Good evening all and attached is the TN opinion, Cannon v. McKendree
Village, decided by the Middle Section Court of Appeals on 11-25-08.
Below are the e-mail summaries we broadcasted globally on 11-29-08 and
12-1-08.  We are pleased to report that yesterday the TN COA denied the
Plaintiff’s Rule 11 Application of Appeal to the TN Supreme Court and
that this opinion will thus remain helpful and supportive to LTC
defendants as outlined below.


Subject: RE: Cannon v. McKendree – TN COA Opinion – Win for the Defense
on SJ

This will report in more detail about the attached opinion, Cannon v.
McKendree Village, which spells good news for LTC providers in
Tennessee. In the attached opinion, the TN Court of Appeals upheld a
summary judgment dismissing a complaint, which included claims for
negligence and under the Tenn. Adult Protection Act (TAPA).

In the Cannon case, Ms. Cannon was a resident of a NH in Nashville,
suffering from Alzheimer’s disease and dementia. She was at high risk
for falling and eventually fell from her bed, though without injury. Her
doctor, the medical director of the facility, responded by ordering
certain fall-prevention procedures, including lowering her bed and
raising the bed rails, but some 10 days later Cannon fell from her bed
again, this time suffering bruises and other injuries. The doctor
treated her for those injuries.

In the circuit court, the plaintiff, Cannon’s son, sued the facility for
negligent supervision of his mother and further brought a claim under
the TAPA for abuse and neglect. The facility filed a motion for summary
judgment supported by the doctor’s deposition, as well as affidavits of
the nursing staff, presenting expert testimony that the NH complied with
the standard of care in its care of Cannon. The plaintiff argued,
though, that the negligence at hand was ordinary, not medical, and thus
the law did not require him to respond with medical expert testimony.
The P further argued that the doctrine of res ipsa loquitur allowed the
plaintiff to maintain his negligence claim without expert proof. The
circuit court granted the  MSJ. The court ruled that: a) the Tenn.
Medical Malpractice Act (TMMA) controlled the plaintiff’s allegations;
b) the expert proof proffered by the NH negated elements of the
plaintiff’s negligence claim; c) the applicability of the TMMA negated
the TAPA claim; and d) the plaintiff failed to satisfy the elements of
res ipsa loquitur. On the plaintiff’s appeal, the Court of Appeals
affirmed the summary judgment.

The COA turned first to whether the TMMA controlled, and the court began
its analysis by ascertaining the "essence" of the plaintiff’s complaint,
which was the NH’s failure to protect Cannon from a fall with proper
restraints. The COA then observed that, while the TMMA does not
necessarily apply to every claim against every healthcare provider, the
TMMA controls where the subject negligence turns on the application of
medical skills and knowledge, such as diagnosis and treatment, beyond
the realm of common experience. Finding that the TMMA controlled, the
COA relied heavily on the undisputed medical and nursing testimony
proffered by the NH showing that the decision of whether and how to
restrain a NH resident involves a complex balancing analysis based upon
an assessment of the resident’s condition.

Second, re: the TAPA claim, the COA was brief, citing the pertinent
provision of the TAPA that precludes a claim under that statute where
the TMMA controls.

Third, re: whether in the absence of expert testimony res ipsa loquitur
saved the plaintiff’s claim, the COA again upheld the trial court’s
ruling. In TN, that doctrine allows a plaintiff to establish a
healthcare provider’s negligence where the plaintiff demonstrates, among
other things, that the accident or injury at hand does not ordinarily
occur in the absence of negligence. The COA found, though, that the
plaintiff failed to make that demonstration and relied from TN case law
that falls among the elderly can and do occur in the complete absence of
negligence. The COA further observed that to rule otherwise would
effectively make NHs the insurers of the welfare of their residents.

The Cannon opinion is important in several aspects. Substantively, of
course, it will go a long way in educating trial judges about the
applicability of the TMMA to fall cases and should consequently preclude
onerous TAPA claims in such cases. Procedurally, the opinion also pushes
Tennessee back to its traditional summary-judgment procedure. In the
recent case of Hannan v. Alltell, which the COA cited in the attached
opinion, the Tennessee Supreme Court clarified that defendants may no
longer win a summary judgment where the plaintiff merely fails to
respond to the MSJ with proof supporting the elements of its claim.
Instead, the Supreme Court wrote, a summary judgment is not proper
unless the defendant can go further and show that at trial the plaintiff
will not be able to support its claim. In the Cannon case, though, the
Court of Appeals significantly deviated from the Supreme Court’s
teaching by affirming the summary judgment even though nothing in the
opinion indicated that the plaintiff would not be able at trial to
present adequate expert testimony.

Let us hear from you with any questions/comments. Rebecca

Subject: Cannon v. McKendree – TN COA Opinion – Win for the Defense on

Hoping that everyone enjoyed the holiday weekend. Please find attached
the TN COA opinion in Cannon v . McKendree involving an Alzheimer’s
resident who fell and allegations of lack of proper restraints by the
NH. As we have reported in the past, in response to a multi-claim
Complaint we seek to dismiss all claims except for the Medical
Malpractice claim forcing PA to comply with the expert opinion
requirements set for in Tennessee’s statute. In the Cannon case, the COA
held that the fall-prevention claim is one of med mal and as PA failed
to respond to the defense MSJ with expert opinions, the MSJ was granted.

Substantively it is important for its conclusion that fall-prevention is
a medical issue. Procedurally, although the case would arguably have
been more helpful if it had been decided on a Rule 12.02(6) MTD, it is
an important departure from the recent Hannan v. Altell opinion. Recall
that we recently reported that in Hannan, the TN Supreme Court ruled
that one cannot win a MSJ merely by showing that at the hearing of the
MSJ the plaintiff lacks evidence to support an element of the claim;
plaintiff has to go further and show that at trial the plaintiff could
not support the elements of the claim. In this opinion (Cannon), though,
then-Judge now -Justice Sharon Lee cited Hannan but nevertheless
affirmed the SJ, which the circuit court granted because the PA failed
to rebut the expert affidavit supporting the NH’s MSJ.

I am pleased to finally report a favorable opinion for the defense. With
the recent changes in the TN Med Mal Act – this opinion is certain to
assist deterring meritless med mal claims.

Have a great week.

Rebecca Adelman, Esq.
p] 901.529.9313

Rebecca Adelman, Esq.
The Law and Mediation Offices of
Rebecca Adelman, PLC
545 South Main Street
Suite 111
Memphis, Tennessee 38103
p] 901.529.9313
f] 901.529.8772


Author: Attorney Rebecca Adelman from Law & Mediation Offices of Rebecca Adelman