Judy Parrish v. Hospital Corporation of America, D/B/A Centennial Medical Center's Partnenon Pavilion

JUDY PARRISH, )
)
Plaintiff/Appellant, ) First Circuit for
) Davidson County
) No. 93C-1343
VS. )
) Appeal No.
) 01A01-9601-CV-00010
HOSPITAL CORPORATION OF AMERICA, )
d/b/a CENTENNIAL MEDICAL CENTER’S )
PARTHENON PAVILION, )
)
Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE FIRST CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

HONORABLE HAMILTON V. GAYDEN, JR., JUDGE

C. J. Gideon, Jr.
GIDEON & WISEMAN
414 Union Street
Suite 1900, NationsBank Plaza
Nashville, TN 37219
ATTORNEY FOR PLAINTIFF/APPELLEE

Sonya W. Henderson
218 W. Main Street
Suite One
Murfreesboro, Tennessee 37130
ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED

HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION

CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
JUDY PARRISH )
)
Plaintiff/Appellant, ) First Circuit for
) Davidson County
) No. 93C-1343
VS. )
) Appeal No.
) 01A01-9601-CV-00010
HOSPITAL CORPORATION OF AMERICA, )
d/b/a/ CENTENNIAL MEDICAL CENTER’S
PARTHENON PAVILION,
)
)
)
FILED
Defendant/Appellant. )
July 26, 1996

Cecil W. Crowson
OPINION
Appellate Court Clerk
The captioned Plaintiff has appealed from a summary judgment dismissing her suit

against the captioned Defendant for the wrongful death of Whitney Parrish by suicide while a

patient in Defendant’s hospital.

The factual background of this controversy is:

Whitney Parrish was a twenty-four year old,
overweight, dyslexic, suffered from elevated
cholesterol and triglycerides and hyperlipoproteinemia
pheno type IV, and was voluntarily admitted to
Parthenon Pavilion on April 20, 1992 by his psychiatrist,
James R. McFerrin, M.D. because of a self-administered
overdose on his mother’s pain medication. Mr. Parrish,
who had a family history of emotional disorders and
sexual abuse by an older brother, had been experiencing
crying spells, sleep changes, suicidal ideations and an
increase in his auditory hallucinations.

Mr. Parrish presented with symptoms of agitation,
delusions, dependency, hallucinations, paranoia,
depression, and poor self-esteem. The goals established
by Dr. McFerrin following the admission of April 20,
1992, were to stabilize suicidality, treat Mr. Parrish’s
psychosis and depression, and ultimately discharge Mr.
Parrish to out-patient treatment. A treatment plan
of milieu therapy, group therapy, activities therapy,
family therapy, and medications was ordered and
followed.

Mr. Parrish was initially placed in the Intensive
Treatment Program. On April 27, 1992, on orders
of Dr. McFerrin, Mr. Parrish was taken off of suicide
precautions; and, on May 1, 1992, he was transferred
to the General Treatment Program, which is an “unlocked
unit,”

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 On May 7, 1992, Mr. Parrish approached the staff at
Parthenon Pavilion and expressed feelings of frustration
over multiple hospitalizations, his fear of returning to his
job, and his father’s death. Although Mr. Parrish was able
to communicate some positive feelings and goals and
although he stated to the staff after approximately thirty
(30) minutes that he was feeling better, he was placed
back on suicide precautions by the nursing staff.

On May 8, 1992, Dr. McFerrin discontinued the suicide
and elopement precautions, and permitted Mr Parrish to
go on a three (3) hour pass with his mother. Mr. Parrish
returned from this visit in a bright mood and in good
spirits, stating to the staff at Parthenon Pavilion that the
pass had gone well.

On May 9, 1992, Mr. Parrish appeared somewhat
anxious, but processed his thoughts and feelings
appropriately. He spoke to the staff at Parthenon
Pavilion about his plans to return to his job, stating
that his employer had been thoughtful by sending him
flowers. From 3:00 p.m. until 11:00 p.m., Mr. Parrish
spent most of his time out of his room on the unit. He
did his laundry, bathed himself, spoke to the staff again
about his hope of returning to his job, appeared much
less anxious, and provided no indications of a likely
elopement or suicide attempt.

When Mr. Parrish was checked at 11:00 p.m. and at
11:12 p.m. on May 9, 1992, he was in bed in his room.
When checked just after 11:15 p.m., Mr. Parrish could
not be found. The supervisor, Dr. McFerrin, Mr.
Parrish’s mother, and all personnel on duty were notified
and a search was conducted. At approximately 6:30 a.m.
on May 10, 1992, Mr. Parrish’s body was found in a
ditch in the construction area beside Parthenon Pavilion’s
separate parking garage. Mr. Parrish had committed
suicide by jumping from the sixth floor of the parking
garage.

Judy Parrish, the mother of the deceased, filed this
lawsuit and alleged that Parthenon Pavilion failed to
use reasonable care to prevent Mr. Parrish’s suicide,
failed to provide a secure facility to Mr. Parrish, and
failed to provide Mr. Parrish with proper care and
treatment during his admission at Parthenon Pavilion.
`

The complaint alleges that Defendant had a duty to prevent the suicide of decreased,

that it failed to perform that duty, and that the death of deceased was the proximate result of

such failure.

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Defendant’s motion for summary judgment states:

Comes now the Defendant, HCA Health Services of
Tennessee d/b/a Centennial Medical Center/Parthenon
Pavilion and moves this Court for an Order granting
summary judgment in its favor on the grounds that there
is no genuine issues of material fact and the Plaintiff’s
claims against it should be dismissed as a matter of law.

In support of this Motion, the Defendant simultaneously
files herewith and relies upon the following:

1) Memorandum of Law; and
2) Affidavit of James R. McFerrin, M.D.

The memorandum mentioned in the motion does not appear in the record on appeal.

The affidavit supporting defendant’s motion states:

I was Whitney Parrish’s psychiatrist from 1985 through
his admission at Parthenon Pavilion of April 20, 1992.
As his treating physician, I am familiar with his psychiatric
history, hospital course and medical record from his
Parthenon Pavilion admission of April 20, 1992.

I admitted Whitney Parrish to Parthenon Pavilion on
April 20, 1992 after Mr. Parrish telephoned me to say that
he had taken an overdose of his mother’s Tylenol #3. Mr.
Parrish had a history of severe recurrent depression and
multiple suicide attempts by cutting his wrists and by
taking overdoses of drugs. The goal during his admission
was to stabilize suicidality, treat his psychosis and
depression, and ultimately discharge him for continuation
of his outpatient treatment. Mr. Parrish made progress
during his stay at Parthenon Pavilion. He was transferred
to a unit which did not remain locked at all times and
preparations for discharge were being made which included
a therapeutic pass with his mother and aunt and a scheduled
meeting with his job counselor.

Based on my many years of treating Whitney Parrish,
it is my opinion to a reasonable degree of medical certainty
that it was only a matter of time before Mr. Parrish was
successful in his endeavor to end his life. With each
hospitalization in the past, all resulting from failed suicide
attempts, Mr. Parrish would meticulously plan his
elopement or overdose for several days in advance.
Throughout the course of his treatment, Mr. Parrish
repeatedly discussed methods of self demise.

Plaintiff filed an affidavit stating:

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 I, the undersigned, Ben Bursten, M.D., first being duly
sworn, make oath as follows:

1. I am a psychiatrist and have been licensed to practice
medicine in the State of Tennessee since 1977.

3. I have reviewed the medical records of Whitney
Parrish’s 1992 hospitalization at the Centennial Medical
Center’s Parthenon Pavilion in Nashville, Tennessee.
In addition, I have reviewed the Defendant’s Responses to
the First and Second Set of Interrogatories, the hospital’s
Policies and Procedures regarding suicide and elopement
precautions, the Defendant’s Motion for Summary
Judgment, and the Affidavit of Dr. James McFerrin. I
have also talked with Mrs. Judy Parrish.

4. In my opinion, Whitney Parrish’s ability to exercise even
a moderately intelligent power of choice regarding his suicide
was severely compromised by his mental illness.

5. On May 8, 1992, Dr. McFerrin discontinued
Mr. Parrish’s elopement precautions in order that he
might go out on a three hour pass with his mother.
On his return to the hospital, the doctor felt he was
sufficiently an elopement risk that he again ordered
elopement precautions. Mr. Parrish was housed on
a non-secure unit and was allowed to be out of the
sight of staff sufficiently long enough for him to
elope. This is a deviation from the standard of
practice. This deviation led to this death.

6. It is my opinion, based upon a reasonable
degree of medical certainty, that the recognized
standard of acceptable professional practice in the
medical profession, and in particular, the standards
applicable to a psychiatric unit and hospital such as
Hospital Corporation of America d/b/a Centennial
Medical Center’s Parthenon Pavilion, both for
Nashville, Tennessee, and for similar communities
at the time of Mr. Parrish’s death required the
hospital to place Mr. Parrish in a secure unit, or
at the very least, under continual eye contact by
the staff. Instead, Mr. Parrish was housed (rather
than a locked door unit) in a non-secure unit and
was allowed to be out of sight of staff sufficiently
long enough permitting him to elope. He had a
history of elopement. He had a history of suicidal
ideation. This was known to Dr. McFerrin and the
hospital staff. Dr. McFerrin ordered elopement
precautions. This was known to the hospital, it was
known to the nurses, it was generally known to the
staff.

7. Based upon my review of his history, his
chart, and otherwise my review of the entire case
as set forth in this Affidavit, it is my opinion that

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 failure to house Mr. Parrish in a locked, secure
unit and allowing him to be housed without 1:1
staff eye contact on an open door unit is the
direct and proximate cause of his death. The
issue of Mr. Parrish recovering from his current
mental difficulties and doing well for some length
of time, or having to be hospitalized again and
ultimately recover or not, it something which is
subject to debate. (Emphasis supplied)

The judgment of the Trial Court states:

Having viewed the evidence in favor of the
nonmoving party and having allowed all reasonable
inferences in her favor, the Court deems as a matter
of law that Mr. Parrish’s act of suicide was a new
and independent, efficient cause of his death which
immediately ensured and allocated at least fifty
percent of fault to Mr. Parrish’s intentional act of
suicide. Accordingly, the defendant’s motion for
summary judgment is granted.

It appears from the foregoing that two issues were presented by the motion for
summary judgment and the evidence submitted in support of and in opposition to the motion:

(1) Whether the Defendant exercised due care in supervising its patient; and

(2) If not, was the effect of the negligence interrupted or liability therefore
extinguished by the independent responsible act of the patient.

As to the first issue, the affidavit submitted by the Defendant states that the Defendant
exercised due care, and the affidavit submitted by Plaintiff states the opposite. This creates a
disputed fact as to the first issue.

As to the second issue, the affidavit submitted by Defendant supports the finding of
the Trial Judge that the suicide was a conscientious, competent, knowing act of the deceased
which sufficiently contributed to his death to defeat a recovery by his survivors. The
affidavit submitted by Plaintiff contains the statement,

Whitney Parrish’s ability to exercise even a moderately
intelligent power of choice regarding his suicide was
severely compromised by his mental illness.

The foregoing quotation is the basis for a finding of a real dispute as to the mental
competence of the deceased to commit an act which would bar an action for his wrongful
death.

It is the burden of a party seeking a summary judgment to show to the Court that,
under uncontradicted facts, the moving party is entitled to judgment as a matter of law by
presenting competent evidence or admissions of the responding party that such conclusive
fact or fact is undisputed. T.R.C.P. Rule 56.03; Read v. Thomas, Tenn. App. 1984, 679
S.W.2d 467; Tucker v. Metropolitan Government, Tenn. App. 1984, 686 S.W.2d 87.

The general rule is that, on Defendant’s motion for summary judgment, the Plaintiff
has no burden to produce evidence to support any allegation of the complaint unless and until
the Defendant produces evidence to negate or avoid the effect of such allegation.

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 In Moman v. Walden, Tenn. App. 1986, 719 S.W.2d 531, Plaintiffs sued to avoid their
liability upon a suretyship agreement for duress. The written agreement was prima facie
evidence of an enforceable contract which shifted the burden to the Plaintiffs to produce
evidence of the duress. In Celotex Corp. V. Catrett - US - 106 S. Ct. 2548, 91 L.Ed.2d 285
(1986), cited in Moman, the Defendant relied upon the sworn testimony of Plaintiff that she
had no evidence to connect her injury to the acts or omissions of Defendant. Both of these
authorities are exceptions to the above stated rule.

In Bryd v. Hall, Tenn 1993, 847 S.W.2d 206, the Supreme Court reversed a summary
judgment, but reviewed the law as to burdens and standards relating to summary judgments.
The Court said:

Celotex was an asbestos products liability case in which
the defendant, after an appropriate period for discovery,
moved for summary judgment on the basis that no evidence
had been produced by the plaintiff, the nonmoving party,
that her decedent had been exposed to the defendant’s
asbestos products. At 319, 106 S.Ct. At 2551. The Court
again upheld the grant of summary judgment for the
defendant, as the moving party, because the defendant
established the lack of a genuine issue of material fact
on a crucial element of the plaintiff’s case (exposure
to the product). The plaintiff was unable to meet her
burden imposed by Rule 56.05 with regard to that
dispositive element, an element on which she would
have the burden of proof at trial. Id. At 323, 106 S.Ct.
at 2553. Celotex thus stands for the proposition that,
after the moving party has established the absence of a
genuine issue of material fact, then summary judgment
is appropriate when, after being given a reasonable
opportunity to substantiate its claims, the nonmoving
party is unable to establish any essential element of its
case on which it will have the burden of proof at trial.
Id. at 321-325, 106 S.Ct. At 2552-53.

At 321-325, 106 S.Ct. at 2552-53. Justice White’s
concurring opinion correctly places a finer point on the
Court’s holding by observing that “[i]t is not enough to
move for summary judgment without supporting the
motion in any way or with a conclusory assertion that
the plaintiff has no evidence to prove his case.” Id. at
328, 106 S.Ct. at 2555.

Celotex may thus be cited for the principle that a party
may move for summary judgment demonstrating that the
opposing party will not be able to produce sufficient
evidence at trial to withstand a motion for directed verdict.
If, after a sufficient time for discovery has elapsed, the
nonmoving party is unable to demonstrate that he or she
can indeed do so, summary judgment is appropriate. The
Sixth Circuit has read Celotex to mean that “the movant
[can] challenge the opposing party to ‘put up or shut up’
on a critical issue. After being afforded sufficient time
for discovery ... if the [nonmoving party does] not ‘put
up,’ summary judgment [is] proper.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989).

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 In Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio
Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986), an antitrust suit, the Court again affirmed
summary judgment for the defendants. The Court
pointed out that summary judgment will be improper
where the factual dispute is genuine and material and
the nonmoving party comes forward with specific facts
establishing an issue for trial. At 584-588, 106 S.Ct. at
1355-56. “When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply
show that there is some metaphysical doubt as to the
material facts.” Id. at 586, 106 S.Ct. at 1356.

Today, we reaffirm the summary judgment principles
found in the Tennessee cases discussed above. We also
embrace the construction of Rule 56 in Anderson, Celotex,
and Matsushita to the extent discussed in the prior section
of this opinion relating to those cases.

[10, 11] Fourth, the party seeking summary judgment
has the burden of demonstrating to the court that there
are no disputed, material facts creating a genuine issue
for trial, as we have defined those terms, and that he is
entitled to judgment as a matter of law. A conclusory
assertion that the nonmoving party has no evidence is
clearly insufficient.

The trial court granted the Defendants’ motion for
summary judgment because “there was no material issue
of fact.” The Court of Appeals affirmed, explaining that
the Defendants “sustained their burden by interrogatories
directed to the Plaintiff who chose not to respond thereto,
requiring the ultimate conclusion that there was no evidence
to support his complaint.” For the reasons discussed below,
we reverse.

[14] The grant of summary judgment to the Defendants
was improper.

In Weathers v. Pilkington, Tenn. App. 1988, 754 S.W.2d 75, this Court

affirmed a directed verdict judgment for a physician whose patient committed suicide where

“there was no evidence that his reason and memory were, at the time, so far obscured that he

did not know and understand what he was doing and was therefore not a responsible human

agency.” In the present case, there is contradictory evidence as to the mental capacity of

deceased.

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 In Cochrum v. State, Tenn. App. 1992, 843 S.W.2d 438, there was no evidence that

the prison staff breached any duty to the inmate, or that the breach of any duty was the

proximate cause of death. In the present case, there is disputed evidence on both issues.

The present case is clearly distinguishable from the authorities discussed above in that

there is contradictory evidence as to the two determinative issues.

Doubtful issues as to due care and mental capacity are not matters of law to be

determined upon disputed evidence by summary judgment.

The judgment of the Trial Court is reversed and vacated. Costs of this appeal are

taxed against the Defendant - Appellee. The cause is remanded to the Trial Court for further

proceedings.

REVERSED AND REMANDED.

_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________
SAMUEL L. LEWIS, JUDGE

_____________________________________
BEN H. CANTRELL, JUDGE

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Note to Judges,

We initially agreed to affirm because the hospital obeyed the orders of the treating
physician. Upon study of the record, I reached a different conclusion. If you disagree, lets
meet and discuss.

_____________________________
Henry F. Todd
Presiding Judge, Middle Section

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