# FILED March 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE
CURLEY HOWSE, ) ) Claimant/Appellant, ) ) Appeal No. ) 01-A-01-9809-BC-00489 VS. ) ) Claims Commission ) No. 82818 STATE OF TENNESSEE, ) ) Respondent/Appellee. ) APPEALED FROM THE TENNESSEE C LAIMS COMMISSION

MIDDLE DIVISION THE HONORABLE THOMAS STOVALL, AD MINISTRATIVE JUDGE CURLEY HOWSE #91611 Turney Center Route 1 Only, Tennessee 37140 Pro Se/Claimant/Appellant JOHN KNOX WALKUP Attorney General and Repor ter SOHNIA W. HONG Assistant Attorney Gener al 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED
BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - An inmate filed a medical malpracti ce claim against the Department of Correction. The Claims Commission granted summary judgment to the Department. We affirm the Commission.
I.

On October 13, 1987, C urley Le e Howse, an inmate in the custody of the Department of

Correction, was examined by a physician assistant at the DeBerry Correctional Institute. The physician assistant found that Mr. How se had impacted ear wax (cerumen) in his exte rnal ear canal. He prescribed Cerumenex eardrops, to be administered over a period of three day s in order to softe n the wax, so it could be more easily removed. After administration of the Cerumenex, Mr. Howse complained of a rash and itching on both ears.

On October 16, a doctor examined the ears, found there to be a rash on the pinna, or externalportion, of both ears, ordered that the earlobes and surrounding areas be kept clean, and prescribed Benadryl and the application of 1% hydrocortisone cream to the affected areas.

On December 7, 1987, Mr. How se filed the first pleading i n this case, a claim with the Division of Claim s A dministration, allegin g negligence and medical malpractice on the part ofthe staff at DeBerry, and requesting $125,000 in damages.

Over the years Mr. Hows

e has filed num erous inma te grievances, motions, and other handwritten document s that have been made a part of this record. Many of them refer to ot her in cidents of alleged malpracti ce or of abuse by correctional employeesthat occurred subsequent to December 7, 1987. In all of the documents he has filed, he styles hi mself as “Reverend Curl ey Howse, ” thoug h he nowhere s tates ho w he acquired this title. He contends that some of the abuse he- 3 -

suffered was in retaliation for the pursuit of his medical malpractice claim. We mu st confine our review to his original claim however, because we believe it is the only one currently at issue.

The claim of Mr. Howse w as transfer red fro m the Divi sion of Clai ms Administration to the Clai ms Commissi on. On June 22 , 1993, the Co mmi ss ion dismissed it for failure to state a claim upon which reli ef can be granted, see Tenn. R. Civ. Proc. 12.02(6). The Commission also granted the State’s Motion for Sum mary Judgment.
Mr. Howse then appealed to this co urt. We r eversed the judgment of the Claims Commission. We found that the complaint, if liberal ly construed in favor of the plaintiff, stated a possible c laim for negligence, w

hich raised the possibil ity that he might be able t

o prove a set of fa

cts that would e ntitle him to so me reli ef.
We also found that the State had not suppo rted its Motion for Summary Judgmentby evidence of facts which if true would require dismissal, or would require the claimant to produce evidenc e to refute or rebut the State’s e vide nce in order to avoid summary judgment.

After remand, the Claims Commissioner transferred this c laim t o the Adminis trative Procedures Divisi on of the Secretary of State’s Office,forresolution by an Administrative Law

Judge. The State again filed a Motion for Summary Judgment, and supplemented its mot i on with an expert affidavit prepared by Dr. Harold Butler, medical director for two Tennessee prisons.

After reviewing the medi cal records, Dr. Butl er stated that i t appeared that Mr. Howse had a mild allergic reaction t o the Cerumenex, and that if it drained out of his ears, it may have irritated the skin on the pinna. He concluded that the medical- 4 -

staff did not deviate from the standard of car e in its treatment of Mr. How se, and that there was no negligence. Based upon the affidavit of Dr. Butler, and the failure of the claimantto offer any medical pro of in rebut tal, the administrative law judge granted the defendant’s Motion for Summary Judg ment. This appeal followed. See Tenn. Code Ann. § 9-8-403(a)(1).
II.

Proof of injury alone is not s ufficien t to su rvive a Motion for Summary Judgmentin a medical malpra ctice action. Th e plaintiff h as the burden o f producing, through competentmedical t estimon y, evidence that the defendant devi ated from the recognized st andard of acceptable professional pr actice, and that this devi ation caused the injury of whi ch he complains. Tenn. Code Ann. § 29-26-115.

In the present case, Mr. Howse has alleged that the administration of Cerumenex

caused h im to suf fer inju ry. However Mr. Howse has not pr

oven what the standard of care requires before Cer umene x can be administered to a patient w ith cerumen impaction. Neither does he allege that the physici an assistant and the doctor who treated him v iolated the standard of care in their treatment.
Dr. Butler

stated that the standard of care i n the medical community of which he was a part is “to administer a softening agent,like cerumenex, whe n a patienthas cerumen impaction of the external ear canal.” He co ncluded that the medical staff met the appropriate standard of car e, and that any

injuries suffered by Mr. Howse were no t the resu lt of any d evi ation fro m that standard. Dr. Butler’s affidavit created a proper basis for s ummary judgment, and Mr. H owse failed to offer any evidence of his ow n to refute that affidavit.

III.- 5 - The judgment of the ad ministra tive law judge is affirmed. Remand this cause to the Claims Commission for further proceedings consistent with this opinion. Tax the costs on appeal to the appe llant.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM C. CAIN, JUDGE