# FILED
October 16, 19 97 Cecil Crowso n, Jr. Ap pellate Co urt C lerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

ANNETTE CHRI STENB ERRY ) C/A NO. 03A01-9701-CV-00039 an d J .G . C HRI STENB ERRY, ) ) KN OX CIR CU IT Plaintif fs-Appellants, ) ) HON
. WHE EL ER ROS EN BAL M, v. ) J UDGE ) HENRY S. NELSON, J R., M.D., ET AL,) AFFIRMED ) AND Defendants-Appe llees. ) REMANDED

ANN ETTE C HRISTEN BERR Y, Pro Se, Seymour, Tennessee. HOWARD H. VOGEL andSTEPHEN C. DAVES, O’NEI L, P ARKER & WIL LIAM SON , Knoxville, for Defendants-Appellees.

O P I N I O N
Franks. J.

In this m edica l ma lpractice action , the T rial Co urt gra nted th e defe ndan t, Henry S. Nelson, Jr. , M.D., summary judgment, and plai ntif fs have appea led. Plaintiff s’ daught er was invol ved in a tragic motor vehicl e accident

and was taken to t

he U.T. Medical Cent er in Knoxvil le, where she died. Nelson is one of the physician s that plaintiffs sued, alleging neg ligent treatmen t of their daugh ter.

Nelson fi led a motion f or summary judgment, at tachi ng his af

fidavi t and the deposi tion of

a neuro-s urgeon. Nels on, in hi s affi davit, stated that he was famili ar with the appropri ate st andard of ac ceptabl e medical care for gener al sur geons practi cing in Knoxvil le, Tennessee community, and stated:

I am fam iliar with the appro priate standard o f acceptable m edical care for gener al sur geons practicing i n the Knoxvill e, Tennesse e community, inclus ive of November 1993.2 On N ovemb er 15, 1993, at approximately 2:35 a.m., Denise Christ enberry was br ought by ambulance t o the Univers ity of Tennessee M edic al C ente r an d w as in itially treat ed in the E m erg enc y R oom . Attached i s a copy of the Discharge/ Death Summary, Exhibit 1. The m edic al rec ord s ind icate that u pon arriv al at th e E m erg enc y R oom , a hist ory was obtai ned that this was a twenty-t

hree year old female who was an unrestrained driver i n a motor vehicl e crash. Upon arrivalin the Emergency Room, she was unresponsive . Her pupil s were dil ated and unresponsi ve to li ght. She ha d no response to deep pain and had a Glasgow coma scale of 3. She had agonal r espir ations and was intu bate d sh ortly after arriv al. A CT sca n w as o rde red and obt aine d. I was contacted at home b y telephone at approximately 3:00 a.m. as Ms. Christ enberry was bei ng taken t o have the CT scan performed. I was contacted a second time at home by the hospi tal pe rsonnel and was informed of the res ults of the CT scan. The CT scan of the head revea led the prese nce o f diffuse cereb ral ede ma and s ubar achn oid hemorrhage, a pos sibl e thin l eft f rontalsubdural hematoma, and a ri ght pariet al and t emporal squamosal f racture. The CT scan of the spine indicated a comminuted fr acture involvi ng T-11 with ass ociat ed posterior el ement fract

ures. The CT scan of the abdomen showed no sign ifica nt injury to th e ab dom inal o rga ns. From the information provi ded to me by the per sonnel who were cari ng fo r t he pa t i en t at

t he ho sp i t al , whi ch i nc l ud ed fo urph ys i ci an s, i t was my opinion t hat she di d not have an i njury t hat required genera l surgi cal treatm ent, an d it w as furth er m y op inion th at there wa s no tre atm ent I could provi de within my speci alty of general surgery. The assessment wa s that the patien t had a seve re clos ed he ad inju ry. A ppro priate treat ment was initiate d by the medicalpersonnelin the Emergency Ro om by i ntu batio n, hy per ven tilatio n, an d su ppo rtive care . A cons ultation with neur osurg ery w as ord ered. T he pa tient w as take n to Inte nsiv e C are. Ms. Christ enberry was se en by a neurosur geon, whose cli nical findi ngs were c onsistent w ith brain death. O ther tests and exa mination s were performed that confirmed no brain f unction. I saw and examined the pa t i en t on t he morni ng of Nov emb er

15 , 19 93 an d r es ul t s o f my examinati on were consis tent wit h these f indings . It

was my opinion within a reasonable degree of medic al certaint y, that there was no general surgic al treatment that I coul d have performed at any ti me that wo uld h ave a ssisted th e patie nt. The patient

died as a result

of her i njuri es on November 16, 1993. It is my opin ion, w ithin a re ason able d egree of m edica l certainty , that in my role in t

he care of

Denise Chris tenberry on November 15 and 16, 1993, that I compli ed with appropriatestandar ds of accept able medical care for general surgeons pr acti cing at that t ime in the Knoxvil le, Tennessee community. I t is my opinion that I did not deviat e from such standar ds. I t is further my opinion, within a reasonable degree of medical certaint

y, that no act

or omissi on on my part caused or contributed to t

he injuries and death of Denis e Christenberry.3 In respons e to themotion, one of the plainti ffs, Annette Chri stenber ry, filed he r affidav it, whic h esse ntially sta tes that sh e w as fam iliar with the ap prop riate gu i de l i ne s s et

ou t by t he Ameri ca n Co l l eg e o f S ur ge on s f orcare i n al ev elon e t

rauma center , and st ated:

It is my op inion that D r. Sperry N elson treated m y daug hter with ve ry questi onable drugs , paralyzing agent s that turn of f brai n trans mission, without anyoneknowing he was the pers on seeing to her. He was never in a room to explain her condition to the family and we only because aware through the records after m y daug hter’s death he was the primary physici an. The General Assembly has es tabli shed the pl ainti ff’s burden of pr oving malpract ice against a physician. This i s set fort h in T.C.A. §29-26-115, wh ich states: 29-16-115. Claimant’s burden in malpracti ce acti on - Expert testi m on y - P res um ptio n o f ne glig enc e - J ury inst ruc tion s. - (a) I n a malpracti ce acti on, the clai mant shallhave the bur den of provi ng by evidence as provide d by sub section (b): (1) T he rec ogn ized sta ndar d of a ccep table p rofess ional p ractice in the prof ession and the speci alty t hereof, if any, that t

he defendant practi ces in t

he community in which he pra ctic es or i n a simil ar community at the t

ime the al leged i njury or wrongful action occurred; (2) T hat the defen dant a cted w ith less tha n or fa iled to a ct with ordinary and reasonabl e care i n accordance wit h such standards; and (3) As a proxi mate resul t of t he defendant ’s negl igent a ct or omission, the plainti ff suf fered i njuri es which would not ot herwise have occ urre d. . . . When plainti ffs were c onfront ed with the motion for s umm ary judgment with affidav its of ex pert w itnesse s stating that de fend ant ha d acte d w ith reaso nable care in acco rdan ce w ith the re cogn ized a ccep table sta ndar d of p rofess ional p ractice in his m edica l specia lty, the b urde n shifte d to p laintiffs to o ffer ev idenc e to disp ute this fact. The plaintiff

s were requi red to of

fer cont radictory expert

testimony and absent

suc h re spo nse to d efen dan t’s af fida vit, su m m ary jud gm ent w as a ppr opr iate. Ayers v. Ru ther ford Ho sp., In c., 689 S.W .2d 1 55 ( Te nn. A pp. 1 984 ). In this c ase, pla intiff’s affid avit on ly offe rs lay o pinion s, and essen tially expresse s the af

fiant ’s pers onal bel iefs , which do not consti tute a dmissibl e evidence on t he is sue . See F ow ler v. H app y G ood ma n Fa mily , 575 S.W .2d 4 96 ( Te nn. 1 978 ).4

Consequently, we conclude that plaint iff s have fai led to meet

the requirements for maintaini ng this acti on as requi red in T. C.A. §29-26-115. We affirm the j udgment of the Trial Court, with cost s of appeal assessed to appellant s.

________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M . Goddard, P.J.

___________________________ Clifford E. Sanders, Sp.J.