# FILED

January 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKS ON

BILLIE J. RUSSELL, and ) BILLIE J. RUSSELL as Adminis tratrix ) on behalf of Decea

sed, Robert L. Russe

ll, ) ) Plaintiff/Appella

nt, ) Hardison Law No. 8540

) vs. ) ) Appeal No. 02A01-9703-CV-00053 Y. N. PAKKALA, M.D

. and ) BOLIVAR COMMUNITY HOSPITAL, )

) Defendants/App

ellees. )

APPEAL FROM THE CIRCUIT COURT HARDEMAN COUNTY

AT BOLIVAR, TENNESSEE

THE HONORABLE JON KERRY BLACKWOOD, JUDGE

For the Plaintiff/Appellant : For the Defendants/Appellees : Charles E. Hodum Marty R. Phillips Mitzi C. Johnson Jackson, Tennessee Collierville, Tennessee

REMANDED

HOLLY KIRBY LILL

ARD, J.

CONCUR:

W. FRANK CRAWFORD, P. J., W.S.

ALAN E. HIGHERS, J

.OPINION

This is a medical malpractice case. The trial cou rt grante d the defendants’ motion for summary judgmen t, based o n the insufficien cy of the affida

vits submitted by the p

laintiff in opposition to the motion. The plaintiff appeals the trial court’s decision. We remand. On August 3, 1993, Defendant/Appellee Dr. Y. N. Pakkala (“Dr. Pakkala”) p erf ormed a laparoscopic

cholecystectomy

on the Plaintiff/Ap

pellee Billie

J. Russell (“Russell”), a fifty-six year old woma n, at the Defendant/Appellee Bolivar Community Hospital (“B CH”) in Bolivar, Tennessee

. The surgical procedure involved the examination of the abdominal cavity with a camera through a small incision in the abdominal wall, and removal of the gallblad der. During the surgery, Dr. P akka la lacerated Russell’s right iliac artery, causing two perforations and internal bleeding. Dr. Pakkala sutured one of

the perforations. In order to repair the perforation, a much longer incision in Russell’s abdominal area had to be made. He found no signs of continued bleeding, and therefore assumed he had completely repaired the artery. However, Russell’s condition did not improve. Dr. Pakkala sent her to Jackson, Tennessee, where another surgeo n, Dr. Harve y Harmon, found and repaired the second perforation. The second surgery to repair the perfor ation was successful. Russell sued Dr. Pakkala

and BCH, alleging th

at Dr. Pakkala wa

s negligent in his

treatment of Russell and that BCH was negligent in notkeeping vascular clamps available for emergencies. The defendants move

d for summary judgm

ent, submitting Dr. Pa

kkala’s affida

vit in support of the

ir motion.In response, Russell filed affidavits from four physicians, discussed in more detail below. The trial court found that Russell’s affidavits were insufficient to raise a genuine issue of material fact, and grante

d the defendants ’ motion for summar y judgment. Russell th

en filed this appe

al. On appeal, Russell a rgues that the trial court erred in granting summary judgment to the defendants

in this case because her medical experts presented testimony which raised genuine issues of material fact. Dr. Pakkala and BCH maintain that summary judgment was proper beca use Russell failedto produce competent expert testimony concerning Dr. Pakkala’s allegedfailure to meet the standard of care in his community, and concerning the issue of causation. Summary judgment is proper when the movant demonstrates that there are no genuine issues of material fact and that the moving partyis entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03. In the eve

nt that the moving pa

rty files a prope

rly supported summa

ry judgment motion, “the burden of production of evidence shifts to the non-moving party to produce evidence2

which would establish a genuine factual dispute.” Masters v. Rishton , 863 S.W.2d 702, 705 (Tenn. App. 1992). When the defense moves for s ummary j udgment, as in this c ase, the plaintiff

must present evidence that es

tablishes the esse

ntial elements

of his claim. Blair v. Allied Maintenance Corp. , 756 S.W.2d 267, 269-70 (Tenn. App. 1988). On a motion for summary judgment, “the court must take t he strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party,

an d discard all countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210-11. In Byrd , the Tennessee Supreme Court stated: Once it is shown by the movin g party that there

is no genuine issue of material fact, the nonmoving party must then demo nstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but mus t set forth specific facts

showing that there is a genuine issue of material fact. Id. at 211 (citations omitted). No presumption of correctness attaches to the trial court’s conclusions of law. See Car

vell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Tennessee Code Annotated § 29-26-115 sets forth the plaintiff’s burden of proof in a medical malpractice action: (a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b): (1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defe ndant practices

in the community in wh ich h e practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. (b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testif y in any court of la

w to establish the facts required to be established by subsection (a) unless he was licensed to pr

actice in the stat

e or a contiguous bordering states a profess ion or specialty wh

ich would make his expert testimony relevan t to the issues in the case and had practiced this profession or specialty in one of these states during the year precedi ng the date that the alleged injury or wrongful act occurred. This rule shall app

ly to expert witnesses testifying for the defendant

as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available. Tenn. Code Ann. § 29-26-115(a) and (b) (1980 & Supp. 1997). See also White v. Methodist Hosp. South , 844 S.W.2d 642, 648-49 (Tenn. App. 1992); Schaefer v. Larsen , 688 S.W.2d 430, 432 (Tenn. App. 1984); Dolan v. Cunningham , 648 S.W.2d 652, 654 (Tenn. App. 1982). In medical malpractice actions, negl igence a nd causation are established by medical expert testimony. Tenn.3

Code Ann. § 29-26-115( b) (1980); Stokes v. Leung , 651 S.W.2d 70 4, 70 6 (Tenn. App. 1982). “Causation in fact is a matter of probability, not possibility, and in a medical malpractice case, such must be shown to a reasonable degree of medical certainty.” Kilpatrick v. Bryant , 868 S.W.2d 594, 602 (Tenn. 1993) (citing White v. Methodist Hosp . South , 844 S.W.2d 642, 648-49 (Tenn. App

. 1992)). In support of the defendants’ motionfor summary judgment, they submitted Dr. Pakkala’s affidavit,which stated that h e was licensed to

practice medic

ine in Tennessee during the year prior to the alleged malpractice, practiced general surgery during that time, knew the recognized standard of acceptable professional practice required of a general surgeon in Bolivar, Tennessee in 1993, and that he complied with the r

ecognized stand

ard of accepta

ble professional practice in his treatment of Russell. In response, Russell

submitted sworn sta

tements by Dr. Harvey Harmon, Dr. Mark Josovitz and Dr. Ray mond Hawkins, as well as an affidavit by Dr. J. T. Davis, Jr. Subsequently, the defendants

obtained and s ubmitt ed an affidavit and deposition by Dr. Harmon, and a sworn statement by Dr. Josovitz. To determine the sufficiency of the plaintiff’s response to the de fendants’ motion for summary judgment, the testimony of each expert is considered below. DR. HARVEY HARMON Dr. Harvey Harmon was contacted by Dr. Pakkala when Dr. Pakkala encountered problems withRussell’s laparoscopic surgery, and Dr. Harmon performed the second surger y to mend the perforation. In his sworn statement dated February 14, 1994, Dr. Harmon opined that Dr. Pakkala’s unsuccessful attempt at mending the perforated artery was not done correctly. Dr. Harmon indicated that Dr. Pakkala should have used a method to tem porarily stop the bleeding that took little time, instead of spending an inor dinate amount of tim

e in an unsuccess

ful attempt to

m end the artery, since the time

delay worsened

Russell’s condition. Nevertheless, Harmon was able to mend the tear and correct the problem. The d ef endants subsequently obtained an affidavit from Dr. Harmon, dated September 4, 1996, in which he stated that he was not fa

mili ar with the st

andard of acceptable professional practice required of a general surgeon practicing in Bolivar in 1993, and that he could not offer an opinion on the subject. Dr. Harmon reaffirmed this opini on in his de position dated October 25, 1996. Because Dr. Har

mon acknowledge

d that he lacked k

nowledge about the

standard of car

e in4

Bolivar, Tennessee in 1993, and di d not express an opinio n about causation

of Russell’s injurie

s, the trial court corr

ectly found that D

r. Harmon’s testi

mo ny was insufficient to overcome the defendant’s motion for summary judgment. See Mabon v. Jackson-Madison Co. Gen. Hosp. , No. 0 2A01-9702-CV-00039, (slip op.) (Tenn. App. Sept. 9, 1997) (citing Cardwell v. Bechtol , 72 4 S.W.2d 739 (Tenn. 1987)) ; Osler v. Burnett , No. 02A01-9202-CV-00046, 1993 WL 90381 (Tenn. App. March 30, 1993); Ayers v. Rutherford Hosp., Inc. , 689 S.W.2d 155 (Tenn. App. 1984). DR. MARK S. JOSOVITZ Dr. Mark Josovitz gave Russell a sworn statement on November 15 , 1993, i n which he opined that, based on a reasonable degree of medical certa

inty, Dr. Pakkala f

ailed to conform to

a reasonable

standard of car

e in his treatment o

f Russell by failing

to insufflate (inflate) the abdomen for the surgery. Dr.

Josovitz stated tha

t Dr. Pakkala’s ne

gligent fail

ure to insufflate caused the laceration of the artery, which resulted in injury to Russell, including permanent disability. The defendants subsequently obtained a sworn statement from Dr. Josovitz on September 4, 1996, in which he stated that he did not perform surgery and did not know the recognized standard of acceptable professional practice required of a general surgeon suc h as Dr. Pakkala. Dr. Joso vitz indicated that he wou l d defer to Dr. Harmon’s opinion regarding whether or not Dr. Pakkala’s actions caused injury to Russell. Contra dictory statements by the same witness regarding a particular fact cancel each

other out. Tibbals Flooring Co. v. Stanfill , 410 S.W.2d 892, 896 (Tenn. 1967). The trial judge has broad discretion in determining the qualifications for admissibility of testimony of expert witnesses. See Shelby County v. Barden , 527 S.W.2d 124, 131 (Tenn. 1975). Since Dr. Josovitz stated that he did not know the recogni zed standard of medic al care applica

ble to Dr. Pakkala in this case, and de ferred to Dr . Harmon on the issue of causation, the trial court correctly concluded that Dr

. Josovitz’ test

imony was insufficient to overcome th e defendants’ motion for summary judgme

nt.5 DR. RAYMOND HAWK INS, JR. Dr. Raymond Hawkins, Jr. repaired an incisional hernia

suffered by Russe

ll approximately two years after the surgery by Dr. Pakkala. He gave a sworn statement for Russell in October, 1995, in which he stated that he had practiced as a surgeon in Somer ville, Tennessee

for over twenty

years. In his statement, he explained that an “incisional hernia is just a weaknes s in the abdominal wall musculature where the intestines come out through that hole.” He said that the incisional hernia was caused by the long incision made to rep air the perfo rations made by Dr. Pakkala in the original laparoscopic

gall bladder surg

ery. Consequently

, he was of the opin

ion that the incision

al hernia “ultimately” resulted from the gall bladder surgery performed by Dr. Pakkala, since if Dr. Pakkala “hadnottorn the iliac artery, she wouldn’t have had that big long incision

” and “the incisio

nal hernia developed after she had that big long incision.” In his sworn statement, Dr. Hawkins stops short of stating that Dr. Pakkala was negligent in his treatment of Russell. He noted that he had perform ed over 200 laparoscopic gall bladder operations,

and that perforating the right iliac artery during the course of such surgery was “extremely

uncommon.” He noted that he understood from Dr. Josovitz’ aff

idavit that Dr. Pakk

ala didnot insufflate the abdomen for the surgery, and stated that insufflating the abdomen is “the usual routine” because “you’re more likely . . . to perforate al l of those structur

es if you don’t insuf

flate the abdomen.” While

calling it “dange

rous” not to do so, he

note d that “t he minority” do not insufflate. Dr. Hawkins did not state that he was familiar with the standard of acceptable medical practic e in Bo livar, did not state that Somerville wa

s a “similar commun

ity” to Bolivar fro

m a medical standpoint, and did not state that Dr. Pakkala’s treatment of Russell was not in accordance with the standard. Dr. Hawkins’ sworn statement was insufficient

to establish neglige

nce by Dr. Pakkal

a under Tennessee Code Annotated § 29 -26-115(a)(1)

and (2). Dr. Haw

kins did not i

ndica te that he was familiar with the standard of acceptable medical practice in Bolivar or that Somerville

is “a similar community” to Bolivarwith respect to the medical standard. Consequently, his statement does not establi sh that he was competent, under the statute, to stat

e that Dr. Pakkala

“failed to act wi

th ordinary and reasonable care in accordance with such s tandard.” Tenn. Code Ann. § 29-26- 115(a)(2). However, under

Tennessee Code Annotated § 29-26-115(a)(3), there is no requirement that6

the medical expert be familiar with the standar d for acceptable medical practice in the relevant community in order

to testify as to cau

sation. Regarding

causation, the sta

tute states: (a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b): *** (3) As a proximate result

of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. (b) No person in a health

care professio

n requiring licen

sure under the la

ws of this state shall be competent to testif y in any court of la

w to establish the facts required to be established by subsection (a) unless he was licensed to pr

actice in the stat

e or a contiguous bordering state a profession or specialty which would make his expert tes timony relevant to the issues in the case and had practiced this profes sion o r spe cialty in one of these sta

tes during the yea

r preceding the d

ate that t he allege d injury or wrongful act occurred. Tenn. Code Ann. § 29-26-115(a)(3) and (b) (1980 & Supp. 1997). The medical expert “must meet the licensing and g

eographic requirements

of Section (b)” in

order to be compe

tent to testify as to causation. Payne v. Caldwell , 796 S.W.2d 142, 143 (Tenn. 1990). Dr. Hawkins testified that he was licensedto practice medicine in Tennessee and that he had pr a cticed in Tennessee as a general surgeon for over twenty years. Thus, under the statute, he was compe tent to testify to establish causation under subsection (a)(3), but not negligence under subsections (a)(1) and (2). In and of itself, th

en, Dr. Hawkins’ sworn statement was not sufficient to overcome the defendants’ motion for summary judgment, because it does not establish negligence.

DR. J. T. DAVIS, JR. The plaintiff also submitted an affidavit by Dr. J. T. Davis, Jr., dated September 18, 1996. In the affidavit, Dr. Davis noted that he had received the medical records regarding Dr. Pakka l a ’s diagnosisand surgery on Russell, as well as the records from Dr. Harmon’s tre atment of Russell. He stated in perti

nent part: 1. I am a medical doctor, more specifically ed ucated as a sp

ecialist in the field of cardiovascular

surgery, curre

ntly and continuall

y licensed to prac

tice medicine in

the Stateof Te nnessee. I am aware of the recognized standard of acceptable medical practice required of a general surgeon practicing in the State of Tennesse

e and in Bolivar, Hardeman County, Tennessee, in 1993. * * * 4. While attempting th

e laparoscopic c

holecystectomy, D

r. Pakkala perf

orated Mrs. Russell’s right iliac artery. This is a r are and very uncommon complication to be expected from this type surgery. 5. It is my opinion, base d on a reasonable degree of medical certainty, (meaning more th an a 5 0% probability) tha t Dr. Y.N. Pakkala

, on August 3, 1993 fa

iled to7

complywiththe recognized standard of acceptable professional practice required of a general su rgeon practicing in Bolivar, Hardeman County, Tennessee during August, 1993 , with his care and tre atment of Billie Russe

ll. These failure

s to co nform to a r easonable stand ard of medical c

are in his treatme

nt of Mrs. Russell include, but are not necessarily limited to the following: (a) In recognizing she was potentially a r isky patient given her

history of diabete

s, coronary disease, obesity, and other ailments, but failing to treat her as high risk and refer her to an

individual capabl

e of treating a hi

gh risk patient; (b) Failure to tra

nsport her to anoth

er facility equip

ped to treat a high

-risk patient; (c) In attempting to perform a laparoscopic cho l ecystectomy without the needed tr aining and skills expecte d of a general su

rgeon to adequat

ely perform su

ch a surgery; and mana

ge the inherent c

omplications; (d) In attempting to

perform a lapar

oscopic cholecy

stectomy without having eas

ily accessible the e

quipment needed to

perform said sur

gery and treat c

omplications. (e) In failing to control bleeding of the perforated artery and to facilitate transporting the patient to a vascular surgeon within a reasonable period of time; ( f) In failing to follow the stated directions of Dr. Harvey Harmon, a vascul a r surgeon in Jackson, Tennessee; (g) In attempting to men

d or repair th

e perforated artery without being a vascular surgeon and without having the experience, training or equipment to repair the arte ry; (h) In giving the patient heparin, a medication which the defendant kn ew or should have known was inappropriate under the given medical circumstances. The affidavit does not state how long Dr. Davis had been licensed in T

ennessee. Speci

fically, it does nots tate that Dr. Davis had practiced cardiovascular surgery in Tennessee “during the year preceding the date that the alleged injury or wrongful act occur r ed.” Tenn. Code Ann. § 29-26-115(b). However, it states that Dr. D avis is “currently and c

ontinually license

d to practice med

icine in the Stateof Tennessee.” He asserts that he was “aware” of the standard of acceptable medica l practice required of a general surgeon in Bolivar, Tennessee in 1993. In his affidavit, Dr. Davis does not address causation of injury. However, it is undisputed that Russell underwent

a second surgery as a result of Dr. Pakkala’s perforation of her artery during the laparoscopic procedure. Even if Russell had no complications from the second surgery, the fact that she had to undergo a second surgery constitutes injury. Moreover, as discussed above, D r . Hawkins testified that

Russell’s incisional hernia occurred because Dr. Pakkala perforated the artery during the initial gall

bladder surgery which resulted in a “big longincision” from the subsequent repair surgery. There

fore, in this case

, if Russell submits pr

oof that the init

ial pe rforation of the artery by Dr. Pakkala wa

s negligent, this wou

ld be sufficient to

overcome the defendants’ motion1 In Payne , the Tennessee Supreme Court held that a medical expert must meet the

licensing and geographic requirements of Tenn. Code Ann. § 29-26-115(b) in order to testify as to causation. In so holding, the Court stated: “The proof of each element in a medical malpractice action is so entwined that it is difficult, if not impossible, for a witness to testify on the issue of causation without commenting, either expressly or tacitly, on the standard of care or whether or not it was breached.” Payne , 796 S.W.2d at 143. The Court’s holding, however, was limited to requiring witnesses testifying on causation to meet the requirements of Section (b). 8 for summary judgme

nt. In his affidavit, Dr. Davis notes that, during the laparoscopic cholecystectomy, Dr. Pakkala perforated

Russell’s right ilia

c artery. He de

scribed this

a “a rare and very uncommon complication to be expected from this type surgery.” In the next paragraph, Dr. Davis enu merates the wa ys in which Dr. Pakkala’s care of Russell fell below the applicable standard of acceptable profe ssional practice. Among these, he lists “attempting to perform a laparoscopic cholecystectomy without the needed training and skills e

xpected of a gen

eral surgeon to a

dequately perform such a

surgery. . . .” The remainder of the list addresses allegedly negligent acts after the perforation of the artery, such

as failing to transport Russell to a vascular surgeon within a reasonable length of time. There is no competent

testimony in the record establishing that Dr. Pakkala’s alleged negligence after

the artery was perforate

d caused injury to R

ussell. To overcome the de

fendants’ motion f

or summary judgmen

t, the plaintiff must show an act that fell below the acceptable standard of medical practice and an injury proximately caused by that act

. Negligence and causation of injury can be established fr om mor e than one affidavit, i.e., negligence established by one medical expert and causation of injury by another. See Schaefer v. Larsen , 688 S.W.2d 430, 433 (Tenn. App. 1984); McCay v. Mitchell , 463 S.W.2d 710, 718 (Tenn. App. 1970); but see Payne v. Cal dwell , 796 S.W.2d 142, 143 (Tenn. 1990). 1 However, they must bothcorrespond to the same allegedly neglig ent act or omission. Accordingly, the

plaintiff must demonstrate

a genui ne issue of material fact as to whether Dr. Pakkala’s perforation of the artery during the laparoscopic procedure was negligent. Dr. Davis’ affidavit is unclear in two respects. First, it is unclear whether Dr. Davi s wa s l icensed i n Tennessee during the year preceding the alleged wrongful act, as required by statute. Tenn. Code Ann. § 29-26- 115(b). Dr. Davi s states that he is

“currently and c

ontinually license

d to9

practice medicine in the Sta te of Tennessee” and that he was “aware” of the standard of acceptable medical practice required of a general surgeon in Bolivar in 1993. In addition, it is unclear whether Dr. Davis is of the opinion that Dr. Pakkala’s init ial perforationof Russell’s artery was the result of actions which fell below the applicable standard of acceptable

medical practice. He describes the perforation as “a rare and ve ry uncommon complication.

. . .” He states expressly that Dr. Pakkala fell below the applicable standard in a number of respects. He then lists amon g these Dr . Pakkala’s attem pt “to perform a la

paroscopic cholecystectomy

without the needed

training and skills expected of a general surge

on to adequately perform such a su

rgery. . . .” Altho

ugh it is ambiguous, th

is could be interpreted

to mean that Dr. Davis is of the opinion tha t Dr. Pa kkala’s perfo ration of the arte ry was negligent,

a result of his alleged lack of the “training and skills” needed to perform the surgery. In considering a grant of summary judgment, we are obliged to “ta ke the strongest le

gitimate view of the evide

nce in favor of th

e non-moving party

, and allow all infe

rences in favor

of that party . . . .” Byrd v. Hall, 847 S.W.2d 208, 209 -11. In discussing c

ases in which summary judgment is appropriate, the Tennessee Supreme Court has stated: The s ummary judgment procedure was designed to provide a quick, inexpensive means of concluding cases, in whole or in part, upon issues as to which there is no dispute regarding the mater

i al facts. Where

there does exist a

dispute as to fact

s which are deemed material by the trial court, however, or

where there is u

ncertainty as to whether there may be such a dispute, the duty of the tria l court is clear. H

e is to overrule any moti

on for summary judg

ment in such cases , because summa ry judgmentproceedings are not in anysense to be viewed as a substitute for a trial of disputed factual

issues. Evco Corp. v. Ross , 528 S.W.2d 20, 24-25 (Tenn. 1975). In this case, there is “uncertainty” about whether ther e may be a factual dispute regarding whether Dr. Pakkala’s perforation of Russell’s artery during the initial surgery was negligent. Althou gh the is sue is very close, under these circumstances, summary judgment is inappropriate. Under Tennessee Co

de An notated § 27-3-128, the appellate court may remand the proceedings to the trial cou rt for cor rection of the record “where, in its opinion, complete justice cannot be had by [by reason of?] some defect in the record, want of proper parties, or oversight without culpable negligence.” Dr. Davis’ s tatements are un clear regardi

ng his licensing in Tennessee during the year preceding the alleged wrongful act. In the absence of a deter mination as to whether he was licensed during this time per iod, “ complete justice cannot be had. . . .”10

Consequently, we remand the case for the trial court to determine whether Dr. Davis was licensed in Tennessee durin

g the pertinent time

period. If so, we find that the trial court’s grant of summary judgment was improper and must be reversed. The case i s remanded to the trial court for further proceedings in accordance with thi s Opinion. Costs are assesse d equally against the Appellant and the Appellees, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.