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Lovelace v. Baptist Memorial Hospital-Memphis

Court of Appeals of Tennessee, Jackson

January 16, 2020

DEBRA LOVELACE ET AL.
v.
BAPTIST MEMORIAL HOSPITAL-MEMPHIS

          Session November 12, 2019

          Appeal from the Circuit Court for Shelby County No. CT-002460-15 Rhynette N. Hurd, Judge

         Plaintiff filed a health care liability action against Defendant hospital following the death of Plaintiff's husband in 2014. The trial court granted summary judgment to the hospital on two alternative, independent grounds: that the Plaintiff's expert witness, a registered nurse, was not competent to testify as an expert witness, and that the expert witness failed to provide causation testimony as required to prove liability. Plaintiff appealed the trial court's ruling about the competency of her expert witness, but she failed to raise the failure to provide causation testimony as an issue on appeal. As no argument was made to challenge a distinct ground for summary judgment, we consider the argument waived and affirm the trial court's order granting summary judgment.

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

          Stephen R. Leffler, Memphis, Tennessee, for the appellant, Debra Lovelace, Next of Kin and Wife of Billy Lovelace.

          Jeffrey L. Griffin and Emily Hamm Huseth, Memphis, Tennessee, for the appellee, Baptist Memorial Hospital-Memphis.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Kenny Armstrong, J., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         I. Background

         This matter is a health care liability action brought under the Tennessee Health Care Liability Act ("THCLA"). Billy Lovelace ("Mr. Lovelace") was admitted to Defendant/Appellee Baptist Memorial Hospital-Memphis ("Baptist") on January 1, 2014, after several days of fever, coughing, and vomiting. Upon admission to Baptist, Mr. Lovelace was diagnosed with bilateral pneumonia, which was treated with antibiotics, and with influenza, for which Mr. Lovelace declined treatment. Mr. Lovelace was previously diagnosed with multiple myeloma, a form of bone cancer that affected his immune system.

         Following his admission to Baptist, Mr. Lovelace was placed in the hospital's intensive care unit, where his condition continued to deteriorate. Mr. Lovelace was unable to turn himself no later than January 9, 2014. Baptist staff did not turn Mr. Lovelace for extended periods of time. By January 17, 2014, Mr. Lovelace developed a pressure ulcer that was eventually described as a deep tissue injury. By January 24, 2014, six additional pressure ulcers were found on Mr. Lovelace's body. Mr. Lovelace was sent to a different medical facility on February 17, 2014. He died on March 10, 2014.

         Plaintiff/Appellant Debra Lovelace ("Ms. Lovelace") filed a complaint as the next of kin and wife of Mr. Lovelace against Baptist and Defendant Baptist Memorial Health Care Corporation ("Baptist Memorial Health Care," and together with Baptist, "Defendants") on June 20, 2015. The complaint sought compensatory and punitive damages on the grounds of wrongful death, negligence, medical malpractice, and both intentional and negligent infliction of emotional distress. Attached to the complaint was the affidavit of expert from Brenda W. Moore ("Nurse Moore"), a registered nurse with a doctorate of nursing practice.[1] In her affidavit, Nurse Moore claimed to be competent under state law to express an opinion as an expert witness on the case and believed that a good faith basis existed for the claim to proceed.

         In separate answers, Defendants moved for the matter to be dismissed, denied all liability for Ms. Lovelace's claims, and moved to strike all but two of the complaint's factual allegations. In subsequent memoranda of law, Defendants argued that Ms. Lovelace failed to provide the defendants with a sufficient pre-suit notice letter or a HIPPA-compliant authorization to defendants under federal regulations. Ms. Lovelace challenged Defendants' motions and claimed all of her documents were compliant with state and federal requirements. The matter proceeded as Ms. Lovelace substituted her previous lawyers with new counsel in September 2017.

         After a status conference in August 2018, Nurse Moore was formally designated as an expert witness in the present case. Her expert witness report was submitted on September 28, 2018, which stated that six of the seven pressure wounds found on Mr. Lovelace were caused because of a lack of position changes while he was a patient at Baptist. Nurse Moore was deposed on October 22, 2018. Following the deposition, Defendants separately moved for summary judgment on November 27, 2018. Baptist Memorial ...


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