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Cherry v. Macon Hosp., Inc.

United States District Court, M.D. Tennessee, Nashville Division

August 29, 2014

DAVID CHERRY, personal representative of the ESTATE OF PAMELA CHERRY, Plaintiff,

For David Cherry, Personal Representative of the Estate of Pamela Cherry, Deceased, Plaintiff: D. Bruce Kehoe, Kelly M. Scanlan, Wilson Kehoe Winingham LLC, Indianapolis, IN; Joseph Paul Bednarz, Jr., Joseph Paul Bednarz, Sr., Bednarz & Bednarz, Nashville, TN.

For Hanna C. Ilia, M.D., Defendant: Brent A. Kinney, Michael F. Jameson, LEAD ATTORNEYS, North, Pursell, Ramos & Jameson, PLC, Nashville, TN; Phillip Lester North, North, Pursell & Ramos, Nashville, TN.

For Clay County E911 Board, Defendant: Lisa M. Carson, Buerger, Moseley & Carson, PLC, Franklin, TN.

For Town of Celina, Tennessee, Defendant: Daniel Hurley Rader, III, LEAD ATTORNEY, Daniel H. Rader, IV, Moore, Rader, Clift & Fitzpatrick, P.C., Cookeville, TN.

Page 782


ALETA A. TRAUGER, United States District Judge.

Pending before the court are four dispositive motions. Defendant Celina Fire Department EMS (the " Town" ) has filed a Motion to Dismiss under Rule 12(b)(6) (Docket No. 154) and a Motion for Summary Judgment under Rule 56 (Docket No. 189). Defendant Clay County E911 Board (the " 911 Board" ) has filed a Motion to Dismiss under Rule 12(b)(6) (Docket No. 167) and a Motion for Summary Judgment under Rule 56 (Docket No. 169). For the reasons explained herein, the Town's Motion to Dismiss will be denied as moot, the Town's Motion for Summary Judgment will be granted, the 911 Board's Motion for Summary Judgment will be

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granted, the 911 Board's Motion to Dismiss will be denied as moot, and both the Town and the 911 Board will be dismissed from the case with prejudice.


I. Factual Background

This case concerns the unfortunate death of Pamela Cherry, an Indiana resident. In May 2011, Ms. Cherry and her husband, David Cherry, stayed with Mr. Cherry's parents in Tennessee during a vacation trip. On May 30, 2011, Ms. Cherry went to the Macon County General Hospital (the " Hospital" ) complaining of chest and jaw pain. Dr. Ilia examined Ms. Cherry, performed blood and EKG tests on her, and sent her home later that night with a diagnosis of chest pain and a sunburn. Around 6 a.m. the next morning, while staying at her in-laws' house, Ms. Cherry got up to make coffee, suffered a sudden cardiac arrest, and collapsed in the kitchen. She was alone when this happened.

About five minutes later, her daughter's boyfriend, who was sleeping in the next room, woke up, realized something was wrong, and contacted Mr. Cherry.[1] Mr. Cherry came into the kitchen, saw his wife unconscious and not breathing, and directed his mother, Georgia Cherry, to call 911. Georgia called 911 at 6:10 a.m. The dispatcher, Richard Upton, called an ambulance service at 6:10 a.m. (just after receiving the call), and the ambulance left the station at 6:13 a.m. Unfortunately, the Cherry residence was located approximately 18-20 miles from the Celina ambulance station (to the east) and approximately 18-20 miles from the Hospital (to the West).

At 6:21 a.m., Georgia Cherry called 911 again to report that the ambulance had not yet arrived, that Ms. Cherry was " not responding," and that it " seems to me like she went dead . . . ." At some point before or during that call, Mr. Cherry attempted to perform CPR on his wife. At any rate, during the call, Mr. Cherry got on the line with the dispatcher and told him, " I don't know what to do" with respect to CPR, in which Mr. Cherry had not been trained. The dispatcher attempted to guide Mr. Cherry through the CPR process. After traversing approximately 20 miles to the Cherry residence, the ambulance arrived at 6:32 a.m., which was approximately 22 minutes after the initial call and at 27 minutes from the time that Ms. Cherry had suffered cardiac arrest and collapsed. At 6:21 a.m. or some time before, Tammy Richmond, a neighbor who was a nurse, arrived and attempted to perform CPR on Ms. Cherry. Emergency Medical Technician James Barlow and Paramedic Jimmy Philpott entered the house around 6:32 a.m.[2]

There is a factual dispute as to what happened shortly before medical personnel arrived. According to Ms. Richmond, she and Mr. Cherry were able to restore Ms. Cherry's pulse by the time the EMTs arrived, although Barlow and Philpott reported that she had no pulse when they arrived. At any rate, by the time Barlow and Philpott arrived, Ms. Cherry's pupils were fixed and dilated. After Barlow and Philpott detected a pulse (or, according to them, restored one) they loaded Ms. Cherry onto the ambulance for transport.

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The ambulance transported Ms. Cherry to the Hospital, from which she was airlifted to Vanderbilt University Medical Center. At the Medical Center, it was determined that Ms. Cherry's right coronary artery was 100% occluded. She had no brain function, life support was discontinued, and she expired within five minutes.

II. Procedural History

A. Procedural History Preceding the Motions Now Before the Court

The complicated procedural history of this case is relevant to the pending motions. On May 23, 2012, Mr. Cherry (as a representative of his wife's estate) sued Dr. Ilia and the Hospital for medical malpractice. (Docket No. 1.) In compliance with the Tennessee Medical Malpractice Act (" TMMA" ), Mr. Cherry filed a Certificate of Good Faith with his Complaint, which averred that one or more qualified medical experts had provided signed written statements indicating that there was a good faith basis to bring medical malpractice claims against Dr. Ilia and the Hospital. ( Id., Ex. C.)

Towards the close of the fact discovery period, testimony from certain witnesses suggested that (1) the 911 dispatchers may have acted negligently in handling the calls from the Cherry residence, and (2) Barlow and Philpott (acting under the authority of the Town of Celina's Fire Department) may have acted negligently in treating Ms. Cherry upon arrival at the Cherry residence. With leave of court, the defendants filed Amended Answers on August 8, 2013, asserting that the 911 Board (purportedly as the dispatchers' employer), Barlow, Philpott, and the Town were comparatively at fault.[3] In compliance with Tennessee health care liability law, Dr. Ilia and the Hospital filed Certificates of Good Faith within 30 days of amending their answers, averring that one or more medical experts had stated that there was a reasonable basis to allege that these four entities were comparatively at fault for Ms. Cherry's injuries. (Docket Nos. 104 (Dr. Ilia) and 105 (the Hospital).) As Dr. Ilia and the Hospital later represented to the court, their respective Certificates of Good Faith, which asserted the EMTs' and the Town's comparative fault, were premised on the initial deposition testimony of EMT Barlow (taken on June 25, 2013) and his confirmation of entries in the EMT record. ( See Docket No. 205.)

In response, Mr. Cherry filed an Amended Complaint on October 31, 2013, which added claims against the 911 Board, Barlow, Philpott, and the Town. (Docket No. 133.) Without opposition, the court dismissed Barlow and Philpott on the grounds of absolute personal immunity. ( See Docket No. 156 (motion) and 184 (order).)

B. The Town's Rule 12 and Rule 56 Motions

On December 20, 2013, the Town filed a Motion to Dismiss (Docket No. 154), contending that the claims against it should be dismissed because Mr. Cherry's Amended Complaint did not include a certificate of good faith supporting his claims against the Town. (Docket No. 154.)[4] Mr. Cherry filed a ...

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