Conley v. Life Care Centers of America, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 18, 2005 Session

PATRICIA CONLEY, AS EXECUTOR AND PERSONAL

REPRESENTATIVE OF THE ESTATE OF MARTHA STINSON,

DECEASED

v.

LIFE CARE CENTERS OF AMERICA, INC., ET AL.

Appeal from the Circuit Court for Hickman County

No. 00-5064C-II Timothy L. Easter, Judge

No. M2004-00270-COA-R3-CV - Filed on January 4, 2007

The estate of a former nursing home resident brought this wrongful death action, asserting sundry

claims against the nursing home arising out of an attack on Mrs. Stinson by another resident. As a

result of the attack, Mrs. Stinson was hospitalized and treated for injuries including a broken hip.

She died four months later of pneumonia. Initially, the claims against the nursing home sounded

principally in medical malpractice, with the plaintiff contending the attack, injuries, and death were

the result of a variety and series of acts and omissions of the nursing home, including failing to

properly screen and/or subsequently discharge the resident who attacked Mrs. Stinson. The plaintiff

additionally asserted claims against Genesis of Jackson, Inc., a provider of psychiatric services, and

the State of Tennessee, contending they, along with the nursing home, were responsible for

determining whether the resident who assaulted Mrs. Stinson should have been admitted or retained

as a resident at the nursing home. The plaintiff’s claim against Genesis was dismissed by the trial

court, and the claim against the State was denied by the Claims Commission. The plaintiff sought

to amend the complaint to add a claim for attorney fees against the nursing home under the

Tennessee Adult Protection Act. The trial court dismissed the TAPA claim finding the plaintiff’s

claims sounded in medical malpractice and therefore, by statute, the exclusive remedy was under the

Medical Malpractice Act. The plaintiff’s medical malpractice claims against the nursing home went

to the jury. Following a six-day jury trial, the plaintiff was awarded $130,000 in compensatory

damages against the nursing home. The plaintiff and the nursing home appeal. We affirm in part,

vacate in part, and remand the surviving claims for a new trial.

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

Affirmed in Part, Vacated in Part, and Remanded

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,

M.S., joined. PATRICIA J. COTTRELL, J., filed a concurring opinion.

Eugene R. Hallworth, Columbia, Tennessee, and Jeffrey J. Downey, Washington, D.C., for the

appellant, Patricia Conley, as Executor and Personal Representative of the Estate of Martha Stinson,

Deceased.

T. O. Helton and Christy T. Crider, Nashville, Tennessee, for the appellant, Life Care Centers of

America, Inc.

M. Bradley Gilmore, Nashville, Tennessee, for the appellee, Genesis of Jackson, Inc., d/b/a Geri-

Srvs.

J. Mark Benfield and R. Sadler Bailey, Memphis, Tennessee, Cameron C. Jehl, Little Rock,

Arkansas, counsel for the Amicus Curiae, The Tennessee Trial Lawyers Association.

Christopher Connell Puri, Nashville, Tennessee, counsel for the Amicus Curiae, The Tennessee

Health Care Association.

OPINION

I.

THE FACTS

The matters on appeal arise from an attack by James Johnson on Martha Stinson while the

two were residents of Centerville Health Care Center, a nursing home owned and operated by Life

Care Centers of America, Inc. (hereinafter Life Care). Although the events leading up to the assault

on January 1, 2000, are controverted, it is undisputed that Mr. Johnson struck Mrs. Stinson while

they, along with other residents and care givers, were gathered in the dining area. Moments before

the attack, Mr. Johnson dropped a piece of paper on the floor, immediately following which he

displayed signs of agitation and engaged in what were described as “boxing-like” motions. When

Mrs. Stinson stepped forward to pick up the paper, Mr. Johnson struck her, knocking her to the

ground. Mrs. Stinson was immediately transported to a hospital where she was treated for a broken

hip and other traumatic injuries. She remained in the hospital for several days. Upon discharge from

the hospital, Mrs. Stinson was transferred to a rehabilitation facility. She never returned to Life

Care. Mrs. Stinson died four months later, in April of 2000. Pneumonia was identified as the cause

of death.

The matters at issue are not limited to alleged acts and omissions of Life Care on the day of

the assault. They also pertain to alleged acts and omissions of Life Care, Genesis of Jackson, Inc.,

and the State of Tennessee occurring over a period of months leading up to the assault. Accordingly,

we will review the relevant history prior to the day of the assault.

Mrs. Stinson was admitted as a resident to Life Care on March 24, 1998. She was 75 years

of age at the time. It was her first admission to a nursing home. Mr. Johnson was admitted to Life

Care in August 1998, when he was 78 years of age. It was not his first admission to such a nursing

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home or health care facility. Mr. Johnson had been a resident of an in-patient psychiatric facility

known as Generations immediately prior to being admitted to Life Care.

At all times relevant to the matters at issue, the Preadmission Screenings and Annual

Resident Review Program Division of the State of Tennessee (the “State”) screened applicants

seeking admission to health care centers (nursing homes) in Tennessee. The purpose of the

screening was to place each applicant in an appropriate health care center, nursing home and/or

skilled nursing facility. Mr. Johnson was evaluated by the State on at least two occasions prior to

his admission to Life Care. He was evaluated by the State in 1996 and 1997 as part of its annual

retention review protocol, and on each occasion Mr. Johnson was found to be appropriate for

admission to the general population of a nursing home like Life Care.

In its evaluations, the State considered whether Mr. Johnson posed a threat to other residents

and whether he required specialized mental health services. When Mr. Johnson was to be discharged

from Generations in 1998, the State evaluated and approved him for placement at Life Care.

Following his admission to Life Care, the State conducted an annual evaluation of Mr. Johnson in

February of 1999 and determined he was appropriately placed and could remain in the general

population at Life Care.1

In addition to evaluations by the State, Mr. Johnson was evaluated periodically by Genesis

of Jackson, Inc., prior to and during his residency at Life Care. Moreover, Genesis was under

contract with Life Care to provide mental health services for the residents at Life Care, which it

provided through its staff of psychiatrists and psychologists. Pursuant to the contract with Life Care,

Genesis provided these services for Mrs. Stinson and Mr. Johnson throughout their residency at Life

Care.2

Following his admission to Life Care, Genesis visited Mr. Johnson on a weekly basis. This

continued throughout his seventeen-month residency at Life Care. At no time did Genesis

recommend that Mr. Johnson be discharged or segregated from the general population at Life Care.

To the contrary, following a routine visit with Mr. Johnson in December 1999, which was one month

prior to the assault, Dr. Cheri Premeau, a psychiatrist with Genesis, noted that Mr. Johnson was

doing well, that he did not require routine specialized mental health services, and that he did not pose

a danger to himself or others.

1

Additional evidence suggesting that Mr. Johnson was appropriately placed at Life Care was that after his

admission to Life Care in August 1998, but prior to the review by the State in February of 1999, the Senior Care Program

at Baptist Hospital came to Life Care to evaluate whether Mr. Johnson would qualify for an out-patient intensive mental

health day care service Baptist offered. Only persons with serious mental health conditions qualified for the partial

hospitalization program offered by Baptist. The program brought Mr. Johnson to the hospital for a trial visit, and after

the examination, the program found Mr. Johnson did not qualify for the partial hospitalization for mental health services.

2

Genesis had also provided similar services for Mr. Johnson when he resided at Generations.

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As for Mrs. Stinson, other than the tragic events that occurred on January 1, 2000, Mrs.

Stinson’s twenty-two month residency at Life Care was generally satisfactory, with a few

exceptions.3

II.

THE PROCEDURAL HISTORY

The initial Complaint was filed on July 21, 2000. The only defendant named in the

Complaint was Life Care. In that Complaint, Plaintiff contended, inter alia, that Mr. Johnson was

a psychotic patient with a history of unprovoked attacks on others who should not have been

admitted to Life Care and/or who should have been discharged long before the attack on Mrs.

Stinson, that Life Care was negligent by admitting and retaining Mr. Johnson as a resident, by failing

to protect Mrs. Stinson from Mr. Johnson, and by failing to properly supervise Mr. Johnson. Life

Care answered denying it was negligent and denying liability.

Several months later, Life Care amended its Answer, adding as an affirmative defense the

doctrine of comparative fault. While continuing to deny it was negligent or liable, Life Care asserted

in the alternative that if it was at fault, it relied on the professional advice rendered by Genesis and

the State to admit and retain Mr. Johnson. Therefore, Life Care contended, if it was found to be

negligent, the fault, if any attributable to Genesis and the State of Tennessee, should be apportioned

to reduce Life Care’s liability.

As a consequence of the comparative fault defenses asserted by Life Care in its Amended

Answer, Plaintiff amended its Complaint to assert similar claims against Genesis and the State of

Tennessee. The claim against Genesis was pursued in this action. The claim against the State was

pursued in the Claims Commission.

Subsequently, in January of 2002, Plaintiff filed a Motion to File Second Amended

Complaint, to allege claims against Life Care for violating the Tennessee Adult Protection Act

(TAPA). Plaintiff’s Motion to Amend was denied.4 The trial court found Plaintiff’s claims were

rooted in medical malpractice, and therefore, the Medical Malpractice Act was Plaintiff’s exclusive

remedy.

The parties filed a number of Motions for Partial Summary Judgment. Plaintiff’s claims

regarding negligent care provided to Mrs. Stinson prior to January 1, 2000, were dismissed. The

dismissed claims pertained to dietary maintenance, toileting, assessments, grooming and hygiene,

falls, elopements, allegations of improper use of psychotropic medicine, and deficient recreational

3

Mrs. Stinson walked away from the facility without permission or supervision on a couple of occasions. These

events are referred to as elopements.

4

W hen the motion to amend the complaint was denied, Plaintiff filed a M otion to Reconsider attached to which

was a proposed Third Amended Complaint which stated the same TAPA claims only with more particularity. The Motion

to Reconsider was denied.

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and psycho-social care. The claims were premised in part on various federal regulatory standards,

which Life Care contended had no bearing on standards of care and amounted to an imposition of

a national standard of care. The trial court summarily dismissed these claims finding Plaintiff failed

to provide any factual allegations of breach of the standard of care under these regulations, and the

expert affidavits filed by Plaintiff failed to establish that Mrs. Stinson suffered any injury as a result

of the failure to provide proper: (1) dietary maintenance, (2) toileting, (3) activities of resident

assessment, (4) grooming, (5) hygiene and (6) care planning. The court also explained it found the

claims deficient “to the extent that” the claims were premised on a national standard of care.

Further, the trial court dismissed Plaintiff’s claims regarding elopements, psycho-social care and

activities, and psychotropic medication. The court explained the elopements and alleged lack of

psycho-social care and activities had nothing to do with the injuries Mrs. Stinson sustained on

January 1. As for the alleged negligent use of the psychotropic medication, the trial court dismissed

the claim. The court determined the claim was not supported by competent evidence, finding it was

improperly based on the opinion of a nurse.

Life Care was successful in excluding some of the evidence proferred by Plaintiff. The trial

court granted motions in limine to exclude evidence regarding deficiencies found by the Department

of Health. The trial court also excluded medical records from the Middle Tennessee Mental Health

Institute (MTMHI), to which Mr. Johnson was transferred following the assault on Mrs. Stinson.

The records contained notations stating that Mr. Johnson had “hit” four staff members at “Centerville

Health Care Center” and struck out at “residents.” Plaintiff proffered the records to establish Life

Care had notice concerning Mr. Johnson’s conduct prior to the assault on Mrs. Stinson. The trial

court ruled that Plaintiff could not introduce the records in evidence unless the declarant could be

identified. Plaintiff, however, was unable to identify the declarant. At trial, the court excluded a

portion of the testimony of Bessie Shepard, deeming it unreliable hearsay.5 Mrs. Shepard, a visitor

on the day Mrs. Stinson was injured, was to testify about a statement she attributed to a nurse’s aid

moments prior to Mr. Johnson striking Mrs. Stinson.

Genesis also filed a motion for summary judgment seeking dismissal of Plaintiff’s claims

against it in the amended complaint. Life Care opposed the motion, but Plaintiff did not. The trial

court conducted a hearing on this motion on December 4, 2002, and, on March 6, 2003, entered an

order granting Genesis’s motion and dismissing Plaintiff’s claims against Genesis.

The case proceeded to trial on Plaintiff’s claims that Life Care was liable for admitting Mr.

Johnson as a resident of the nursing home, failing to discharge Mr. Johnson thereafter, failing to

properly supervise him, and failing to protect Mrs. Stinson.6 On November 1, 2003, after a six-day

trial, the jury returned a plaintiff’s verdict of $130,000 in compensatory damages, all of which was

assessed against Life Care. Both parties appeal, raising numerous issues.

5

Plaintiff filed a Motion to Reconsider the exclusion of Mrs. Shepard’s testimony, which the trial court denied.

6

Plaintiff also sought punitive damages against Life Care. The issue went to the jury and the jury found

punitive damages were not justified. That part of the verdict is not challenged on appeal.

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III.

THE ISSUES

Plaintiff and Life Care each raise a number of issues on appeal. Plaintiff contends the trial

court erred by (1) denying leave to amend the Complaint to assert TAPA claims; (2) by excluding

Bessie Shepard’s recollection of what she believes a nurse’s aide said immediately prior to the

assault; (3) excluding records from MTMHI concerning Johnson’s prior history at Life Care; (4)

excluding records of regulatory violations assessed by the Tennessee Department of Health; (5)

excluding evidence regarding the alleged neglect of Mrs. Stinson during the months prior to the

assault; and (6) summarily dismissing various tort claims against Life Care which were premised

upon federal regulations. Plaintiff also contends the trial court erred by allowing the jury to consider

whether it should comparatively allocate fault against the State of Tennessee.

Life Care contends the trial court erred by (1) admitting into evidence the testimony of

Plaintiff’s three expert witnesses; (2) summarily dismissing Plaintiff’s claims against co-defendant

Genesis; (3) denying Life Care’s Motion for Summary Judgment on the issue of discharging Mr.

Johnson; (4) excluding evidence of Plaintiff’s claim against the State of Tennessee before the Claims

Commission; and (5) awarding Plaintiff discretionary costs.

IV.

PLAINTIFF’S PROPOSED SECOND AMENDED COMPLAINT – THE TAPA CLAIMS

Plaintiff contends the trial court erred by denying leave to file the proposed Second Amended

Complaint7 to assert TAPA claims against Life Care. The trial court denied the Motion to Amend,

citing Tenn. Code Ann. § 71-6-120(g) and stating, “this is a cause of action within the scope of Title

29, Chapter 26 and, therefore, this action shall be governed only by Title 29, Chapter 26, and the

Tennessee Adult Protection Act does not apply.” We have concluded the trial court erred by denying

Plaintiff leave to amend; however, the error was harmless because Plaintiff failed to state a claim

upon which relief can be granted under TAPA.

A.

For purposes of appeal, it is significant whether the trial court denied the Motion to Amend

pursuant to Tenn. R. Civ. P. 15 or 12.02(6). This is because our review of a trial court’s decision

regarding a Rule 15 Motion to Amend is substantially more constrained than our review of the

dismissal of a claim pursuant to Rule 12.02(6). Whether to grant a Rule 15 Motion to Amend is

within the sound discretion of the trial court, and a reviewing court will not reverse such a decision

absent an abuse of discretion. Fann v. City of Fairview, 905 S.W.2d 167, 175 (Tenn. Ct. App.

1994). Such decisions may be set aside on appeal if we find the trial court applied an incorrect legal

7

Plaintiff filed a Motion to File A Second Amended Complaint, attached to which was the proposed Second

Amended Complaint. That motion was denied. Thereafter, Plaintiff filed a Motion to Reconsider to which was attached

the proposed Third Amended Complaint. The Motion to Reconsider was also denied.

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standard or misconstrued or misapplied the controlling legal principles. White v. Vanderbilt Univ.,

21 S.W.3d 215, 223 (Tenn. Ct. App. 1999) (citing Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709

(Tenn. Ct. App. 1999)).

In sharp contrast from the above, in an appeal from an order granting a Rule 12.02(6) Motion

to Dismiss, we review the trial court's legal conclusions regarding the adequacy of the complaint de

novo without a presumption of correctness. Bell ex rel. Snyder v. Icard, et al, 986 S.W.2d 550, 554

(Tenn. 1999); Stein v. Davidson Hotel, 945 S.W.2d 714, 716 (Tenn. 1997).

B.

When examining a Tenn. R. Civ. P. 15 Motion to Amend a pleading, the trial court may

consider inter alia the following factors: lack of notice, bad faith by the moving party, repeated

failure to cure deficiencies by previous amendments, undue delay in the filing of the motion, undue

prejudice to the opposing party, and futility of the proposed amendment. Hall v. Shelby County Ret.

Bd., 922 S.W.2d 543, 546 (Tenn. Ct. App. 1995). The court, however, should not deny a plaintiff’s

Tenn. R. Civ. P. 15 Motion to Amend based on an examination of whether it states a claim on which

relief can be granted. As the United States Supreme Court explained, “[i]f underlying facts or

circumstances relied on by plaintiff may be proper subject of relief, he ought to be afforded

opportunity to test his claim on merits and therefore should be permitted to amend complaint.”

Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed.2d 222 (1962). If the legal

sufficiency of the proposed Complaint is at issue – instead of delay, prejudice, bad faith or futility

– the better protocol is to grant the motion to amend the pleading, which will afford the adversary

the opportunity to test the legal sufficiency of the amended pleading by way of a Tenn. R. Civ. P.

12.02(6) Motion to Dismiss. See McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991).

The record reveals that granting the Motion to Amend would not have delayed the case or

prejudiced the defendants, except insofar as the claim itself might prevail. HMF Trust v. Bankers

Trust Co., 827 S.W.2d 296, 301 (Tenn. Ct. App. 1991). Accordingly, the better practice would have

been to grant Plaintiff’s Motion to Amend without prejudice to Life Care’s right to test the legal

efficacy of the Second Amended Complaint pursuant to Rule 12.02(6). Nevertheless, and without

prejudice to either party, we find the trial court did indeed conduct a Tenn. R. Civ. P. 12.02(6)

analysis, and dismissed the TAPA claims upon a finding Plaintiff’s exclusive remedy was pursuant

to the Medical Malpractice Act.

A Tenn. R. Civ. P. 12.02(6) Motion to Dismiss tests the sufficiency of a complaint, not the

strength of the plaintiff's evidence. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Bell, 986

S.W.2d at 554. It requires the courts to examine the substance of the complaint rather than its form.

Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995).

Courts reviewing a complaint tested by a motion to dismiss must construe the complaint

liberally in favor of the plaintiff by taking all factual allegations in the complaint as true, and by

giving the plaintiff the benefit of all reasonable inferences that can be drawn. See Stein, 945 S.W.2d

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at 716; see also ROBERT BANKS, JR. & JUNE F. ENTMAN , TENNESSEE CIVIL PROCEDURE § 5-6(g), at

254 (1999). A Rule 12.02(6) motion admits the truth of the material factual allegations in the

complaint but asserts that no cause of action arises from these facts. Winchester v. Little, 996

S.W.2d 818, 822 (Tenn. Ct. App. 1998); Smith v. First Union Nat'l Bank, 958 S.W.2d 113, 115

(Tenn. Ct. App. 1997).

Dismissal pursuant to Tenn. R. Civ. P. 12.02(6) is only warranted when the alleged facts will

not entitle the plaintiff to relief or when the complaint is totally lacking in clarity and specificity.

Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). (citations omitted.)

C.

In the Motion To File Second Amended Complaint, Plaintiff stated the purpose of the

amendment, being the addition of Count IV, was to clarify that Plaintiff was asserting a claim under

the Tennessee Adult Protection Act simply to recover the attorneys’ fees as a specific element of

damages. In the motion, Plaintiff represented to the trial court:

4. Plaintiff in her initial complaint and amended complaint sought relief including

costs and attorneys fees. Plaintiff seeks to pursue this amendment simply to clarify

that the costs and Attorneys’ fees and costs [sic] are being sought under the

Tennessee Adult Protection Act as a specific element of damages under this case.

As one of several grounds asserted by Life Care in opposition to Plaintiff’s Motion to

Amend, Life Care contended the amendment was futile because the “Tennessee Adult Protection Act

does not apply when a cause of action is asserted pursuant to Tennessee’s Medical Malpractice

statute.” Life Care went on to argue to the trial court that the “gravamen of Plaintiff’s Complaint

falls within the scope of Tennessee’s Medical Malpractice statute at § 29-26-115 et. seq.,” noting

that Plaintiff claimed inter alia that Life Care had deviated “from the accepted professional practice

for nursing home facilities.”

Plaintiff countered, contending its TAPA claims “distinguished between nursing malpractice

claims and administrative and nurse aide negligence that fell outside the scope of the [Medical

Malpractice Act]” and that “the decision to admit Mr. Johnson and the negligent supervision he was

given by nurse aides on the day of the assault were not acts of health care practitioners within the

purview of the [Medical Malpractice Act].”8

The trial court found the argument of Life Care more persuasive. In its Order denying leave

to amend, the trial court found “this is a cause of action within the scope of Title 29, Chapter 26

8

This contention appears in Plaintiff’s brief in this Court. The distinctions to which Plaintiff refers are set forth

in the proposed Third Amended Complaint, which was Plaintiff’s second attempt to convince the trial court to grant leave

to assert the TAPA claims. The proposed Third Amended Complaint is substantially the same as the proposed Second

Amended Complaint but with more specificity as to the distinguishing factors to which Plaintiff makes reference.

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[Medical Malpractice Act] and, therefore, this action shall be governed only by Title 29, Chapter 26,

and the Tennessee Adult Protection Act does not apply.”

We begin our analysis with a discussion of the essential elements of a claim for compensatory

damages and attorneys’ fees under the Tennessee Adult Protection Act.

D.

THE TENNESSEE ADULT PROTECTION ACT

The Tennessee General Assembly’s stated purpose for enacting TAPA was to protect adults

coming within the provisions of the act from abuse, neglect or exploitation. Tenn. Code Ann. § 71-6-

101(a). TAPA affords “elderly persons” and “disabled adults”9 the right of recovery in a civil action

for compensatory damages for “abuse” or “neglect,” as the terms are defined in the statute. Tenn.

Code. Ann. § 71-6-120(a)(3). "Abuse or neglect" is defined in TAPA as meaning “the infliction of

physical pain, injury, or mental anguish, or the deprivation of services by a caretaker that are

necessary to maintain the health and welfare of an adult or a situation in which an adult is unable to

provide or obtain the services that are necessary to maintain that person's health or welfare.” Tenn.

Code Ann. §71-6-120(1).

If it is proven that a defendant is liable for “abuse or neglect,” the protected adult or next of

kin may recover compensatory damages. See Tenn. Code. Ann. § 71-6-101(d). In addition, if abuse

or neglect is proven, the claimant shall be entitled to recover reasonable attorneys' fees provided the

abuse or neglect resulted from “intentional, fraudulent or malicious conduct” by the defendant, the

burden of proof of which is “upon clear and convincing evidence.” Id.

The claimant, however, may not recover damages or attorneys’ fees under TAPA for a cause

of action that lies within the scope of Title 29, Chapter 26, the Medical Malpractice Act. See Tenn.

Code Ann. §71-6-120(g). TAPA expressly provides that the damages an elderly person or disabled

adult may be entitled to recover under TAPA do not apply to a cause of action within the scope of

the Medical Malpractice Act. To the contrary, TAPA provides that such action shall be governed

solely by the Medical Malpractice Act. Tenn. Code Ann. §71-6-120(g).

Due to her age and disabilities, it is undisputed that Mrs. Stinson was both an “elderly

person,” and a “disabled adult” as defined by TAPA. See Tenn. Code. Ann. § 71-6-120(a)(2), (3).

Moreover, Plaintiff, who is Mrs. Stinson’s daughter and personal representative of her estate, is

statutorily authorized to maintain this action on behalf of Mrs. Stinson. See Tenn. Code. Ann. § 71-

6-120(b); § 20-5-106. Therefore, the first issue to be resolved is whether Mrs. Stinson was subjected

9

TAPA defines a "disabled adult" as a person who is eighteen years of age or older and who meets one (1) of

the following: (A) Has some impairment of body or mind that makes the person unfit to work at any substantially

remunerative employment; (B) Lacks the capacity to consent; . . . Tenn. Code. Ann. § 71-6-120(a)(2). It also defines

"elderly person" as one who is sixty years of age or older who has some mental or physical dysfunctioning, including

any resulting from age. . . . Tenn. Code Ann. § 71-6-120(a)(3).

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to “abuse or neglect” by Life Care, as distinguished from the actions of Mr. Johnson. If so, we then

must decide whether the claim falls within the scope of the MMA.

Plaintiff’s TAPA claims are set forth in Count IV, paragraphs 63 through 74, of the proposed

Second Amended Complaint. The pertinent provisions are as follows:

SECOND AMENDED COMPLAINT

....

Count IV

(Violations of Tennessee Adult Protection Act, Tenn. Code § 71-6-102 et seq & § 71-6-120)

63. At all times alleged herein, Martha Stinson was [sic] disabled adult within the

meaning of Tenn. Code 71-6-120. She had mental impairments and lacked the

capacity to consent.

64. Under applicable standards of care the Administrator of defendant’s nursing

home was charged with the responsibility of acting as gate-keeper of the facility, and

must make the ultimate decision whether or not to admit a residents [sic].

65. The decision to admit a patient to a nursing home is an administrative decision,

not a medical one. An Administrator is not a health care practitioner, as defined

under Tennessee law.

66. Prior to Mr. Johnson being admitted to defendant Life Care the Administrator

knew or should have known of Mrs. [sic] Johnson’s medical history. He had

attacked and injured multiple patients and care providers. He had sexually assaulted

both residents and staff members. He had threatened to kill numerous people and

had been diagnosed with homicidal intentions. His own psychologist warned

defendant’s staff that he represented an extreme risk of danger to staff and other

residents. Notwithstanding this risk the Administrator of Life Care engaged in

willful, wanton and reckless conduct by accepting Mr. Johnson into the general

nursing home population. Such conduct constituted a substantial and unjustifiable

risk to the patients of defendant’s nursing home, including Martha Stinson, and

constituted a gross deviation from the standard of care that would [sic] exercised by

an ordinary person.

67. The ultimate decision to discharge a patient is also an administrative decision.

Throughout his stay, Mr. Johnson displayed aggressive and delusional behavior that

put defendants on notice that he represented a serious threat of injury to residents.

Medical records of Mr. Johnson reflect numerous instances of inappropriate and

aggressive sexual and physical behavior. Staff assessments indicate that he was

combative and swinging at the staff. On March 15, 1999, he threatened to strike a

CNA. Mr. Johnson was frequently concerned about people trying to kill him. On

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July 9, 1999, the staff noted that he was becoming more combative. On October 31st

it was noted that Mr. Johnson had been physically abusive to staff and residents.

68. Despite the clear risk that Mr. Johnson posed to residents, the Administrator of

Life Care, in breach of applicable standards, failed to discharge Mr. Johnson. The

decision not to pursue the discharge of Mr. Johnson was an administrative and

economic decision, and was not a medical decision. Such conduct constituted a

substantial and unjustifiable risk to the patients of defendant’s nursing home,

including Martha Stinson, and constituted a gross deviation from the standard of care

that would [sic] exercised by an ordinary person.

69. As a direct result of the administrative breaches in the standards of care, as

outlined above, Martha Stinson sustained great pain of body and mind, suffered

severe emotional distress, incurred medical and out of pocket expenses, and sustained

personal injuries including multiple fractures, contusions, bruises, hematomas and

other injuries which lead [sic] to her untimely death.

70. On or about January 1, 2000, James Johnson and Martha Stinson were allowed

to interact with each other in the cafeteria.

71. On that day Mr. Johnson and Mrs. Stinson were being monitored by nurse aids

who were acting in a custodial capacity. Such aids provide basic assistance with acts

of daily living, and supervision, and are not health practitioners as contemplated by

the Tennessee Medical Malpractice Act. They are caretakers as defined under the

Tennessee Adult Protection Act.

71.[sic] On January 1, 2000 Mr. Johnson was displaying agitated behavior. At that

time, Mr. Johnson dropped a piece of paper on the floor. The nurse aid who was

monitoring Mr. Johnson at that time stated that she was not going to pick of [sic] the

piece of paper for fear that Mr. Johnson would strike her. This nurse aid, who was

operating within the scope of her employment for defendant Life Care Centers of

America Inc., proceeded to allow Mrs. Stinson to attempt to pick up the piece of

paper, who was promptly assaulted by James Johnson. The nurse aid committed

simple negligence in not separating Mr. Johnson from Mrs. Stinson, and allowing

Mrs. Stinson to pick up the piece of paper.

72. As a direct result of the negligence committed by this nurse aid Martha Stinson

sustained great pain of body and mind, suffered severe emotional distress, incurred

medical and out of pocket expenses, and sustained personal injuries including

multiple fractures, contusions, bruises, hematomas and other injuries which lead [sic]

to her untimely death.

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73. The actions, as described above, constitute abuse and neglect as defined under

the Tennessee Adult Protection Act. Mrs. Stinson was deprived of proper

administrative and nurse aid services which were necessary for her to maintain proper

health.

...

Although Life Care vigorously denies the serious allegations, we must accept Plaintiff’s

allegations as true for the purpose of a Tenn. R. Civ. P. 12.02(6) analysis of the legal efficacy of the

asserted claims. Accepting the factual allegations as true, the question is whether Plaintiff has set

forth a claim of “abuse or neglect” of Mrs. Stinson by Life Care. As the statute provides:

"Abuse or neglect" means the infliction of physical pain, injury, or mental anguish,

or the deprivation of services by a caretaker that are necessary to maintain the health

and welfare of an adult or a situation in which an adult is unable to provide or obtain

the services that are necessary to maintain that person's health or welfare.” (emphasis

added)

Tenn. Code Ann. §71-6-120(1).

We are unable to conclude that the allegations in Count IV state a claim that Life Care, its

employees, or agents abused or neglected Mrs. Stinson. To constitute abuse or neglect, Life Care

– as distinguished from Mr. Johnson – had to inflict “physical pain, injury, or mental anguish”on

Mrs. Stinson, or in the alternative, Life Care had to deprive Mrs. Stinson of services that were

necessary to maintain the health and welfare of Mrs. Stinson. No matter how Plaintiff characterizes

the acts or omissions of Life Care, its employees or agents in the proposed Complaint, Life Care’s

decision to admit and retain Mr. Johnson did not constitute an infliction of physical pain, injury or

mental anguish (abuse or neglect) by Life Care upon Mrs. Stinson. Moreover, no matter how

Plaintiff characterizes the sufficiency of the supervisory role played by the nurse’s aide or the

rapidity of her response when Mr. Johnson dropped the paper and then began to “shadow box” as

Mrs. Stinson approached to pick up the paper, the response of the nurse’s aide was neither an

infliction of physical pain, injury or mental anguish on Mrs. Stinson by the nurse’s aide nor was it

the type of deprivation of services by a caretaker contemplated in Tenn. Code Ann. §71-6-120(1).

Instead of asserting a viable TAPA claim of abuse and neglect in Count IV, Plaintiff has

essentially asserted a claim of strict liability against Life Care, contending Life Care was responsible

for the actions by Mr. Johnson, all of which could have been prevented had Life Care not admitted

Mr. Johnson as a resident and/or discharged him prior to the assault. We, therefore, find that Count

IV of the proposed Second Amended Complaint fails to state a claim upon which relief can be

granted.

In addition to seeking compensatory damages under TAPA for abuse and neglect, Plaintiff

asserted a claim for attorneys’ fees. In its Motion to Amend the Complaint, Plaintiff acknowledged

that the only basis for its claim for attorneys’ fees was pursuant to TAPA, specifically Tenn. Code

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Ann. § 71-6-101(d). The statute provides that a claimant shall be entitled to recover attorneys’ fees

if “abuse or neglect” was proven. See Tenn. Code. Ann. § 71-6-101(d). Accordingly, a finding of

abuse or neglect is a condition precedent to recovering attorneys’ fees under a TAPA claim. Having

failed to prove abuse and neglect by Life Care, Plaintiff is not entitled to present a claim for

attorneys’ fees.

E.

ARE THE TAPA CLAIMS WITHIN THE SCOPE OF THE MEDICAL MALPRACTICE ACT

The trial court dismissed the TAPA claims, finding the claims sounded in medical

malpractice. Although we found the TAPA claims should be dismissed on another ground, our

ruling does not mean that we disagree with the trial court’s finding. To the contrary, we find that

the TAPA claims, at least those pertaining to the admission and discharge of Mr. Johnson, sound in

medical malpractice.

THE MEDICAL MALPRACTICE ACT

Generally stated, a medical malpractice action is an action for damages for personal injury

or death as a result of any medical malpractice by a health care provider, whether based upon tort

or contract law. Peete v. Shelby County Health Care Corp., 938 S.W.2d 693, 696 (Tenn. Ct. App.

1996). The Medical Malpractice Act requires that the plaintiff prove that the defendants failed to

act in accordance with the recognized standard of acceptable professional practice and that as a

proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which

would not otherwise occurred.” Richberger v. West Clinic, P.C., 152 S.W.3d 505, 509 (Tenn. Ct.

App. 2004)(citing Tenn. Code Ann. 29-26-115).

Acts or omissions complained of in a medical malpractice action should involve matters of

the medical arts and/or sciences that require specialized skills not ordinarily possessed by a lay

person. Peete, 938 S.W.2d at 696 (citing Graniger v. Methodist Hosp. Healthcare Sys., Inc., No.

02A01-9309-CV-00201, 1994 WL 496781, at *3 (Tenn. Ct. App. Sep. 9, 1994)) (other citations

omitted). Conversely, a medical malpractice claim does not include any action for damages as a

result of negligence of a health care provider when medical care by such provider is not involved in

such action. Burris v. Hospital Corp. of America, 773 S.W.2d 932, 934 (Tenn. Ct. App. 1989). To

the extent the act or omission complained of could be assessed by the trier of fact based on common

everyday experiences, it would not fall within the scope of the MMA. See Peete, 938 S.W.2d at 696

(citing Graniger,1994 WL 496781, at *3).

In medical malpractice cases, courts look to whether the decision, act, or omission

complained of required the assessment of a patient’s medical condition and whether the decision,

act, or omission required a decision based upon medical science, specialized training or skill. See

Waller v. City of Memphis, No. W2000-00913-COA-R3-CV, 2001 WL 846081, at *6 (Tenn. Ct.

App. July 20, 2001). Where causes of action involve complaints about acts or omissions involving

medical science and expertise, they fall within the scope of the MMA; where they do not involve

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such training and knowledge, they generally sound in ordinary negligence. See generally Peete, 938

S.W.2d 693.

This Court has recognized, however, that not every allegation of negligence against a

healthcare provider or a doctor is one for medical malpractice. See Peete, 938 S.W.2d at 696; see

also Pullins v. Fentress County Gen. Hosp., 594 S.W.2d 663 (Tenn. 1979) (hospital's alleged failure

to keep premises free of spiders and other pests judged under ordinary negligence principles); Spivey

v. St. Thomas Hosp., 211 S.W.2d 450 (Tenn. Ct. App.1947) (hospital's liability for patient's fall from

a hospital window treated as an ordinary negligence case). In Peete, the plaintiff “alleged that she

was injured when an employee of Defendant attempted to dismantle an orthopedic suspension bar,

which was not in use at the time, and allowed a portion of that apparatus to strike her in the head.”

Peete, 938 S.W.2d at 696. Based upon those facts, the Peete Court found the act of dismantling an

orthopedic suspension bar constituted ordinary negligence, instead of medical malpractice, and thus

the MMA did not apply. Id. In an effort to distinguish the two types of actions, the Peete court

stated:

Medical malpractice cases typically involve a medical diagnosis, treatment or other

scientific matters. The distinction between ordinary negligence and malpractice turns

on whether the acts or omissions complained of involve a matter of medical science

or art requiring specialized skills not ordinarily possessed by lay persons or whether

the conduct complained of can instead be assessed on the basis of common everyday

experience of the trier of fact.

Id. (quoting Graniger, 1994 WL 496781, at *3); see also Harvey v. Wolfer, No.

03A01-9512-CV-00452, 1996 WL 94819, at *2 (Tenn. Ct. App. March 6, 1996) (stating an

allegation the physician was negligent in the manner the plaintiff was moved from the examination

table – during which move the plaintiff was dropped to the floor – sounded more in common law

negligence than medical malpractice).

In Count IV, Plaintiff contends the decision “to admit a patient to a nursing home is an

administrative decision, not a medical one” and that an Administrator “is not a health care

practitioner, as defined under Tennessee law.” The Tennessee Health Care Association, which filed

an amicus curiae brief, insists that applicable federal and state regulations make the appropriateness

of placement of a resident a medical decision, not an administrative decision, for which a TAPA

claim is unavailable.

The amicus makes the point that every person admitted to a Tennessee nursing home, such

as Life Care, must be medically diagnosed. See Tenn. Comp. R. & Regs. § 1200-8-6-.05(2). It

additionally makes the point a physician must personally approve a written recommendation that an

individual be admitted to a nursing home and remain under the care of a physician while a resident

of a nursing home. 42 CFR § 483.40; Tenn. Comp. R. & Regs. § 1200-8-6-.05(2). As the regulations

provide, a nursing home must complete, prior to admission, a Medicaid Pre-Admission Evaluation

that must be signed by a physician and contain sufficient medical substance so that nurses in the Pre-

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Admission Evaluation Unit of the Bureau of TennCare may evaluate the assessment. Tenn. Comp.

R. & Regs. § 1200-13-1-.10(2)(f); § 1200-13-1-.10(4) and (5).

Therefore, the applicable regulations establish as a matter of law that the protocol to

determine whether to admit a resident to a nursing home is, in the first instance, a matter of medical

science or art requiring specialized skills. As the Court in Peete explained, acts or omissions

complained of which involve matters of the medical arts and/or sciences, requiring specialized skills

not ordinarily possessed by a lay person, sound in medical malpractice. Peete, 938 S.W.2d at 696.

In spite of Plaintiff’s contentions that the decisions to admit and retain Mr. Johnson were

administrative decisions that were based on economics, we have concluded that the key decision,

whether Mr. Johnson was appropriate for placement in the general population of Life Care’s nursing

home, involved matters of the medical arts and/or sciences, requiring specialized skills not ordinarily

possessed by a lay person. The fact the Administrator of Life Care was also involved in the

decisions to admit and retain Mr. Johnson as a resident does not eviscerate the decisions and

recommendations by the medical personnel that Mr. Johnson was appropriate for placement in the

general population of Life Care’s nursing home. To the contrary, the Administrator of Life Care is

also a licensed healthcare professional under Tenn. Code Ann. §§ 63-16-101 through -115 (2004).10

As a consequence, for medical malpractice purposes the Administrator’s licensure places her in the

same status for the purpose of Tenn. Code Ann. § 29-26-115 (Supp. 2006), that of “a person in the

healthcare profession requiring licensure.” See Peete, 938 S.W.2d at 696.

Considering all of the above, we have concluded that the decisions to admit and retain Mr.

Johnson fall within the scope of the Medical Malpractice Act, which precludes a claim under TAPA.

Therefore, Count IV of the proposed Second Amended Complaint fails to state a claim for which

relief can be granted under TAPA.11

V.

THE COMPARATIVE FAULT CLAIM AGAINST THE STATE OF TENNESSEE

The trial court granted Life Care leave to amend its Answer to identify Genesis of Jackson,

Inc., and the Preadmission Screenings and Annual Resident Review Program Division of the State

of Tennessee (the State) as alleged tortfeasors who should share fault in the event Life Care was

found to be at fault. Plaintiff moved to strike the comparative fault defenses. When it failed in its

attempt to remove the so-called “empty chairs” created by Life Care’s strategic affirmative defense,

Plaintiff amended its Complaint by adding Genesis as an additional defendant and by asserting a

10

The requisite qualifications for licensure as a licensed nursing home administrator are subject to the criteria

set forth in Tenn. Code Ann. § 63-16-104 and preliminary education requirements satisfactory to the Board of Examiners

for Nursing Home Administrators. The subjects of examination for applicants for licensure are determined by the Board

of Examiners for Nursing Home Administrators. See Tenn. Code Ann. § 63-16-105.

11

Based upon our ruling, we find it unnecessary to discuss whether the alleged acts or omissions of the nurse’s

aide on the day of the assault fall within the purview of the Medical Malpractice Act.

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claim against the State, which it pursued before the Claims Commission. In its claim against the

State, Plaintiff contended the State “breached applicable standards of care in initially approving Mr.

Johnson for nursing home care and in subsequently evaluating him while in the nursing home.”

Plaintiff asserts on appeal that the trial court erred when it permitted Life Care to amend its

Answer to identify the State as a comparative fault tortfeasor. It also asserts the trial court erred by

including the State on the jury verdict form to allow the jury to assess fault against the State. We

find both of these assertions to be without merit.

Whether to grant Life Care leave to amend its Answer was within the sound discretion of the

trial court, and absent a showing of abuse of discretion, we will not disturb that decision. See Welch

v. Thuan, 882 S.W.2d 792, 793 (Tenn. Ct. App. 1994); Pelts v. Int’l Med. Servs., No. W2002-00388-

COA-R3-CV, 2003 WL 22071462, *11-12 (Tenn. Ct. App. Aug. 28, 2003) (“appellate review of a

motion to strike is under the deferential abuse of discretion standard”)(citing Doe v. Mama Taori’s

Premium Pizza, L.L.C., No. M1998-00992-COA-R3-CV, 2001 Tenn. App. LEXIS 224, at *8 (Tenn.

Ct. App. April 5, 2001)). We find no error with that decision.

As for allowing the jury the option of assessing fault against the State, we find no merit with

this argument because the jury assessed no percentage of the fault against the State. Accordingly,

there was no harm, and the issue is moot.

VI.

SUMMARY DISMISSAL OF THE NEGLIGENCE PER SE CLAIMS AGAINST LIFE CARE

The trial court granted in part and denied in part Life Care’s motion to summarily dismiss

Plaintiff’s claims, including those based on alleged violation of federal regulations and a variety of

claims regarding the general care of Mrs. Stinson. The trial court granted partial summary judgment

dismissing Plaintiff’s claims to the extent they were based on a national standard of care. The trial

court also dismissed Plaintiff’s claims that Life Care was negligent in failing to maintain proper

hygiene for Mrs. Stinson, failing to adequately supervise her so as to prevent elopements, and failing

to properly medicate her, based upon a finding the alleged neglect in her care did not contribute to

the assault by Mr. Johnson.

A.

Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth Advert.

& Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). This court must make a fresh

determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown,

955 S.W.2d 49, 50-51 (Tenn. 1997). We consider the evidence in the light most favorable to the

non-moving party and resolve all inferences in that party's favor. Godfrey v. Ruiz, 90 S.W.3d 692,

695 (Tenn. 2002). When reviewing the evidence, we first determine whether factual disputes exist.

If a factual dispute exists, we then determine whether the fact is material to the claim or defense

upon which the summary judgment is predicated and whether the disputed fact creates a genuine

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issue for trial. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993); Rutherford v. Polar Tank Trailer,

Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

Summary judgments are proper in virtually all civil cases that can be resolved on the basis

of legal issues alone, Byrd, 847 S.W.2d at 210; Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct.

App. 2001); however, they are not appropriate when genuine disputes regarding material facts exist.

Tenn. R. Civ. P. 56.04. The party seeking a summary judgment bears the burden of demonstrating

that no genuine disputes of material fact exist and that party is entitled to judgment as a matter of

law. Godfrey, 90 S.W.3d at 695. Summary judgment should be granted at the trial court level when

the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one

conclusion, which is the party seeking the summary judgment is entitled to a judgment as a matter

of law. Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); Webber v. State

Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001). The court must take the strongest

legitimate view of the evidence in favor of the non-moving party, allow all reasonable inferences in

favor of that party, discard all countervailing evidence, and, if there is a dispute as to any material

fact or if there is any doubt as to the existence of a material fact, summary judgment cannot be

granted. Byrd, 847 S.W.2d at 210; EVCO Corp. v. Ross, 528 S.W.2d 20 (Tenn. 1975). To be

entitled to summary judgment, the moving party must affirmatively negate an essential element of

the non-moving party's claim or establish an affirmative defense that conclusively defeats the

non-moving party's claim. Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

B.

Plaintiff asserted negligence per se claims against Life Care based upon alleged violations

of federal regulations found in 42 C.F.R. § 483. The following are four of the fifteen regulations

cited in paragraph 14 of the Third Amended Complaint to which Plaintiff contends Life Care had

a duty to adhere:

a. Pursuant to 42 C.F.R. § 483.10 the nursing home had an obligation and a duty to

assure that resident’s [sic] rights are followed and to assure that each residence [sic]

has a dignified existence and the right to exercise his or her rights as a resident and

as a citizen of the United States.

b. Pursuant to 42 C.F.R. § 483.13(c) the nursing home had the duty to develop and

implement written policies and procedures that prohibit mistreatment, neglect, abuse

of residence [sic], and misappropriation of resident’s [sic] property.

****

g. Pursuant to 42 C.F.R. § 483.25(f) the nursing home had a duty to ensure that

residents who display mental or psychological adjustment difficulties, receive

appropriate treatment and services to correct the assessed problem.

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h. Pursuant to 42 C.F.R. § 483.25(h) the nursing home had a duty to ensure that

resident’s [sic] environment remain free of accident hazards and that each resident

receives adequate supervision and assistance to prevent accidents.

Plaintiff contended Life Care was required to maintain the nursing home in compliance with

the minimum statutory standards and failing to do so constituted negligence per se.12 Life Care

disagreed, arguing the federal regulations are too vague and general to be enforceable as standards.

Life Care also contended the federal regulations, if applicable, would constitute a national standard

of care. We have concluded Life Care is correct on both grounds.

The federal regulations are simply too vague and general to constitute a standard of care by

which a jury, or for that matter a court, can effectively judge the acts or omissions of health care

providers and nursing home operators. As aptly stated in Smith v. Bowen, 656 F. Supp. 1093 (D.

Colo. 1987), “[t]here is no legislative definition of ‘quality health care,’ and there can be none.”

Bowen, 656 F. Supp. at 1097. The Bowen court also held that federal nursing home regulations are

so vague that enforcement arguably violates “commonly accepted principles of fundamental fairness”

and gives rise to “a procedural due process concern.” Bowen, 656 F. Supp. at 1097. Furthermore,

in a case dealing with the admissibility of the Nursing Home Patients’ Bill of Rights, another court

held, “The patients’ rights are so broadly stated that submission of them to a jury as the standard of

care would result in a speculative, ad hoc verdict completely unguided by any rational legal

standards.” Makas v. Hillhaven, Inc., 589 F. Supp. 736, 742 (M.D.N.C. 1984). In the matter of

Stogsdill v. Manor Convalescent Home, Inc., 343 N.E.2d 589 (1976), wherein the plaintiff brought

a claim against a nursing home contending regulations established the standard of care as a matter

of law, the court held the regulations were “too vague to be sufficient indicators of the standard of

due care. . . .” Stogsdill, 343 N.E.2d at 611-612.

Plaintiff’s claims that are based upon alleged violations of federal regulatory standards

constitute a national standard of care that runs afoul with the MMA. Tenn. Code Ann. § 29-26-115

requires a plaintiff in a medical malpractice action to prove by expert testimony (1) the standard of

care, (2) that defendants deviated from that standard, and (3) that as a proximate result of the

defendant’s negligent acts or omissions, the patient suffered injuries which would not otherwise have

occurred. Of particular significance, the statute requires the plaintiff to establish by expert testimony

the “recognized standard of acceptable professional practice . . . in the community in which the

defendant practices or in a similar community . . .” Tenn. Code Ann. § 29-26-115(a)(1).

By statute, Tennessee courts must apply the so-called “locality rule” in medical malpractice

actions. Pursuant to that rule, “a plaintiff must show that the defendant failed to act with ordinary

and reasonable care when compared to the customs or practices of physicians from a particular

geographic region.” Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn. 1986). The United States of

America fails to qualify as “a particular geographic region.” Id.

12

Plaintiff also contended the regulations served as a basis for its breach of contract claim.

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In this medical malpractice action, Plaintiff must prove the “recognized standard of

acceptable professional practice in the profession and the specialty thereof, if any, that the defendant

practices in the community in which the defendant practices [Centerville, Tennessee] or in a similar

community at the time the alleged injury or wrongful action occurred.” Tenn. Code Ann. § 29-26-

115(1). The statutory scheme does not permit a plaintiff in a medical malpractice action to rely on

a so-called national standard of care to establish a violation of acceptable professional practices in

a medical community in Tennessee.

C.

The trial court summarily dismissed Plaintiff’s claims relating to Mrs. Stinson’s dietary

maintenance, toileting, resident assessment activities, grooming, hygiene, and care planning. We

have concluded as the trial court did that the evidence fails to demonstrate how the alleged errors or

omissions had any bearing on or relevance to the assault by Mr. Johnson. Therefore, summary

dismissal of these claims was proper.

VII.

SUMMARY DISMISSAL OF CLAIMS AGAINST GENESIS OF JACKSON , INC .

Life Care appeals the summary dismissal of Plaintiff’s cause of action against Genesis. It

contends the record contained sufficient evidence to create a dispute of material facts to defeat

Genesis’ Motion for Summary Judgment.

Plaintiff contended in pertinent part in Count I:

36. On or about August 14, 1998, James Johnson was admitted to defendant [Life

Care] nursing home. At the time of his admission, defendants knew that Mr. Johnson

had a previous history of violence including severely beating a previous nursing

home resident. In fact, the previous nursing home refused to readmit Mr. Johnson.

37. Through his stay, Mr. Johnson displayed aggressive and delusional behavior that

put defendants on notice that he represented a serious threat of injury to residents.

Medical records of Mr. Johnson reflect numerous instances of inappropriate and

aggressive sexual and physical behavior. Staff assessments indicate that he was

combative and swinging at the staff. On March 15, 1999, the staff noted that he was

becoming more combative.

38. Given Mr. Johnson’s medical history, the facility had a duty to evaluate Mr.

Johnson prior to admission, and not accept him unless they were able to meet his

total care needs, and protect the residents in the nursing home from his potentially

disruptive and violent behavior.

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39. Despite Mr. Johnson’s aggressive behavior, defendant Life Care admitted him

into the facility and thereafter failed to provide him with the necessary care that he

needed to keep his violent and aggressive behavior under control. Defendant Life

Care, through their staff, failed to keep Mr. Johnson’s and Mrs. Stinson’s medical

providers adequately informed of changes in their conditions, including agitation and

aggression.

40. Defendant Life Care and their agents/employees breached applicable common

law and statutory duties in managing and treating Mr. Johnson’s aggressive behavior,

and in preventing his aggressive behavior from causing injury to Martha Stinson.

....

50. Genesis . . . was at all pertinent times herein a provider of psychological and/or

psychiatric services to residents at [Life Care].

51. [Life Care] has indicated in their pleadings that while they deny any responsibility

for the injuries to Mrs. Stinson, if any party is responsible, it is either [Genesis] or the

State of Tennessee. . . . [Life Care] has alleged that Genesis . . . was providing

psychological and related services to Mr. Johnson in an effort to monitor his

behavior. [Life Care] has further alleged that [Genesis] through acts or omissions

caused or contributed to Mr. Johnson’s aggressive behavior.

52. Based on the allegations made by [Life Care] against [Genesis], and assuming

the truth of those allegations, [Genesis] breached applicable standards of care in the

treatment and monitoring of James Johnson which caused or contributed to the

injuries sustained by Martha Stinson on January 1, 2000. (emphasis added)

Genesis denied liability in its Answer to the Amended Complaint. Following discovery,

Genesis moved to summarily dismiss Plaintiff’s cause of action against it contending that it had at

all times adhered to the applicable standard of care. The trial court granted the motion and dismissed

Genesis, finding there was not sufficient expert testimony in the record to establish the applicable

standard of care, that Genesis breached the standard of care, or that any such breach caused injuries

to the plaintiff which would not otherwise have occurred.13

When reviewing a challenged summary dismissal, we must make a fresh determination that

the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter, 955 S.W.2d at 50-51. If a

factual dispute exists, we determine whether the fact is material to the claim or defense upon which

the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial.

Byrd, 847 S.W.2d at 214; Rutherford, 978 S.W.2d at 104. As part of our analysis of the facts, we

must take the strongest legitimate view of the evidence in favor of the non-moving party, allow all

reasonable inferences in favor of that party, discard all countervailing evidence, and, if there is a

13

The order dismissing Genesis was entered on March 6, 2003.

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dispute as to any material fact or if there is any doubt as to the existence of a material fact, summary

judgment cannot be granted. Godfrey, 90 S.W.3d at 695; Byrd, 847 S.W.2d at 210; EVCO Corp., 528

S.W.2d 20.

Summary judgments are not appropriate when genuine disputes regarding material facts exist.

Tenn. R. Civ. P. 56.04. The party seeking a summary judgment bears the burden of demonstrating

that no genuine disputes of material fact exist and that party is entitled to judgment as a matter of

law. Godfrey, 90 S.W.3d at 695.

The gravamen of Plaintiff’s claims that survive14 contend that Genesis breached applicable

standards of care relative to the decision to admit Mr. Johnson as a resident, the medical and

psychiatric treatment of Mr. Johnson while a resident, and monitoring whether Mr. Johnson should

have been discharged as a resident. The Plaintiff’s surviving claims do not relate to the medical and

psychiatric care Genesis provided to or for Mrs. Stinson on whose behalf this action is brought.

It is undisputed that Genesis is a medical group that renders psychiatric and medical care.

It is also undisputed that Life Care contracted with Genesis to: (1) conduct pre-admission evaluation

of applicants to determine whether the applicant was appropriate for placement at Life Care; (2)

provide psychiatric and medical care to residents of Life Care as Genesis’s psychiatrists and

physicians deemed appropriate; and (3) to monitor the residents to determine whether they were still

appropriately placed and whether special care, medication or restrictions were appropriate.

Life Care opposed Genesis’ Motion for Summary Judgment. It relied primarily on the

affidavit of Vanderbilt Geriatric Physician, Dr. James Powers who stated that Genesis had the duty

to (1) perform mental assessments of Mr. Johnson, (2) evaluate whether he was appropriate for

admission and retention at Life Care, (3) advise Life Care if Mr. Johnson was not appropriately

admitted, (4) make recommendations for discharge if required based upon his behavior, and (5) make

recommendations regarding whether he should be allowed to interact with other residents. Dr.

Powers also testified that Genesis had the duty to make recommendations necessary for special

services for Mr. Johnson should he need a higher level of care for his mental health. Dr. Powers

additionally testified that Life Care relied upon Genesis to provide the necessary treatment for Mr.

Johnson’s mental health needs, and for a determination of whether Mr. Johnson should have been

separated from other residents or discharged to a more appropriate facility.

Life Care additionally relied on the affidavit of Dr. Powers to establish that Genesis deviated

from the applicable standard of care. Dr. Powers opined that Genesis, and in particular its

professional employees, Dr. Sherwin Yaffe and/or Dr. Cheri Premeau, had a duty to review all

information in Mr. Johnson’s medical records and failure to do so constitutes a deviation from the

14

As we have previously discussed and concluded, the trial court properly dismissed Plaintiff’s claims that do

not relate to the assault on January 1, 2000. Plaintiff’s claims that were properly dismissed include those relating to the

care and treatment of Mrs. Stinson prior to January 1, 2000, as distinguished from claims that relate to the admission and

retention of Mr. Johnson as a resident, and whether he was properly treated, medicated and restrained.

-21-

standard of care. Life Care also relied on the testimony of Plaintiff’s expert witnesses, who opined

that the records concerning MR. Johnson provided more than sufficient evidence to establish that

Mr. Johnson should have been discharged from the facility prior to January 1, 2000.

We have concluded the affidavits of Dr. Powers and Plaintiff’s experts, along with other

evidence in the record, created a genuine dispute of facts material to Plaintiff’s claims against

Genesis.15 Accordingly, we reverse the summary dismissal of Plaintiff’s claims against Genesis.

Following the coattails of Genesis, Life Care filed a motion to summarily dismiss Plaintiff’s

claim against it pertaining to the admission and retention of Mr. Johnson. The sole basis of Life

Care’s appeal of this issue hinged on the summary dismissal of Genesis. Life Care contended that

if the trial court properly dismissed Plaintiff’s claim against Genesis, the similar claim against Life

Care should have been dismissed. Our ruling on Genesis’ Motion for Summary Judgment makes

this argument moot. Moreover, we find material facts were in dispute, and thus summary dismissal

was not appropriate. Accordingly, we find no error with the trial court’s denial of Life Care’s

Motion for Summary Judgment on this issue.

VIII.

NECESSITY TO VACATE JUDGMENT AND REQUIRE TRIAL OF ISSUES IN ONE ACTION

As discussed above, Life Care insisted that the summary dismissal of Plaintiff’s claims

against Genesis, and thus Life Care’s affirmative defense relative to the alleged acts and omissions

of Genesis, prevented Life Care from shifting part or all of the fault on to Genesis. Since we have

decided Plaintiff’s claims against Genesis should not have been summarily dismissed, we are now

presented with the thorny issue of whether to vacate the judgment against Life Care in order to afford

a trial, one trial, of Plaintiff’s claims against Life Care, along with Plaintiff’s claims and Life Care’s

assertions of comparative fault against Genesis. We have concluded the rulings and rationale set

forth in Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998), and Ridings v. Ralph M. Parsons

Co., 914 S.W.2d 79 (Tenn. 1996), necessitate a new trial of all claims in one action.

The issue presented pertains to allegations of separate, independent negligent acts of more

than one tortfeasor which allegedly combined to cause a single, indivisible injury. In such situations,

the Tennessee Supreme Court has stated there should be one trial. See Samuelson, 962 S.W.2d at

15

Historically, medical malpractice actions were limited to actions by patients against their healthcare providers.

See Dunbar v. Strimas, 632 S.W.2d 558, 562 (Tenn. Ct. App. 1981); see also Osborne v. Frazor, 425 S.W .2d 768 (Tenn.

Ct. App. 1968) (holding before a suit for medical malpractice will lie against a physician, there must be a

physician-patient relationship). The limitation requiring a patient-physician relationship, however, took a dramatic turn

with Turner v. Jordan, 957 S.W .2d 815 (Tenn. 1997). In Turner the Court held that the psychiatrist owed a duty of care

to a non-patient third party because the psychiatrist knew or should have known that his patient posed an unreasonable

risk of harm to a foreseeable, readily identifiable third party. Id. at 816. The Court went on to comment that the factors

it typically balanced in determining whether a duty exists were: “the foreseeability and severity of potential harm; the

nature of the defendant's conduct; and the availability, safety and effectiveness of alternatives.” Turner, 957 S.W .2d at

820 (citing McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

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476; see also Ridings, 914 S.W.2d at 83-84. The ability to require the trial in one action of issues

that pertain to allegations of separate, independent negligent acts of more than one tortfeasor is

assured by Tenn. R. Civ. P. 8.03. The rule requires that “comparative fault (including the identity

or description of any other alleged tortfeasors)” be pled as an affirmative defense. Ridings, 914

S.W.2d at 83-84.

“The goals of efficiency and fairness are thus served by joining as defendants all persons

against whom the plaintiff can assert a cause of action. Ridings, 914 S.W.2d at 84 (citing John Scott

Hickman, Note, Efficiency, Fairness, and Common Sense: The Case for One Action as to Percentage

of Fault in Comparative Negligence Jurisdictions That Have Abolished or Modified Joint and

Several Liability, 48 Vand. L. Rev. 739 (1995)).

As the Court explained in Samuelson, one trial in matters involving allegations of separate,

independent negligent acts of more than one tortfeasor which allegedly combined to cause a single,

indivisible injury is necessary “to facilitate the participation of all potentially responsible persons

so there can be one fuller and fairer presentation of the relevant evidence and to enable the jury to

make a more informed and complete determination of liability.” Samuelson, 962 S.W.2d at 475. The

plaintiff brought an action against two health care providers, contending they were responsible for

death due to their failing to diagnose pneumonia. The Samuelson complaint alleged that the separate

and independent acts of Dr. Totty combined with the separate and independent acts of the other

defendants to caused a single, indivisible injury.16 The trial court, at the request of the plaintiff,

severed for trial the claim against Dr. Totty from the claim against Dr. McMurtry, necessitating two

separate trials. The Supreme Court found the severance of the claims, requiring two separate trials,

was in conflict with principles of comparative fault.17 Id.

16

On July 21, 1988, the deceased was treated by Dr. Holland, a physician, at an HCA hospital for a boil. The

next day, Samuelson returned to the hospital with a fever and inflammation around the boil and was treated by Dr.

McMurtry, a physician. Eight days later, on July 30, Samuelson went to the hospital emergency room with complaints

of back pain, for which he was treated by Dr. M cMurtry. The following day, July 31, he twice returned to the emergency

room with the same symptoms. On his first visit, he was seen by Dr. Holland, but on his second visit he was discouraged

by the hospital personnel from seeing a physician. On August 1, he went to the office of Dr. Totty, a chiropractor, with

complaints of intense back and chest pain and was treated twice that day by Dr. Totty. The next day, Samuelson died

from pneumonia, which had not been diagnosed by any of the health care providers. Expert medical evidence showed

that the chest and back pain were caused by pneumonia and that the deceased's condition could have been treated

successfully within 6 to 12 hours prior to his death.

17

In its analysis, the Samuelson Court also discussed the role of Tenn. R. Civ. P. 19.02, which provides, “[a]

person who is subject to the jurisdiction of the court shall be joined as a party if (1) in the person's absence complete

relief cannot be accorded among those already parties. . . .” The Supreme Court found the rule compelled the joinder

of Dr. Totty, “because complete relief in this action, which is governed by comparative fault, could not be accorded all

parties unless Dr. Totty was a party.” Samuelson, 962 S.W .2d at 475. The Court noted, however, that although the rule

contained the provision that it should be construed “to allow joint tort-feasors and obligors on obligations that are joint

and several to be sued either jointly or severally” the application of the rule had “been affected by the adoption of

comparative fault.” Id.

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The procedure required under Tennessee's comparative fault formulation retains the

efficiency of joint liability and the fairness of comparative fault. It also conserves

judicial resources and eliminates inconsistent judgments. It resolves fairly the

competing interests of full recovery for the plaintiff and the equitable allocation of

liability for the defendants. Allowing a plaintiff to sue defendants in separate,

consecutive actions would defeat the efficiency and fairness that are the objectives

of the principles of comparative fault. See John Scott Hickman, One-Action Rule, 48

Vand. L.Rev. 739, 762 (1995).

Samuelson, 962 S.W.2d at 475. The Samuelson Court concluded the trial court erred in dismissing

and severing the claim against Dr. Totty, that doing so “deprived the plaintiff of the right to proceed

against the defendant Totty in the same trial with the other defendants and also of the right to have

the decedent's fault compared with the fault of all the defendants” and the defendants other than Dr.

Totty “were deprived of an opportunity to have fault apportioned against Dr. Totty.” Id.

We find it significant that the Supreme Court in Samuelson went on to explain the result

could be accomplished by a remand for a new trial. Id. at 475-76. Based upon the clear and

compelling reasoning in Samuelson and Riding, we find the dismissal of Plaintiff’s claim against

Genesis prevented both Plaintiff and Life Care from resolving in one action the comparative rights

and responsibilities of the parties, thereby necessitating a separate trial of those issues if the jury

verdict in this matter is not vacated. We have therefore concluded that the proper course is to vacate

the verdict against Life Care and to remand all surviving issues for trial in one action.

IX.

ASSESSMENT OF COSTS

The prevailing party may recover costs included in the bill of costs prepared by the clerk.

Tenn. R. Civ. P. 54.04(1). In addition thereto, the trial court, in its discretion, may award additional

costs, known as discretionary costs.18 Tenn R. Civ. P. 54.04(2). Since we have vacated the verdict

and remanded the surviving issue for a new trial, there is no prevailing party. There being no

prevailing party, neither party is entitled to recover discretionary costs pursuant to Tenn. R. Civ. P.

54.04. Therefore, we vacate the award of costs against Life Care.

18

The term “discretionary costs” gets its name from the fact they are allowable only in the trial court's

discretion; however, the trial court’s discretion is limited to costs identified in Tenn. R. Civ. P. 54.04(2). The Rule

permits the recovery of “reasonable and necessary court reporter expenses for depositions or trials, reasonable and

necessary expert witness fees for depositions (or stipulated reports) and for trials, reasonable and necessary interpreter

fees for depositions or trials, and guardian ad litem fees; travel expenses are not allowable discretionary costs.” Id. The

trial court does not have the discretion to assess costs other than those identified in Tenn. R. Civ. P. 54.04(2).

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X.

THE REMAINING ISSUES

Because we have vacated the judgment against Life Care, we could decline to discuss the

remaining issues; however, in the interest of judicial economy and to aid the parties and the trial

court to reduce the issues on remand, we will discuss the remaining issues presented.

A.

EXCLUSION OF EVIDENCE

Plaintiff appeals numerous evidentiary rulings by the trial court. Specifically, Plaintiff

challenges the trial court’s exclusion of: (1) a statement attributed to a nurse’s aide, Amber Gandy;

(2) Mr. Johnson’s records from the Middle Tennessee Mental Health Institute; (3) evidence of

regulatory violations assessed by the Department of Health; and (4) evidence regarding alleged

neglect of Mrs. Stinson over a period of months prior to the assault by Mr. Johnson.19

Decisions regarding the admissibility of evidence are within the discretion of the trial court.

Tenn. R. Evid. 104(a). “When arriving at a determination to admit or exclude even that evidence

which is considered relevant trial courts are generally accorded a wide degree of latitude and will

only be overturned on appeal where there is a showing of abuse of discretion.” Otis v. Cambridge

Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1993) (citing Strickland v. City of Lawrenceburg,

611 S.W.2d 832 (Tenn. Ct. App. 1980); Tenn. R. Evid. 401; Austin v. City of Memphis, 684 S.W.2d

624 (Tenn. Ct. App. 1984); Inman v. Aluminum Co. of America, 697 S.W.2d 350 (Tenn. Ct. App.

1985)). Moreover, error may not be predicated upon a ruling on the admissibility of evidence unless

a substantial right of the complaining party is affected. Tenn. R. Evid. 103.

Plaintiff sought to introduce an alleged statement by a nurse’s aide, Amber Gandy, through

the testimony of Bessie Shepard, who was visiting when the assault occurred. In her deposition,

Mrs. Shepard testified that she witnessed Mr. Johnson drop a piece of paper on the ground, and when

Mrs. Shepard suggested to a person she believed to be Mrs. Gandy that she pick up the paper, Mrs.

Gandy allegedly responded that she was afraid Mr. Johnson might hit her. Mrs. Shepard, however,

went on to state she was not certain who that person was. Mrs. Shepard stated she believed the

person was a nurse’s aide, and she thought that person was named Gandy, but she was not certain.

Ms. Gandy also testified by deposition and denied making such a statement. Following a hearing

on the Motion in Limine, the trial court found Ms. Shepard’s testimony to be unreliable hearsay and

also found it did not fall within the excited utterance or notice exception to hearsay. Accordingly,

the Motion in Limine was granted and the evidence excluded.

19

Our holdings pertaining to these evidentiary matters apply only to the cause of action that was being tried

when these matters were decided. Thus, we are not speaking to whether any of this evidence would be admissible in a

subsequent trial for claims under TAPA.

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Plaintiff made a host of arguments why the statement attributed to Ms. Gandy was admissible

and the exclusion of the statement was reversible error. Our rules of evidence, however, provide that

the court is vested with the authority to answer these preliminary questions concerning the

admissibility of evidence, see State v. Edison, No. 03C019605CC00199, 1997 WL 1526501, at *5

(Tenn. Crim. App. June 18, 1997) (citing Tenn. R. Evid. 104(a)), and none of Plaintiff’s arguments

are sufficient to overturn the trial court’s discretionary ruling.

The trial court also excluded on hearsay grounds records at MTMHI that suggested Mr.

Johnson, while a resident at Life Care, had been engaged in conflicts and/or combative behavior

prior to the assault on Mrs. Stinson. The MTMHI records, which were prepared following the attack

on Mrs. Stinson and Mr. Johnson’s discharge from Life Care, noted that Mr. Johnson had hit four

staff members at Life Care Health Care Center. The notes further mentioned incidences of Mr.

Johnson striking out at residents. The source of that information, however, was not reported in the

MTMHI records. The trial court found the information in MTMHI’s records unreliable and therefore

inadmissible hearsay. The court also found the information was substantially more prejudicial than

probative, citing Tenn. R. Evid. 403.

Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tenn.

R. Evid. 403. As the trial court found, not all relevant evidence is admissible. Otis, 850 S.W.2d at

443 (citing McCormack v. Riley, 576 S.W.2d 358, 360 (Tenn. Ct. App. 1978)). The trial court has

the discretion to exclude unreliable evidence and to exclude relevant evidence when the prejudicial

effect outweighs its probative value. Finding no indication the trial court abused its discretion, we

affirm the decision to exclude the MTMHI records.

The trial court also excluded evidence concerning deficiencies in the standard of care found

by the Tennessee Department of Health. The trial court determined the deficiencies were not

relevant to the issue of whether Life Care was responsible for the assault by Mr. Johnson. “Relevant

evidence” is evidence having a tendency to make the existence of a fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence.

Tenn. R. Evid. 401. Evidence which is not relevant is not admissible. Tenn. R. Evid. 402. We find

no error with the decision to exclude the records from the Tennessee Department of Health.

Evidence regarding alleged neglect of Mrs. Stinson over a period of months prior to the

assault by Mr. Johnson was also excluded. Prior to the trial, the trial court entertained a three-hour

hearing on a Motion for Summary Judgment that addressed, in part, allegations that Life Care

neglected Mrs. Stinson by not maintaining proper hygiene, failing to appropriately administer

psychotropic medications, and failing to appropriately supervise her to prevent elopments from the

facility. Following the hearing, the court found Plaintiff had failed to show how the alleged

omissions were relevant to the assault. The trial court’s decision was subjected to three subsequent

challenges during other hearings. A Motion to Reconsider was filed and denied. The exclusion of

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the evidence was again reconsidered following a second Motion to Reconsider.20 At the pre-trial

hearing on the parties’ respective Motions in Limine, Plaintiff again requested permission to

introduce this evidence, and the trial court, for the fourth time, held it inadmissible absent a showing

of relevance to the assault by Mr. Johnson on January 1, 2000. Finding no error with this

discretionary decision, we affirm.

B.

PLAINTIFF’S EXPERT WITNESSES

Life Care contends the trial court erred by admitting into evidence the testimony of Plaintiff’s

three expert witnesses. It contends the experts failed to satisfy the locality rule. Tenn. Code Ann.

§ 29-26-115.

The trial court has broad discretion in determining the qualifications of expert witnesses.

Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 829 (Tenn. Ct. App. 1997) (citing

Shelby County v. Barden, 527 S.W.2d 124, 131 (Tenn.1975)). Moreover, the Tennessee Supreme

Court has directed that we “should allow discretionary decisions to stand even though reasonable

judicial minds can differ concerning their soundness.” Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d

121, 133 (Tenn. 2004) (citing White, 21 S.W.3d at 223).

In a medical malpractice action, a plaintiff must establish by expert testimony the

“recognized standard of acceptable professional practice . . . in the community in which the

defendant practices or in a similar community.” Tenn. Code Ann. § 29-26-115(a)(1). Our courts

have consistently applied this rule, the so-called “locality rule,” in medical malpractice actions to

require proof “the defendant failed to act with ordinary and reasonable care when compared to the

customs or practices of physicians from a particular geographic region.” Sutphin, 720 S.W.2d at 457.

The locality rule for expert testimony also applies with respect to professional negligence claims.

Martin v. Barge, 894 S.W.2d 750, 751 (Tenn. Ct. App. 1994) (citing Dooley v. Everett, 805 S.W.2d

380 (Tenn. Ct. App. 1991)). In Martin, which involved an engineering firm, this court stated,

“Tennessee courts have adopted the “same or similar community” standard of care with respect to

professional negligence.” Id.

The locality rule is two-pronged. The party calling an expert witness has the burden to

establish the appropriate standard of care in (1) the community in which the defendant practices, or

(2) a community similar to the one in which the defendant practices. Mabon, 968 S.W.2d at 831.

Thus, the party’s expert must be knowledgeable of one or the other to be competent to testify. Tenn.

Code Ann. § 29-26-115(a)(1); Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002).

The three experts called to testify were Dr. Jonathan Klein, Nurse Stephanie Zeman, and

Nurse Administrator Judy Britt. We will first address the qualifications of Dr. Klein and Nurse

Zeman. Having reviewed the deposition and trial testimony of Dr. Klein and Nurse Zeman, we see

20

This motion was entertained by a different trial judge.

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that they had significant expertise in geriatric medicine and nursing home protocol in rural

communities, and they were sufficiently knowledgeable about the relevant information concerning

the geographic region around Centerville, Tennessee and health care center protocols in that region.

Applying the abuse of discretion standard, we find no error with the trial court’s decision to admit

their testimony into evidence.

As for Plaintiff’s third expert, Administrator Judy Britt, we find no error with the decision

to overrule Life Care’s objection to the testimony of Administrator Britt. Our decision is based on

the fact that: (1) nursing home administrators must be licensed under Tenn. Code Ann. § 63-16-101-

115; (2) expert testimony regarding a nursing home administrator must comply with Tenn. Code

Ann. § 63-16-115(b) because the administrator is a “person in the healthcare profession requiring

licensure”; and (3) Ms. Britt satisfied the requirement of the locality rule.

C.

MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PLAINTIFF’S CLAIM AGAINST THE STATE

The trial court granted Plaintiff’s Motion in Limine to prevent Life Care from introducing

into evidence pleadings concerning Plaintiff’s claim against the State. Life Care contends this was

error. It was not.

We review discretionary decisions by the trial court, such as the admission and exclusion of

evidence based upon the abuse of discretion standard. Mercer, 134 S.W.3d at 133. Pursuant to that

standard, discretionary decisions by the trial court are to stand even though reasonable judicial minds

can differ concerning their soundness.” Mercer, 134 S.W.3d at 133 (citing White, 21 S.W.3d at 223).

The issue presented is substantially similar to that presented in Patterson ex rel. Patterson

v. Dunn, No. 02A01-9710-CV-00256, 1999 WL 398083 (Tenn. Ct. App. June 16, 1999). In

Patterson, the Teague defendants contended the jury was entitled to know the plaintiff's allegations

against a defendant [Dunn] that was no longer a party to the suit. The plaintiff asserted the

complaint against the the former defendants [the Dunns] was inadmissible as evidence or for

impeachment purposes because it contained only conclusory allegations that were not substantive

evidence. The plaintiff relied upon Pankow v. Mitchell, 737 S.W.2d 293, 296 (Tenn. Ct. App. 1987)

for the proposition that “pleadings are only admissible if they are allegations of fact.” Patterson,

1999 WL 398083, at *8. The trial court sided with the plaintiff.

This court’s analysis in Patterson included a discussion of Branch v. McCroskey, No.

03A01-9709-CV-00385, 1998 WL 47873, (Tenn. Ct. App. Feb.5, 1998), wherein the plaintiff sought

to introduce into evidence allegations the defendant made in a cross claim against the cross

defendant. The substance of these allegations was “[t]hat while in the sole possession, custody and

control of the [cross defendant], one (1) of the [defendant's] two (2) horses suffered serious injuries

which were proximately caused by the negligence of the [cross defendants].” Patterson, 1999 WL

398083, at *8 (citing Branch, 1998 WL 47873, at *4). The Branch court held that the allegations

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in the cross claim were not admissions of fact, merely conclusory statements, and thus not admissible

as evidence or for impeachment.

The modern equivalent of the common law system is the use of alternative and

hypothetical forms of statement of claims and defenses, regardless of consistency. It

can readily be appreciated that pleadings of this nature are directed primarily to

giving notice and lack the essential character of an admission. To allow them to

operate as admissions would render their use ineffective and frustrate their

underlying purpose. Hence the decisions with seeming unanimity deny them status

as judicial admissions, and generally disallow them as evidential admissions.

Lytle v. Stearns, 830 P.2d 1197, 1207 (Kan. 1992) (quoting MCCORMICK ON EVIDENCE § 265,

781-82).

Factual statements contained in pleadings may be considered as admissions. Patterson, 1999

WL 398083, at *8 (citing Pankow, 737 S.W.2d at 296); see also First Tenn. Bank v. Mungan, 779

S.W.2d 798, 801 (Tenn. Ct. App. 1989). Admissions of fact are admissible against the party making

them “both as substantive evidence and for the purpose of impeachment.” Pankow, 737 S.W.2d at

296. The pleadings Life Care sought to introduce, however, did not constitute factual statements or

admissions of fact. We therefore find no error with the granting of the Motion in Limine.

XI.

IN CONCLUSION

We affirm the dismissal of Plaintiff’s TAPA claims set forth in Count IV of the proposed

Second Amended Complaint.

We affirm the summary dismissal of Plaintiff’s claims based on federal regulations.

We affirm the trial court’s discretionary decision permitting Life Care to amend its Answer

to assert a claim against the State as an alleged comparative fault tortfeasor.

We vacate the summary dismissal of Plaintiff’s claims against Genesis and the judgment

against Life Care, and remand for a new trial all of Plaintiff’s surviving claims against Life Care and

Genesis.

We vacate the award of costs against Life Care.

We affirm the trial court’s decision to exclude the unreliable hearsay statements attributed

to Ms Gandy. We also affirm the exclusion of the MTMHI records, the regulatory violations

assessed by the Department of Health, and evidence of alleged neglect of Mrs. Stinson over a period

of months prior to the assault.

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We affirm the decision to admit into evidence the testimony of Dr. Jonathan Klein, Nurse

Stephanie Zeman, and Nurse Administrator Judy Britt.

Costs of this appeal are assessed equally against Plaintiff and Life Care.

_________________________________

FRANK G. CLEMENT, JR., JUDGE

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