# FILED
November 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT NASHVILLE JAMES MARK BLICK, ) ) Plaintiff/Appellant, ) Montgomery County No.

C10-329 ) VS. ) Appeal No . 01A01-9708-CV- 00393 ) STEPHEN W. KENT, M.D. , et al, ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF M ONTGOMERY COUNTY AT CLARKSVILLE, TENNESSEE THE HONORABLE JAMES E. WALTON, JUDGE

MARK R. OL

SON OLSON & OLSON, PLC Clarksville, Tenness

ee Attorney for Appellant

DAN L. NOL AN MARIE A

NTOINETTE JOINER BATSON, NOLAN, BRICE, HA RVEY & WILLIAMSON, PLLC Clarksville, Tenness

ee Attorneys for Appellees

REVERSED AND

REMANDED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HOLLY KIRBY LI LLARD, J.1 Blick ’s amended complaint also named Paul Stampli, L PN, Jean Harris, LPN, and the Hospital as defe nda nts, b ut the se de fend ants were subs equ ently d ism isse d fro m th e law suit a nd ar e not partie s to th is appea l. 2 In this medical malpractice action, Plaintiff James Mark Blick appeals the trial court’s final order entering summary judgment in favor of Defendants/Appel lees Stephen W. Kent, M.D., William D. Shippen, M.D., Robert Douglas Doty, M.D., and Rober t Hector, P.A. For
reasons hereinafter stated, we reverse the tria l court’s judgment and remand for further proceedings.

On August 23, 1992, Blick was treated for a head laceration by Phy sician’s Assistant Robert Hector at the Clarksv ille Memorial Hospita l emergency room. Hec tor was employed byClarksville Em erge ncy Physicians, a p artnership of doctors whi ch, pursuant to a contract, provided emergency medical services at the Hospital. Defendants William D. Shippen, M.D., and Robert Douglas Doty, M.D., were partners of Cl arksvill e Emergency Physicians, as was Defendant Stephen W. Kent, M.D. Dr. Kent acted as the super vising physician in the emerg ency room on the day Bli ck was treated.

After cleaning Blick’s head lacerati on and inspecting it for any foreign matter, Hect or sutured the wound and proceeded to dis charge Blick. Althoug h Dr. Kent did notpersonally treatBlick, Dr. Kent rev iewed Blick’s char

t and authorized his discharge from the Hospital. Over one year later, Blick sought treatment from another physicianfor continui ng problems with his head wound. A subseq uent surgery rev ealed the p resence of a p iece of glass imbedded in Blick’s head which Hector’s examination apparently had missed. The glass was triangular

in shape and measured approximatel y two centimeters on i

ts widest side.
In October 1994, Blick filed this action for medical malpractice against Hector, Dr. Kent, and the other Defendants. 1 In h is amended complaint, Blick alleged that Hector negligentlyfailed to disco ver the piece of glass when he treated Blick’s head wound in August 1992. Blick additionally alleged that Dr. Kent was negligent in failing adequately to supervise Hector

in violation of the Phys ician Assistants Act, c odified at Tennessee Code Annotated sections 63-19-101 to 63- 19-114 (1990 & Supp. 1992).3

A fterp articipating in disc overy, the Defendants mov ed for summary judgment, contending that the undisputed evidence fail ed to s upp ort Blick’s claim that Hector deviated from the applicable standard of care in his treatment of Blick. In support of their motion, the Defendants relied on the depositions of Defendants Hector and Kent. The Defendants also relied on the affidavit of Blick’ s expert, Dr. Davi d H. Lander, and the deposition testimo nyof Dr. Harry S. Creekmore, the surgeon who remov ed the piece of glass from Blick’s head.

In granting the Defendants’ motion for summary j udgment, the trial court made the following ruling: The Court consid er ed [the] Defendants’ Motion for

Summary Judgment, and the Court f inds t hat the deposition testimony

of Dr. Kent

and Dr. Creekmore do [sic] not establish that Defendants violated the standar d of care. The Court finds that the Affidavit of David H. Land er, M.D., states wh at he believesto be the applicabl e s tandard of care. However, he does not sa y or intimate that the Defendants viol ated that standard. The Court finds that the Plaint iff has failed to presentevide n ce that the Defendants violated the applicable standard of care. Therefore, there is no g e nuine issue as to any material fact, and Defendants are entitled to judgment as a matter

of law. Without any expert medical

proof i n opposition to the Defendants’ Motion for Summary Judgment, the Court enters s ummary Judgment in favor of the only remaining Defendants, Stephe n W. K ent, M.D., William D. Shippen, M.D., Robe rt Douglas Doty, M.D., individually and as general partners of Emergency Ro o m Physicians, a Partnership, and Robert Hector, P.A., as a final judgm ent pu rsuantto Rule 56 .04 of th e Tenne ssee Rule s of Civi l Procedure. The Plaintiff’s cause against these Defenda nts is hereby dismissed.
Our standard of review of the trial court’s order granting the Defendants’ motion for summary judgment is summari zed in Carvell v. Bottoms , 900 S.W.2d 23 (Ten n. 1995): Since our inquiry inv

olves purely a qu estion of law, no presumption of correct ness attaches to the trial court’s judgment, and our task is confin ed to reviewing the record to determine whether the requirement s of Tenn. R. Civ. P. 56 have been met. Cowden v. So vr an Bank/Central South , 816 S.W.2d 741, 7 44 (Tenn. 1991). [Rule 56.04] pro vides that summary judgmentis only appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense cont ained in the motion, Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Anderson v. Standard Reg ister C o. , 857 S.W.2d 555, 559 (Tenn. 1993). The moving par ty has theburden ofproving4 that its motion satisfies these r equirements. Downen v. Allstate Ins. Co. , 811 S.W.2d 523, 52 4 (Tenn. 1991).

. . . Courts must view the evidence in the light most favorable to the nonmoving party and must a lso dr aw all reasonab le in ferences in the nonmoving par ty’s favor. Byrd , 847 S.W.2d at 210-11. Courts shou ld grant a summary judgmentonly when both the facts and the conclusions

to be drawn from the facts permit a reasonable person to reach only one conclusion. Id

. Carvell v. Bottoms , 900 S.W.2d at 26.

This court hasrecognized that, as a general rule, a defendant moving for summary judgmentmay avail itself of two avenues: (1) the defendant “may negate an essential element of the nonmoving party’s claim,” or (2)the defendant “may establis h an aff irmative defense, such as the statute of lim itations, that defeats the claim.” Allied So und, Inc . v. Neely , 909 S.W.2d 815, 820 (Tenn. App. 1995) (citing Byrd v. Hall , 847 S.W.2d 208, 215 n.5 (Tenn. 1993)). In this case, the Defendants sought to obtain a summ aryjudgment by the first avenue, th at of nega ting an e ssential element of Blick’s claim for medical malpractice.

In a medical malpractice acti on, the plaintiff is required to pr ove three elements by competentexpert testimony: ( 1) the applicable standar d of care, (2) the defendants’ deviation fr om that s

tandard , and (3)

injury to the pl aintiff a

s a prox imate re sult of s uc h deviation. Roddy v. Volunteer M ed. Clinic, Inc. , 926 S.W.2d 572, 578 (Tenn. App. 1996); Parker v. Vanderb ilt Univ. , 767 S.W.2d 412, 420 (Tenn. App. 1988). In the present case, the trial court ruled that the undisputed evidence failed to e stablish that Hector dev iated from the applicable standard of care in his treatment of Blick. Accordingly, the trial court agreed that the Defendants had succ essfully negated an essential element of Blick’s claim, and the court granted the Defendants’ motion for summary judgment.

After reviewing the ex

pert testimony presented i n th i s case, we conclude that, contraryto the trial court’ s ruling, t he record reveals the ex istence of a genuine issue of material fact as to whether Hector deviated from the required standard of care and whether5

this deviation proximatel y caused Blick’s in

jury. This case w

as somewhat unusual in that the parties essentially

agreed on theapplicable standard of care. A ccording to the various experts, the standard of care required Hector, prior to suturi ng or otherwise closing the wound, to examine thewound for the presence of foreig n objects by probing to the depth of the wound. Hector’s recollection of treating Blic k wa s vague, and he relie d to a large extenton the notations he had made in Bli ck’s chart. Hector te sti fied that he visually inspected Blick’s wound to the depth of the wound to ensure that no fore ign bodies were present. Hector also scrubbed Blick’s wound t o its depth with Betadine.

Hector’s testimo ny r evealed, however, that he did not probe the wound. During Hector’s deposition, the foll owing exchange tr anspired: Q. But none of your notes reflect any action you took actu ally probi ng inside t he wound, do they? A. No. I didn’t probe inside the w ound. I inspected it visually and I scrubbed it out. Q. Once again my question is: None of your notes state that you actually pr obed or investigated i nside the wound; correct? A. I didn’t pro be the wound, no, not with an instrument. Q. And there’s nothingelse in your notes here that reflect that there was any kind of probing or i nvestigation inside the wound. A. The wound was

visually inspec

ted just by the fact tha t I noted the size and locati on and the condition of the wound. I nasmuch as Hector’s own testi mony indicates that he failed t o probe the wound as required by the applicable standar d of care attested to by the parties’ experts, w

e conclude that the trial court impro perly granted summary judgment on this issue.

Without citation to the r ecord, the Defendants assert that Hector testified in his d eposition “that he did probe to the depth of the wound.” Afte r reviewing Hector’s deposition, we can only surmis e that the Defendan ts are ref erring to Hector’s testimony whereby he state d that he vi su ally inspected the w ound for foreign debris and that he2 Based on the record bef ore us, we are unab le to concl ude that Hector ’s act of scr

ubbing the wound to its depth complied with the requi rement that he pr obe the wound. One avai lable authority indicat es that th e terms “scrub” and “pr obe” have ver

y dif ferent meanings, a nd we note that H ecto r’s us e of th ese term s in his depositi on was co nsistent w ith this autho rity’s definitions. Mer riam -W ebs ter’s Medical Desk D ictionary 575, 642 (19 93). 6 scr ubb ed the wound to its depth. As the above-quoted portions of Hector’s deposition reveal, however,Hector specifically testified that he did not probe the wound. 2

In urging this court to affirm the trial court’s entry of summary judgment in their favor, the Defendants contend that the testimony of Blick’s experts failed to rev eal any deviation from the required standard of care by He ctor. It is true that Dr. Lander deferred to Dr. Creekmore on the issue of whether Hector’s f ailure to discover t he gl ass c onstituted negligence. It al so is true that, when asked his opinion on the issue, Dr. Creekmore declined to characterize Hector’s failure to find the piece of glass as negligence. Dr. Creekmore testified that, “I cannot say that Mr. Hector was

guilty of neglig ence. I mean, it is possible for someone to try to find something and not find it.” Dr. Creekmore agreed that, just because a piece of glass was missed in an examination, it did not necessarily follow that the examining phy sician or physician’s assis

tant failed tofollow the applicable standard of care. Dr. Creekmore explained that “there ar e conceivably some occ asions when a p iece of tissue can overlap and make one think one is at the bottom of a w ound when one is n ot and, therefore, one can make an erroneo us judgment there.” In this manner, a piece of tissuecould obscure an underly ing piece of glass. Dr. Creekmore also explained that a foreign body, such as a piece of glass, could mig rate toward the surface of the skin over a period of time and, thus, not be discover ed un til after

some time had passed. Dr. Creekm ore belie ved that h e would ha ve found the piece of glass during the initial examination of Blick’s w ound, but he did not necessarily be lieve Hector was negligent for failing to find it.
Despite this testimony, we conclude that the summary judgment entered in favor of the Defendants must be reversed. Dr. Creekmore’s testimony revealed that, even in the exercise of due care, Hector still c ould have failed to detect the presence of the glass in Blick’s wound. Dr. Creekmore ’s testimony, howev er, was predicated on the assumption3 W e decline t o address Bli ck’s alte rnat i ve ar gum ent th at Dr . Ken t neg ligent ly supe rvise d He ctor in violat ion of the Physi cian Assist ants Act, i nasmuch as the trial court apparent ly hasnot rule d on this i ssue. Carver Plumbing Co. v. Beck , No. 01A01-9708-CV-00 377, 1998 W L 161112, at *7 (Tenn. App . Apr. 8, 1998). 7 tha t Hec tor had, in fact, complied with the applicable standard of ca re by probing the wound to its depth. In light o f Hector’s own admission that he did not probe the wound, the cited testimony fails to negate B lick’s c laim that Hector deviated from the applicable standard of care in his treatment of Blick’s wound. 3

The judgment of the trial court is hereby reversed, and this cause is remanded for further proceedin gs co nsistent with this opi nion. Costs on appeal are tax ed to the Defend ants, fo r which execu tion may is sue if ne cessary.

HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.

LILLARD, J.