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Poteet v. Polk County

April 11, 2007

BENNIE J. POTEET, II, INDIVIDUALLY AND BY AND THROUGH EVELYN POTEET, AS CONSERVATOR OF BENNIE JOE POTEET, II, PLAINTIFFS,
v.
POLK COUNTY, TENNESSEE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chief Judge Curtis L. Collier

MEMORANDUM

Before the Court is Defendant National Healthcare of Cleveland, Inc., d/b/a Cleveland Community Hospital's ("Defendant Hospital") motion for partial summary judgment (Court File No. 131). Defendant Hospital filed a memorandum in support of its motion (Court File No. 132) as well as two supporting affidavits of Dawn Haynes, R.N. and John Hyde, Ph.D. (Court File No. 132, Attachments 1 & 2). Plaintiff Bennie Poteet, II, both individually and by and through Evelyn Poteet, his conservator ("Plaintiff ") filed a response, a response brief and supporting deposition excerpts (Court File Nos. 166 &167).*fn1 Defendant Hospital filed a reply brief (Court File No. 200).

After carefully considering the parties' arguments and the applicable law, the Court will GRANT Defendant Hospital's motion for partial summary judgment in its entirety.

Also before the Court is Plaintiff's motion to strike the affidavits of Dawn Haynes, R.N. and John Hyde, Ph.D. (Court File No. 169) along with an accompanying memorandum in support (Court File No. 170). Defendant Hospital filed a response brief along with the supplemental affidavits of Dawn Haynes, R.N. and John Hyde, Ph.D. (Court File No. 201) and a notice of manual filing of medical records of Polk County EMS (MedTrans) and Cleveland Community Hospital which the affiants reviewed and relied upon (Court File No. 202). The manual filing of these medical records is also noted on the docket (Court File No. 220).*fn2 For the following reasons, the Court will DENY Plaintiff's motion to strike these two affidavits and will consider them in connection with Defendant Hospital's motion for partial summary judgment.

I. STANDARD OF REVIEW

Summary judgment is proper where "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 material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences which can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The moving party bears the initial burden of demonstrating no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Id. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. 988011Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 248-49; Nat'l Satellite Sports, 253 F.3d at 907. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. If the Court concludes a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

II. RELEVANT FACTS

In deciding a motion for summary judgment the Court is required to view the evidence in the light most favorable to the nonmoving party, in this case Plaintiff. Based upon the affidavits and supplemental affidavits Defendant Hospital submitted as well as the deposition excerpts and affidavit Plaintiff submitted the Court determines the following facts are pertinent to the consideration of this motion.*fn3

On November 11, 2004, emergency medical services responded to the Polk County Jail, where Plaintiff, Bennie Poteet, was incarcerated (Court File No. 167). Plaintiff had collapsed and was apparently having seizures (Id.). Plaintiff was transported to the emergency department of Defendant Hospital in Cleveland, Tennessee (Id.). Upon arrival at Defendant Hospital at approximately 10:50 a.m., Plaintiff was unconscious and unresponsive (Court File No. 132).*fn4 Plaintiff's medical history was provided by a jailer and EMS personnel (Id.). Part of the history provided indicated that Plaintiff had a "long history" of alcohol abuse and he had gone more than 24 hours without alcohol (Id.). Plaintiff was placed on a mechanical ventilation and given medication for seizures (Court File No. 167).

Dr. Hugh Caldwell ("Dr. Caldwell") was the emergency department physician who saw Plaintiff (Court File No. 132).*fn5 Dr. Caldwell's clinical impression was seizure/comatose and he ordered a Computed Tomography ("CT") scan of Plaintiff's head without contrast (Id.). It was negative for any intracranial hemorrhage or obvious abnormalities (Id.). Plaintiff claims he was having a stroke as a result of a blood clot and that a CT without contrast cannot reveal the presence of a clot in the brain (Court File No. 167).

Defendant Dr. Adam Fall ("Dr. Fall") was a hospitalist and Plaintiff's attending physician (Court File No. 132). Dr. Fall diagnosed Plaintiff with status epilepticus likely secondary to alcohol withdrawal (Court File No. 167). Plaintiff contends, through his expert, Dr. Gary Salzman ("Dr. Salzman"), that Dr. Fall did not consider the possibility of a stroke on November 11 or 12 despite the presence of clinical evidence consistent with stroke (Id.). Plaintiff also argues that Dr. Fall should have ordered an Magnetic Resonance Imaging ("MRI") examination on Plaintiff on November 11 and if an MRI was not available or could not be done in a timely manner, it would have been appropriate for Dr. Fall to order a transfer of Plaintiff to a different hospital which could provide that service (Id.).*fn6 Plaintiff contends an MRI would have shown the early stages of a brainstem stroke (Id.).

Plaintiff was transferred to the intensive care unit at Defendant Hospital at 1:40 p.m. (Court File No. 132). Dr. Fall requested a neurology consult upon Plaintiff's admission, but a neurologist did not see Plaintiff until the next day (Court File No. 167). Specifically, Dr. Sharon Farber ("Dr. Farber"), a Chattanooga neurologist who went to Defendant Hospital on Tuesdays and Fridays for consultations, examined Plaintiff on November 12 (Id.). Dr. Farber's impression was seizures probably caused by alcohol and Xanax withdrawal (Court File No. 132).*fn7

Dr. John Jaggers ("Dr. Jaggers") and Dr. Marcum, a pulmonologist, also saw Plaintiff (Court File No. 132). Dr. Jaggers' impression included status epilepticus probably due to a combination of alcohol withdrawal, alprazolam withdrawal and possible contribution by hyponatremia (Id.).

Overall, five different doctors (Dr. Caldwell, Dr. Fall, Dr. Jaggers, Dr. Farber, and Dr. Marcum) as well as several nurses saw Plaintiff during his two-day stay at Defendant Hospital (Court File No. 132). Several of the doctors were told by Plaintiff's family members that he had a long history of alcoholism and Xanax use (Id.).

On November 13, another CT scan was ordered because it was discovered Plaintiff's eyes were not responsive (Court File No. 167). This new CT scan revealed signs of an acute brain stem injury (Court File No. 132). Thereafter, an MRI examination was conducted, which indicated Plaintiff had suffered a stroke resulting from basilar artery thrombosis (Id.). Dr. Fall requested an immediate transfer of Plaintiff to Erlanger Hospital ("Erlanger") in Chattanooga (Id.). Plaintiff was transferred to Erlanger and underwent magnetic resonance angiography with TPA and a blood clot in the basilar artery was cleared (Court File No. 167).

Plaintiff is now confined to a nursing home and has lost "nearly all motor function" although he is "cognizant of his surroundings and discomfort" (Court File No. 167). Plaintiff alleges that Defendant Hospital's care of Plaintiff amounted to medical negligence under Tennessee law and as a result of Defendant Hospital's negligence, Plaintiff suffered injury.

III. DISCUSSION

A. Plaintiff's Motion to Strike Defendant Hospital's Supporting Affidavits

Plaintiff argues the affidavit of Dawn Haynes, R.N. and the affidavit of John Hyde, Ph.D. which Defendant Hospital filed in support of its motion for partial summary judgment do not comply with Fed. R. Civ. P. 56(e) ("Rule 56(e)") and ...


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