Davis v. Ellis

• Decision Date: 05 November 2020
• Docket Number: No. W2019-01367-COA-R3-CV,W2019-01367-COA-R3-CV
• Parties: KERRY DAVIS v. GARRETTSON ELLIS, M.D.
• Court: Tennessee Court of Appeals

KERRY DAVIS v. GARRETTSON ELLIS, M.D.

No. W2019-01367-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

August 11, 2020 Session

November 5, 2020

Appeal from the Circuit Court for Shelby County

No. CT-002190-12

Rhynette N. Hurd, Judge

This is a health care liability case. The trial court granted summary judgment in favor of Appellee/doctor finding that Appellant's expert witness failed to connect the decedent's death to Appellee's alleged deviation from the standard of care. We conclude that Appellant presented sufficient evidence, at the summary judgment stage, to create a dispute of fact concerning deviation from the standard of care and causation. Accordingly, we reverse the trial court's grant of summary judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part, Affirmed in Part, and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Gary K. Smith and C. Philip M. Campbell, Memphis, Tennessee, for the appellant, Kerry Davis.

Jennifer S. Harrison and James E. Looper, Memphis, Tennessee, for the appellee, Garrettson Ellis, M.D.

OPINION

I. Background

On January 18, 2011, 40-year-old Sylvia Davis was admitted to the emergency room at Methodist Hospital-Germantown complaining of a cough, fever, and shortness of breath. She was diagnosed with multilobar, community-acquired pneumonia and was admitted to a medical floor.

On the afternoon of January 19, 2011, at approximately 4:00 p.m., Dr. Garrettson Ellis ("Appellee"), the on-call intensivist,¹ performed a pulmonary consult. Dr. Ellis' notes indicated that Mrs. Davis was awake, alert, and oriented; however, her oxygen saturation level was 93% on a nonrebreather mask set to 100% oxygen.² Dr. Ellis noted that Mrs. Davis' respiratory condition had "progressively worsened over the past 24 hours." She "continued to be febrile and has become progressively more hypoxemic, requiring 100% nonrebreather." As such, Dr. Ellis opined that Mrs. Davis would likely "get worse before she [got] better," to-wit:

I anticipate that her pulmonary status is going to continue to decline. Given her present course, she likely will need intubation and mechanical ventilation within the next 24 hours. She will be admitted to the intensive care unit [("ICU")] for close observation and intubation when needed.

Dr. Ellis did not order intubation at that time but referred Mrs. Davis to the ICU for observation. The January 19, 2011, 4:00 p.m. consult was the only time Dr. Ellis saw Mrs. Davis. Dr. Ellis' shift ended at 6:00 p.m., and he had no further contact with Mrs. Davis thereafter.

When Dr. Ellis' shift ended, Dr. Glen Williams replaced him as the on-call intensivist. Around 6:49 p.m., a respiratory therapist evaluated Mrs. Davis and reported her condition to Dr. Williams. At 7:30 p.m., Mrs. Davis' oxygen saturation level was 82%. At approximately 7:45 p.m., Dr. Williams ordered that Mrs. Davis be placed on a non-invasive, positive-pressure ventilation facemask.³ For the next few hours, her oxygen saturation level fluctuated from 96%-100%. At approximately 10:00 p.m., Mrs. Davis' oxygen saturation level decreased to 89%. At 11:00 p.m., her oxygen level dropped to 74%; at that time, she was in acute respiratory distress and failure. Dr. Williams ordered intubation. Beginning at 11:09 p.m., the emergency room doctor attempted three unsuccessful intubations before calling for anesthesiology to assist. Mrs. Davis was successfully intubated by an anesthesiologist at 11:36 p.m. Unfortunately, on January 20, 2011, at approximately 5:23 a.m., Mrs. Davis coded. She was pronounced dead at 5:40 a.m.

On May 16, 2012, Mrs. Davis' husband, Kerry Davis ("Appellant"), filed this health care liability action in the Shelby County Circuit Court ("trial court").⁴ In his complaint, Appellant alleged, in relevant part:

15. [] [A]lthough Dr. Ellis noted the need for intensive care and specifically for intubation . . . no attempts were made to intubate Sylvia Davis at that time.

16. Instead, the intubation was deferred and not even attempted until several hours later, approximately one hour before midnight on January 20, 2011.

17. Because the medical condition of Sylvia Davis worsened because the endotracheal tube had not been placed, the process of intubating her once it was finally attempted became more difficult for the physician who attempted it, who noted by that time that she was "in obvious respiratory distress."

***

22. Because of the lengthy delay in the placement of an endotracheal tube in Sylvia Davis, the placement of which was medically indicated at or very near the time it was first noted to be likely necessary by Dr. Ellis, Sylvia Davis deteriorated and died, when, more probably than not, she would have survived and recovered had she been timely intubated.

23. But for the acts of negligence referred to in the preceding paragraphs, it is more probable than not that had Sylvia Davis been provided an endotracheal tube at or very shortly after the time Dr. Ellis had noted that she was likely going to need an endotracheal tube, her condition would not have been allowed to deteriorate to the point that she would require emergency resuscitation. It is also more likely than not that had she not been allowed to deteriorate to the point that her condition became a medical emergency, efforts to place an endotracheal tube would not have failed, and Sylvia Davis would not have died an untimely death at the age of 40.

In his July 24, 2012 answer, Dr. Ellis denied liability.⁵

On November 30, 2018, Appellant identified Dr. Kyle Gunnerson as an expert witness. On February 12, 2019, Dr. Ellis deposed Dr. Gunnerson as an adverse expertwitness; Mr. Davis' counsel posed no questions to Dr. Gunnerson during this discovery deposition.

On March 29, 2019, Dr. Ellis moved for summary judgment. As grounds for his motion, Dr. Ellis asserted:

1. There is no causal connection between any alleged negligence by Dr. Ellis and any injury, including death, to Ms. Davis; and

2. If cause-in-fact is established, a superseding, intervening cause relieves Dr. Ellis of liability.

***

Summary judgment is appropriate in this matter because the undisputed facts show that [Appellant], by way of his only medical expert, has not established a causal connection necessary to prove his case. Additionally, and in the alternative, even if [Appellant] were to establish cause-in fact, Dr. Ellis is not liable because the three failed intubations of Ms. Davis constitute a superseding, intervening cause.

On May 14, 2019, Appellant filed a response in opposition to the motion for summary judgment along with Dr. Gunnerson's affidavit. Dr. Ellis moved to strike Dr. Gunnerson's affidavit. In its July 3, 2019 order granting Dr. Ellis' motion for summary judgment, the trial court denied his motion to strike Dr. Gunnerson's affidavit on its finding that "the Affidavit, even if considered, does not remedy the deficiencies in [Dr. Gunnerson's] expert proof." In concluding that Dr. Ellis was entitled to summary judgment, the trial court analyzed his deposition testimony and affidavit:

Dr. Gunnerson is unequivocal that [Dr. Ellis] deviated from the standard of care not because he failed to intubate Mrs. Davis but because, in Dr. Gunnerson's opinion, [he] failed to have a plan to address Mrs. Davis' condition. . . . Careful reading of Dr. Gunnerson's deposition reveals that Dr. Gunnerson does not opine [that Dr. Ellis] deviated from the standard of care by not intubating Mrs. Davis but rather by not documenting or having a conversation with other providers for a patient "who will require intubation at some time." At no time during his deposition did Dr. Gunnerson say [that Dr. Ellis'] failure to intubate Mrs. Davis or [Dr. Ellis'] failure to have a plan more likely than not caused Mrs. Davis' injury. . . . Without any explanation for his changed opinion and with no additional knowledge . . . Dr. Gunnerson's Affidavit presents an entirely different assessment of [Dr. Ellis'] treatment of Mrs. Davis. Unlike the deposition testimony, the Affidavit emphasizes the question of untimely intubation.

Based, in part, on the alleged discrepancy between Dr. Gunnerson's deposition testimony and affidavit, the trial court concluded:

According to the Affidavit, [Dr. Ellis'] failure to intubate caused the harm, but, according to Dr. Gunnerson, [Dr. Ellis] did not deviate from the standard of care by not intubating Mrs. Davis during the time he saw her. Without expert proof connecting the alleged deviation to the cause of harm to [Mrs. Davis], there is no genuine issue for trial, and [Dr. Ellis] is entitled to summary judgment. [Dr. Ellis] has demonstrated [that Appellant's] evidence at this stage of the litigation is insufficient to establish [Appellant's] claim, and neither the Affidavit nor any other evidence [Appellant] has presented demonstrates the existence of a genuine issue for trial.

Having determined that Appellant failed to meet his burden to show, at the summary judgment stage, that Dr. Ellis' failure to intubate or failure to put in place a plan for Mrs. Davis' treatment caused her death, the trial court did not address Dr. Ellis' alternate ground for summary judgment concerning whether other providers' subsequent treatment of Mrs. Davis constituted a superseding/intervening cause that would negate Dr. Ellis' liability. Appellant appeals.

II. Issue

The sole issue for review is whether the trial court erred in granting Dr. Ellis' motion for summary judgment.

III. Standard of Review

A trial court's decision to grant a motion for summary judgment presents a question of law. Therefore, our review is de novo with no presumption of correctness afforded to the trial court's determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court must make a fresh determination that all requirements of Tennessee Rule of Civil Procedure 56 have been satisfied. Abshure v. ...