# FILED
December 15, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
ROBERT CLA RENCE PAYN E, ) ) ) Plaintiff/Appellant, ) Hardeman Circuit No. 8964 ) VS. ) Appeal No. W1999-02059-COA-R3-CV ) LESLIE SHUMA KE, ALA N BARGERY

, ) WARDEN, and CORRECTIONS ) COR POR ATIO N OF AMERI CA, ) ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF H ARDEMAN COUNTY AT BOLIVAR, TENNESSEE THE HONORABLE JON KERRY BLACKWOOD, JUDGE

ROBERT C. PA

YNE, pro se Henning, Tennessee CLAIRE M. CISSELL CHARLES C. HARRELL BAKE R, D ONE LSO N, B EARM AN & CALDWELL Memphis, Tennessee Attorney for Appellee, Leslie Shumake TOM ANDERSO N ANDERSON LAW FIRM, P.L.L.C. Jackson, Tennessee Attorney for Appellees, Ala n Bargery and Corrections Corporation of America

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J.2

Robert Clarence Payne appeals from the Circuit Court of Hardema n County, which dismissed his pro se complaint against the def endants Leslie Sh umake, A lan Barge ry, and Corrections Corporati on of America.

Facts and Procedural His tory

Robert Payne (“Appellant”) was, at the time thi s dispu te arose, confined as an inmate at the Hardeman County Correctional Facili

ty (“HCCF”) i n Whiteville, Tennessee. HCCF is a cor

rectio nal faci lity o perated by one o

f t he named defendants, Corrections Corporation of America (“CCA” or “ Appellee”). Alan Barg ery (“Appellee”) i s the warden of the Hardeman County

Facility. Leslie Shumake (“Appellee”) is a medical doctor lic ensed to practice in Tennessee who was hired by CCA to providemedical services at H CCF. The complaintarises out of the alleged malpractice of Shumake in rendering medical services to the appellant.
Payne, who appears to suffer from high-blood pressure, w as called to the

infirmary at HCCF on June 6, 1998 for the purpose of havi ng his blood pressure ch ecked. On this visit, Payne informed Shumake of pains emanating from his (Payne’s) right testicle. The pain traversed Payne’s right hip, the n trave led alon g his l ower ba ck to th e area of his left testicle. Payne alleges that Shumake’ s medical evaluation consisted of “[p]laintiff’s right testicle being felt.” Payne alleges that no further examination occurred. As a result of the examination, Shum ake diagnosed the pain as deriv ing from an infection and prescr ibed
a seven-day regimen of amoxocillin. The pain persisted andPayne again visited Shumake complaining of the same symptoms. The complaint all eges thatShumake “examined Plaintiff’s testicles by feeling them and prescribed Doxy cyclineforone week at two a day .” A third visitrelating to the same sy mptoms culminated in a verbal confrontation betw een Shumake and Payne. Dr. Shumake allegedly stated that he did not know w hat was wrong with Payn e and he could not spend any more money in t reating him. Payne filed a grievance with the griev ance committee at HCCF throug h which he sought “adeq uate and meaningful medical attention.” Appellee Alan Bargery denied Payne’s griev

ance finding3

that Payne had received ad equate medical attention.

On or about August 21, 1998, Paynewas transferred to the West Tennessee State Prison where he was exami ned by Dr. William Potter in an inta ke examination. Payne describ ed the s ame symptoms that he had described to Dr. Shumake and Dr. Potter conducted the same examination as had Shumake. D r. Pot ter determined that Payne suffered from an infection and prescribed a fifteen-day c ycle of Doxycy

cline. According to Payne, Dr. Potter stated that pri or antibiotic cycle s had not been prescribedin a sufficient number of days to cure the infecti on.

The original complaint in this action was filed on October 10, 1998, alleging that Dr. Shumake failed to properly diagnose and treatPayne’s condition “in a manner consistent with his duties or within his expertise.” Payne alleged that he w as subjected to unnecessary pain and suffering due to Shumake’s negligence. The complaint also asserted a cause of action against Al an Bargery and CCA due to their “inac tions and indifference to his [Payne’s] serious medical needs, and their duties within the provis ions of Tennessee Department of corrections Policy , . . . and Tennessee Code Annotated § 41- 21-204 et seq .”

After the original complaint in this action was filed, Payne was seen by a Dr. Zaidia at the West Tennessee State Prison. After Payne described the same symptoms, Dr. Zaidia ordered blood and urine tests

. Id. Based on these tests, Dr. Z aidia diagnosed Payne as having hepatitis C. Dr. Zaidia also ordered X-rays of Payne’s lower body, which resulted in the discovery that Payne suffered from kidney stones. As a result of thenew diagnosis, Payn e fil ed an amended complaint asserting that Dr. Shumake violated the standard of care by failing to order blood tests, urine tests, and X-ray s. These tests, Payne alleged, would have led to the discovery of the hepatitis C and the kidney stones.

On November 19, 199 8, Dr. Shumake filed a motion for summary ju dgment asserting that there were no genuine issues of material fact upon which liability could be1 In the memorandum in oppositi on to Dr. Shum ake ’s motion for summary judgment, Payne made two arguments. First, he argued that his m edical re cords , which he had be en unable to o btain, would be suffici ent as expert evidence to show that Dr. Shumake violated t he standard of car e. Secondly , he contended that the a lleged me dica l ma lprac tice w as w ithin the “ken of t he common layman,” thereby not requiring expert testim ony. 4 predicated. Pertinent to the motion, Dr. Shumake filed an affidavit in which he stated that he complied with the applic ab le standar

d of care

in his t reatment

of the Pl aintiff. Specifically, Dr. Shumake stated that hetook an adequate history , performed a physical examination, arrived at a differential and primary diagnosis,and prescribed the appropri ate ant ibiotic. Subsequently, Alan Bar gery and CCA filed a moti on to dismiss pursuant to Tennessee Rule of Civil Procedu re 12.02(6) asserting that the complaint failed to state a claim upon which relief c ould be granted. Barger y and CCA argued that th ey did not actuallyparticipate in or condone any specific mist reatment of Payne, nor were they involved in the medical treatment or dec isions of which he

complained. Payne

then filed several documents with the court, including a motion for default jud gment, a motion for judgment on the pleadings, a memorandum of law in opposition to the motion to dismiss fo r failure to state a claim, a moti on to allow the filing of an amended complaint , a n affidavit of disputed mater ial fact s, a set of i nt errogatories to Alan Bar gery and CCA, a request for admissions to Dr. Shumake, a “motion in opposition to summary judgment,” 1
a petition for writ of habeas corpus ad testificandum, a seco nd a mended complaint, a motion to set aside the order of dismissal as to Alan Bargery and CCA, various affidavits, and a motion for judicial notice of adjudicative fact s.

The trial court, by

order dated December 10, 1998, g ranted the motion to dismiss filed on behalf of Alan Bargery and CCA

. Also, on February 2, 1999 , the trial court granted Dr. Shumake’s motion for summary judgment. This appeal follow ed.
Law and Analy

sis Dr. Shumake The appellantin this cas e has, alm ost single handed ly, created a two-volume record for this appeal. As noted earlier, appellant filed numerous motions and af fidavits as well
as many other documents not herein mentioned. In spite of the abundance of information2 § 29-26-115. Bur den of proof; expert witnesses (a) In a malpracti ce action, the clai mant shall have the burden of prov ing by ev idence as provi ded by subsection (b): (1) The recognized standard of acceptable profe s sional pr actice i n the professi on and the specialty thereof, if any , that the defendant practices in t he commun ity in which he practices or in a simil ar community at the t ime the all eged injury or wrongfulaction occur red; (2) That the defendant acted wit h less than or failed to act with ordinary and reasonable care in accordance wi th such standard ; and

(3) As a proxi mate result of the defendant 's negli gent act or o mission, the plaint iff suff ered injuri es which would not otherwise ha

ve occurred. (b) No person in a health care profession requi ring l icensure under the laws of this state shall be competent to testify in any co urt of law to e sta blish the fa cts requir ed to be establ ished by subsection (a) unless he was licensedto practi ce in the st ate or a cont iguous borderin g state a p rofess ion or spe cialty which wou ld make his expert test imony relev ant to t he issues in the case a nd had pr acticed t his professi on or specialty in one of the se s tates durin g the year p rece ding t he da te tha t the a lle ged injury or wrongfulact occurred. This rule s hall ap ply to expert witnesses testi fying f or the defendant

as rebuttal

witnesses. The court may w aive this su bsection when it de termin es that the approp riate witnesses ot herwise woul d not be availabl e. 5 which appellant places before thi s court, the dispositive issue in this case is relatively simple. Th at issue is whether the appellant’s medical malpractice claim against Dr. Shumake can go forward in the abs ence of expert medical testimony to support appellant’s claim. As we deem the answer to that question to be no, the trial court’s dismissal of this action as to Dr. Shumake is affirmed.

A trial cour t should g rant a mo tion for summary judgment o nly if the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment

as a matter of law. Tenn. R. C iv. P. 56.04; Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett , 833 S.W.2d 78, 80 (Tenn. Ct. App. 1992). The party moving for summary ju dgment bears the burden of demonstrati ng that no genuine issue of material fact exists. Byrd , 847 S.W.2d at 210. On a m otion for summary judgment, the court must consider themotion in the same manner as a motion for directed verdict made at the close of the plaintiff's pr oof; that is, "the court must take the strongest legitima te view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of

that part y, and discard all counterv ailing evidence." Id. at 210-11.

In a medical malpractice action , the plaintiff has the burdenof proof on the following elements: stand ard of care, breach of the standard of care, and causation. Tenn. Code Ann. § 29-26-115(a). 2 In order to establish each of these elements, the plaintiff must put(c) In a malpracti ce action as described i n subsection (a) of this sect ion there shall be no presumption

of negligence on the part of the defendant . Provi ded, however, there shal l be a rebuttabl e presumption that the defendant was negl igent where it i s shown by the proof that the instrumentality causing injury was in the defen dant's (or defendant 's) exclusi ve controland that th e accident or injury was one which ordina rily doesn 't occur in th e absence of negli gence.

(d) In a malpracti ce action as described in subse ction (a)of this se ction, the jury shal l be instruct ed that the clai mant has the burden of pr ov ing, by

a p reponderance of t he evidence, the negli gence of the defend ant. The jury shal l be fur ther i nstructed t hat inj ury al one does not rai se a presumption of t he defendant's n egligence.

6 forth expert evidence, unles s the act of allegedmalpractic e lies within the common knowledge of the layman. Ayers v. Rutherford Hospital, Inc. , 689 S.W.2d 155, 160 (Tenn. Ct. App. 1984); Bowman v. Henard , 547 S.W.2d 527, 530-532 (Tenn. 1977). Without this requisitethreshold evidence of the stan dard of care in th e locality, a plainti ff cannot demonst rate a breach of duty. See Cardwell v. Becht ol , 724 S.W.2d 739, 754 (Tenn

. 1987). It is the clear positi on in this state that exper t testimony

i s required in all but the most ob vious ca ses involving al legations of medical malpractice. Ayers , 689 S.W.2d at 160; Tucker v. Metropolitan Gov’t of Nashville andDavidson County , 686 S.W.2d 87, 92 (Tenn. Ct. App. 1984); S ee also Runnel ls v. Rogers , 596 S.W.2d 87, 89 (T enn. 1980); Bowman , 547 S.W.2d at 530-531.
The simple issue in the present case is whether the alleged act of malpractice on the part of Dr. Shumake is such that expert testimony is not required. The appel lant has asserted that this is the type of obv ious case where expert tes timo ny is not required. In this regard, we find it i mpossible to agree with the appellant. The fact that a doctor misses
a diagnosis does not autom aticall y indicate a violation of the standard of care. The sole basis for alleging that this case involves “obvious” malpractice is the appellant’s asser tion that Dr. Shumake failed to conduct a pr oper medic al examination. Appellant p redicates his malpractice claim on the fact that Dr. Shumake did not conduct “scientific” tests. In the absence of expert testimony, neither the appellant nor this court i s in a position to say that the failure to order such tests violated the standard of care. Quite contrary to appellant’s argument, we believe the present case is specifically the type of case that would require
ex per t testimony regarding the standard of care. We find it impossible to bel ieve that laymen would know

whether Dr. Shumake should have ordered specific tests based on the3 W e use the w ord “w ould” beca use the a ppe llant h as ap pare ntly be en un able to gain ac cess to his

med ical record s and w as, there fore, una ble to sum bit them to the trial cou rt. 7 symptoms which appellant presented.
Although the appellant seems quite sure that Dr. Shumake vi olated the standard of care, his belief is not relev ant under the law. In Bowman , the Tennessee Supreme Court held that a counter-affidavit from an expert competent to testify must be presented i n order to make a genuine issue of material fact within the meaning of Rule 56 of the Tennessee Rules o f Civil Procedure. 547 S.W.2d at 531. The affidavits of lay pers ons regarding whethe r the physician's medical care was below the appropriate standard of care a r e wholly insufficient to create a genui ne issue of material fact. As such, we find that appellantwas required to sub mit expert testimon y in order to overcome the motion for summary judgment.
Appellantstates in his briefthat he would submit his medical records in lieu of expert testimo ny. 3 The app ellant asserts that his medi cal records, if entertained by the court, would have shown that Dr. Shumake violated the standard of care. W e do not, however, believe that appellant’s medical records woul d relat e to the question of the applicable standard of care.

Medical records do not define the standard of care, nor do th ey state whether a doctor violated the standard of car e. The medical records on which appellant seeks to rely would, at best, be evidence of wha t Dr. Shumake did or did not do. Presumably, those recordswould be relevant if appellant p ut forth an expert to testify as to the standard of
care and then, through use of the medical records, sh owed t hat Dr. Shumake failed to conform to that st andard. However, wi thout know ing the standard of care, appellant’s medical recordsare useless. Therefore, we reject appellant’s contention that his medical records wo uld have b een suf ficient to take th e place of expert me dical tes timony.

Without evidence as to the standard of care, the appellant cannot demonstrate any breach of duty. See Cardwell , 724 S.W.2d at 754. Appellant therefore failed to carry the4 To the extent tha t Ap pellant ass erts a claim for r elief based on his assert ion that CCA imposed spending limits on th e m edic al car e pro vided to pris one rs, we believ e suc h a cla im is not p rope rly befo re this court. The trial

court expressed no opinion on the questi on, and appell ant’s bri ef does not rai se the spending limits as a n issue. T herefo re, we do not expr ess an opinion on that issue

. See T.R.A.P. 13(b). 8 burden placed on him by T.C.A. § 29-26-115. As such, there was no genuine is sue of material fact, and Dr. Shumake was enti tled to judgment as a matter of law. The trial court correctly granted summary judgment to Dr. S humake.
Alan Bargery and CCA We be lieve that the dismissal of the ca se agains t Dr. Shum ake is also disposit ive of the claims again st Alan Bargery and CCA. Appellant alleges that Bargery and CCA allowed the “gross negligence” of Dr. Shumake to “continue to happen.” Appellant’s claim against these two defendants is based on a respondeat superior theory predicated on the medical malpractice of Dr. Sh umake. Having dismiss ed the claim against Dr. Shumake,
we find that appellant is unable to s tate a claim for relief agains t Bargery or CCA. 4 All other issues raised by appell ant are similarly w ithout merit.

Conclusion For the foregoing reasons, the trial court’s dismissal of appellant’s complain t is hereby affirmed in all respects. Costs of this appeal are taxed to the appellant, for which execution may issue if necessary.

HIGHERS, J. CONCUR:

FARMER, J.

LILLARD, J.