# FILED September 08, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ ROBERT MABON, as surviving spouse and personal representative of the Estate of JEWEL MAE MABON, Madison Circuit No. C-92-317 Plaintiff -Appella nt, Vs. C.A. No. 02A01-9702-CV-00039 JACKSON-M

ADISON COU

NTY GENERAL HOSP

ITAL and GEORGE E. THOMAS, M.D., Defend ants-App ellees.

______________________ _____________________________________________________ _ FROM THE CIRCUIT COURT OF MADISON COUNTY THE HONORABLE WHIT LAFON, JUDGE

Al H. Thoma s; Ira M. T

homas of M emphis For Plaintiff-Appellant Marty R. Phillips, Timothy G. Wehner; Rainey, Kizer, Butler, Reviere & Bell, P.L.C. of Jackson For Defendants-Appellees

AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE This is a med ical m alpractice case. Plaintiff, Robert Mabon (Mabon), the surviving spouse and personal representative of the Estate of Jewel Mae Mabon (Mrs. Mabon), appeals the order of the trial court granting summary judgment in favor o f defen dant, Ge orge E. T homas,1 Mabon fil ed the co mplaint ag ainst Hosp ital, Dr. Thomas, a nd Dr. Eli zabeth Pritchar d. On June

17, 1993, t

he trial c ourt ente

red an a greed or der dismis sing the c ase with prejudice as to Dr. Pritchard. In addition, in an order ente red on May 7, 1996, Mabon voluntarily dismissed his claim against Hospital. Consequently, only the claim against Dr. Thomas is a

t issue in th

is appea l. 2 M.D. On November 15, 1991, Mrs. Mabon entered the emergency room at Ja ckson-Madison County General Hospital (Hospital) in J ack son, Tennessee complaining of severe abdominal pain, nausea, and vomiting. Mrs. Mabon had a history of arteriosclerotic heart disease. She wa s admitted to Hospita

l, and Dr . Thomas, who had be en trea ting Mrs. Mabon for abou t five ye ars, discussed the possibility of surgery with her and her family. Dr. Thomas decided not to perform surgery, and Mrs. Mabon died approximately sixteen hours after her arrival at Hospital. On November 12, 1992, Mabon filed a complaint against Dr. Thomas alleging that h e breached his duty of

care to Mrs. Mabon in one or more of the following ways: failure to take customary, reasona

ble diagn ostic st

e ps; failure to treat properly; and failure to respond in a

reasona bly prudent manner. 1 T he compla int allege s that Mrs. Mabon wa s diagnose d with a sma ll bowel obstruct

ion upon he

r admissio n to Hospital, but that no surgery or other procedures were undertakento corre ct the obs truction f or appro ximately t

welve hours. The

comp l aint further alleges that these

acts and omissions and the failu re to pro vide prop er medic al care caused M

rs. Mabon to have a loss of chance of survival and caused Mabon to suffer the loss of consortium of his wife. On December 18, 1992, Dr. Thomas filed an answe r denying, inter alia , the allegations in the compl aint cha

rging him w ith any ne gligence , medica l malpractice, or

carele ss act o r omission. In his ans w er, Dr. Thomas asserts that he did not consider Mrs. Mabon to be an accept able sur gical ris k. Given M

rs. Mabon ’s past

medical history and condition at that time, he felt that general anesthesia presente d a conside rable risk that Mrs. Mabon would die on the operating table. He further asserts that he discussed this fully with Mrs. Mabon and her f amily and that they agreed

that treatment would consist of efforts to keep the patient comfortable and that Mrs. Mabon’s family requested that no resuscitative measures be institut e d. Dr. Thomas asserts tha t he exerci sed his best medical judgment with the degree of care, skill, ability, and learning as was regularly and customarily exercised b y other co mpetent physicians in the3

community

at that time . He also

asserts t hat all me dical ca

re, atte ntion, exa

minations, treatme nts, prescriptions, and procedures rendered or furnished by him were usual, proper, and custom arilyaccepted for Mrs. Mabon’s condition at that time and that he wa s not gu ilty o f negligence. He further asserts that he did not guarantee to cure Mrs. Mabo n or to pla

ce her i n exactly the position that she was in prior to t he time he first examined her on November 15, 1991. Additionally, he maintains thathe possessed and exercised that degree of skill, care, and learning ordinarily possessed and exercised by other competent members of his profession and specialty in his community on the dates of treatment. Dr. Thomas filed a motion for summary judgment on March 24, 1994. In support of this motion, Dr. Thomas filed an affidavit in which he states that he was a nd is familiar with the recognized standard of acce ptable professional practice in the medical community of

Jackson, Tennessee for physicians engaged in the medical practice of general, vascu lar , and thor acic surgery. Dr. Thoma s furthe r states that in his treat

ment of Mr s. Mabon he confor med to this recognized standard of acce ptable professional practice. In opposition to Dr. Thomas’s motion for summary judgment, Mabon filed the affida vit of Ramon A. Sh ane, M.D . on August 24, 1994. D

r. Shane is licensed to practice m edicine in Missouri and is boa

rd cert ified in general surgery and thoracic surge ry. Dr. Shane

states in h

is affida vit that he is familiar with the recognized standard of ac ceptable medic al practice in general surgery, thoracic surgery, and other related f ields of medicine in an area such as Jackson, Tennessee and at a facility the size of Hospital, and tha t the standard of care in Jackson and at Hospital would be c omparab le to the c ities a nd facil itie s at which he has practiced medicine. The affidavit further states that the treatment render ed by Dr. Thomas failed to meet theaccepted standard of medical care that Mrs. Mabon could e xpect and that s hould

have be en avail able in

a city the size of Jackson, Tennessee. Dr. Shane opine s, bas ed upon a reas onable degree of medical certain

ty, that Mr s. Mabon suffered damages, and ultimately lost her life, as a direct and proximate result of Dr. Thomas’s negligence. Subsequently, Dr. Shane’s deposition was taken and filed as part of the record. Dr. Shane testified that ther

e is a nat ional standard of c are for physicia ns and tha

t “[I]f you had th

is case in New Yor

k city or Sa

n Francis co or Chic ago or Me mphis, Ten

nessee, or Jacks on, they’ re all the same.” Both parties filed memoranda in support of their arguments. On January 14, 1997,4

the trial court entered an order granting summary judgment to Dr. Thomas. The trial court found that Dr. Shane was not qualified to testify as an expert, pursuant to T.C.A. § 29-26-115, as to the recognized

standard of

acceptable professional practice required of a general surgeon practicing in Jackson, Tennessee or in a similar community in 1991. As such , the tr ial court found that there was no genuine issue of material fact and that Dr. Thomas was entitled to a judgment as a matter of law. Mabon appeals the judgment of the trial court and presents one issue for review: whether the trial court er red in gr anting sum

mary judg ment to Dr . Thomas. A trial court sho uld grant a motion for summary judgment only if the movant demonstrates that there are no genuine issues of material fa c t and that the mo ving part y is entitled to judgmen

t as a matter of law. Ten n. R. Civ. P. 5 6.03; Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1 993); Dunn v. Hack ett , 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd , 847 S.W.2d at 210. On a motion for summary judgment, the court must consider the motion in the same

manner a s a motion f

or direc ted verd

ict made a

t the close

of th e plaintiff’s proof; that is, “the court must take the stronges t le gitimate view of the evidenc e in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and

discard all countervailing evidence.” Id . at 210-11. In Byrd , the Tennessee Supreme Court stated:

Once it is s hown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery m ater ials, that there is a genuine, material fact dispute to warrant a trial. In thi s rega rd, Rule 56.05 provides that the nonmoving party ca nnot simply

rely upon his pleadings butmust set forth specific facts showing that there is a genuine i ssue of ma

terial f act for trial. Id

. at 211 (citations omitted) (emphasis in original). The phrase “genuine issue” a s stated i n Rule 56.03 refers to genu ine factual issues, and does not include issues involving legal conclusions to be drawn from the facts. Id. Where a genuine dispute exists as to any material fact or as to the conclusions to be drawn from those facts, a cou rt must deny a motion for summary judgment. Id. (c iting Dun n , 833 S.W.2d at 80). We must decide whether the legal conclusions on which the trial court’s grant of summary judgment was based are correct. Our review is de novo on the record with no presumpt ion of t he correctness of the trial court’s conclusions of law. Union Plante rs Nat'l Bank v. American Home Assurance Co. , 865 S.W.2d5

907, 912 (Tenn. App. 1993). With these principles in mind, we first look at a pl aintiff's burden in a medical malprac tice ca se as set

forth in th

e pertinent provi sions of T. C.A. § 29- 26-115: 29-26-115. Claiman t’s b urden in malp ractice action — Expert testi mony — Presumption of negligence — Jury instruct ions. — (a) In a malpractice action, the c laimant sh all have the burden of proving by evidence as provided by subsection (b): (1) The recognized standard of acc eptable profes si onal practice i n th e profession and the specialty thereof, if any, that the defendant practices in the community in which he practic es or in a similar community at the time the alleged injury o r wrongful action occurred; (2) That the d

efenda nt acted wi th less tha

n or failed to act wi

th ordinary and rea sonable c are in accordance with such standard; and (3) As a proximate result of the defe ndant' s negligent act or omission, the plaintiff suffered in juries which would not otherwise have occurred. (b) No person in a hea lth care profession requiring licensure under the la ws of this state shall be competent to testify in any c ourt of law to establish the facts required to be established b y subsection (a) unle ss he was license d to prac tice in the state or a contiguous bordering state a profe ssion or sp ecialty

which wou

ld make his expert testimony relevant to the i s sues in the case and had practiced this profession or specialty in one of these states during the year preceding the date tha t t he alleged injury or wrongful act occurred. T his rule sh all apply

to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection w hen i t determines that th e approp riate witnesses otherwise would not be available. T.C.A. 29-26-115 (a)-(c) (1980). In the instant case, the existence or nonexistence of a disputed material fact depends on the testimony of Mabon’s witness, Dr. S h ane. The trial judg e has bro ad discr etion in determining the qualifications for admissibility of testimony of expert witnesses. Shelby County v. Barden , 527 S.W.2d 124, 131 (Tenn. 1975). In Ayers v. Rutherford Hospital, Inc. , 689 S.W.2d 155 (Tenn. App. 1984), the plaintiff brought an action against a physician for medical malpractice all egedly committed during childbirt h at a hospital in Murfreesboro, Tennessee. Id. at 156. The child was later admitted t

o Vander bilt Universi ty Medical Center in Nashville, Tennessee because of a seizuredisorder. Id. The trial court granted summary judgment for the defendant phy sician, and on appeal, the seminal issue bef

ore the c ourt was t

he admiss ibilit

y of the testimony of the plaintiff’s expert witness, Dr. Abramson. Id. at 163.6 The allegations in the complaint required the plaintiff to prove the s tandard of care required of physicians practicing obstetrics in Murfreesboro a nd a failure to conform to such standardof care by thedefendant physician. Id. at 162. In opposition to the defendant’s motion for summa

ry judgme

nt, the plaintiff filed the affidavit of Dr. Abramson, who waslicense d in the Washington D.C., Maryland, and Virginia. Id. at 157. In his affidavit, Dr. Abramson stated that h e was fa

mi liar with the standard of care as it would pertain to a community such as Murfreesboro, Tenness ee and th at the defendant s breached that standard

. Id. at 158. The plaintiff also submitted Dr. Abramson’s deposition, in which he testified: [T]hat he hadnever been to Murfreesboro, did not know where in Tennessee the city was loca

te d, had no knowledge of whether Murfreesboro w as a large or small town, knew no individuals in Murfreesboro, kn ew no physi cians, other than the defenda

nts inthis suit, who practiced medicine in Murfreesboro, and tha t he didnot know where defendant physicians were tr ained or the size of the hospital in which [the child] was born. Id. at 163. He further stated that the standard of car e does not vary throughout the country and that there is a national standard that does not change with locality. Id. The defendant submitted an affidavit by Dr. Boehm, who stated that the standard of care varies significantly between localities and that there is a clea r difference between

the standard of care in hospitals in Murfreesboro and a large teac hing hospital such as Vanderbilt. Id. Based

on this record, this Court found that the trial court did not abuse its discretion in refusing to allow Dr. Abramson’s testimony as an expert. Id. at 163. The Court affirmed the granting of summary judgment. Id. In Card well v. Bechtol , 724 S.W.2d 739 (Tenn.1987) the Supreme Court affirmed the t rial court’s grant of a directed verdict at the c lose of the plaintiff’s evidence because “ no admissible

expert testimony existed on the record relevant to the standar d of care in the locality of an osteopath in similar circumstances.” Id. at 754. The Court said: Although the standard of care may be established by the de fendant 's o wn admissions , Tutton v. Patterson , supra , at 270, that is not the case here. Moreover, Searle v. Bryant , supra , a t 65, h eld that T.C.A. § 29-26-115(b) “con tains no requir

ement tha

t the witne ss pract

ice the s ame spec ialty as th e defendant,” but, as previously noted, the witness must be sufficiently familiar with the stand ard of c are of t he profe ssion or sp ecialty a nd be able

to giv e relevant testimony on the issue in question. Cf

. Ison v. McF

all , supra . Withoutthe requisite threshold ev idence of the standard of care in the loc ality, regard less of the other requireme nts of the statute, P

laintiff s were n ot able to demonstr ate “a breach of duty to the patient to use that degree of skill and learning which is ordina

rily used under sim

ilar cir cumstanc es by memb ers in good standing in his profession.” Merryman v. Bunch , supra , 24 Tenn.App. at7 410-411, 145 S.W.2d at 561 (citations omitted). 724 S.W.2d at 754. In Osler v. B urnett , 1993 WL 90381, No. 02A01-9202-CV-00046 (Tenn. App. March 30, 1993), an unpublished opinion of this Court, the plaintiffs appealed the trial court’s grant of summary judgment on the b asis that t heir pro ffere d expert

was not fa

miliar wit h the req uisite standardof care. Id. at

*1. In Osler , the defendant stated that the standard of care in Jackson, the community in which the defendant practiced, was differ ent from that with which the pla intiff’s expert was familiar, and the plaintiff’s expert a greed. Id. at *1-2. The plaintiff’ s expert also admitted that he was not familiar with the medical standards in Jackson. Id. at *3. Because he was no t familiar

withthe standard in Jackson or in a community similar to Jackson, the Court affirmed the grant of summary judgment. Id. at *6. In the case

before us, Dr. Sha

ne state s i n his affidavit that he was familiar with the recognized

standard of acceptable medical pra ctice in an area such as Jackson, Te nnessee and at a facility the size of Hospi tal. He further s tates that the standard of care in Jackson and a t Hospital would be comparable to the cities and facilities at which he ha s practiced medicine and is the same for New York city and other large cities and, in e ffect, is a national standard. Dr. Sha ne also state s that Dr. Thomas fa iled to mee

t the stand ard of c are tha t “ should have been availab le ” in a city the size of Jackson, Tennessee. (Emphasis supplied). Dr . Shane’s statement concerning the standard of care that “should have bee n available” is signi ficant in t hat it illustrates that his statem ent in his af fidavit regarding the standard of care is pre mised on the national standar

d of car e and not o n the sta

ndard o f care

for Jackson or sim

ilar comm

unities. Admittedly, in his discovery deposition, he quite readily admits his complete lack of knowledge of Jackson’s medical community: Q: What’s the population, Dr. Shane, of Jackson, Tennessee? A: I don’t know exactly. Q: How many hospitals are there in Jackson? A: I don’t know. Q: Do you know if there are any colleges or univer sities there? A: No, I don’ t. Q: Do you know if there are any medical schools there ?8

A: Not for sure. Q: Do you know how many doctors there are in Jackson? A: No. Q: Do you know what medical specialties are repre sented in Jackson? A: No, I don’ t. Q: Have you ever been to Jackson? A: No. Q: Do you know any doctors that practice in Jackson? A: No. Q: Have you ever treated any patients fr om Jackson? A: Not that I’m aware of. Q: Do accepted standards, that is the standard of ca re, do they change with time? A: Yes, they can. Q: Is the practice of medicine an exact science? A: No. Q: You can’t completely practice medicine by wha t’s called the cookbook method, ca n you? A: No, you ca

n’t. Q: You’ve not reviewed any medical rec ords from Jackson except in this case, ri ght ? A: I don’t th

ink so that

I can recall. To qualify as an expert, a physician is not required to be familiar with all of the medical statistics of a

particular community. Ledford v. Moskowi

tz , 742 S.W.2d 645, 648 (Tenn. App. 1987). However, a complete lack of knowledge concerning a community’s medicalresources would be contrary to knowledge of the required standard of ca re. The plaintiff’s tendered expert must be familiar

with the st

andard o f care

in the com

munity in which the defendant practices or in a similar community. Without this requisite threshold evidence of the standard of ca re in the locality, a plaintiff cannot demonstrate a breach of duty. See Cardwe ll , 724 S.W.2d at 754. Mabon contends that he has met tha t thresho ld and tha

t this case is distinguishable from Ayers and Osler because there was evidence in tho se case s that the standards of care were different and that there is no proof in t his case that the standard of care in Jac kson, Tennessee9

is differe nt from tha

t propound

ed by Dr. Shane. He

argues t hat once Dr. Shane

set forth his opinion that the national standard of care is the same as the standard of care in Jackson, the burden then shifted to Dr. Thomas to set forth a different standar d of care for Jackson. We respectfully disagree

with this contention. It is the plaintiff who is charged with the burden of proof as to the standard of care in the c ommunity in which the defendant practices or in a similar community. T.C.A. § 29- 26-115(a)(1). A plaintiff who chooses to prove the standardof care

in a simila

r communit

y necess arilymust prove

that commu

nity is simila

r to the

one in which the defendant practices. To shift this burden to the def

endant di rectly c ontradic ts the plain language of the statute and would render the statute a nullity. Under the principles of summary judgment, once Dr. Thomas moved for summary judgment a

nd submitte d an aff

idavit stating that he c omplied with the standard of c are in Jackson, the burde

n then shif

ted to Mabon to set forth specific facts that Dr. Thomas failed to meet the standa rd of care in J ackson or a similar community. In this case, Dr. Shane’s deposition testimony leads us to conclude that he is not familiar withthe standard of care in Jackson, Tennessee. Moreover, we cannot accept Dr. Shane’s bare assertion that th e sta ndard of care in Jackson is the same nationwide and tha t the level of care withwhich Dr. Shane is familiar should have been available in Jackson. This does not comply withthe nonmov

ing party ’s burde

n on a motio n for summa

ry judgme

nt to set fo rth spec ific facts. From our review of therecord , Dr. Shane simply fa iled to establish that he had knowledge of the requisite standard of care in Jackson, Tenne ssee or in a similar community. Withoutevidence as to the standardof care in Jackson or in a similar community, Mabon cannot demonstrate any breach of duty to Mrs. Mabon. See C ardwe ll , 724 S.W.2d at 754. Mabon therefore failed to carry the bur dens placed on him by T.C.A. § 29-26-115. A s such , there was no genuine issue of material fact, and Dr. Thomas was entitled to judgment as a matter of law. The trial court correctly granted summar y judgment to Dr. Thomas. Accordingly, the orde

r of the tr ial cour t is affir med. Co sts of this a

ppeal are assessed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:10

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE