Day on Torts
Where the trial court granted summary judgment on two grounds in a Tennessee medical malpractice case, but plaintiff only raised one of the grounds in her appeal, summary judgment was affirmed.
In Lovelace v. Baptist Memorial Hospital-Memphis, No. W2019-00453-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2020), plaintiff filed an HCLA suit after her husband died following treatment at defendant hospital. During his time at the hospital being treated for pneumonia, he developed seven pressure ulcers on his body, and though he was transferred to a different facility, he passed away.
Plaintiff filed this health care liability suit and attached the affidavit of her expert witness, Brenda Moore, who was a “registered nurse with a doctorate of nursing practice.” Nurse Moore was eventually deposed, after which defendant filed a motion for summary judgment. The trial court granted summary judgment to defendant on two grounds: 1) that plaintiff’s identified expert did not provide sufficient causation testimony, and 2) that Nurse Moore was not competent to testify under Tennessee’s HCLA statutes.
Plaintiff appealed the summary judgment order, but in her appellate brief she cited only one issue: “Whether the trial court committed error by granting the defendants’ motion for summary judgment: is a registered nurse qualified to offer an opinion on the causation of pressure ulcers?” Plaintiff failed to raise as an issue the ruling that the expert did not give proper causation testimony, and defendant argued that her alleged challenge to the summary judgment ruling should thus be considered waived. The Court of Appeals agreed.
The Court noted that “[g]enerally, where a trial court provides more than one basis for its ruling, the appellant must appeal all the alternative grounds for the ruling.” (internal citation omitted). Here, the trial court’s oral and written rulings both cited two grounds for summary judgment, but the plaintiff only challenged one in her appellate brief. The Court pointed out that even looking beyond the issues portion of plaintiff’s brief, there was only one paragraph that could possibly be considered an argument that Nurse Moore offered sufficient causation testimony, and that paragraph had no citations to relevant authority or to the record. Further, despite defendant arguing waiver in its brief, plaintiff failed to file any reply brief and thus never addressed the issue.
Because plaintiff “failed to properly challenge one of the two independent bases upon which the trial court granted summary judgment,” her “argument that summary judgment was inappropriate [was] waived” (internal citation omitted) and summary judgment was affirmed.
This case reinforces the importance of carefully drafting your appellate briefs. Plaintiff’s appeal never got to the merits due to the failure to challenge both grounds cited by the trial court.