. Bristol Motor

Speedway, 77 S.W.3d 771, [774] (Tenn. Ct. App. 2001)[;]

Holland v. City of Memphis, 125 S.W.3d 425, [428] (Tenn. Ct.

App. 2003).

The requirements of Rule 56.03 are mandatory and it is not the

duty of the court, trial or appellate to search the record in order

to find a disputed fact. Williams v. Watson, (2007 Tenn. LEXIS

521 Tenn. June 2007). The mandatory aspects of Tenn. R. Civ.

P. 56.03 requires that the non moving party file their response

and concise statement of disputed facts within the time frame

prescribed by the Rule. In the case at Bar, [the P]laintiff failed

to file their response within the appropriate time. Therefore, the

Court Orders that [the P]laintiff’s late filed response is stricken

from the Record.

After setting forth the law with regard to summary judgment motions, the court stated its

reason for granting summary judgment in this case.

In reviewing [BMHI’s] statement of undisputed facts and the

affidavits of Drs. Bussey and Weatherbee, the Court finds that

the [Hospital has] met [the] burden of production by negating

essential elements of [the P]laintiff’s claim. Both Doctors opine

that [Mr. Key’s] death was not causally related to any actions

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taken by the [Hospital]. Furthermore, Dr. Weatherbee opines

that the medical treatment provided to [Mr. Key] by the

[Hospital] was appropriate. The affidavit of Donna J. [Boyd]

establishes that the [Hospital] did not deviate from the

applicable standard of care. The filings of the [Hospital] in

support of [the] motion for summary judgment negates a

violation of the standard of care and causation which are

elements of [the P]laintiff’s case. Having determined that [the

P]laintiff’s late filed documents should be stricken, the

[P]laintiff fails in his burden. Consequently, this Court finds

that summary judgment is appropriate.

II.

The Plaintiff has appealed. The issues he raises, as rephrased by this Court, are,

Whether the court erred in holding that the Hospital negated one

or more elements of the Plaintiff’s case.

Whether the trial court erred in striking the Plaintiff’s pleadings

in opposition to the motion for summary judgment.

Whether the court erred in denying the Plaintiff’s motion for

reconsideration.

Whether the Plaintiff’s materials filed in opposition to the

motion for summary judgment establish a genuine issue of

material fact.

III.

These issues invoke two very different standards of review.

The granting or denying of a motion for summary judgment is

a matter of law, and our standard of review is de novo with no

presumption of correctness. Blair v. W. Town Mall, 130

S.W.3d 761, 763 (Tenn. 2004). Summary judgment should 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

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material fact and that the moving party is entitled to judgment as

a matter of law.” Tenn. R. Civ. P. 56.04.

Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010). The decision whether to

strike materials filed in opposition to a motion for summary judgment as non-compliant with

Tenn. R. Civ. P. 56.03 is reviewed for abuse of discretion. Owens v. Bristol Motor

Speedway, Inc., 77 S.W.3d 771, 774-75 (Tenn. Ct. App. 2001).

IV.

A.

We begin our discussion with the issue of whether the court erred in holding that the

Hospital negated one or more elements of the Plaintiff’s case. If the Hospital did not negate

one or more elements of the Plaintiff’s case, then the Plaintiff did not come under the burden

of showing that a genuine issue of material fact exists. Hannan v. Alltel Publishing Co., 270

S.W.3d 1, 7-8 (Tenn. 2008)(citing McCarley v. West Quality Food Service, 960 S.W. 2d 585

(Tenn 1998); Blair v. W. Town Mall, 130 S.W.3d 761 (Tenn. 2004)).

The Plaintiff does not argue that the affidavits submitted by the Hospital fail to negate

the elements of causation and violation of the standard or care. Rather, the Plaintiff argues

(1) that the Hospital’s concise statement of facts should be ignored because it was a part of

the motion itself and was not a separate document and (2) that the affidavits of the Hospital’s

experts should not be considered because they were not mentioned or cited in the Hospital’s

concise statement of facts. The Plaintiff acknowledges that the argument is based on a strict

reading of Tenn. R. Civ. P. 56.03, but argues that, if it is fair to read the Rule strictly against

him, then fairness requires that the Rule be strictly construed against the Hospital. The

language pertinent to both perspectives is as follows:

In order to assist the Court in ascertaining whether there are any

material facts in dispute, any motion for summary judgment

made pursuant to Rule 56 of the Tennessee Rules of Civil

Procedure shall be accompanied by a separate concise statement

of the material facts as to which the moving party contends there

is no genuine issue for trial. Each fact shall be set forth in a

separate, numbered paragraph. Each fact shall be supported by

a specific citation to the record.

Any party opposing the motion for summary judgment must, not

later than five days before the hearing, serve and file a response

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to each fact set forth by the movant either (i) agreeing that the

fact is undisputed, (ii) agreeing that the fact is undisputed for

purposes of ruling on the motion for summary judgment only, or

(iii) demonstrating that the fact is disputed. Each disputed fact

must be supported by specific citation to the record. Such

response shall be filed with the papers in opposition to the

motion for summary judgment.

In addition, the non-movant's response may contain a concise

statement of any additional facts that the non-movant contends

are material and as to which the non-movant contends there

exists a genuine issue to be tried. Each such disputed fact shall

be set forth in a separate, numbered paragraph with specific

citations to the record supporting the contention that such fact

is in dispute.

If the non-moving party has asserted additional facts, the

moving party shall be allowed to respond to these additional

facts by filing a reply statement in the same manner and form as

specified above.

Tenn. R. Civ. P. 56.03. The thrust of the Plaintiff’s argument is that the court construed the

rule too strictly against him, therefore it should have construed the rule too strictly against

the Hospital. This is akin to arguing that, in this particular situation, two wrongs will make

one right. We decline the Plaintiff’s invitation into error in favor of simply trying to

determine and follow the law with regard to each party.

We agree with the Plaintiff that the language of Rule 56.03 implies that the “concise

statement of facts” will be made in a document that is “separate” from the motion for

summary judgment. The word “accompanied” also suggests that the motion will be one

document and the statement of concise facts will be another document. However, we can see

no good reason for holding that a judge, in the exercise of its sound discretion, cannot

consider a “concise statement of facts” simply because it is incorporated into the actual

motion for summary judgment. This is especially true where, as here, the concise statement

is conspicuously identified by a heading within the one document. We note that our decision

here is not in any way inconsistent with our decision in Owens v. Bristol Motor Speedway,

77 S.W.3d 771 (Tenn. Ct. App. 2001). In Owens we held that the trial court acted within

its discretion to disregard materials filed in opposition to a motion for summary judgment,

but we also recognized that the trial court had the discretion to waive the technical

requirements of the rule and consider non-compliant materials. Id. at 774-75. Further,

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Owens presented a party’s failure to file any document that specifically provided the

“roadmap” needed by the court to determine whether or not there was a genuine issue of

material fact. Id. In the present case, the Hospital identified the key facts in its motion for

summary judgment.

The Plaintiff is correct that the affidavits of the Hospital’s experts, which the trial

court relied on in granting summary judgment, were not cited or discussed in the Hospital’s

concise statement of facts. This failure implicates the language in Tenn. R. Civ. P. 56.03

providing that, “Each fact [in the concise statement of undisputed facts] shall be supported

by a specific citation to the record.” However, as we have indicated, the affidavits of Dr.

Weatherbee and Dr. Bussey were attached to the Hospital’s motion and were discussed, with

accompanying citations, in the motion. This is not preferred practice, but, in our view, it

substantially complied with Rule 56.03 and the purposes behind the Rule. Even if the

Hospital’s motion did not substantially comply with Tenn. R. Civ. P. 56.03, we do not find

that the trial court erred in holding that the Hospital negated the essential elements of

causation and deviation from the standard of care. The court specifically stated that it read

and considered the affidavits of the Hospital’s experts. It was within the court’s discretion

to do so, even if the materials being considered did not comply with Rule 56.03. Bristol

Motor Speedway, 77 S.W.3d at 774-75. Accordingly, we hold that the trial court did not err

in finding that the Hospital had negated the elements of causation and deviation from the

standard of care.

B.

We turn now to the Plaintiff’s arguments that the trial court erred in striking the

materials filed in opposition to the motion for summary judgment and in refusing to grant

relief on reconsideration. We do not reach the second point because we hold that the trial

court abused its discretion in striking the documents as untimely filed. We have quoted Rule

56.03 in its entirety above. We are concerned now with the language which requires that the

“response to each fact set forth by the movant” be filed “not later than five days before the

hearing.” Similar language is repeated in Tenn. R. Civ. P. 56.04 which requires the adverse

party to a motion for summary judgment to “serve and file opposing affidavits not later than

five days before the hearing.” We agree with the Plaintiff that the trial court abused its

discretion because “the hearing” on the motion for summary judgment was not October 2,

2009. The order granting summary judgment on its face establishes that the hearing was held

on February 19, 2010, and that the materials filed by the Plaintiff in opposition to the motion

for summary judgment were all filed by September 30, 2009. By any method of counting,

the Plaintiff’s materials were filed more than five days before the February 2010 hearing.

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The only explanation for the trial court’s ruling is that it construed the term, “the

hearing,” to be the previously set hearing date of October 2, 2009. The record is silent as to

why the court continued the October hearing, and there is no argument being made in this

case that the trial court erred in continuing the hearing. It is true that the trial court “froze”

the record as it existed on October 2 in its order continuing the motion for summary judgment

hearing and the trial. However, we see little or no significance in that peculiar circumstance

because, by October 2, 2009, the Plaintiff had filed his materials responding to the motion

for summary judgment. The Hospital cannot complain of the record being frozen as it asked

in an oral motion that the record be frozen.

Neither party offers any cases interpreting whether “the hearing,” as used in Tenn. R.

Civ. P. 56.03 and 56.04, means the actual date the motion for summary judgment is heard as

opposed to a previously scheduled date that is continued. We believe the plain meaning of

the language is abundantly clear that it refers to the date the motion for summary judgment

is argued on the merits. See Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.

2004)(When a statute is clear, courts apply the plain meaning without complicating the task.).

In Kenyon v. Handal, 122 S.W.3d 743 (Tenn. Ct. App. 2003), we discussed at length the

“timeliness of Ms. Kenyon’s response to Dr. Handal’s motion for summary judgment”

without seeing the need to engage in statutory construction as to whether “the hearing” was

the date of February 18, 2000, when the motion for summary judgment was originally

scheduled for hearing, as opposed to February 25, 2000, when it was actually heard. Id. at

750 (capitalization omitted). In our lengthy analysis, we remarked that “[a]fter opposing

counsel agreed to reschedule the hearing for February 25, 2000, the deadline for filing Ms.

Kenyon’s response and opposing affidavits became February 18, 2000.” Id. at 752. Thus,

Kenyon supports our holding that “the hearing” in the present case was February 19, 2010,

the actual date of the argument on the merits of the motion for summary judgment. The trial

court applied an incorrect legal standard in treating October 2, 2009, as the hearing date for

purposes of determining the timeliness of the Plaintiff’s response to the Hospital’s motion

for summary judgment. It is axiomatic that application of an incorrect legal standard to the

detriment of a party can constitute an abuse of discretion. See Lee Medical, Inc. v. Beecher,

312 S.W.3d 515, 524 (Tenn. 2010)(discussing parameters of abuse of discretion standard).

We hold that the trial court’s application of an incorrect legal standard which resulted in the

striking of the Plaintiff’s filings constituted an abuse of discretion.

C.

Finally, we must decide whether the Plaintiff’s filings in opposition to the motion for

summary judgment were sufficient to identify genuine issues of material fact. In making this

determination, we must be cognizant of some well-established principles that govern

summary judgments.

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Summary judgment operates to dispose of a case only when it

presents no genuine issue of material fact and when the moving

party is entitled to judgment as a matter of law. Tenn. R. Civ.

P. 56.04. Rule 56 therefore precludes trial courts from deciding

issues of material fact in ruling on a motion for summary

judgment. Mills v. CSX Transp., Inc., 300 S.W.3d 627, 631

(Tenn. 2009). . . . .

* * *

. . . . Under well-established law, a court considering a summary

judgment motion “must take the strongest legitimate view of the

evidence in favor of the nonmoving party, allow all reasonable

inferences in favor of that party, and discard all countervailing

evidence.” Blair, 130 S.W.3d at 768 (quoting Byrd, 847 S.W.2d

at 210–11). Summary judgment is warranted [only] if the facts

and inferences from those facts “permit a reasonable person to

reach only one conclusion.” Staples[ v. CBL & Assocs., Inc.],

15 S.W.3d [83, 89 (Tenn. 2000)].

Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777, 782-84 (Tenn. 2010).

The Hospital does not argue in its brief that the Plaintiff, through his “late” filings,

failed to establish a genuine issue of material fact as to a deviation from the standard of care.

The Hospital does present lengthy argument that even if the affidavit of Dr. Ward 5 is

considered, the Plaintiff failed to establish a genuine issue of material fact as to causation.

The Hospital argues that even if a jury heard testimony consistent with Dr. Ward’s affidavit

testimony it could not conclude that the actions or omissions of the nurses at BMHI caused

Mr. Key to suffer any harm that he would not have otherwise suffered. See Kilpatrick v.

Bryant, 868 S.W.2d 594, 602 (Tenn. 1993)(must be more likely than not that conduct of the

defendant was a cause in fact of the result).

We have previously quoted from Dr. Ward’s affidavit at length in this opinion. Taken

on its face, it would allow a jury to conclude the following. The nurses at BMHI knew

enough about Mr. Key’s condition when he presented that they were required to monitor his

5

The Hospital also argues that the Plaintiff’s answers to interrogatories disclosing the substance of

Dr. Ward’s expected testimony are insufficient evidence of causation. Since the basis for even considering

the answers to interrogatories in the discussion is that they are substantially identical to the affidavit, we will

focus on the affidavit.

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condition closely and report any changes to his doctor. Notwithstanding Mr. Key’s

significant problems, the nurses at BMHI simply ignored him for five hours, all the while his

condition deteriorated in several respects. His blood glucose reached dangerous levels. He

incurred a fever. His heart rate dropped. He experienced respiratory problems. The

transfusion was not started in a timely manner. Even after the transfusion was started, it was

not done properly and Mr. Key was not given the oxygen he should have received. His

condition was already fragile and became worse while waiting on the transfusion. Some of

his problems could have been treated if the nurses had reported them to Mr. Key’s doctor in

a timely fashion. Proper treatment, more likely than not, would have kept Mr. Key from

sustaining another heart attack. The heart attack began while Mr. Key was at BMHI. Unless

the Hospital’s arguments convince us that one or more of these factual links must be ignored,

we conclude that the Plaintiff, by Dr. Ward’s affidavit, presented genuine issues of material

fact as to causation.

One argument the Hospital makes against Dr. Ward’s affidavit is that it does not

refute the cardiologist’s opinion that Mr. Key’s heart condition was not medically treatable.

In truth, it is more accurate to say that the cardiologist only demonstrated that Mr. Key’s

heart condition was not treatable surgically. The cardiologist gives reasons why the heart

condition could not be treated surgically, but nothing other than a conclusion with regard to

the broader realm of the heart condition being subject to “medical intervention.” At any rate,

the simple answer is that if the actions or inactions of the nurses precipitated the heart attack,

Mr. Key sustained harm that he otherwise would not have sustained. It may well be that the

“untreatability,” assuming that is true, is part and parcel of the harm that Mr. Key sustained.

The Hospital also argues that its cardiology expert and the medical records

“establish[] conclusively . . . that no heart attack occurred while [Mr. Key] was at [BMHI].”

This argument does not withstand scrutiny. It is based upon the idea that the troponin level

of .58 when Mr. Key arrived at UTMC at 9.22 p.m. is inconsistent with a heart attack. The

record establishes that a patient’s troponin level is an important marker for a heart attack.

A level of .58 is only slightly elevated. However, by 2:25 a.m., less than six hours after Mr.

Key arrived at UTMC, his troponin level had climbed to 6.54. Dr. Ward’s testimony states

that it takes “approximately six hours for troponin levels to rise following myocardial

damage.” Further, in addition to the rise in troponin level, Dr. Ward states in her affidavit

that “Mr. Key’s chest X-ray at University of Tennessee showed acute heart failure” which

was also indicative that Mr. Key suffered the heart attack before he left BMHI. In short, the

Plaintiff established an issue of material fact as to whether Mr. Key sustained his heart attack

at BMHI before he was transferred to UTMC at the insistence of his sister.

The Hospital also makes much of Dr. Ward’s concession in her deposition that the

nurses would not necessarily have known that Mr. Key was having a heart attack or that the

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symptoms he was experiencing were symptoms of a heart attack. The Hospital even goes so

far as to argue that this concession is contradictory to the testimony in her affidavit that the

actions of the nurses, or inactions, caused Mr. Key to sustain a heart attack. We are not

convinced by the Hospital’s argument. We agree with the Plaintiff that the limitations in the

nurses’ abilities, as compared to the familiarity and expertise of Mr. Key’s doctor who

ultimately ordered him transferred to UTMC, is exactly why the nurses should be expected

to monitor and timely record and report any changes in the patient’s condition. Stated

another way, since the nurses could not necessarily be expected to recognize a heart attack

in the making or in progress, they could be expected to closely monitor a patient and report

any changes to the doctor. Further, the simple fact that the nurses would not have been able

to recognize a heart attack in progress that resulted from allowing the patient to slip into a

precarious condition would not relieve them or their employer from the obligation to provide

the care that would have prevented the patient from reaching that precarious condition in the

first place.

To summarize, we have considered the Hospital’s various arguments, the more salient

of which we have discussed and some of which we have not, as to why Dr. Ward’s affidavit

did not create a genuine issue of material fact. They do not convince us that Dr. Ward’s

affidavit can be ignored. Accordingly, we hold that the Plaintiff established genuine issues

of material fact as to both causation and standard of care that preclude summary judgment.

We must then hold that the trial court erred in granting summary judgment in favor of the

Hospital.

D.

Before concluding, we recognize that both parties have submitted lengthy briefs that

present arguments we have not discussed. For example, the Plaintiff asks us to hold that

Nurse Ford was qualified to testify to the standard of care. The Hospital has not argued to

the contrary. We have held that the Plaintiff presented genuine issues of material fact on

both causation and standard of care. We need go no further. Similarly, we have not

addressed arguments that would not, in our opinion, affect the outcome. For example, we

do not think it advisable to decide whether the Plaintiff made a showing of excusable neglect

for failing to timely file his materials in opposition to the motion for summary judgment since

we have held that the materials were timely filed.

V.

The trial court’s grant of summary judgment in favor of the Hospital is vacated. Costs

on appeal are taxed to the appellee, Blount Memorial Hospital, Inc. This matter is remanded

to the trial court, pursuant to applicable law, for further proceedings.

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_______________________________

CHARLES D. SUSANO, JR., JUDGE

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