### IN THE SUPREME COURT OF TENNESS EE AT NASHVILLE June 3, 2003 Session CAROLYN STOVALL, ET AL 

### . v. LOIS E. CLARKE, M.D., ET AL 

### .

An Appeal By P

ermis sion from

the Court

of Appeals Circuit Court for Williamson County No. II-97652 Russ Heldman, Judge

No. M2001-00810-SC-R11-CV - Filed Septem ber 2, 2003

We granted review in this medical malpractice case to address whether the plaintiff, Caroly n Stovall, established a genu

ine issue of mater ial fact as to the recog nized stan dard of p rofessio nal practice in the community in which the defendants, Dr. Lois E. Clarke and Dr. Ro

bert McCa

in, prac ticed or

in a similar community. The

trial court granted summary judgment to the defendants and later denied the plaintiff

’s motion to

alter or amend the

summary judgmen ts. On app eal, the

Court of A

ppeals reversed the grant of summary

judgment to Dr. Clarkebut affirmed the grant of summary judgment to Dr. McCain. After reviewing the record and the applicable authority , we hold that the Court of Appeals correctly

determined that the trial c ourt err ed in gr anting s ummary

judgmen t to Dr. Clarke. We further conclude that the trial court erred in deny

ing the plaintiff’s motion to alter or amend the grant of summary judgment to Dr. McCain. Accordingly , the judgment of the Court of Appealsis affirmed in part a

nd rever sed in

par t, and the case is remanded to the trial court for fur ther procee dings. Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Appeals Affirmed in Part and Reversed in Part; Rem anded to Trial Court
E. R IL EY A NDERSON , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined.
Rose P. Cantrell, R. Bla

ke Menzel , and Geo

rge A. Dean, N ashville, Tenness ee, for the appe llant, Lois E. Clarke, M.D.
Joe Bedna

rz, Sr., and Joe Bedn arz, Jr., Na shville, T ennesse e, for the appell ee, Car olyn Stovall. Phillip North, Michael F. Jameson, and M. Todd Sandahl, Nashville, Tennessee, for the appellee, Robert W. McCain, M.D.
OPINION-2- Background The plaintiff, Carolyn Stovall, wasthe wife of the decedent, Gerald Stovall, who had been a patient of the defendants, Dr. Lois E. Clarke and Dr. Robert W. McCain. Both Dr. Clarke, a family medicine phy sician, a

nd Dr. Mc Cain, a pulmonolog ist, practiced medicine in Franklin, Tennessee.
Gerald Stovall had ahistory of smoking cig arettes, high cholesterol, and a family history of heart disease. In March of

1992, Dr. Clarke ordered an electro cardiog

ram (“E KG”) fo

r Stovall, which revealed that he

had sustained a

possible inferior wall myoca rdial infarction. In Octobe r of 1996, Stovall had a consultation with Dr. Clarke about a second EKG that was performed when he applied for life insurance. Stovall told Dr. Clarke that he was concerned because the results of the 1996 EKG differed from the results of the 1992 EKG.
In January of 1997, Stovall saw Dr. Clar ke for sy mptoms that

included shortnes s of brea

th and wheezing. Dr. Clarke diagnosed a reflux problem. Several wee ks later , Stovall returned and complainedof a che st cold an d continued wheezin g. Dr. C larke di agnose d an uppe r respir a tory infection and prescribed an antibiotic. I n early F ebruary of 1997, Stovall returned to Dr. Clarke for a third ti me with the same symptoms. Dr. Clarke then r eferred Stovall to Dr. Robert McCain, a pulmonolog

ist, for th e respir atory problem, and to Dr . Dougla s York, f or the g astric sy

mptoms.
On February

28, 1997, Dr. McCain examined Gerald Stovall, who once again re ported sym ptoms that included shortness of breath and a per sistent cough. Dr. McCain concluded that Stovall had bee n in good health, f ound that h

is cardia c and lung

evaluat ions were normal, and det ermined that he had ne ver comp lained of

chest pa in. Dr. Mc Cain diag

nosed Stov all with bronchitis aggravated

by s moking, f

or which he was be

ing tre ated with

antibiotics, and he did not order a dditional t

ests.
On March 11 , 1997, Ge

rald Sto vall died from what was later determined to be corona ry artery disease . The pla

intiff, Ca roly n Stovall, filed malpractice actions against Dr. L ois E. Clarke and Dr. Robert W. McCain, alleging that both phy sicians negligently failedto perfo

rm appro priate diagno stic tests and

failed to discover the coronary

heart disease that caused Gerald Stovall’s death.
Motions for

Summary Judgm ent
The defenda

nts, Dr. Cl arke and Dr. McCa in, denie d the neglig ence alleg ations and filed si milar motions for summary judgment. The y arg ued that the plaintiff had produced no ex per t witnesses who were familiar withthe rec ognized s tandard of profe ssional pr

actice in the com

munity in which the al leged n eglige nce occu rred or a similar community a s required in a medical malpractice action. See Tenn. Code Ann. § 29-26-115(a) (Supp. 2002). The defendants also a rgued that their treatment and care of Gera ld Stovall had conformed to the rec ognized standard of1 Dr. Cl arke’ s moti on for summary j udgment was accompanied by, among other documents, the aff idavit of Dr. Summer C haffin, who stated th at Dr . Clark e’s treatm ent of G erald Stov all con form ed to the stand ard o f care in W illi amson Co unty, T enne ssee. Sim ilarly, Dr. M cCa in’s mo tion for s umm ary jud gme nt was a cco mpa nied b y th e affidavit of D r. M ichae l T. M cCo rmac k, who sta ted tha t Dr. M cCain’s treat ment of Gerald Stovall conformed to the standar d of care i n Willia mson County, Tennessee.

2 The information i ncluded the statement of the Williamson County Med ical Center’s CEO contained on the hosp ital’s web page, popula ti on st ati sti cs f or Will iams on Co unty, and a do cum ent listing m edica l specia lities availab le (con tinued ...) -3- professional care in Williamson County, Tenne ssee, and that their ac ts or omissi ons did not c ause or contribute to his death. 1
The plaintiff’s response to Dr. Clarke’s moti on for summary judg ment included, among other document s, the depos ition of Dr . Jack Uhr ig, an in ternal medicine sp ecialist

in the State of M issouri. Alth ough Dr. Uhrig conceded that he ha d never practiced medicine or trea ted any patients in Williamson County, Tennessee, he stated that he wa s familia r with the “localit y st andard” because he had reviewed over twenty medical charts from theState of Tennessee and had testified in three malpractice cases in the middle Tennessee area. More over, Dr. Uhrig stated that his “review of the medical records and depositions” demonstrated that “Dr. Lois E . Cl arke and Robert W. McCain, M.D., both deviatedfrom the standard of care/standard of a cceptable professional practice r equired of physicians in Fr

anklin, Tennessee or in a similar community in the years 1996 a

nd/or 1997.”
In addition to Dr. Uhrig’s deposition, the plai ntiff subm itted a sup

plementa l affida vit in which Dr. Uhri g explained his fa miliarity with the a

pplicabl e standa

rd of pro fessiona

l care in Franklin, Tenne ssee:

For the past 1 8 ye ars, I

have be en seein g patie nts like Ge

rald Deway ne Stovall in asmall community. A majority of patients that I see have underly

ing cardiology

problems, a nd othe r phy sicians in this community frequently refer p at ients to me t hat ha ve card iolo gy problems

. . . . I am

intricately fa

miliar with the standard of care as it applies to the work-up of patients with coronary artery disease. I consider Franklin, Tenness ee to be a similar c ommunity

to Marsha

ll, Missouri, as it pertains to the facts and circumstances of this case.
Dr. Uh rig sai d that “the s tanda rd of ca re for t reati ng a patient like Gerald Stovall, with underlying coronary disease , . . . would

be exactl y th e same throughout all 50 states, possibly with the exception of some very pr

imitive areas . . . . ”
Dr. Uhrig’s affidavit reiterated that he was f amiliar with the loc ality

standar d of car e becau se he had “revi ew ed over 2 0 chartsfrom the s tate of T ennesse e in orde r to rend er an opinion as to whether or not malpra ctic e occurred” and had “testified . . . in 3 medic al malpractice cases in the middle Tenness ee are a.” Dr. Uhrig a lso said that he had reviewed additional information 2 as well:2 (.. .cont inu ed) at the W illiamso n Co unty M edica l Cente r. -4-

I have also bee

n provide d with add

itional specific information about the Fr anklin , Tennes see comm unity and the Will

iamson Coun

ty Medical Center. I hav e also b een informed that the Williamson County Medical Center has approximately 140 beds and that there are approxima

tely 160 phy sicians o n sta ff, wi th approximately 80 of them being active and 80 of them being associated. Also, there is a listing of special ties that are repres ented at

the Williams on County Medical Center . . .

. I ha ve also been provid

ed other statistica l data about Williamson County and the hospital . . . .
Alth ough Dr. Uhrig stated that the “national standard of c are for treating such pati e nts [as the deceased] is exactly the

same as th

e localit y st andard, ” he cla

rified th at he wa s “very

familiar with the legal ramifications of

a national standard of

care verses [sic] a local standard” and that he a pplied “the locality standar

d in this case.”
The plaintiff’s response opposing Dr. McCain’s motion for summary judg ment included the deposition of Dr. Ro n ald Krone, a board certified ca rdiologist who, like Dr. Uhrig, practiced medicine in Missouri. Although Dr. Krone admitted that he had never practiced medicine or trea ted any patients in Franklin, Tennessee, he testified by deposition that Dr. McCain’s failure to diagn ose coronary artery

disease and to pursue the necessary treatment contributed to the decedent’s death. In his supplemental affidavit, Dr. Krone later said that he had been furnished

“statistical data” about the medical resources in Franklin, Tennessee, that car diologis ts and ca rdiac su rgeon s “were

availab le in the immedi ate area,” and that “the standard of c are issues and causation issues that apply to the facts an d circ umstance s of this ca se are t he same i n the St. L

ouis are a as they

are in the Nashvi lle area.”
After

consider ing the m edical r ecords, depositio ns, and a ffidavit s, the tria

l court g rant ed summary judgment to both Dr. Clarke and Dr. McCain. The trial court’s wr itten order, however , did not include specific findings or reasons for its conclusion.
Motion to

Alter or Amend
The plaintiff filed a motion to alter or amend the tri al cou rt’s ruling granting summary judgment to Dr. Clarke and Dr. McCain. See Tenn. R. Civ. P. 59.04. The motion to alter or amend was supported by a

ffidavits from Dr. Lawr

ence Golusinski, Dr. Krone, and Dr. Peter Tuteur.
Dr. Golusinski, a physician licensed i n G eorgia and North Carolina, stated that he wa s fami liar with medical practice in Franklin, Tennessee, ba sed upon statistical information he ha d reviewed. He be li ev ed th at Dr . C la rk e d id no t s at is fy the stan dard of c are bec ause she failed to investig ate the decedent’s pr ogress ively

abnorma l EKG res ults, fail ed to inve stigate the decedent’s-5-

elevated lipids, and failed to investigate sy mptoms “highly sug gestive of congestiveheart failure.” Dr. Golusinski stated that compliance withthe applicable standard of care would ha ve led to a proper di ag no si s o f t he de ce de nt an d p ro ba bl e c or on ar y byp as s s ur ge ry.
Dr. Krone’ s affida

vit once again stated that he was fa miliar with the applicable standard of care for fami ly p

ractitio ners in F

ranklin, Tenness ee, and

th at Dr. Cl arke fa

iled to sat

isfy this standard. Dr. Krone stated:

Based on the information that

was ava ilable to Dr. Clarke, she had a duty to appropriately inve stigate the signs and sy mptoms, which were highly suggestive, of conge stive heart fa ilure or left ventricular dysfunction, or ischemia. In the alternative, she c ould have fulfilled her duty to investigate by a

ppropriately re

ferring [the decedent] to a cardiologist for investigation and evaluation.
Dr. Krone concluded that Dr. Clarke’ s comp liance with the sta ndard of care w ould have

led to probable coronary

bypass and that the decedent would have survived.
Dr. Tuteur, a pulmonologist in Missouri, stated that he had reviewed statistical information about Franklin, Tenne ssee, and he cons idered itto be similar to the medical community in which he practiced. He state d that Dr. McCain failedto take a detailed and meaningful medical history , failed to investig ate othe

r cause s for the

decede nt’s shor tness of brea

th and cough, and failed to consider coronary artery disea s e as a potential cause of Stovall’s sy mptoms. Dr. Tuteur believed that Dr. McCain’s compliance with the applicable standard of car e in Febru ary

of 1997 wo

uld have l ed to a correct diagno sis and the proper medical or surgica l treatment of

Gerald Stovall’s heart condition.
The trial cou

rt consid ered the affida vits in supp ort of the

plaintiff ’s motion to

alter or amend over the defendant s’ objectio ns that the y ha d not been

timely filed. Th

e trial c ourt none

theless concluded

that summary judgme

nt had been pro

perly granted to Dr. Clar

ke and Dr . McCain, and it denied the motion to alter or amend. Court of App eals’ Ruli ng The Court of Appeals concluded that the trial court

erred i n award

ing summa

ry judgmen t to Dr. Clarke because “the testimony of the plaintiff’s expert, Dr. Uhr ig, suff iciently demonstrated knowl edge of the sta

ndard of care a pplicabl e to a com

munity similar to F

ranklin”and did

“n o violence to the locality rule.” T h e court reasoned that the “plaintiff’s experts, appar ently reacting to their lack of geographic al information and m edic al sta tistic s abo ut Fr

ankl in, un dert

ook to appr ize themselves of these deficiencies and to acquire knowledg e of Fra nklin and c ommunitiessimilar to their locale.”
The Court of Appeals further concluded, ho we ver, that the trial court correctly granted summary judgment to Dr. McCain because there was no genuine issue as to a material fact on the3 Upon reach ing this co nclusio n, the C ourt o f App eals did not addres s the recogniz ed standar d of profes sional

practice iss ue with regard to Dr. McCain. -6- issue of causation. 3 In sum, the court held that the plaint iff did not show

that any act or f ailure to act by Dr. McCain ca

used the decedent

“to suffer injuries that would not otherwise have occurr ed.” The court also concluded tha t the trial court properly denied the motion to alter or amend the summary judgme

nt awarded to Dr. McCain. We granted this appeal to review these important issues.
Standard of Review
A party is entitled to summary judgment where heor she establishes that there is no genuine issue as to any

materia l fact and that a ju dgment may be rende red as a matter of law. Pe nl ey v. Honda Motor Co. , 31 S.W.3d 181, 1 83 (Tenn . 2000); see also Tenn. R. Civ. P. 56.04. In reviewing a motion for

summary judgme

nt, the Court must examine the evidence and all reasonable inferences from the evidence in a light most favorable to the non-moving party. Webbe r v. State Fa rm Mut. Auto. Ins. Co. , 49 S.W.3d 265, 2 69 (Tenn . 2001). Our revie w of the tr

ial cour t’s ruling is de novo. Id.
A party may

file a motion to alter or

amend a j udgmen

t within thir

ty ( 30) day s after i

ts en tr y. See Tenn. R. Civ. P. 59.04. When additional evidence is presented in support of such a motion, the trial court should consider the factors applicable to a motion to revise a pa rtial summary

judgment pursuant to Rule 54. 02 of the Tennesse e Rules of C ivil Proce dure: the moving pa

rty ’s effo rt to obtain the evidence in respondingto the summary judgme nt; the importanc e of the new evide nce to the moving party’ s case; the moving pa rty ’s explana

tion for f ailing to offer th e evidence in responding to the

summary judgmen t; the unfa

ir prejudice to the non-moving party ; and any other relevant consideration. Harris v. Chern , 33 S.W.3d 741, 744 (Tenn. 2000) (“Cases analy zing Rule 59.04 motions to alter or amend . . . offer some guidance in determining the standar d for revising non-final orders.”). The trial court’s ruling on a motion to alter or amend will be reversed only for an abuse of discretion. Id. at 746. Analysis
The defendant, Dr. Lois E. Clarke, arg ues that the Court of Appeals erred in reversing the summary judgment because the trial court properly

determined that

the plaintiff’s expert witnesses failedto demonstrate familiarity with the recognized

standar d of acc eptable

profess ional pra

ctice in Franklin, Ten nessee, or in a similar community. See Tenn. Code Ann. § 29-26-115(a)(1) (Supp. 2002). The plain

tiff, Car olyn Stovall, r

esponds t hat the Court of Appeals properly reversed the summary judgment granted

to Dr. Cla

rke but e rred in a ffirming the summar

y ju dgment g

ranted t o Dr. McCain on

the gro und that the plaintif

f failed to est ab lish that McCain’s acts or omissions4 Dr

. Mc C ain argues that he is not properly before t he Court because the plainti ff did not seek r eview of the Court of Appeals’ ruling with respect t o his summary judg men t. Although it is cl ear th at t he plai nti ff did not f ile her own appli cati on forperm ission to app eal, she d id raise the M cCa in summ ary jud gme nt issue in the Co urt of A ppe als and in her supplem ental brief in oppo sition to Dr. Clarke ’s a ppe al to th is Co urt. See Tenn. R. App. P. 13(a) (Stating t hat sepa rate appli cati ons f

or perm ission to app eal are not req uired ); Te nn. R. A pp. P . 11 (A ppe llee ma y raise issue s alleged ly decided erron eousl y, as s tat ed in the 1999 Advis ory Commi ssi on Co mm ents). A cco rding ly, in the intere st of efficiently addressing all of t

he issues presently before the Court, w e have el ected t o review the Co urt of A ppe als’ dec ision with respe ct to ea ch of the summ ary jud gme nts rulings. -7- resultedin injuries that otherwise would not have occurred. See Tenn. Code Ann. § 29-26-115(a)(3) (Supp. 2002). 4 Medical Malpractice
We begin our review by

examining the requirements for establishing a medical malpractice action in Tennessee. See Tenn. Code Ann. § 29-26-115(a) (Supp. 2002). The relev ant statut e providesthat a pla

intiff in a malprac tice ac tion shall h ave the burden of proving : (1) The recognized standard of acce ptable professional prac ti ce in the profession and the specialty thereof, if any , that the defendant practices in the com

munity in which the defendant practices o r in a si milar com munity at the time the alleged injury or wrongful actio n occurr ed; (2) That

the defen da nt acted

with less th an or fa

iled to ac t with ordinary and reasonable ca

re in accordance with such standard; and (3) As a proximate result of the defendant’s neglige nt act or o mission, the plaintiff suffered injuries which wou ld no t otherwise have occurred. Tenn. Code Ann. § 29-26-115(a) (Supp. 2002) (emphasis added)

. With these statutory provisions and standar ds of review in mind, we now turn to the summary judgment issues raised with respect to each of the de fendants, Dr. Clarke and Dr. McCain.
Summary Judgm ent for De fendant Clar

ke
Alth ough the trial court did not make specific findings of fact, the Courtof App eals determinedthat the summary judg ment granted to Dr. Clarke was based on the standa rd of care requirement

set forth in Tennessee Code Annotated section 29-26-115(a) (1). This statute embraces the so-called “locality

rule,” which requires that the standard of prof essional care in a medical5 The expert al so had added t hat orth opaedic sur geons fr om Johns on City or Nash vi ll e “w oul d st and t he s ame test and would be expect ed to have the same knowledge and to practice in very similar fashions by t he American Bo ard of Orthopaedic Surgery .” Id. at 72 2. -8- malpractice action be based upon “the com munity in which the defendant practices or in a similar community.” As this Court recently explained:
A medical expert relied uponby a plaintiff must have knowledge of the standard of professional care i n the defenda nt’s appl icable community

or knowledge of the standard of prof ession al car e in a community that is shown to be similar to th e d ef en da nt ’s co mm un it y. Robinson v. LeCorps , 83 S.W.3d 718, 724 (Ten n. 2002). We also cla

rified th at while

an expert’s discussion of

a national standard of care does not require e xclusion of the testimony, “such evidence may not substitute for evidence that first establishes the requirements of Tenn. Code Ann. § 29-26- 115(a)(1).” Id. ; see also Sutphin v. Pla tt , 720 S.W.2d 455, 457 (Tenn. 1986).
In Robinson , this Court held that the trial court properly excluded testimony from an expert witness who purported to testify a bout the standard of care for orthopaedic surgeons in Nashville, Tennessee. The expert testified that

Nashville is cert ai nl y r ecognized as a regional medic al center, and communication and training ar e such . . . that the

tw o s tandard s, lo ca ll y, as held in

Nashville

and for that matter

where I practic ed in Johnson City, would be expect ed to be the same , and also the same as a national standard.
Robinson , 83 S.W.3d at 721. 5 In ho lding tha t the te stim ony failed to satisfy Tennessee Code Annotatedsection 2 9-26-115 (a)(1) , we stre ssed that the exper

t did not “r

elate the basis for his knowl edge of t he st andard o f care in Nashville or indic ate why the Nash ville medi cal commu

nity was s imilar to, and thus had the same standard of professional care as the community wi th whic h [the expert] was familiar.” Id. at 725.
In this case, contrary

to Robinson , we agree with the Court of Appea ls’ assessment that the plaintiff presented expert testimony establishing the recognized standard of acce ptable professional practice in Franklin, Tennessee, or in a similar community. See Tenn. Code Ann. § 29-26-115(a)(1) (Supp. 2002). First, Dr . Uhrig did not rely u

pon a nati onal stan dard of c are, nor didhe simply

equate the local standard

wit h a national standard. Moreover, although Dr . Uhrig had never practiced medicine in the State of Tennessee, he testified that he had reviewed over twenty

medical charts from the State of Tennessee and had tes tifi ed i n t hre e ot her mal pra cti ce c ase s i n m id dl e Te nne ss ee. In addition, Dr. Uhri g state d in his supple mental af fidavit that he had reviewed statistical information about the medical co mm un it y in Wi ll ia ms on Co un ty, Tennessee, which included information about the medical specialists and resources available a t the Williamson County Medical Center.6 As we have reached this conclusion based solely on the testi mony and supplement al affi davit of Dr. Uhrig,

we need not rea ch the q uestion of whe ther the tria l court w as req uired to consider the supplemental af fidavit s in rul ing on the pl aint iff ’s moti on to alt er or amend as it applied t o the su mmary judgment in f avor of Dr. Clarke. -9- Unlike the expert proof in Robinson , Dr. Uhr ig also expressed understanding of the loca lity rule and explained

that he ha

d applied the loca lity standardof care – and not a national standard – to the fac t s and circumstances in this case. Moreover, Dr. U hrig did not simply offer a vague, conclusory

statemen

t that he w as famili ar with the local standar

d but inste ad showe d some underlying

basis for hi s t est im ony. In sum, all of these fa ctors dist inguish t his case from Robinson and should be considered

by the trial court whe

n determining whether an expert’s testimony satisfies the requirements of Tennessee Code Annotated sec tion 29-26-115(a)(1).
Dr. Clarke, h oweve r, contends that the trial court should not have considered Dr. Uhrig ’s supplemental affida

vit and tha

t h is statemen

ts were b ased on information provided several y ears after the alleged malpractice in this case. We ar e not persuaded. First, we find no error in the trial court’s consideration of Dr. Uhrig’s supplemental affidavit bec ause it was filed in oppos ition to the defendant’s motion for summary judgme nt before the trial court’s ruling. Second, we note that Dr. Clarke’s argume

nts essen tially contest the weight

of Dr. Uhrig’s statements and thus misapprehend the procedural cont

ext of this case: the proper analy sis with respect to summary judgment is whether the evidenc e, when v

iewed in a

light most

favora ble to the plain tiff, ra

ises a genuine issue as to a materia l fact. Accordingly , we conclude that the Court of App eals properly he ld that the trial court erred in granting summary

judgment to Dr. Clarke. It follows that the trial court’s denial of the pla intiff’s motion to al

ter or a mend the s ummary

judgmen t in favor of Dr. Cla

rke was also err

oneous. 6
Summary Judgm ent for De fendant McC ain
Alth ough the trial court did not make specific findings of fact, the Court of

Appeals upheld the summary judgme

ntin favor of Dr. Mc Cain afte r finding that the p laintiff

failed to establish causation. See Tenn. Code Ann. § 29-2 6-115( a)(3) (Supp. 2002). The court reasoned that the plaintiff “failed to demonstrate tha t she will be a ble to prove that any a ct or failure to act by

Dr. McCain caused her decedent to suffer injuries that otherwise would not have occurred.”
The plaintiff opposed Dr. McCain’s motion for summary judgment by re

lying primaril y on the testimony and supplemental aff idavit of Dr. Ronald K

rone with regard to the causation issue. Dr. Krone’ s initial a ffidavit stated that he was familiar with the applicable standard of care in the fiel d o f cardi ology

based on informat ion he had

reviewe d with reg ard to the

medical r

esource s in Williamson County , Tennes see. Dr . Krone c oncluded as follow s: [I]t is my opinion that if Geral d De wayne Stovall had been specific ally

evaluated for coronary

artery disease in January of 1997 or earlier , he would have been diagnosed as ha ving coronary

artery-10- dis ease an d he would

have pro bably underg one coro nary

by- pass su rg er y. The survival rate for t hat operation would have been approxima

tely 95 to 99%, and in my opinion, he woul d hav e had a better than 50% chance

of surviving for

10 y ears. Th

erefor e, it is my opinio n that Gerald Deway ne Stovall, more likely than not, wou l d have been alive today , if he had received ap propr iate cardiac evaluat ions. (Emphasis added).
Dr. McCain

did not examine Gerald Stovall until February 28, 1997, i.e. , one month after the January 1997 date cited by Dr. Krone. As a result, the Court of Appeals correctly concluded that the pl ai nt if

f’ s r es po ns e t o t he mo ti on fo r s um ma ry j ud gm en t f ai le d t o d em on st ra te th at an y a ct or omission by Dr. McCain re sulted in an injury that otherwise would not have occurred. Because of the plaintiff’s motion to alter or amend, however, this does not dispose of the inquiry

. As we noted earlier, the plaintiff filed a motion to alter or amend the summary judgment in favor of Dr. McCain. The motion to alter or a mend wasaccompa nied by , among

other ma terials, the affida vit of Dr. Peter Tut

eur, a pu lmonolog ist from Mi ssouri. Dr. Tuteur concluded that Dr. McCain fa il ed to ta ke a c om pl et e m ed ic al hi st or y; that Dr. McCain failed to investigate other causes for Stovall’s symptoms, including coronary artery disease; and that “if Rob ert W. McCain had complied with the st

andard o f care

requir ed of h im in February

of 1997 during his pulmonary consultation, Mr . S to va ll ’s un de rl yi ng hea rt c ondition wo

uld have b een diag

nosed, a nd he woul d probably have undergone successful medic al and or surgical management of his heart problem,” and that “to a reasonable degree of medical certainty , he would be alive today .”
A s a thresho ld issue, we find that the trial court correctly agreed to consider the three additional affi davits submitted by the plaintiff in support of the motion to alter or amend the judgmen t. Indeed, the trial court a cknowledged

that it had

agreed in advance to allow the plaintiff to submit add

itional ev idence, and it expr

essly stated that it had considered the relevant factors set forth in Harris v. Chern , 33 S.W.3d 741 (Tenn. 20 00). Accordingly , we agree with the Court of Appeals’ observation that the trial court properly considered the additional evidence.
We disagree, however, with the Court of Appeals’ determination that the trial cou rt prope rly found that the new affidavits, including the affidavit of Dr. Tuteur, failed to raise a ge nuine issue of material fact as to causation based on the acts or omissions of Dr. McCain. The above quoted statement from Dr. Tuteur reflects his opinion that had Dr. McCain reached the rig ht diagnosis, the decedent would have received medical or surgical treatment

for his underlying

heart condition and that the decedent, more likely than not, would have survived.
On appeal, Dr. McCain argues that Dr . Tuteur was not qualified in the field of ca rd io lo gy, that he was not competent to testify a bout the applicable standard of care, and tha t his stat em ents were vague and conclusory . These arguments, however, take issue primarily with Dr. Tu teur’ s-11-

qualifications and the weight that should be given to

his opinion s. As we po inted out e arlier, these are issues for trial and not for summary judgment. The critical que sti on is wheth er ther e was a genuine issue of material fact with regard to c ausation based on the acts or omissions of Dr. McCain. We conclude that the evidence, wh en viewed in a light most favorable to the plaintiff, raised a genuine issue of material fact with regard to causation. Accordingly , the trial court erred in deny ing the plaintiff’s motion to alter or amend the summary judgment granted to Dr. McCain.
Conclusion After reviewing the rec ord andth e a pp li ca bl e a ut ho ri ty, we hold th at the Cour t of Appe als correctly dete rmined tha

t the t rial cour t err ed in gra nting summa ry judg ment t

o Dr. Clar

ke. We further conclude that the t rial court erred in deny ing the plaintiff’s motion to alter or amend the summary judgment granted in favor of Dr . McCain. Accordingly , the judg ment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further procee dings. The costs of the appeal shall be taxed equally between the defendants, Dr. L ois E. Clarke and Dr. Robert McCain, for which execution shall issue if necessar y.

__________________________________ E. RIL EY ANDER SON, JUSTI CE