Don’t Tell Me to “Put up or Shut up” Anymore!
posted on July 4th, 2009 in Summary Judgment by clintIn Johnsey v. Northbrooke, 2009 WL 1349202 (Tenn.Ct.App.), Mr. Johnsey, age 85, suffered from dementia. He also had a history of problems with his right knee. He was admitted to Northbrooke Health Care Center for rehabilitation. He was diagnosed with a fractured right hip. He died later. Mrs. Johnsey filed a wrongful death suit against Northbrooke, alleging it negligently allowed him to fall and suffer a broken hip. When Mrs. Johnsey was deposed, she acknowledged that she did not actually know what happened to Mr. Johnsey because she was not at the nursing home when the incident occurred. When asked how she knew that Mr. Johnsey had fallen, she explained that Mr. Johnsey was “all upset and frazzled” after his bath, he had a cut on his thumb, he was complaining about his right knee hurting, and he wanted aspirin. She said Northbrooke’s employees either “let him fall or something happened.”
Mr. Johnsey was taken to see Dr. Pucek, an orthopedic surgeon. Dr. Pucek performed a physical examination, which failed to reveal a dislocated patella. Dr. Pucek found no swelling, bruising, or instability in the patella. X-rays of the knee revealed arthritic changes. Dr. Pucek later discovered that Mr. Johnsey had a fractured right hip, which he estimated to be at least four to six weeks old. Dr. Pucek was unable to tell from the fracture itself whether it was the result of a trauma, such as a fall, as opposed to a twisting injury, such as rolling over in bed wrong. Dr. Pucek was unable to offer any opinion to a reasonable degree of medical certainty as to the cause of Mr. Johnsey’s hip fracture.
Northbrooke filed a motion for summary judgment asserting that Mrs. Johnsey had failed to produce either medical or lay testimony as to the cause of Mr. Johnsey’s fractured hip. Northbrooke further argued that Mrs. Johnsey would be unable to establish causation at trial. In support of its motion for summary judgment, Northbrooke filed the deposition of Mrs. Johnsey and the discovery deposition of Dr. Pucek. Mrs. Johnsey filed a response to Northbrooke’s motion, claiming that it was “absolutely clear and undisputed” that Mr. Johnsey’s hip was fractured on August 8, while he was being bathed. She filed Mr. Johnsey’s medical records from Northbrooke, which included the following note:
Res[ident] very agitated this shift. Fought [with] CNA during am care. Obtained [skin tear] during am care to [left] thumb. . . . Wife notified. Dr. Dunnebacke notified. Also notified MD of agitated behavior. New order for Seroquel . . . .
Mrs. Johnsey also filed numerous affidavits and depositions from the Northbrooke staff. The trial court granted summary judgment to Northbrooke concluding that the plaintiff “cannot prove causation.” Mrs. Johnsey appealed.
The Court of Appeals reversed. Relying on McCarley v. W. Quality Food Serv., 960 S.W.2d 585 (Tenn. 1998), the Court of Appeals found that although Northbrooke’s assertions may have caused doubt as to whether the plaintiff could offer proof at trial to establish the cause of Mr. Johnsey’s hip fracture, Northbrooke did not demonstrate that Mrs. Johnsey could not prove her claim at trial. While the Court agreed that this nursing home neglect action was really a medical malpractice action, Northbrooke could not force the plaintiff to “put up or shut up” with assertions regarding the sufficiency of the plaintiff’s evidence at the summary judgment stage. Because Northbrooke failed to affirmatively negate an essential element of the nonmoving party’s claim or show that the nonmoving party could not prove an essential element of the claim at trial, its summary judgment motion should have been denied.
This case is the progeny of Hannon v. Alltel. I suggest that you put Johnsey v. Northbrooke in your trial toolbox when you have a case with a lot of smoke but no smoking gun. Trust me: you will need it one day in this line of work.