### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE ASSIG NED O N BRIE

FS FEB RUARY

22, 2002
WILLIAM HOWELL STEELE, ET AL 

### . v. RICHARD A. BERKMAN, M.D., ET AL 

### . Direct Appeal from the Circuit Court for D avidson County No. 00C-3084; The Honorable Hamilton V. Gayden, Jr., Judge

No. M2001-02250-COA-R10-CV - Filed August 7, 2002

This appeal a

rises fr om a medical malpractice complaint filed by the Appellees in the Circuit Court of Davidson County ag ainst the Appellant, six other doctors, and two hospitals. The Appellant filed
a mo tion for summary judg ment. The trial court denied the Appellant’s motion for s ummar y judgmen t. The Appellant filed an

application for extraordinary appeal with this Court pursuant to Rule 10 of the Tennessee Rules of A ppellate Pro cedure. This Court granted the application for extraordinary

appeal. For the r

easons st ated her ein, we r everse the trial court’s denial of summary judgmen t again st the Appe

llant. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed

A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY K IRBY L ILLARD , J., joined.
Steven E. Anderson, Sara E. Fitzpatrick, Nashville, TN, for Appellant Paul Moots, M.D.
Terry J. Leonard, Camden, TN, for Appellee s
OPINION
I. Facts and Procedural History

The Appellee, William Howell Steele (“Mr. Steele”), had experienced numbn

ess in his right
arm for appr oximately eight mo nths when

he sought medica

l attentio n from his l ocal phy si cian, Barry Harrison, M.D. (“Dr. Harrison”). Dr . Harrison ordered Mr. Steele to undergo an MRI of his cervical spine and brain. The MRI indicated that Mr. Stee le had an intrinsic lesion on his spinal cord at the C-2 level. Dr. Harrison referred Mr. Steele to William Schooley, M.D. (“Dr. Schooley ”), a neurosurgeon

at St. Thomas Hospital in Nashville, Tennessee. On August 25, 1998, Dr. Schooley admitted Mr. Steele to St. Thomas Hospital for the purpose of diagnosis and treatment.1 A m align ant astr ocy tom a is typ ically a non -op erab le, no n-cu rable canc er.

2 Rem ova l of a m align ant astr ocy tom a usu ally res ults in se vere neu rolo gic d efects to the p atient.

3 An ependymoma is a t umor invol ving the membrane li ning the cere bral ventr icl es and t he cent ral canal of t he spina l cord

. -2- On September 1 1, 1998, Dr. Schooley and Richa rd Berkman, M.D. (“Dr. Be rkman”), a neurosurgeon, performed multiple biopsies of the lesion on Mr. Steele’s spinal cord and sent the specimens to the St. Thomas Hospital pathology lab while Mr. Stee le waited on the operating table. The pathology la

b reported that

the specimens were consistent with malignant astrocy toma. 1 Upon receiving this information, Dr. Schooley and D r. Berkman immediately

terminated the operation

and didnot attempt to remove the lesion. 2 Dr. Schooley had no fu rther involvement in Mr. Steele’s treatment following the biopsy , and Dr. Berkman assumed Mr. Steele’s tre atment. Shortly after t he bio psy, Dr. Be rkman receiv ed Mr. Steel e’s fi nal pa thol ogy report. The final patho logy report indicated that the lesion was an epen dym oma 3 rather than a malignant astrocy toma. Dr. Berkma

n contac ted Mahlo n Johnson, M. D. (“Dr . Johnson”) , a neuro patholo gist at the Vande

rbilt Universi ty Medic al Cen ter pat holo gy lab, and asked him to render a second opinion. Dr. Berkman sent the specimens to the Vanderbilt University Medical Center

pathology la

b. On September

14, 1998, Dr. Jo hnson reviewed the specimens. Dr. Johnson confirmed that the specimens wer e consistent with a grade-I

I ependy moma. Dr. Johnson sent a copy of his repor t to James Elrod, M.D. (“Dr. Elrod”), a pathologist at the St. Thomas Hospital pathology lab.

Dr. Berkman decided to remove Mr. Steele’s spinal cord lesion. Dr. Berkman claimed that h e explained to Mr. Steele that the surgery carried a high risk of neurologic injury, includi n g paraly sis and numbnes s. Mr. Steele elected to undergo the surge ry. On September

17, 1998, Dr. Berkma n surgically

removed Mr. Steele’s spinal cord lesion. The final surg ical pathology report confirmed

that the lesion removed during the operation was an ependy

moma. Dr. Berkman sent the specimens to the Vanderbilt University Me dical Center pathology lab, and the diagnosis of ependymoma wa s again confirmed.

On September 19, 1998, Dr. Berkman consulted Ruth L amar, M.D. (“D r. Lamar”) f or consideration as to post-operative therapy for Mr. Steele. Dr. Lamar recommended external beam radiation therapy. Mr. Stee le was discharged from St. Thomas Hospital on September 19, 1998. Mr. Steele claimed t hat he re turned to St. Thomas Hospital on Se pt em be r 2 8, 19 98 fo r r ad ia ti on th er ap y, butDr. Berkman

refused to order a

radiation oncology

consult or radiation therapy . Dr. Berkman claimed that Mr. Steele did well following the surgery , and he started Mr. Steele on a phy sical therapy pr

ogram.
On January 26, 1999, Dr. B er k man saw Mr. Steele for a follow-up visit. Mr. Steele was experiencing numbness in his shoulder and weakne ss in his rig ht arm. Dr. Ber

kman orde

red an MR

I of Mr. Steele’s spine and brai n. The MRI was performed on F ebruary 1, 1999. The MRI of Mr. Steele’s spine indicat ed th at he either had a residual lesion on his spinal cord or that the-3-

ependy moma had returned. In Ma

rch, 1999, Dr. Berkman sent more pathology specimens to Dr. Johnson for his review. Dr. Johnson analyzed the specimens and concluded that the ependym

oma had the possibility of agg

ressive growth, or malignancy

. Dr. Ber kman also

contact ed the Ap pellant, Paul Moots, M.D. (“Dr. Moots”), a neuroo ncolog ist at Vanderbilt University Me dical Center, and requested a second opinion regarding tre atment options for Mr. Steele. On March 16, 1999, Dr. Moots wrote a letter to Dr. Berkman stating that optimalmanage ment of thi s ty

pe of epe ndymoma was unknown and setting forth the possible treatment options. Dr. Ber

kman reviewed the

MRI wi th the neurora diologist at St. Thomas Hospital and determined that he would not perform further surgery to remove the ependy

moma.

In March, 1999, Dr. Berkman refe rred Mr. Steele to Fred Epstein, M.D. (“Dr. Epstein”), a neurosurgeon

at the Beth Isra

el Medical Center in New York City, fo r his opinion as to whether surgery to remove the ependy

moma was indicated. Once Dr. Berkman refe rred Mr. Steele to Dr. Epstein, Dr. Ber

kman did no t treat Mr . Steele a gain asa patient. On May 26, 1999, Mr. Steele met withDr. Epstein for anexamination and evaluation. Dr. Epstein determined that surgery should be performed

to remove the ependy

moma. Dr. Epstein performed surgery on Mr. Steele. Imme diately following the surgery , Dr. Epstein noted that Mr. Steele was doing well neurologically. Mr. Steel e then developed a sudden weakness in his uppe r body, and he was intubated and placed on a ventilator. On June 21, 1999, Dr. Epstein wrote a letter to Dr. Berkman in which he stated that his neuropathologist indicated that the ependy moma was malignant.

On October

24, 2000, Mr. Steele and

Julia Steele (“Mrs. Steele” or collectively “the Steeles”) filed a compla

int in the Cir

cuit Court of Davidson County ag ainst Dr. Berkman, Dr. Schooley, Dr

. Elrod, Dr. Johnson, Paul Boone, M.D. (“Dr. Boone”), Dr. L amar, Hugh Tobin, M.D. (“Dr. Tobin”), Dr. Moots, St. Thomas Hosp ital, and Vand erbilt University Medica l Center (collectively

“the Defendants”). The complaint alleged that Dr. Berkman, Dr. Schooley, Dr . Elrod, Dr. Johnson, Dr. B oone, D r. Lamar, and Dr . Tobin negligently performed medical examinations on Mr. Steele, misdiagnosed

his condition, and failed to properly treat him. The com

p laint also alleged that Dr. Moots negligently

misdiagnosed

Mr. Steel e’s cond

ition and f

ailed to p rovide him with

appropr iate treatme nt. The complaint stated that as a result of the Defendan ts’ negligence, Mr. Steele ha d suffered injuries, damages, and losses and Mrs. Steele had suffered loss of consortium and loss of income. On December 15, 2000, Dr. Moots, Dr. Johnson, and Vander bilt Unive rsity Medical Center filed an answer. The answer specific ally denied that a phy sician-patien t relat ionship existed between Dr. Moots, Dr. Johnson, and Vanderbilt University Medic al Center and Mr. Steele.

On January 24, 2001, Dr. B erkman and Dr. Schooley filed a motion for summary judgme nt supported by Dr . Be rkm an’ s af fid avi t. In his affidavit, Dr. Berkman stated that he was fami liar with the requisite standard of care for physicians perf

orming surgical procedure s on the central nervous system in Nashville. Dr. Berkman claimed that Dr. Schooley and he were not neglige

nt nor did they fail to meet the requisite standard of care during the treatment

of Mr. Steele. On February 26, 2001, the Stee le s f

il ed a r es po ns e i n o pp os it io n t o t he mo ti on fo r s um ma ry j ud gm en t s up po rt ed by t h e affida vit of Todd Wasserman, M.D. (“Dr. Wasserman”). I n his affidavit, Dr. Wasserman stated that he was fam i liar with the requisite standard of care for phy sicians practicing in Nashville. Dr.-4-

Wasserman claimed that Dr. Berkman breached the requisite standard of ca re by fa iling to obtain a radiation oncol ogy consult for Mr. Steele. On April 16, 2001, the trial court granted the motion for summary judgmen t in favor of

Dr. Schoo ley

and denied the motion

for summa

ry judgmen t again st Dr. Berkman.

On May 16, 2001, Dr. Moots, Dr. Johnson, and Vander bilt University Medical

Center filed a motion fo

r summary

judgmen t supporte d by

the aff idavits of Dr. Moots a

nd Dr. Johns on. I

n his affida vit, Dr. Moots stated that he was familiar with the requisite standard of car e for a phy sician practi cing neuroon cology in Nashville. Dr. Mo ots claime d that he c omplied with the re quisite standardof care with respect to Mr. Steele. I n Dr. Johnson’s affidavit, he stated that he complied withthe requisite standard of care for a physici a n practicing neuropathology with respect to the patho logy specimens of Mr. Steele. Dr. Moots and Dr. Johnson stated that they did notrecommend that Mr. Steele undergo further surg ery.
On July 17, 2001, the St eeles filed a response in opposition to the motion for summary judgment supporte d by

the aff idavits of Dr. Lamar, Dr

. Wasserman, and Mrs. Steele. In Dr . Lamar’s affida vit, she stated that she recommended involved field radiation to decrease the recurrence

of Mr. Steele’ s ependy moma. Dr. Lamar claimed tha t she told Mr. Steele that Dr. Moots should be contacted concer ning tre atment recommenda tions, but she was not aware whether Dr. Moots ever saw Mr. Steele. She stated that Dr. Berkman spoke with Dr. Moots, and Dr. Moots relay ed to Dr. Berkman a more favorable long-term prognosis. Dr. Lamar stated that Dr. Berkman told the Steeles that he did not feel additional treatment was indicated. In Dr. Wasserman’s affidavit, he stated that Mr. Steele should have received a radiation oncology

consult and radiation therapy

. Dr. Wasserman claimed that Dr. B erkman b reache d the req

uisite sta ndard of care by fail ing to order a radiation oncol ogy consult a

nd radia tion thera py f or Mr. Ste ele. I

n Mrs. Steele’s affidavit, she stated that Dr. Berkman refused to order a radiation oncology

consult and radiation therapy as a result, in part, of Dr. Moots’ recommendation.

On July 20, 2001, the trial court held a hearing on the motion for summary judgment. On July 31, 2001, the trial court granted the motion for summary judg ment in favor o f Dr. Johnson. On August 16, 2001, t

he trial c ourt deni ed the mot ion for su mmary judgmen t again st Dr. Moot s a n d Vander bilt University Medical Cente r. On Septem

ber 17, 2 001, Dr. M oots filed an application for extraord in ary ap peal with

this Court pursuant t

o Rule 10 of

the Tennessee Rules of App ellate Procedure. This Court granted the application for e xtraordinary appea

l.

II. Standard of Review
Summary judgmen t is appro priate o nly

where th e moving party demonstrates that there are
no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Byrd v. Hall , 847 S.W.2d 2 08, 210 (T enn. 1993 ); T ENN

. R. C IV

. P. 56.04. We review the summary judgment motion as a

question o f law in which our inquiry is d e novo without a presumption of
correctness. See Finister v. Humboldt Gen. Hosp., Inc. , 970 S.W.2d 435, 437-38 (Tenn. 199 8); Robinson v. Omer , 952 S.W.2d 4 23, 426 (T enn. 1997 ). We mu st v iew the e vidence and all-5-

reasona ble inferences in the light most favorable to the nonmoving party. See Byr

d , 847 S.W.2d at 210-11. If both the

facts and conclusions to be drawn therefrom pe rmit a reasonable person to reach only one conclusion, then summary judg ment is appropriate. See Robins o n , 952 S.W.2d at 426; Bain v. We

lls , 936 S.W.2d 618, 622 (Tenn. 1997).

III. Law and Analysis

The sole issue presented for our review is whether the trial court erred by denying summary judgment against Dr. Moots. I

n order to make this determination, we must first decide whether a physician-patient

relation ship existed between Dr. Moots and Mr. Steele. If we find that a phy sicianpatient rela tions hip e xi sted, we must then decide whether the Steeles failed to crea te an issue of material fact with regard to whe ther Dr. Moots breached the requisite standard of care.
The existence

of a phy sician-p atient re

lationship is an essentia

l element to maintain a claim for medical malpractice. See Bas s v. Bar ksdale , 671 S.W.2d 476, 486 (Tenn. Ct. App. 1984) (citing Dunbar v. Strimas , 632 S.W.2d 5 58, 562 (T enn. Ct. App. 1981 ); Osborne v. Frazor , 425 S.W.2d 768 (Tenn. Ct. App. 1968)). A physician-pa tient relationship is created “when the professional services of a physician ar

e accepted for a pu

rpose of medi cal or s urgical treat ment, the rel ation being a contractual one, wherein patient knowingly seeks assistance of a phy sician andphy sician kn owingly accept s him as a patient.” Jennings v . Case , 10 S.W.3d 62 5, 628 (Tenn. Ct. App. 1999) (citing Findlay v. Board of Supervisors , 230 P.2d 526 (Ariz. 1951)); see also Osborne , 425 S.W.2d at 771. In order to establish a phy sician-patient relationship, it is not necessary for the doctor and patient to meet in person or ev en know e ach other’s name. See Bas s , 671 S.W.2d at 487. Rather, “the requirement

is that the relationship of physician and pa tientbe contractual and that may arise out of a consultation by the patient’s pr imary physician with another phy sician when that consultation is for the treatment of the patient.” Id.

In the case at bar, t

he Steele s argue that a phy sician-patient relationship was established between Dr. Moots and Mr. Steele when Dr. Moots made recommendations to Dr. Berkman which Dr. Berkman relied upon and followed. We disagree. Dr. Moots merely off ered a recommendation of possible treatment options for Mr. Steele to Dr. Berkman. Dr. B erkman was free to acce pt or reject Dr. Moots’ recomme

ndation. T

here is no evidence that Dr. Moots knew Mr. Steele or ever spoke with Mr. Steele. Dr. Moots never examined or diagnosed Mr. Steele. Nothing in the record indicates that Dr. Moots wa s under a contractual obligation with Mr. Steele or with St. Thomas Hospital. Dr. Moots never received pay ment for his rec omme ndation. Dr. Moots was not an employee of St. Thoma s Hospital

where M r. Steele was trea ted. Due to the for egoing reasons , we fail to find the existence of a phy sician-patient relationship between Dr. Moots and Mr. Steele.

In order to succeed ona motion for summary judgment, the movant has the burden of proving that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. See By rd v. Hal l , 847 S.W.2d 208, 210 (Tenn. 1993). The movant may demonstrate that there are
no genuin e issues o f materi al fact b y e ither ne gating

an essen tial elem ent of the non-mova

nt’s claim or establishing an affirmative defense. See i d. at 2 15 n.5. Because Dr. Moots has nega ted an-6-

essential element o f the Stee les’ medical malpractice claim, the existence of a phy sician-patient relation ship between Dr. Moots and Mr. Steele, we find that summary judgment was appropr

iate in favor of Dr. Moots. Ac cording ly, we reve rse the tr ial cour t’s denia l of summar

y ju dgment a

gainst Dr. Moots.

IV. Conclusion

For the foregoing reasons, the decision of the trial court is reversed. Costs of this appeal are taxed against the Appellees, William Howell Steele and Julia Steele, for which execution may issue if ne ce ss ar y.

___________________________________ ALAN E. HIGHERS, JUDGE