# FILED
May 3, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk JAMES DALE BAR NES, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9512- CV-00549 VS. ) ) Davidson Circuit ) No. 93C-1331 MILLER MEDICAL GROUP, P.C. ) EDGEFIELD H OSPITAL, INC., ) DR. DOUGLAS DORSEY, AND ) DR. J. SHEPHERD, ) ) Defendants/Ap pellees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE WALTER C. KURTZ, JUDGE

SAM E. W ALLACE, JR. 227 Second Avenue, North Nashvil le, Tennessee 37201 Attorney for Plaintiff/Appellant DIXIE W. COOPER EDWARD A. HADLEY Suit e 190 0, Na tion sBan k Pla za 414 Union Street Nashvil le, Tennessee 37219- 1782 Attorney for Defendants/Appellees Miller Medical Group, P.C. and John Shephe rd, M.D.

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE

CONCUR: TODD, P.J., M .S. LEW IS, J.- 2 - 

## O P I N I O N

The husband of a woman w ho suffered a fatal heart attack shortly after being disch arged from a ho spita l emergency room f iled a m edical malpractice suit against the treatingdoctor and the medical g roup for whi ch he work ed. The trial court dismissed the claim against the defe ndant doctor because the plaintiff f ailed to obtain service on him. A summary judgment was subsequentl y grant ed to the def enda nt medical group on the g round of the plaintiff ’s failure to prod uce a qualifie d affidavit on the proper standard of care and on causat ion, as is r equired by

the Medical Malpractice Act, Tenn. Code Ann . § 29-26-115. We af firm the trial court.

I.

Mrs. Nina Barnes went tothe emergency room of Edgefield H ospital on May 10, 199 2, with com plaints of upp er gastric b urning an d chest pain. S he underwent

an electrocar

diogram and othe r tests, and w as examine d by D r. John Shepherd, an employee of Mi ller Medi cal Group, P.C., which pr ovided staffing for the emergencyroom. Dr. S hepherd d iagnose d esophagiti s, gave the patient a prescripti on for antacids, and sent her home. Shortly afterward (the exact interval that elapsed appears not to be in the record), Mrs. Barnes su ff ered a heart att ack and died.

On Ma y 6, 1993, James Dal e Barnes filed a l awsuit, al leging t hat the
cause of h is wif e’s d eath wa s the defendants’ failure t o correctl y diagnos e her underlyin g cardiova scular condi tion. Those named in the suit included Dr . Shepherd, another doctor who read t he elec troca rdiog ram, Miller Medical Group, and Edgefield Hospita l. The cla ims against the hospital and the other doctor were eventually dismissed by

the trial court and are no l onger at is sue.1 Rule 3 was amended on Jul y 1, 1995, t o all ow the pl aint if f one y ear fr om the issuance of prev ious proc ess to issu e ne w pr oce ss in orde r to toll the s tatute of lim itations

. - 3 - Service of process was obtained a g ainst all th e named defendants exceptDr. Shepherd, who had moved in the interim, apparently first to Fort Campbell, and then to San Antonio , Texas to pu rsue a resi den cy in th e fie ld of Anes thes iolo gy. The initi al su mmo ns to serve Dr. Shepherd in David son County w as returned, “ Notto be found in my count

y.”

On July 27, 1993, process w as again is sued. The U.S. Mars hall made
an unsuccessful attem pt to serve Dr. Shepherd at the Fort Campbell MilitaryHospital, with the summons re tur ned “not to be found.”Subsequent pr ocess issued on December

30, 1993, listed a Clarksville address for Dr. Shepher d. The process w

as returned with the notation “Not to be f ound Moved to Texas”

On September 14, 1994, more than eight months after issuance of the previousprocess, a

summons was aga in issued w ith a request that Dr. She pherd be served by th e Texa s Secretary of State . It i s not c lear i f this s ummo ns wa s ever served. On October

28, 1994, Dr. Shepherd filed an Answer to the Complaintand a Motion to Dismiss . Affirmative defenses asserted i n the answer included f ailure to obtai n service, expirat ion of the statute of li mitations, and comparative neg ligenc e . The Motion to Di smiss was granted on D ecember 7, 1994.

II.

Rule 3, Tenn. R. Ci v. P. prov ides the means w hereby a pla intiff may keep alive a timely file d claim after the statute of l imitations has expired, despite failure t o serve the de fendant w ithin the ti me prov ided by the st atute. At al l time s relevant to the present case, the pe rtinent portion of that rule read as follows: 1

. . . If proc ess re main s uni ssue d fo r 30 d ays or i f p rocess is not served or

is not retur ned within 30 d ays from iss uance,- 4 - regardless of the reason, the pla int iff cannot rely upon the original comm ence ment to t oll the r unni ng o f a statute of limitations unless the plaintif f either: (1) continuesthe action by obtaining issuance of new p rocess within 6 months from issuance of the previous pro cess or, if no process issued, within 6 months f ro m th e filing of the compl aint and summons, or (2) recommences the action within 1 year from issuance of the origi nal process o r, if no proces s issued, within 1 year fro m the f iling of t he origi na l complaint and summons.

Since Mr. Ba rnes allowe d more than eight months to elapse between the third iss uance of process and the issuance of the final summons contained in this record, Dr. Shepherd contended that the oper ation of the statute of li mitations deprived Mr. Barnes

of any rig ht of action he may have had against the treating doctor.

Mr. Barnes argues that Dr. Shepherd’s absence from the state shou ld have tolled the st atute of limitati ons by v irtue of the prov isions of Tenn. Code Ann. § 28-1-111. The statutethe plainti ff relies on is the current version of a n 1865 act which was passe d in the aftermath of theCivil War, and was designed “ to meet the facts resultingfrom the disturbed st ate of society of that period in our history.” Taylor v. McGill , 74 Tenn. 294, 30 0 (1880).

Under the provi sions of the act, the period of the defendan t’s absence from the state could not be counted as p art of the time lim ited by the statute of limitations, thus theoretically permit ting the pla intiff to preserve his cause of act ion indefinitely , as long as

the defendantwas out of st ate. As early as the McGill

case, supra, however , our Sup reme Court limited the applicatio n of the statute to those situationswhere the non-residence of the defendant deprived the plaintiff of his legal remedy because of inabil ity to obtai n personal ser vice ag ainst him. 74 Tenn. at 301.- 5 - Subsequ ent pas sage of long-arm statutes, now coll ected under Tenn. Code Ann. § 20-2-101 et s eq., and advances in transport ation and communicat ions have increased the feasibilit y and ease w ith which per sonal serv ice can be obtai ned
on non-resident defendants, far beyond anything possible in 1880. Ou r Suprem e Court has had seve ral subseq uent opportuniti es to interpret the statute i n question, and has confirmed that it does not operate to toll the statute of li mitationsunless the defendant ’s absence from the stat e is such as to prevent s ervice of pr ocess. See Turcott v. Yaz oo & M.V. Rai

lroad Com

pany., 101 Tenn. 102, 45 S.W . 1067 (1898); Arrowood v. McMinn County, 173 Tenn. 562, 12 1 S.W .2d 566 (1938).

There are no indications in the r e cord that Dr . Shepherd was not amenable to being served, or that his absence from the state would have prevented service on him, if only

the pl ainti ff had use d due di lige nce to reach him. We therefore find that the statute of limitations w as nottolled during Dr. Shepherd’s absence, and that the trial court wa s correct in dismissi ng the clai m against him.

III.

The claim against Miller Me dical Gro up was based solely on the employment

relation ship between the medi cal group a nd the alleged ly negl igent tortfeasor, rat her than upon any neglige nce by the g roup itself. O n December 2, 1994, Miller Medical filed a Motion for Summar y Judgment. The defendant’s motion
was supported by

Dr. Shepherd’s affidav it, whic h summarized the treatment received by Mrs. Barnes, and ex pressed theopinion that su ch treatment was consi stent wit h the standard of care for patients w ho present the si gns and sy mptoms that she did.

To avoid summaryjudgment in t he face of Dr. Shepherd ’s affidavit, and the requirements of Tenn. Code Ann. § 29- 26-115 of the Medical Malpractice Act, Mr. Barnes wou ld have to demonstr ate the existence of disputed mater ial facts, by- 6 -

producing qualified expert testimony, both that Dr. Shepherd’s conduct did no t comply with the standard of care, and that such conduct was th e cau se of Mrs. B arne s’ inj ury. See Byrd v. Hall

, 847 S.W.2d 208 (Tenn. 1993); German v. Nichopoulos , 577 S.W.2d 197 ( Tenn . App. 1978). The trial court cont inued the hearing on the def endant’s motion to giv

e the plaintiff time t o obtain a contr overtingaffidavit.

On February

13, 1995, t h e plaintiff subm itted the aff idavit of Dr. Jerry Slay, who had formerlybeen a practit ioner ofemergency medicine. Dr . Slay st ated that it was his opinion that the care given by Dr. Shepherd was negligent, and not in keeping with the recogniz ed standard of care. The affidavit discussed s ome areas of concern, and concluded, “ [i]n lig ht of the above observations, it is my medical opini on that the negative o utco me in the case of Ni na Barnes could possibly have been avoided had these issues been addressed.”

The Court gr

anted summary j udgment toMiller Medical on February 17, 1995, on the basis that the l angu age in Dr. Sl ay’s a ff idavi t sta ting t hat “ the n egat ive outcome. . . could pos sibly hav e been avoided”

did not mee t th e legal requirement of probability

required to create a mater ial questi on of fact on the issue of causation. However, the court granted Mr . Barnes an addi tional 45 days before making the order final, to giv

e him the opportuni ty to ask Dr. Slay if he wishe d to amend the affidavi t.

On April 3, 1995, exactly 45 days after February 17, Mr. Bar nes filed a motion for a seven day ext ension to file thesupplemental affidav it. On April 10, the amended affidavit was filed. In it , Dr. Slay stated that his use of

the wo rd “po ssib ility” in the earlier affidavit meant “. . . the possibilit y was very substantial and, in fact, was a probability

that death wo uld nothave resulted if proper standard of conduct (sic) had been applied.”- 7 - Howeve r on April 11, 1995 the trial court issued its “Final Order of Di smissal” which stated that the 45 day s had elapsed w ithout corre ction of th e def ecti ve affidavit. On ap peal Mr. Bar nes argues t hat it was an error for

the trial court to reject Dr. Slay’s initial affidav it on the basis of a failure to use words of pro bability
or cert aint y, because medicineis not an exact science, and questions of causation especially

do not usually

lend themselves to categor ical concl usions.

W hile the court may overlook defect s in th e form of the affidavit i f the facts alleged in it indicate the existence of a quest ion o f ma teria l fac t, we believe t hat something more than a statement of the possibili ty of causatio n is necessar y to defeat
a motion for summary

judgment in a medical malpractice case. The trial cour t gave the pla inti ff a generousallowance of additional time to correct the defect in Dr. Slay’s affidavit, but theplain tiff did not make the correc tion un til aft er theallot ed time had el apsed. We do not believe the tria l court abused its discretion in all owing i ts judgment to become final withou t considerati on of the late-filed amendment.

IV.

The judgm ent of the trial cour t is affirmed. Remand this cause to the Circuit Court of Dav idson County for further

proceedings

consistent w ith this opi nion. Tax the costs

on appeal to the appe llant.

________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE- 8 -

MIDDLE SEC TION

_______________________________ SAMUEL L. LEWIS, JUDGE