IN THE COURT OF A PPEALS OF TENN ESSEE WESTERN SECTION AT KNOXVILLE
LILLIAN D. VEGA-HORTA , ET AL, )

) Plaintiffs/Appellants, ) Knox Circuit No . 1-86-96 ) VS. ) Appeal No . 03A01-9706-CV- 00226 ) WYETH-AYE RST LABORA TORIES ) COMPANY, ET AL, ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF KN OX COUNTY AT KNOXVILLE, TENNESSEE THE HONORABLE DALE C. WORKMAN, JUD GE

J. D. LEE LEE, LEE & LEE Knoxville, Tennessee Attorney for Appellants

EDWARD G. WHITE, II HODGES, DOUGHTY & CARSON, PLLC Knoxville, Tennessee Attorney for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. WILLIAM H. WIL LIAMS, Sr. J. Plainti ff, Lillian Vega-Horta ( “plaintiff” ), appeals the judgme nt of the trial court2

granting defendant’s, St. Mary’ s Medical C enter (“St.Mary’s”

) Motion for

Summ ar y Judgment. For reasons stat e hereinafter, we affirm the tri al court’s judgment.

On February 12, 1995, plaintiff’s decedent husband, Cata lino Soriano, was transported to the emergency room at St. Mary’s w ith complaints of severe abdomi nal pain. He wa s admitted at approximately 7:50 a.m. under the care of the emerg enc y roo m physician, Dr. Mar

jorie Barron. Dr. Bar

ron examined Soriano

and ordered that lab work, x-rays, and an abdomin al ultrasou nd be performed on him . Dr. Barron did not is sue a definit ive diagnosis of the cause of Soriano’s abdominal discomfort; instead,she entered under “Diagnosis” on the chart, “Acute Abd. Pain; R/O PUD; R/O gastritis.”
While in the emergency room, Soriano had three episodes of vomiting,the last of which contained blood in the vomitus. Dr. Barron prescribed 12.5 mg of phenerg an to be administered to Soriano intravenousl y once at

8:16 a.m. and then again at 8:25 a.m. At 2:30, Soriano was admitted to a room under

the care of co-defendant, Dr. William Bolin. Dr. Bolin started Soriano on IV fluids and an EKG was pe rformed. Soriano had one additional vomiting episode at approxim ately 2:3 0 p.m. Upo n being ca lled by a nurse, Dr. Bolin gave orde rs for Demer ol 25 mg and P henergan 12. 5 mg to be admi nister ed to Soriano intramuscularly for pain.
By 3:00 p.m., Soriano was res ting and at 6:20 p.m. his sy mptoms had subsided enough that he was

feeling better. However, when a nurse came in to pick up his food tray at approximately 6:40 p.m., she found Soriano in bed, non-responsive. An effort was made to resuscitate Soriano, but these efforts were futile. Soriano was pronounced dead at 7:02 p.m.

An autopsy was

performed to ascertain Soriano’s cause of death. It was determi ned that he died from hemop ericardiu m secondary to acute aortic dissection as a result o f cystic medial necrosi s.3

This lawsuit was filed on February12, 1996, naming St. Mary’s, Dr. Barron, and Dr. Bolin as defendants. Plain tiff alle ges that had timely diag nosis been made of the acute aortic dissection, the treatment of choice would have been immediate surgical inter vention and such would have prev ented Soriano’s death. Plaintiff further alleges that Drs. Barron and Bolin and the medical and hospit al personnel at

St. Mary’s failed to act with ordinary and reasona ble c are in accordance with the recognized standard of acceptable professional practice in their car e of Soriano and that

their departures from these required standards of professional practice were a proximate ca use of S oriano’s death. Subseque ntly, St. Mary’s filed a M otion for Summary Judgment cla iming tha t its agent s acted within the recognized standards of acceptable professional practice for hospitals in Knoxville and similar communities. Sa id motion also stated that c o-defendants, Drs. Barron and Bolin , wer e not employed by or other wise acting under the supervision, dir e ction or control of St. Mary ’s in the exercise of thei r respective independent medi cal judgme nt, but rather

were i ndepende nt, private pr actici ng phys icians

enjoyi ng medic

al staff privileges

at St. Mary’s consistent with their respective medical spec ialties. The affidavits of Dr. Leon Bogartz and Terr y King, R.N. w

ere filed in support of the Motio n.
The affidavit of Dr. Bogartz is as follows: STATE OF TENNESSEE COUNTY OF KNOX After being duly sworn, according to law, the undersigned states as follows: 1. I, Dr. Leon Bogartz, am employed as the Medical Direct

or at St. Mary’s Medical Center, Inc. , (hereinafter referred to as “St. Mary’s”). This affidavit is provi ded in support of a Motion forSummary J udgment that is be ing simult aneousl y fil ed on behalf of St. Mary’s in the above captioned matter. 2. In my capacity as Medic al Dire ctor at St. Mary’s,I am familiar with and informed about the status of

Marjorie Barron, M.D. and William R. Bolin, M.D., w ho have been named as CoDefendants in the captioned matter. 3. The Co-Defendants, Marjorie B. Barron, M.D. and William R. Bolin, M.D., were not at any time material to the case at bar employ ed by St. Mary’s Medical Center. Rather, at all tim e s mat erial to this case, Dr. Barr on and Dr. Bolin were privat e practitioners duly licensed by the state ofTennessee, with Dr. Barron specializing and board certified in emergency medicine and Dr. Bolin specializing and board cer tified in internal4 medicine. Dr. Barron was granted staff priv ilegesat St. Mary’s effect ive June 30, 1986, and Dr. Bolin w as grant ed st aff privileges

at St. Mary’s effectiv

e July 22, 1993 . At all times material to this case, Dr. Barr on and Dr. Bolin possess ed staff privilege s consistent with their profession al training, experience and specialties and neither were employees of St. Mary’s. Dr. Barron and Dr. Bol in were not subject to the s upervision, direction or control of St. Mary’s with respect to the exerci se of theirindependent professional judgment in the diagno sis, care and treatment they provided to Catalino Soriano in Februa ry, 1995, but rather were subjec t to only such rules and regulations

as were applic abl e to other private practicing licensed doctors enjoying staff privileges and prac ticing at St. Mary’s. 4. The Co-Defendants, Dr. Barron and Dr. Bolin, were not at any time material to thecase at bar, employed by or acting as the agent or servant

of St. Mary’s in any r egard or in any capacity whatsoever. 5. This affidavit is made upon my personal knowledge. The affidavit of Terry King, B. S.N., M.B.A. provides in pertinent part: After being duly sworn, according to law, the undersigned states as follows: 2. I am familiar with the r ecog n ized standards of acceptable pr ofessional pra ctice for nursing and hospital c are in Knoxville, Tennessee, or similar communities at the times material to this case. I have been licensed by the sta te o f Tenne ssee as a r egistered nurse sin ce 1984. Since 198 4, I have practiced nursing in Knoxville, Tenness ee. My p rac tice experience has included work at the Step Down Cardiac Unit at the Universi

ty of Tennessee Medical Center for four years w orking as a staff nurse. For th e past eigh t years, I have been employed by St. Mary’s Health Systems as a nurse manager of the surgical andGI Unit. I am presently the clini cal leader for the Laboratory and Emergency Department for St. Mary’s Health Sy stem. I was en gaged in the practice of nursing , as noted above, with i n [sic] the year preceding the acts which form the basis for this lawsuit. I am famil iar with the recognized standards of acceptable professional practice for nur sing and hospital care in Knoxvill e, Tennessee or similar communities at the times material to this case. 3. I have reviewed pertinent documents pertaining to this case, specifically including the f ollowing:
a. Copies of the Complaint filed in this matter on behalf of the Plainti ffs and the Answer filed on behalf of St. Mary’s Medical Center, Inc.; b. Medical records of St

. Mary’s Medical C enter, Inc. for Catalino Soriano’s admiss ion on February 12, 1995. 5. Based upon the information I have revi ewed as outlined in parag raph 3 above, it is my professional opinion, within a reas onable degree of medical certaint y, that the nursing and hospita l care that CatalinoSoriano received from St. Mary’s was at all times and in all respects conduct ed i n a reasonable and appropriate fashion by hosp ital personnel. . . [ i]t i s further my professional opinion, within a re asonable degr ee o f certainty, that the hos p ital personnel did not deviate from the recognized standar ds of5

acceptable professional practice, nor did they in an y way ca use Mr. Catalino’s demise as a res ult of any improper care. 6. In conclusion, it is my professional opinion, with a reasonable degree of medical certainty, that the h ospital and nursing car e that Catalino Soriano received from St. Mary’s, at times material to this case, was performed in all respe cts in conformance with the recognized standards of acceptable professional practice for a hospital suc h as St. Mary’s, in Knoxville, Tennessee, or similar communities. It is further my professional opinion, with a reasonable degree of medical certainty, that St. Mary’s personnel did not deviate from the recogn ized st andards of a c ceptable professional practice in their care of Catalino Sor iano. 7. This Affidavit is made upon my personal knowledge.

In oppositi on to the Motion for Summary Judgment, plaintiff filed the affidavit and the discovery and ev

identiary deposition of

Robert E. Pieroni, M.D ., an Alabama licensed physician practicin g his specialty of int ernal medicine there.

Dr. Pieroni’s affidavit states that he is a physician

practicingthe specialty of internal medicine at the pertinent times and is familiar with the recognized standard of acceptable professional practice in the field inter nal medicine and family practice as th ey existed i n Knoxville, Tennessee, in February of 1995. Dr. Pieroni’s affidavit stated in pertinent part: 6. Additionally, the patient’s past history of chest pain was not pr omptly addressed or considered. Spanish is the second most common language in this country and a Spanish interpreter was available at St. Mary’s M edi cal Center. Neither physician n or the hospita l staff elicited the patient’s past historyof chest pain on a timely basis as should and could have been done early on admission. 9. I am of the opinion, with a r easonabl e de gree of medical certainty , that Marjorie B. Barron , M.D ., William R. Bolin, M.D., and agents of St. Mary’s Medical Center acted with les s than or failed to act wit h ordinary and reasonable care in accordanc e with such standard in their care of Catalino Soriano in (a) failing to obtai n proper and prompt historic al data; (b) failing to obtain proper and prompt physical eval uation; (c) failing to obt ain proper and prompt diagnostic studies , including a stat echocardiogram and other appropriate tests; (d) failing to obtain immed iate consultation; (e) in prescribingmedications that masked the patient’s symptoms without the ir underlyingetiology having been appropriately and properly addressed; and fur ther, that such departures from the rec ognized standard of acceptabl e professional practice caused a different outcome an d were a proximate cause of Catalino Soriano’s death on February 12, 1995.
On March 21, 1997, after hearing argument concerning this motion, th e trial court granted St. Mary’s Motion for Summary Judgment. Pursuant to Tenn. R. Civ. P. 54.02, St.6

Mary’s was di smissed

from the lawsui

t and the judgment was entered as final. P lainti ff filed her notice of appeal thereafter on April 21, 1997.

A trial court should gr ant a moti on for sum mary judgment only if the movant demonstrates that there are no genuine issues of materi al facts and that the moving pa rty is entitled tojudgment as a matter of law. Tenn. R. Civ. P. 56.03; Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett , 833 S.W.2d 78, 80 (Tenn. Ct. App. 1992). The pa rtymoving for summary judg ment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd , 847 S.W.2d at 210. O n a motion for summary judgment, the court mus t consider the motion in the samemanner as a motion for directed verdict made at the close of the plaintiff’s proof; that is, “the court must take the strongest legi timate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence.” Id. at 210-211. In Byrd , the Tennessee Supreme Court stated: Once it is shown by the mov ing party that there i s no genuine issue of mate rial fact , the non moving par ty must th en demonstrate, by

affidavits or discovery materials, that there is a genuine, material fact disput e to war rant a trial. In this regard, Rule 56.05 prov ides that the nonmoving par ty cannot simplyrely upon his pleadings but must set forth specific facts showing that there is

a genuine issue

of material fact for trial. Id. at 211 (citations omitted) (emphasis in original ). The phrase “genuine is sue” as stated in Rule 56.03 refers to genuine factual issues, and does not include issues involvin g legal conclusionsto be drawn from the facts. Where a genuine dispute exists as to any material fact or as to the c onclusio ns to be dr awn from t hose fa cts, a cou rt must de ny a motion for summary judgment. Id. (citing Dunn , 833 S.W.2d at 80). We must decide whethe r 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

presumption of the correctness of the trial court’s conclu sions of law. Union Pla nters Nat ional Ban k v. America n Home Assurance Co. , 865 S.W.2d 907, 912 (Tenn. Ct. App. 1993).

With these principles in mind,we f ir st look at the plaintiff’s burden in a medical malpractice case as set forth in T.C.A. § 29-26-115:1 W e find i t interesting to note tha t plaintiff, after St. M ary’s broug ht its Motion fo r Sum mar y Judgm ent,

sought and was granted a continu ance in th is matte r in order to obta in furt her d isco very m ateria ls. W ithin th is several months of con tinuance, plaintiff proffered only the affidavit of Dr. Pieroni to overcome said Moti on for Summ ary Judgment. Even after many months of continuance,plaint iff di d not produce an exper t in t he area of nursin g and ho spital care but only m anage d to procure the a ffida vit of D r. Pier oni, a n inte rnist a nd fa mily practit ioner i n private practice in Tuscaloosa, Alabama. 7 29-26-115. Claimant’s burden in malpractice action--E xpe rt testimony--Presumpt ion of negligence--Jury instructions --(a) I n a malpractice action, the cl aimant shall have the burden o f proving by evidence as provided by subsection (b): (1) The recognized standa rd of a cce ptable professional practice in the profession and the special ty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time th e al leged injury or wrongful action occurr

ed; (2) That the defendant acted with less than or failed to act with o rdinaryand reasonable care in accor dance with s uc h standard; and (3) As a pro

ximate result of the d efendant’s negligent act or omission, the plai ntiff s uffere d injurie s which would not have otherwise occurred. ( B) No person in a health care profession requiring licensure under the laws of this state

shall be competent to

testify in any court of law to establish the facts requiredto be established by subsection (a) unless he w as licensed to practice i n the state or a contiguous

bordering state a professi on or specialty which would make his expert testimony relevant to the issues in the case and h ad pra cticed this profession or s pecialty in one of these state s du ring the year precedi ng the date that the alleged injury

or wrongful act occurred. This rule shal l apply to expert witnes

ses testifying

for the d efe ndant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise w ould not be available. T.C.A. § 29-26-115 (a)-(b) (1980).

In order for

the affidavit of an individual to create an issue of fact wi th respect to the standard of care and the breach thereof, it must beshown that Dr. Pieroni is competent to testify to the matters stated in his aff idavit. Te nn. R. Civ. P . 56.06. Tenn. R. Civ. P. 56.06 (formerly codified as 56.05) provides in relev

ant part: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as w ould be admissible in evidence, and shall show affi r matively that the affiant is competent to testify to the matters state therein. . . Tenn. R. Civ. P. 56.06 (emphasis added). 1 In this case, the court had before it the affida vit of Terry King, a registered nurse with over twelve years n ursing experience w ithin various8

hospital departments in Knoxvil le, Tennessee, eight years of which have been in a managerial capacity. The trial court, un doubted ly, found Terry King competent to s peak as an expert in nursing a nd hospital care. As req uired by Tenn. R. Civ . P. 56 .06, King affirmatively testified to such competency: “I am familiar with the recogniz

ed standards of acceptable professional practice for nursing and hospital c are in Knoxville,Tennessee, or similar communities at the times materia l to this case.” Dr. Pieroni’s affidavit testi mony, on the other hand, merely testified : “I am familiar with the recognized standard of acceptable professional practice pertaining to the practice of internal medicine and fa milypractice as t heyexis ted in Knoxville, Tennessee, in February of 1995.” Noticeably absent from Dr. Pieroni’s affidavit testimony was the affirmative showing that he is qualified to testify as to the recognized standard of professional care as it would apply to nursing or hospital care as required by Tenn. R. C iv. P. 56.06. As such, plaintiff has failed in her burden of creating issues of material fact concerning not on ly the recognized standard of acceptable professional practice in the profession of nursingand hosp ital ca re, but p laintiff has also failed to carry her burden of proving that St. Mar

y’s personnel acted w

ith less than or failed to act with ordinary

and reasonable care in accordance with such standard as required by T.C.A. § 29-26-115 (a) (1)-(2).

The trial court has broad di scretion in dealing w ith the qualifications andadmissions of testimony of expert w itnesses. Ayers v. Rutherfor d Ho spital, Inc. , 689 S.W.2d 155 (Tenn. Ct. App. 1984).
Clearly, the trial court considered the affidavit of Dr. Pieroni and fo und that such affidavit does not statethat he is familiar with the recognized standard of acceptable care of practici ng nurses and hospital care personnel i n Knoxville, Tennessee, or similar communities. As such, the trial cour t, undoubtedly, determined that such affidavit was

not sufficient under Tenn. R. Civ. P. 56.06 (formerly 56.05) and r elevant case law to create a genuine issue of material fact i n order to necessitate a tr ial. We agree.

Under the foregoing circumstanc es, we find no error in the trial court’s judg ment.9

The t rial court did not abuse its discretion in granting St. Mary’s Motion for Summary Judgmentas the affidavit of Dr. Pi e roni is insufficient to create the required issue of fact as to the defendant hospital.

Accordin gly, the order of the trial court is affirmed . Cos ts of this appeal are assessed against p laintif f, for whi ch execut ion may iss ue if nec essary.

HIGHERS, J.

CONCUR:

FARMER, J.

WILLIAMS, Sr. J.