### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 5,

2001 Session EDNA COOKSEY, ET AL 

### . v. HCA HEALTH SERVICES OF

TENNESSEE, INC. Appeal from the Circuit Court for Davidson County No. 00C-1936 Hamilton V. Gayden, Jr., Judge

No. M2001-00303-COA-R3-CV - Filed October 30, 2001
The only question in this appeal is whether the injury a patient suffered during post-operative care resultedfrom a medical procedure and, therefor e, r equired expert proof to establish the hospital’s lia bil ity. The Circuit Court of Davidson County held that the co mplaint s ough t damages for professional negligence and that since the plaintiff did not

rebut the hospital’s motion for summary judgment with any

expert proof, the c

omplaint must be dismis sed. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM B. C AIN and P ATRICIA J. C OTTRELL , JJ, joined.
Jam es M . Bal thr op, Spr ingf iel d, T enn ess ee, f or t he ap pel lan ts E dna Coo kse y and Vir gil Coo kse y. C. J. Gideon, Jr. and Benjamin Papa, Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc. OPINION
I. On July 13, 1999, Edna

Cooksey entered the Centennial Medical Center in Nashville for a lumbar laminectomy. In her complaint, Ms. Cooksey alleged that afte r the surgery two nurses were attempting to move her in her bed and injured her shoulder by using excessive force or an improper procedure. She also al leged that t he procedure partially tor e a drainage tube from her back causing her to develop an infection. The hospital answere

d and denied that it

s employees

were neglige

nt in any manner.-2-

The hospital later filed a motion for summary judgment accompanied by the affidavits of the two nurses who transferred Ms. Cooksey from the stretcher to her be d after the ope rati on. Both nurse s averred that they used proper procedures in handling Ms. Cooksey. They stated tha t the y were familiar

with the accepta

ble standard of pr

ofessional nursin

g care in Davidson County ; that in their own acts they

conformed to that

standard of car

e; and that based o

n their review of

Ms

. Cooksey’s medical records related to her treatment at Centennial Medical Center, the hospital and all of its employees complied with that standard of care.
Ms. Cooksey refuted the nurses’ version of what happened with h er ow n affidavit and her mother’s affidavit. But she did not offer any expert pr oof that the nurses or the hospital deviated from the recognized standard of care.
II.
To establish a claim for medical malpractice the plaintiff must or dinarily prove by expert testimonythat the defendant failed to ac t with ordinary or reasonable care according to the recognized

standard of acc

eptable profess

ional practice in the community where the wrongful act occurred. Tenn. Code An n. § 29-26-1 15(a). Stokes v. Leung , 651 S.W.2d 704 (Tenn. Ct. App. 1982); Baldwin v. Knight , 569 S .W.2d 450 (Tenn. 1978). Summary judgment in a medical malpracticecase may be

appropriate whe

re the defenda

nts produce exper

t proof that comple

tely refutes the plaintiff’s allegations of negligence and the plaintiff does not produce rebuttal proof by expert testimony. Dolan v. Cunningham , 648 S.W.2d 652 (Tenn. Ct. App. 1982).
In extraordinary cases where the alleged malpractice is within the common knowledge of a layman, experttestimony is not required. Baldwin v. Knight , 569 S.W.2d 450 (Tenn. 1978); Keeton v. Maury County Hosp. , 713 S.W. 2d 314 (Tenn . Ct. App. 1 986). The di stinctio n being: [W]hether the acts or omissions complainedof involve a matter of medical science or art requiring specialized skills not ordinarily possessed by la ypersons or whether the conduct complained of can instead be assessed on the basis of common everyday experience . . . . Graniger v. Meth. Hosp. He

althcare Systems, Inc. , No. 02A0 1-9309-CV -00201, 19

94 WL 496781, at * 3 (Tenn. Ct. App. Sept. 9, 1994).
In Mur phy v. Schwartz , 739 S.W.2d 777 (Tenn. Ct. App. 1986), two doctors left a stroke victim unattended in a hospital emergency room where she fell f

rom a cot and injured her shoulder. This court held that an unrefuted affidavit by one of the doctors that they complied with the standard of care entitled the defendants to summary judgment. This court said, “We find that expert medical opinion evidence is required in this case to ref

ute defendants’ medical proof.” 739 S.W.2d at 778. In Lewis v . Hill , 770 SW.2d 751 (Tenn. Ct. App. 1988), the plaintiff fell while standing before a fluoroscope during a myelogra m. This court said that expert proof was necessary to establish the defendants’ negligence because an ordinary layman, having

no experience in suchmatters, could not-3-

make an intelligent judgment about how watchful a physician should be or about how much restraint to use during the procedure. 770 S.W.2d at 753.
In McBee v. HCA

Health Services , M2000-00 271-COA-

R3-CV, 200

0 WL 1533000 (Tenn. Ct. App. Oct. 18, 2000), this court held that when and how to ambulate a post-operative patient involved specialized skill and training that is not ordinarily possessed by lay persons . McBee , M2000-00271-COA-R3-CV, 2000 WL 153 3000, at * 3. Therefore summary judgment for the hospital was ap propriate when the plaintiffs did not rebut the defendant’s expert with an expert opinion that

the hospital employees had violated the standard of care. Id. The court distinguished Harveyv. Wolfer , No. 03A01-9512-CV-00452, 1996 WL 94819 (Tenn. Ct. App. Mar. 6, 1996), where the defendants simply dropped a patient after undertaking to help her

. McBee , M2000-00271- COA-R3-CV, 2000 WL 1533000, at * 3 (footnote 2). We think Harveyis also different from t his case, where the defendants’ actions involve specialized skill in how to reposition a patient on the bed after a back operation.
We think the facts all

eged in the comp

laint describe a

n act of medical m

alpract ice. The proper way to move or turn a patient who has undergone a serious back operation is not within the ken of ordinary laypersons. Ther efore the negligence of the hospital employe es must be established by expert proof.
Ms. Cooksey arg

ues that the incide

nt described in the

nurses’ affida

vits is not the incident which caused injury

to her shoulder. T

he nurses descr

ibed their action

s in moving Ms. Cookse

y onto the bed after her surgery. Ms. Cooksey says she was hurt when the nurses attempted to reposition her on the bed af

ter she returne

d from the restroo

m. We think, however, that the plaintiffs have shifted their argument on appeal from the issue argued in the trial court.

The defendants r

esponded with aff

idavits to the incident described in the complaint. The plaintiffs did not assert in the trial court that their case was based on a se parate incident. Instead, the

ir whole argument was that they

are not required to prove their case by expert evidence. Since the separate incident issue was not raised in the trial court, it cannot be raised for the first time here. See Norton v. McCa skill , 12 S.W.3d 789 (Tenn. 2000). Further, we believe that whether Ms. Cooksey was being moved from the stretcher to a position on the bed or whether she was being returned to the bed after visiting the restroom, the degree of skill and care re quiredof the defendants

is the same. The defendants’ motion for summary judgment, supported by affidavits, put the plaintiffs on notic

e that their ability

to prove their ca

se was being ch

allenged. As the

Supreme Court said in Byrd v. Hall : [A] party may move for summary judgment

demonst rating that the o

pposing party will not b e ableto produce sufficient evidence at trial to withstand a motion for directed verdict. If, after a sufficient time for discovery

has elapsed, the nonmoving party is unable to demonstrate that he or she can indeed do so, summary judgment is appropriate.-4-

Byrd , 847 S.W.2d 208, 213 (Tenn. 1993). Although that excerpt speaks of facts in general, we think it a ppl ies wit h eq ual for ce t o fac ts t hat mus t be pro ved by ex pert tes tim ony. The judgment

of the court below is affirmed and the cause is remanded to the Circuit Court of Davidson County

for any fur

ther proceeding

s necessary. Tax the costs on app eal to the appella

nts, Edn a and Vir gil Coo kse y .

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.