# FILED
January 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION A T JACKSON JOSEPHINE BROWN, WHITFIELD ) BROWN, and EA RLINE CULP, ) ) Plaintiffs/Appellants, ) Shelby Law No. 56341 T.D. ) VS. ) Appeal No . 02A01-9611-CV- 00291 ) DR. KENNETH KUDSK and ) UT MEDICAL

GROUP, INC., ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE ROBERT L. CH ILDERS, JUDGE

CURTIS D. JOHNSON, JR. JOHNSON & SETTLE Memphis, Tennessee Attorney for Appellant
J. KIMBROUGH JOHNSO N THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL Memphis, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J. This is an appeal from a summary judgment in a medical malprac tice case. The trial2

court entered an order

of summary judgment

on behalf of Defendant, Dr. Kenne th Kudsk (“Dr. Kudsk”). Plaintiffs, Josephine Brown ( “Br own”), Whitfield Brown, and Earli ne Culp, appeal the ju d gment citing, inter alia , errors in the trial court’s granting of summary judgmentwhen the Plaintiffs’ exper t affidavits and d eposition testimony were proper responsi ve proof to the Defenda nt’s motion for summary judgment. For reasons stated herein, we affirm the trial court’s judgment.

FACTS AND PROCEDURA L HISTORY On September 14, 1992, Br own w as admitted to the Regional M edical Center for subtotal thyroidectomy operation. Based on hospital pro cedure , Brown was admitted t o the service of a staff physici an. In this case, Brown w as admitted and assigned to the service of Dr. Kudsk, a faculty member of the Univer sity of Tennessee in the Department of Surgery. Brown was not Dr. Kudsk’s private patient.

Dr. Kudsk was the attending physician whereby h e trained physicians in their residencyprograms. Dr. Kudsk w as a staff surgeon for the surgery rotation and resident physicians

Drs. Allen Butts, Mar

k McQuaid and Timot hy McKn eib were in rotation in his surgery servi ce.

On that same day, Dr. Butts, the chief resident who w as in his fifth and final year of surgical residency, performed a subtotal thyroidectomy on Brown. Dr. Kudskwas present forthe procedure, observed i t, and assisted to a certain l imi ted extent. There were no problems

or complications noted duri ng the surgery. Thereafter, Br own was taken to the recovery room whereby her pro

gress was to be follow

ed by the hospital personnel and the resident physicians.

When Dr. Kudsk left the hospital on the afternoon of September 14, 1992, he was advised that Brown was in satisfactory conditi on. His next contact w ith Brown’s conditio n was when he received

a call from Dr. Butts

at approximately 10:10 p.m., at which time Dr. Butts advised Dr. Kudsk of the airway obstruction which had been experienced by Br own.3

A s hort t ime later, Dr. Butts cal led Dr. Kudsk back to inform h im that Brown was bei ng taken to surgery for the evacuation of a hematoma. The proof presented in this case by the Plaintiffs’ experts indi cated that the Plaintiff experie nced a slow bleed from the blood vessels which had been cut and ligated du ring Brown’ s surgery. This bleeding resulted in the formation of ahematoma. This hematoma impaired Brow n’s ability to breathe thereby cutting off the supply of oxygen to her brain. An anoxic brain injury resulted which rendered Brown into a pr esent vegetative condi

tion.

Plainti ffs originally

filed suit against four resident physicians, Dr. Kudsk, UT Medical G roup , Shelby County Health Care corporation, d/b/a the Regional Medical Cent er at Memphis, and two nurses, Bertha Banks and Rob Halt, and alleged medi cal malpractice in regard to the health car e Brown received from al l of the Defendants.

A consent order was entered in this cause, allowing the resident physic ia ns to be dismissed fr om this law suit, and the ir claims heard before the Tennessee C laims Commission.

Defendant Shelby County Health Care hasbeen dism issed as t hese par ties have resolved all claims between them.

Dr. Kudsk and UT Medical Group filed a motion for summary judgment and asked that they be dismissed from this action. In opposition to this motion,Plaintiffs presented the affidavit and deposition of Dr. Choon Shin (“Dr. Shin”), general surgery expert, and the affidavit and partial deposition of Dr. Bonnie Sorensen (“Dr. Sorensen”), endocrinolog ist.

A hearing was held before the trial court, who granted the Defendants’ motion for summary judgment. The Plaintiffs appeal the judgmen t o f the trial court and, essenti ally, present one issue for revi ew : Whether, according to the summ ary judgment standard enumerated in the decisi on of Bowman v. Henard , 547 S.W.2d 527 (Tenn. 1977), the countervaili ng4

affidavits and depositi on testimo ny of the resident physicians and plaintiffs’ experts are proper responsive proof in opposition to the motion and af fidavit of Dr. Kudsk for summary judgment, and a basis upon w hich to deny that motion for summar y judgment.

LAW AN D DISCUSSION The sole issue on this appeal i s whether the trial cour t erred in granting the Defendants’ motion for summary judgment. Tenn.R. Civ. P. 56

. 03 conta ins two requirements

for gr ant ing a summary judgment. First, there must be no g enuine issues with regard to the material facts relevant to the clai ms or defenses embodied in the motion. Pacific E. Corp. v. Gulf Life H olding Co. , 902 S.W.2d 946, 95 2 (Tenn. Ct. App. 1995). Second, the moving party must be entitled to a judgment as a matter of law based on the undisputed facts. Id.
In determining whether or not a genuine issue of material fact exists for pur poses of summary judgment, courts in this state have indicated that the quest ion should be considered in the same manner as a motion for direc ted verdict made at the close of the plaintiff’s proof, i.e., the trial cour t must take the strongest l egitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Byrd v. Hall

, 847 S.W.2d 208, 210 (Te nn. 1993). Then if there is a dispute as

to any material fact, or any doubt as to the con clusions to be drawn from that fact, the motion must be den ied. Id. The court is not to “weigh” the evidence when evaluating a motion for summar y judgment. Id. This Cour t must u se the same standard in reviewing a trial court’s judgment granting summar y judgment.

In Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn . 1977), the S upremeCourt of Tennessee set forth t he principles to be follow ed in considering summary judgment motions in malpractice cases:

In summary we hold that, in those malpractice actions wherein expert medical t estimo ny is required to establish negligence and proximate cause, affidavits by medical doctors which clearlyand completely refute plainti ff’s contention afford a proper basis for dismissal of

the action on summary judgment, in the absence of proper respons ive proof by affidavit or5 otherwise. In those cases wherein the acts are complained of are within the ken of common layman, the affidavit of medical expertsmay be considered along w ith all the othe rproof, but are not conclusive.

In the f inal analysis, the rule requires that plaintiffs in malpractice actions co m e forward within thirty days after the summary judgment motion i s served, or within such a reasonable period as the trial court in the exercise of sound discretion will allow, with expert opinion on the issues of negligence and proximate cause to make out a genuineissue of material fact, or fac e the likelihood of summary j udgment in favor of defendants. The exception to the general rule ari ses in those cases wher e the acts of allegednegligence
are within the knowledge of the ordinary laymen. Bowman v. Henard, supra; Baldwin v. Knight , 569 S.W.2d 450 (Tenn. 1978).

The operation of

the rule in malpractice c ases may

at first appear to be harsh, but upon examination it clearly falls w ithin the overall purpose of summary judgments. In Evco Corporation v. Ross , 528 S.W.2d 20 (Tenn. 1975), Justice Harbison stated in part:

The summary judgment procedure was desig ned to provide a quick, ine xpensive means of concluding cases, in whole or in part, upon issues as to

which there is no dispute regarding the material facts. Where there doe s exist dispute as to facts whic h are deemed material by the tr ial court, however, o r where there is uncertainty as to w hether there may be such a dispute, the duty of

the trial court is clear. He is to overrule any motion for summary ju dgmen t in such cases, because summaryjudgme nt proceedings are not in any sense to be viewed as a substitute for a trial of disputed factual issues.
Summary judgments are not ordinarily appropriate in negligence actions, but where the question to be determined is one which requires

expert proof, and no countervailing affidavits are filed to challenge the ex pert evidence offered by the moving party, summary judgmentmay be proper. In short, if the issue is one upon which expert pro of is nec essary, and the non-moving party cannot produce an expert affidav it to create a factual dispute, summary judgment may be appropriate to preclude the time, expens e, and delay

involved in the protracted litigation. T.C.A § 29-26-115 (1980) prov ides in part:6 29-26-115. Claimant’s burden in malpractice action-- Exper t testimony --Presumption of negligence--Jury in structions.-- (a) In a malpractice action the claimant sh al l have the burden of provin g by evidence as pr ovided by subsection (b): (1) The recognized standard of acceptable pr ofessional practice in the profession and specialt y thereof, if any, that the defendant practices in the community in whic h he practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) That the defendantacted with less than or fail ed to act with ordinaryand reasonable care in accor dance with su ch standard; and (3) As a proximate resu lt of the def endant’s neglige nt ac t or omission, the plaintiff suffered in ju ries which woul d not otherwise have occur

red.
Plainti ffs assert that they have carried the burden of proof placed upo n them by the statute and that the depositions and affid avits of Drs. Shin and Sor ensen establish a genuine issue of material fact. We disagree.

I n the ins tant case, it is undisputed that the surgery on Bro wn was performed without deviatingfrom the surgical standard of care. It is also undisputed that B rown was in satisf actory condition wh en Dr. Kudsk left the hospital on the afternoon of September 14, 1992. Dr Shin testified in his deposition that he takes full responsibility for everything the residents do on his patient care. Dr. Shin also tes tified that the complicati on whic h
arose could have been prevented if there had been no delay in recognizin g post-op erative bleeding and airw ay com pression and in taking corrective action. Dr. Shin, however, did not testify that Dr. Kudsk had deviatedfrom the standard of care either as a surgeon or as an attending physician. In fact, when Dr. Shin w as asked: Question (Defendants’ counsel): Ok ay. A nd as far as the attend ing physician is concer ned, you are not saying that h e deviated from the standard of care; are you? Answer (Dr. Shin) : No, not saying that. As a result, Plaintiffs failed in carrying their burden of proving that Dr. Kudsk acted with less than or failed to act with or dinary and reasonable care in accordance with the standard of care for surgeons and attending physicians in teaching hospitals.

Plainti ffs also tendered the depos i tion and affidavit of Dr. Sorensen in order to7

overcome

Defendants’ motion for summary jud gment. Dr. Sorensen is not a sur geon; she is an endo crinolo gist. Although there is no requirement under the statute that an expert witness practice the same specialty as the defendant, the expert witness m ust be sufficiently familiar with the standar d of care of the specialist and be abl e to give relevant testimony on that subject. See Cardwell v. Bechtol , 724 S.W.2d 739, 75 4 (Tenn. 1987). At oral a rgume nt on thi s cause,Plaint iffs pointed this court t o the cas

e of Ledford v. Moskowitz

, 742 S.W.2d 645 (Tenn. Ct. App. 1987), citing the proposition that there i s no requirement

within T.C.A. § 29-26-115 ( 1980) that an expert witness prac tice the same specialty as the defendant. We have no quarrel with the hold ings in this case rel ied upon by Plaintiffs, but believ

e that Plaintiffs’ reliance on this case is misplaced.

Ledford was a malpractice action broug ht against a psychiatr ist whose prescription allegedlycaused an adverse reacti on in the plaintiff. Ledford, 742 S.W.2d at 646. T his Court, in reversing summar y judgment granted by

the trial court, held that the testimony of the neurologist who subsequ ently treated plaintiff w as sufficient to create an issue of material fact as to the standard of care required in the psychiatric practice in the community where the alleged malpractice occurred. Id. at 649. The neurologist testified that he was Board certified in ne urology and psychiatry and tha t part of his training in neurology was in psychiatry. Id. at 647-48. He also testified that he kept up with the liter ature and that he was familiar with the standard of care in small towns all over the state of Georgia and, thus, was familiar with the standard of care in Ducktown and Cleveland, Tennessee, “in a broad sense.” Id. at 648. He testifiedas to the fa miliarity with

misprescribed medicine, with the rest rictions on their use and the necessity for close s upervision. Id. The cour t held that these facts “make his testimony ‘relevant to this issue in this case.’” Id. at 649.

In the above case, a lthough the courtsaccepted the testimony of a medical expert in another field as competent proof on the standard of care, the expe rt testified as to his familiarity

with the defendant’s field of practice and the standard of car e required in dealing with thespecific acts involv ed on the part of the defendant physici an. In the case at bar, Dr. Sorensen’s testimony did not rise to this lev el. Dr. Sorensen stated that she wasnot1 We note that Dr. Shin, in his dep ositi on, agreed th at surgery was clearl y indi cated based on the pre- ope rative ass ess me nt an d find ings of pre ssu re sym ptom s and a sca n sho wing a cold nodu le . 8 holding herself out as an expert on the standar d o f care in surgery or as to the standard of care as it pertains to a surgeon in h is or her capacity as an attending physician in a teaching hospital. Dr. Sorensen’ s testimony comes from the v iew of an endocrinologis t. As an endocrinologist, Dr. Sorensen stated in her affidavit:

Although I am no t a surgeon, a patient w ho is less than 12 hours post-thyroid su rgery and complaining of choking and inability to breathe warrants cl inical and laboratory evaluation to rule out post-operative compli cations such as compression, laryngeal spasm, hypocal cem ia, aspira, pulmonary embolus, and cardiac complication. The standard ofcare was definitely inadequate since there is no documenta ti on of physician examination or cli nical a ssessment. Dr. Kneib and Dr. Butts appeared to both be directly responsibl e for the inadequate care with the attending phy sician, Dr. Kudsk, indi rectly, but ultimately responsible

. Dr. Sorensen further stated:

Of addition al note, the origin al thyroid ectomy may not have been indicated. Not only w as a fine needle biopsy not performed preoperatively to r ule out cancer, but the TSH lev el was elevated so that suppression therapy with Synthroid may have allevi ated her dysphagic sympt oms to avoid surgical intervention. 1 Although Dr. Sorensen made these statements concerning the deviation f rom the standard of care for medical practice in general, we find that her testimony fails to establish a ba sis forexpertise in the fi eld of surgery so as to overcome Dr. Kudsk’s motion for summary judgment. In Dr. Sorensen’s deposition, she was as ked:

Q. Well, you’re not qualified to tel l us what the surgical standard of care is, are y ou? A. Right.
After a careful examination of the rec ord, we find that at all ti mes Dr. Kudsk was acting in his capacity as Brown’s surgical attending physician only and not as her primary physician. His involvement i n Brown’s evaluati ons and t reatment were minimal and tangential to that of the resid ent physicians.

In the case at bar, Plaintiffs simply failed to controvert Dr. Kudsk’s affidavit testimony that the entirety of his action s in this matter complied with the recognized standard of care2 We also note that Pla inti ffs offered the affi davits and d epositi on testi monies of the resi dent

physici ans, none of whi ch establi shed any devi ation fr om the standard of car e by Dr. Kudsk as a gener al surgeon or as an at

tending phy

sician. 9 f org eneral surgeons practic ing in Memphis, Tennessee, under like or similar circumstances. Plaintiffs’ complaint is subject to summary dismissal if Plaintiff s, after being given a reasonable opportunity, have failed to establish an essential e lement of the case in which Plaintiffs wil l bear the burden of proof at trial. In this case, Plaintiffs hav e failed to establish that Dr. Kudsk deviated from the standard of care for a general surg eon and an attending physician i n a teaching hospital in M emphis, Tennessee. 2

Accordin gly, the order of the trial court g ranting summary judg ment to the defendant is affirm ed and th is case rem anded f or such f urther pr oceedin gs as may be necessar y. Costs of appeal are taxed to appellants , for whi ch ex ecution may issue if necessar y.

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

FARMER, J.