IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 17, 2004 Session
HELAINE RICHBERGER v. THE WEST CLINIC, P.C., ET AL.
A Direct Appeal from the Circuit Court for Shelby County
No. 81970 T.D. The Honorable John R McCarroll, Jr., Judge
No. W2003-00141-COA-R3-CV - Filed April 6, 2004
Plaintiff filed medical malpractice action against clinic, treating nurse, and supervising
physician for injuries suffered as a result of alleged negligent chemotherapy treatment. Trial court
granted summary judgment in favor of defendants, finding that registered nurse was not qualified
as an expert on the issue of medical causation, and further noting that the deposition testimony of
lone expert physician failed to establish that the plaintiff’s injuries were caused by the negligence
of the defendants. Plaintiff appeals. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY M. KIRBY , J., joined.
Al H. Thomas and Regina Guy of Memphis, For Appellant, Helaine Richberger
David M. Cook and Gregory A. Ziskind of Memphis, For Appellees, The West Clinic, P.C. and
Sandy Miller, R.N.
OPINION
Marshall Richberger was diagnosed with colon cancer in 1991 and died on May 10, 1997,
as a result of a protracted struggle with this disease. Helaine Richberger, his natural daughter and
next of kin, was substituted as party-plaintiff in this cause on January 9, 1998. In the interest of
clarity, we will refer to Marshall Richberger as “Mr. Richberger” or the “deceased.” All references
to “plaintiff” with respect to pleadings filed after May 10, 1997 should be regarded as references to
Helaine Richberger.
Mr. Richberger first presented to The West Clinic, P.C. (“West Clinic”), for chemotherapy
treatment in July 1991, after an unsuccessful operation to remove a cancerous tumor from his colon.
Dr. Kurt W. Tauer (“Dr. Tauer”) acted as the deceased’s treating physician during the post-operative
period, and continued his care for Mr. Richberger until his death in 1997. During the initial six-
month post-operative period, Mr. Richberger underwent “systemic chemotherapy treatment” with
the drugs 5-FU and Leucovorin. According to Dr. Tauer’s deposition testimony, both drugs were
administered intravenously through the right hand. Upon completion of his treatment in December
1991, Mr. Richberger was declared to be in remission.
Mr. Richberger suffered a recurrence of his cancer in December 1994, and began renewed
chemotherapy treatments shortly thereafter. Mr. Richberger was again treated with 5-FU and
Leucovorin, but on a different schedule than his first round of administration. Dr. Tauer testified that
treatment was discontinued in June 1995 as a result of Mr. Richberger’s favorable response and
improved condition.
In October 1995, Mr. Richberger learned that his cancer had markedly progressed and
required further treatment. On October 25, 1995, he presented to the West Clinic for chemotherapy
treatment involving the drug Mitomycin.1 Sandy Miller, R.N. (“Ms. Miller”), the treating nurse,
testified in her deposition that she obtained Mr. Richberger’s informed consent prior to
administration, explaining to him the potential risks of treatment, including extravasation.2 Ms.
Miller averred that she further advised him to warn her if he felt any burning or sensation of pain
during the procedure.
Ms. Miller testified that she began treatment with the insertion of a saline I.V. into Mr.
Richberger’s right arm, approximately one-half inch above his wrist bone.3 The I.V. provided a
continuous flow of normal saline during the procedure. Ms. Miller next administered a dose of
Decadron for nausea, and began a slow push of the Mitomycin through a needle inserted into the
vein near Mr. Richberger’s wrist. During administration of the Mitomycin, Ms. Miller monitored
Mr. Richberger’s blood return every minute for 10-15 minutes, and recorded that he had “excellent
blood return.” Ms. Miller testified that Mr. Richberger never complained of any “pain” during her
administration of the Mitomycin, but acknowledged that she stopped the procedure briefly when he
complained of aching in his right arm. Ms. Miller testified that the deceased’s reaction to the
treatment was normal, and noted that she was able to alleviate his discomfort with the application
1
Mitomycin is a vesicant - an antibiotic or drug used in the treatment of cancer that is known to cause blisters
or blistering. Ms. Miller testified that Mitomycin was the only vesicant administered to the deceased to her knowledge.
2
Extravasation is the discharge or escape of blood or another substance such as an injected chemotherapy agent,
from the vein into the surrounding tissue. Extravasation of M itomycin during injection is known to result in “necrosis
and consequent sloughing of tissue.”
3
Plaintiff notes that Mr. Richberger testified in his deposition that he remembered the injection site as the
dorsum of his right hand. Mr. Richberger’s deposition was not included as part of the record on appeal.
-2-
of a hot pack and thereafter resume treatment. Ms. Miller further noted that she saw no evidence of
swelling or redness at the insertion site.
Once she had administered the full dose of Mitomycin, Ms. Miller waited for the saline to
thoroughly flush Mr. Richberger’s veins before stopping the I.V. flow. Ms. Miller next administered
the drug Leucovorin via slow push, and followed with a slow push of the drug 5-FU. It is evident
from the testimony in the record that Ms. Miller documented the medications administered to the
deceased; however, the order in which these drugs were administered was not specified.4
On October 30, 1995, Mr. Richberger returned to the West Clinic complaining of pain and
blistering in his right hand. Both Dr. Tauer and Ms. Miller confirmed that the blistering was distal
to the I.V. site, an uncommon occurrence according to Dr. Tauer, who testified that normally damage
is seen at the site of the injection. Dr. Tauer concluded that it was clear that Mr. Richberger suffered
an extravasation of Mitomycin during the October 25, 1995 procedure, noting that the burning
sensation was a serious indicator of extravasation.
In an attempt to “control and clean up” the tissue damaged by the Mitomycin extravasation,
Mr. Richberger underwent daily whirlpool and physical therapy treatment. On November 3, 1995,
he called the West Clinic and voiced renewed complaints of pain. Ms. Miller testified that she
instructed Mr. Richberger to apply Neosporin to the wound and ordered Lortab for his pain. That
same month, Mr. Richberger was referred to Dr. Robin Stevenson, a plastic surgeon, for additional
treatment and consultation. Mr. Richberger’s complaint describes his condition, treatment and
operation history after November 1995:
On examination by Dr. Stevenson, Plaintiff was found to have
a partial to full thickness injury to the dorsum of the hand extending
into the second web space and proximately to the proximal hand. Dr.
Stevenson also found Plaintiff had lost some motion of the MP joints.
Dr. Stevenson referred Plaintiff Richberger to Baptist Hospital
physical therapy department for daily dressing changes, debridement,
and range of motion to the MP joints.
In January 1996, Plaintiff Richberger was admitted to Baptist
Hospital due to full thickness skin loss, infection, and blistering of his
[right] hand. Plaintiff received Hyperbaric oxygen treatment but later
had to be taken to surgery where he underwent a posterior
4
Plaintiff notes that Mr. Richberger testified in his deposition that he remembered Ms. Miller administering
Mitomycin last in the sequence of drugs identified. The facts, as recounted by this Court, represent Ms. Miller’s
recollection as to the sequence of administration. W e reiterate that Mr. Richberger’s deposition was not included in the
record on appeal.
-3-
interossesous rotational skin flap to cover the dorsum of his [right]
hand.
Because of the extravasation injury to Plaintiff’s hand from
the chemotherapy agent, Plaintiff’s chemotherapy treatments were
discontinued so that his right hand would heal; however, because of
plaintiff’s cancerous condition the chemotherapy had to be resumed.
Plaintiff Richberger continued to experience necrosis and
infection to his [right] hand and had to undergo amputation of his
index finger in May 1996.
On October 2, 1996, Mr. Richberger filed a complaint for medical malpractice against Dr.
Tauer, West Clinic, and Ms. Miller, alleging negligence by defendants in the October 25, 1995
chemotherapy treatment. The complaint includes the following allegations of negligence and
resulting damages:
Defendant Miller, employee of Defendant West Clinic and/or
Defendant Tauer, negligently continued to infuse [Mitomycin] despite
plaintiff Richberger’s complaint of pain and burning, causing plaintiff
serious and permanent injuries.
Defendant Miller was negligent in failing to report Plaintiff
Richberger’s complaints of pain and burning to Defendant Tauer
causing Plaintiff to suffer serious and permanent injuries.
Defendant Miller failed to provide proper nursing care to
Plaintiff Richberger causing him to suffer serious and permanent
injuries.
Defendants West Clinic and Tauer failed to provide and are
liable under the doctrines of Respondeat Superior and under the
doctrine of Apparent Agency for the failure of the defendant Miller,
to provide adequate and appropriate medical care during
chemotherapy treatment to plaintiff Richberger, as well as other acts
and omissions which breach the standard of care.
DAMAGES
Plaintiff alleges that as a direct and proximate result of the
negligence and medical malpractice by the Defendants, Plaintiff
Marshall Richberger suffered substantial damages as follows:
-4-
a. caused to suffer and incur severe and permanent physical
damages to his body resulting in extreme pain and suffering, that he
required medical treatment to treat his injuries, thereby incurring
substantial medical expenses as well;
b. caused to suffer substantial loss of wages and/or the loss
of the capacity to earn his normal wages;
c. caused to endure severe emotional distress and mental
anguish.
(emphasis in original).
Defendants filed a joint answer on November 19, 1996, denying all allegations of negligence
and asserting as an affirmative defense that Mr. Richberger’s treatment on October 25, 1995 “was
in entire conformity with the recognized standard of acceptable professional practice for their
specialties in this community, and that the plaintiffs have sustained no injury as the result of any
treatment provided by [defendants].” As noted, Mr. Richberger died in May 1997, and his daughter
was substituted as party-plaintiff.
On February 25, 1998, Dr. Tauer filed a motion to dismiss or for summary judgment
supported by his deposition. That same day, West Clinic and Ms. Miller filed a joint motion to
dismiss for summary judgment supported by the deposition of Sandy Miller. In opposition to the
defendants’ motion, plaintiff relied on the affidavit and deposition of Yvonne Yetman, R.N.(“Ms.
Yetman”), and the deposition of Dr. Tauer.
On June 23, 1999, plaintiff filed an order voluntarily dismissing Dr. Tauer as a party-
defendant to the action. On December 9, 2002, a hearing was held on the motion of West Clinic and
Ms. Miller. The trial court granted defendants’ motion by order filed December 23, 2002, stating:
Having considered the parties written submissions, the
deposition of Kurt W. Tauer, M.D., argument in open court and the
entire record in this cause, the court is of the considered opinion that
the defendants’ motion is well taken and should be granted.
According to T.C.A. § 63-7-103(b), a registered nurse is prohibited
from making a medical diagnosis and is therefor not competent to
offer opinions on medical causation in a medical malpractice action.
The court has considered and relies upon the Court of Appeals
decisions in the cases of Nash v. Goodlark Hospital, 1990 WL 56192
(Tenn. Ct. App. May 4, 1990), and Bishop v. Smith Nephew
Richards, Inc., No. 02A01-9405-CV-00108, 1995 WL 99222 (Tenn.
Ct. App. Mar. 10, 1995). The discovery deposition of Dr. Tauer is
likewise insufficient to satisfy the plaintiff’s burden. The medical
-5-
malpractice statute requires that the plaintiff prove that the defendants
failed to act in accordance with the recognized standard of acceptable
professional practice and that as a proximate result of the defendant’s
negligent act or omission, the plaintiff suffered injuries which would
not otherwise occurred. T.C.A. § 29-26-115. Dr. Tauer’s testimony
does not establish that the decedent’s injuries were caused by the
negligence of the defendant, Ms. Miller. Incorporated by reference
is the transcript of proceedings in this cause of December 10, 2002.
Plaintiff filed a timely notice of appeal on January 13, 2003, and presents to this Court the
following issues for review: (1) Whether a registered nurse is permitted to testify as an expert
witness in a medical malpractice action as to the issue of causation; and (2) Whether the remaining
evidence in the record was sufficient to create a genuine issue of material fact as to medical causation
pursuant to T.C.A. § 29-26-115(a)(3).
A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993), our Supreme Court stated:
Once it is shown by the moving party that there is no genuine issue
of material fact, the nonmoving party must then demonstrate, by
affidavits or discovery materials, that there is a genuine, material fact
dispute to warrant a trial. In this regard, Rule 56.05 provides that the
nonmoving party cannot simply rely upon his pleadings but must set
forth specific facts showing that there is a genuine issue of material
fact for trial.
Id. at 210-11 (citations omitted) (emphasis in original).
Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court’s grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of
the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
I.
-6-
The first issue presented for review is whether the trial court erred in ruling that a registered
nurse is prohibited from testifying as an expert witness as to the issue of causation in a medical
malpractice action for the purpose of satisfying T.C.A. § 29-26-115(a)(3). The court’s ruling was
based on its conclusion that a “registered nurse is prohibited from making a medical diagnosis
[pursuant to T.C.A. § 63-7-103(b),] and is therefore not competent to offer opinions on medical
causation in a medical malpractice action.”
In Tennessee, medical malpractice actions are governed by the provisions of T.C.A. § 29-26-
115 (Supp. 2003), which provides in pertinent part:
(a) In a malpractice action, the claimant shall have the burden
of proving by evidence as provided by subsection (b):
(1) The recognized standard of acceptable professional
practice in the profession and the specialty thereof, if any, that the
defendant practices in the community in which the defendant
practices or in a similar community at the time the alleged injury or
wrongful action occurred;
(2) That the defendant acted with less than or failed to act
with ordinary and reasonable care in accordance with such standard;
and
(3) As a proximate result of the defendant's negligent act or
omission, the plaintiff suffered injuries which would not otherwise
have occurred.
(b) No person in a health care profession requiring licensure
under the laws of this state shall be competent to testify in any court
of law to establish the facts required to be established by subsection
(a), unless the person was licensed to practice in the state or a
contiguous bordering state a profession or specialty which would
make the person’s expert testimony relevant to the issues in the case
and had practiced this profession or specialty in one (1) of these states
during the year preceding the date that the alleged injury or wrongful
act occurred. This rule shall apply to expert witnesses testifying for
the defendant as rebuttal witnesses. The court may waive this
subsection when it determines that the appropriate witnesses
otherwise would not be available.
In the instant matter, we are particularly concerned with subsection (b), and whether a registered
nurse is competent, as envisioned under the statute, to testify as an expert in a medical malpractice
action for the purpose of satisfying T.C.A. § 29-26-115(a)(3). From our review of the authority in
-7-
this jurisdiction, we find that the trial court did not err in ruling that Ms. Yetman was prohibited from
testifying as an expert regarding the issue of causation.
In Nash v. Goodlark Hospital, 1990 WL 56192 (Tenn. Ct. App. May 4, 1990), the Tennessee
Court of Appeals, Middle Section, considered whether the trial court erred in granting summary
judgment in favor of the defendant hospital and nurse in a medical malpractice action. The court
specifically examined the causation testimony of defendants’ expert physician witness, Dr. E.Wiser,
and the countervailing standard of care and causation testimony of Ms. Melanie Joy, a Registered
Nurse. Upon consideration of the conflicting causation testimony, the court noted:
Dr. Wiser testified, as we have noted, that the airway of the
decedent was clear and unobstructed, that he did not suffocate, and
that he died naturally as a result of the advanced and incurable nature
of his disease.
The counter-affidavit of Nurse Joy is insufficient to overcome
Dr. Wiser’s testimony. While the appellee takes it to task because
Nurse Joy states that she bases “this affidavit upon my training,
education and experience as well as the facts of this case which have
been told to me” and “from reading the documents in this case,” we
think it clear that the failure of the appellant to countervail the
positive testimony of the appellee’s expert respecting causation is
fatal to her insistence that a genuine issue of a material fact, Rule 56,
Tenn. R. Civ. P., exists for determination by a jury. Even if by a
generous extrapolation of Nurse Joy’s affidavit we concluded that
she reached the issue of causation, the fact remains that she is
prohibited from making a medical diagnosis, T.C.A. 63-7-103(b).
Consequently, it is uncontradicted in this record that the decedent did
not die of strangulation or suffocation; and it is not rebutted that his
death was the result of incurable disease.
Summary judgment was therefore proper. See Bowman v.
Henard, 547 S.W.2d 527 (Tenn. 1977).
Id. at *2 (emphasis added).
In Bishop v. Smith Nephew Richards, Inc., No. 02A01-9405-CV-00108, 1995 WL 99222
(Tenn. Ct. App. Mar. 10, 1995), this Court considered, inter alia, the issue of whether the trial court
erred in granting summary judgment to defendant. Id. at *2. Plaintiff’s complaint alleged, in part,
that defendant Karen Calabretta, an occupational health nurse, was negligent in her care of plaintiff
for complications from a previously sustained head injury, and that said treatment was the direct and
proximate cause of plaintiff’s injuries and damages. Id. In support of her Motion for Summary
Judgment, the defendant relied primarily upon the affidavit of Dr. Alan Boyd, “which state[d] in
-8-
substance that there was no medical treatment that could have been provided after [the date of the
accident] that would have prevented [the later arising injury.]” Id. at *3. Plaintiff filed the affidavits
of Dr. William G. Jennings and three nurses in opposition to defendant’s motion. Id. at *4-5. Upon
examination of the testimony in the record, we concluded:
Dr. Jennings clearly opined that the hematoma discovered
December 17, 1990, proximately resulted from the trauma of
November 12, 1990, but he does not state that more probably than not
Bishop had better than an even chance of recovering from this
hematoma absent Calabretta’s negligence. The sum total of his
affidavit concerning causation as it relates to Calabretta is that there
is a possibility the damage could have been avoided. This is not
sufficient to show causation. White v. Methodist Hosp. South, 844
S.W.2d 642, 648-49 (Tenn. Ct. App. 1992). Plaintiffs also rely upon
the affidavits of three nurses, which, in addition to stating the
standard of care and deviation therefrom, give opinions regarding
causation essentially the same as Dr. Jennings. In addition to
being outside the expertise of the nurses, see T.C.A. § 63-7-103(b)
(1990); [Nash v. Goodlark Hospital, 1990 WL 56192 (Tenn. Ct.
App. May 4, 1990)], these opinions regarding causation are
speculative in the same manner and for the same reasons set out for
Dr. Jennings. Accordingly, the trial court correctly granted summary
judgment to defendant Calabretta.
Id. at *5 (emphasis added).
Based upon the foregoing authority, we find that the trial court did not err in concluding that
Ms. Yetman was prohibited from testifying as an expert witness with regard to the issue of causation.
II.
Plaintiff next asserts that even if Ms. Yetmen’s discovery deposition testimony is not
considered for the purpose of satisfying plaintiff’s burden to prove causation under T.C.A. § 29-26-
115(a)(3), the deposition testimony of Dr. Tauer is sufficient to create a genuine issue of material
fact with regard to causation.
When questioned regarding his expert medical opinion as to the cause of Mr. Richberger’s
injury, Dr. Tauer testified unequivocally that the injuries suffered were caused by an extravasation
of Mitomycin into the deceased’s tissue, stating:
Q. Do you have an opinion, Doctor, based upon a reasonable degree
of medical certainty as to what caused Marshall Richberger this injury
that he sustained?
-9-
A. Oh, I know exactly what caused it.
Q. Tell us, please.
A. In spite of our routine procedure of care, he was given a drug that
has a terrible side effect of causing tremendous tissue injury if any of
it gets outside of the vein; and he had an extravasation by the drug
which caused him tremendous injury to his hand.
Q. And in your opinion even if Sandy Miller had given it in the
dorsum of the hand, you do not think it would have been a deviation
from the standard of care?
A. If he had a good flowing running I.V., it would not have been her
first choice, but it would not have been a deviation of care.
******************************************************
Q. That wasn’t my question. My question is do you have any
opinion in retrospect as to how the administration of Mitomycin to
Marshall Richberger could have been given without causing this
injury that he sustained?
A. Are there other things that we could have done that would have
been outside of our usual operating procedure to make sure that this
was not done, yes.
Q. What would they have been?
A. The central line and the porta cath that you talked about would be
ways to prevent this kind of injury from happening; but as I stated
earlier when you asked that question, when a patient gets Mitomycin
for the first time and they have good I.V. blood return, we don’t
normally do that.
******************************************************
Q. So I gather it’s your contention that this type of injury that
Marshall Richberger sustained can occur absent negligence?
A. Yes.
-10-
Q. And is it true that every time it [has] happened out here at West
Clinic it’s always been absence of negligence?
A. Well, first of all, let me suggest that it doesn’t happen out here
very much at West Clinic; but every time it does happen, it’s not
because of negligence, it’s just because of bad luck.
As noted, Dr. Tauer’s deposition testimony clearly identifies the extravasation of Mitomycin into
the surrounding tissue as the cause of Mr. Richberger’s injury. Moreover, Dr. Tauer’s testimony
further evidences an opinion that the extravasation, in this case, did not occur as a result of any
negligent conduct on Ms. Miller’s behalf. We note that there is no other qualified expert testimony
in the record pertaining to or addressing the issue of causation.
Thus, as the record stands, we have only the expert medical testimony of Dr. Tauer that Mr.
Richberger’s injury was caused by the extravasation of Mitomycin into the surrounding tissue, and
his further insistence that the extravasation was not the product of any negligent care or conduct.
Although Ms. Yetmen maintains that Ms. Miller deviated from the applicable standard of care in her
treatment of the deceased on October 25, 1995, she concedes that the extravasation of a vesicant can
occur absent negligence. The record is devoid of any expert testimony directly connecting Ms.
Miller’s alleged negligent conduct and care to the deceased’s injury.
Accordingly, we affirm the trial court’s Order of December 23, 2002 granting defendants The
West Clinic, P.C., and Sandy Miller, R.N., summary judgment. Costs of this appeal are assessed
against the plaintiff, Helaine Richberger, and her surety.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
-11-