# FILED
June 27, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON

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EMMA LOU CROWE, ) ) Madison Circuit Plaintiff/Appellant ) Case No. C- 95-347 v. ) ) JAM ES CRA IG, M.D., T HE JA CKSON ) Appeal No. 02A01- 9612-CV-00297 CLINIC, and CONNIE GALBR AITH, ) ) Defendants/Appellees )

APPEAL FROM THE CI RCUI T COUR T OF MA DISON COUN TY

AT JACKSON, TENN ESSEE THE HONORABLE WHIT LAFON, JUDGE

DUNCAN E. RAGSDA LE THOMAS H. RA INEY 100 N. Main St ., Ste. 2340 ANGELA C. YOUNGBERG Memphis, TN 38103 Rainey , Kizer, Bu tler, Rev iere & Attorney for Appellant Bell, P.L.C. 105 S. Highl and Ave. Jackson, TN 3830 1 Attorneys for Appellees

AF FIRMED

WILLIA M H. INM AN , SENIOR JUD GE

CONCUR:

W. FRA NK CRA

WFORD, PRESI DING JUDGE(W.S.)

ALAN E. HIGHERS , JUDGE1 He was performing an orthopedic proced ure on the plaintiff ’s knees. 2 O P I N I O N This action for damag es for medical mal practice was dismissed on motion for summary

judg ment. We affirm. The suit was

filed on October

19, 1995. The plain tiff alleged that on October 20, 1994, Dr. Craig prescribed narcotic pain medica tion when he knew or should have known that the plaintiff was allergic to narcotics. The reaction allegedly caused the plain tiff to suffer a stroke. The answer av

erred that the p laintiff had a histo ry of nausea i nduced by narcotics, which is

not a true drug reaction, and which does not preclude t he use of narcotic medication when nec essary for pain. It was further all eged that the plaintiff’s pain w

as controll ed by a morphi ne pump, prescri bed by Dr. Ronald Homra, an anesthesiolog ist. A motion for summary

judgment was filed by t he defendants, supported by the affidavits of Dr. Craig, Dr. Michael Brueggeman and Connie Galbraith, R.N. Dr. Crai g deposed that he was an ort hopedic surg eon, 1 practicingin Madison County and was familiar w ith the recog nized standar d of care. He testified that the plaintiff was not allerg ic to narcoti cs, that no medication caused the p laintiff’s str oke, and that his treatment of her did not fal l below t he acceptable st andard of care. Ms. Gal brai th te sti fied she did not a dmin ist er p ain medi cati on tothe p lai ntiff, did not assis t Dr. Craig in the b ilateral k nee replacement ar throplasties , and that her conduct comported in all res pects to an acce ptable standard o f care. These affidavits were filed Febru ary 9, 1996, and will be more fully addressed hereafter. On August 12, 1 996, the plainti ff filed the affidavit of Dr . Michael E. Hayek, a practicing surgeon in St. Louis, M issouri. He testified that he had revi ewed the medical records of the Jackso n-Madison County General Hospital and, f rom these records and “ reports from family members,” he opi ned that Dr. C raig fell b elow the standard of care by

failing to or

der certain chemistry

tests pre-o perativel y, by fail ing2 The condition in which the volume or q uantity of blood in the body is below

normal. 3 to order post- operative c hemistry t ests to check for hypovol emia, 2 by failing to treat for hypovol emia, by ord ering morphi ne, and by faili ng to anticoag ulate earlier than 20 ho urs p ost- ope rative ly. The motion for summary judgment was scheduled for ar gument on July

19, 1996. Counsel for the plaintiff desired a continuance, which w as readily

agreed to by counsel for the defendant, and, thereafter, the hearing was res cheduled for August 12, 1996, at which time the plain tiff filed the affidavit of Dr. Hayek. This affidavit di d not satisfy the statutory requisi te that the affiant be famili ar with the standard of care in Madison Coun ty, Tennessee, T.C.A. § 19 -26-115(a)(1), but notwithstanding, the pl aintiff neither soug ht a continuance n or asked for an opportunity

to amend the affidavit

of Dr. Hay ek. Rather, the plaintiff took the somewhat hard- line positi on that the affidavi t was suffici ent as filed to defeat summary judgment, which, if granted, would be reversible error. When oral arguments were completed, the tr ial judge granted the moti on and dismissed the case. W hereupon, the plaintif f then filed a mo tion for a continuance of the hearing on the motion for summary judgment and anoth er motion to amend the affidavit of Dr. Hayek. These two motions were the subject of a motion to strike because the y were irrelevant since summary judgment had al ready been g ranted. The record does not

reveal t hat the motion to s trike was considered by the trial judg e or that the pl aintiff obtained leave of the court to fil e an amended affidavit. In any event, an amended affidavit by Dr. Hayek was filed. The tri al judge r uled thus ly:
The Court wi ll not consi der the amended affidavi t of Dr. Hayek for the following reasons: A trial cour

t has broad dis cretion in de aling w ith the qual ifications and admissions of test imony of exper t witness es. A trial court may, in its discretion, accept a late affidavit. The cour t does not reje ct the Amended Affidavit of Dr. Michael Edward Hayek just because i t is late i n being filed.4 The court feels that the affidavit rev eals that the q ualifications and testimony are insufficient to crea te a material issue of f act and the court does not view it as new ev idence or new ly discovered ev idence. For all of the foregoi ng reasons the cour

t declines to consider the A mended Affidavit of Dr . Michael Edward Hayek. The Affid avit of Tudy Jackson and the Af fidavit of Kathy Jackson are insufficient to cr

eate a material issue of fact. Alt hough plainti ff’s Motion to Alter or Amend is requested pursuant to Tennessee Rules of Civil Procedure 52.01 and 52.02 , the court will look to the substance of the request and will treat it as a Rule 59 Motion to Alter or Amend th e Judgment. Findings of fa ct by the court pursuant to Rule 52.01 are unnecessary on decisions under Rule 56, but as stated, the motion w ill be treated as one under R ule 59. As heretofore stated, t he court decli nes to consider the Amended Affidavit of Dr. Michael Edward Hayek and the Affidavits

of Tudy Jackson and Kathy Jackson, which are insufficient to withstand the motion for sum mary judgment. IT IS, THEREFOR E, ORDERED , ADJUDGEDAND DECR EED that the Plaintiff’s motion to Alter or Amend the Summ ary Judgment heretofore granted in fav

or of Dr. James Craig, The J ackson Cli nic Professional Association, and Connie Galbr aith, R.N. b e and the same is h ereby overruled and the relief requested is denied.
The appe llan t rais es th ese i ssue s fo r revie w: 1) W hether the Trial Court comm itted error and exceeded his discreti on on Au gust 2, 19 96 by orde ring Notice of Depo sition o f Dr. Craig quashed, and by

prohibiting the taking of Dr. Craig ’s depositio n or any othe r discover y until a hearing on D r. Craig ’s Summary J udgment Motion. 2) W hether the Trial Court comm itted error and exceeded his discretion by denyi ng Plainti ffs’ Motion to cont inue the Summary Judgment Motion. 3) W hether the Trial court comm itted error and exceeded his discretion by denyi ng Plainti ffs’ Motion to Amend pur suant to T.R.C.P . 15. 4) W hether the Trial Court comm itted error and exceeded his discretion by denyi ng Plainti ffs’ Motion to Alt er or Amend purs uant to T.R.C.P. 52. 5) Whether there were materi al issues of fact for the tryer [sic] of fact and whether

the Trial Cou rt committed er ror by findi ng there were no issues of fact. With respect to the first four i ssues, our st andard of revi ew is w hether an abuse of discreti on has been show n. Benton v. Snyder , 825 S.W.2d 400, 416 (Tenn. 1992); Tipton v. Smith , 593 S.W.2d 298, 301 (Tenn. Ct. App. 1979 ). The standard of rev iew appli cable to the is sue of whether summary judg ment was prop erl y g rant ed i s todete rmi ne i f the req uir ement s of T ENN . R. C IV . P. 56 have been satisfied. Carve ll v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995); Cowden v. Sovran Bank/Central South , 816 S.W.2d 741, 744 (Tenn. 1991); Foley v. St. Thomas H osp. ,5

906 S.W.2d 448, 452 (Tenn. Ct. App. 1995) ; Brenner v. T extron Aerost

ructures , 874 S.W.2d 579, 582 (Tenn. Ct. App. 1993). T ENN . R. C IV . P. 56.03 prov ides that summary judg ment is appropr iate only where (1) there is no g enuine issue of material fact relevant to t he claim or defense contained in the motion, and (2) the moving par

ty is enti tled to a judg ment as a matter of law on the undisputed fact s. Carvell, 900 S.W.2d at 26; Byrd v. Hall , 847 S.W .2d 208, 210 (Tenn . 1993); Anderson v. Stand

ard Register

Co. , 857 S.W.2d 555, 559 (Tenn. 1993). The moving par

ty has the bur

den of proving that the motion satisfies these requirements. Downen v. Alls tate Ins. Co. , 811 S.W .2d 523, 524 (Tenn . 1991). While the summary judgment p rocedure is not a substitutefor trial, i t goes to the merits of the c omplaint and shoul d not be taken li ghtly. Byrd , 847 S.W.2d at 210; Jones v. Hom e Indem. Ins . Co. , 651 S.W.2d 213, 214 (Tenn. 1983); Fowler v. Happy Goodman Family , 575 S.W.2d 496, 498 (Tenn. 1978); Foley , 906 S.W.2d at 452. It has been repeatedly st ated by the appel late courts o f this state that the purpose of a summary

judgment proc eeding is no t the finding of facts or the resolution of di sputed factual iss ues or the deter mination of conflicti ng inferences reasonably to be drawn from the facts. Bellamy v. Federal Ex press Corp. , 749 S.W.2d 31, 33 (Tenn. 1988). Rather, the purpose of summary judgment is to resolve controlling issues of fact. Id. In evaluati ng the propr iety of a motion for summary ju dgment, we view the evidence in the light most favorable to the n onmoving party and draw all reasonable inferences in thenonmoving party’s favor. Byrd , 847 S.W.2d at 210-11. A motion for summary ju dgment should onl y be granted when both the facts and the conclusions drawn from the facts permit a reasonable person to reach only one conclusion. Id

. Issue No. 1 . The record reveals that counsel for the pl aintiff consented to the entry of orders pe rtainin g to the de positio n of Dr. Cr aig and th at he ele cted to forego argument or hearing on his motions. Th e record reveals that counsel had amp le time and opportuni ty to discover Dr . Craig, or whomever, and upon the hear ing on6

the motion for summary judgment, he s ought no conti nuance and offered no objections to proceeding as scheduled. The i ssue is w ithout merit. Issue No. 2 . W e are som ewhat ba ffle d by this argu ment th at the t rial judge abused his dis cretion by denying the plaintiff’s moti on to continue the hearing on th e summary judg ment motion since the motion came after the trial j udge had alread y ruled. No abus e of discretion is shown, and the issue i s without merit. Issue No. 3. Rule 15, T ENN . R. C IV . P. requires liberali ty in rul ing on amendments, but there are limits, as there must be ; again, it was not until after the motion had been grante d that the plaintiff sought to amend, and we have heretof ore referenced the comments of the trial j udge wit h respect to th e amended affidavit. The plaintiff hard-l ined the orig inal affidavit, in effect, challeng ed the court, notwithsta nding comments abo ut its short comings, and we cannot find an abuse o f discretion by the tri al judge. Thi s issue is without mer it. Issue No. 4 . This involves a R ule 52 motion to al ter or amend the j udgment. The trial judg e made these finding s in denyi ng the motion:

1. It contains testimony that i s not admissibl e. 2. It fails to show

facts establis hing that he i s familiar w ith the standar d of acceptable profess ional practi ces requi red of the defendants in J ackson, Tennessee; it fa ils to show that he is familiar with the standard of a cceptable professional pr

actice in St. Louis, Mis souri, and ther e is no fact or statement to establish that they are similar commu nities. 3. There are no facts to show that h e is an expe rt in determi ning the cause of a stroke nor to show that he special ly makes hi s testimony relevant. 4. His affidavit

is not based upon personal know ledge. 5. His affidavit

does not attach al l of the documents that he refers to or relies upon i n his affidavit. 6. He does not describe the stand ard of acceptable prof essional practice requi red o f th e def end ants in Jac kson , Te nne ssee or a si mila r com mun ity. 7. The affidavit does not show that th e stroke would not have occurred but for the conduct o f Dr. Craig and Ms. Galbr aith. 8. The opinions are n ot stated to be to a reasonable deg ree of medical cert aint y. 9. The aff idavit does not contain any newly discovered evidence and it is quite apparent

that the amended affidavi t of Dr. Mic hael Hayek is simply

an7 attempt by plai ntiff’s counsel to “dress up” Dr. Hay ek’s first affidav it that wa s filed on the morningof the argument of the mot ion for summary judgment. 10. The jurat[sic] of the a mended aff idavit of Dr. Michael Edward Hayek is the same as his fir

st affidavit and i s insufficient bec ause it is “ to the best of his knowl edge, information and belief.” The record suppor

ts these exe geses, and we append the observ ation that the amended af fidavit of Dr. Hayek contained no inf ormation which was theretofore unavailabl e. We see no abuse of discretion her e, and this is sue is w ithout merit. Issue No. 5. In Byrd, supra , the Supreme Cour t addressed the p roper use of summary judg ment, which is appropri ate, as heretofore stated: [o]nce it is

shown by

the moving party that

there is no g enuine issue of material fact, thenon-moving party must then demonstrate, by affidavits or discover y material s, that there i s a genuine, mat erial fact dis pute to war rant a trial. Byrd , 847 S.W.2d at 211. In medical malpr

actice cases

where ex pert medical t estimony is necessary

to establish pr

oximate causeand neglig ence, affidavits executed by physici ans that clearly and competently

refute a plainti ff’s contentions afford a pr oper bases for the entry of summary

judgment in t he absence of respons ive proof by the plaintiff by affidavit or othe rwise. Bowman v. Henard, 547 S.W .2d 527 (Tenn. 197 7). Tennessee Rules of C ivil Pr ocedure 56.05 pres cribes the requisite form of affidavits employed in support of moti ons for summary judgment: Supporting and opposing affidav its shall be made on personal knowledg e, shall set forth such facts as w ould be admissi ble in evi dence, and shall show affirmatively

that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all pap ers or parts thereof referred to in an affidavit shal l be attached ther eto or served therewi th. The court may permit affidavit s to be supplemented or opposed by depositions, answers t o interrogatories, or further aff idavits. Wh en a motion for sum mary judgment is made and supporte d as provided in this rule, an adverse party may not rest upon the mere alle gations or denials of [his] pleading, but his . . . response, by affidavits

or as otherw ise provi ded in this r ule, must set fort h specific facts showing that there is

a genuine is sue for trial. If [he] does not so respond, summary judg ment, if appropriat e, shall be ente red against [him].8 In the case at hand, the defendants’ affidavi ts were madeon personal knowledge and set forth fact s that would be admissible in evidence and tha t would show affirmatively that theaffiants were competent to testify as to matters stated therein. As a general rule, negl igence and cau sation in medical malpracti ce actions must be proven by competent ex pert medical t estimony. Stokes v. Leung, 651 S.W.2d 704 (Tenn. Ct. App. 1982). In order to test ify as an ex pert wit ness in a medical malpractice action in T ennessee, the expert must b e licensed to practice in Tennessee or in a contiguou s bordering state a profession or specia lty that would make his exp ert t esti mon y releva nt to the i ssue s in th e cas e. Th e expe rt mu st ha ve practiced thi s profession or specialty

in Tennessee or a

contiguous state during the year prec eding the date t hat the alleg ed injury or wron gful act occur red. T.C.A. § 29-26-115(b). It is we ll-es tabl ishe d tha t a de fen dan t phys ician may re ly upo n his own affidavit in sup port of a motion for su mmary judg ment. Smith v. Graves , 672 S.W.2d 787 (Tenn. Ct. App. 1984). Where a defendant files an affidavit of an expert stat ing that all of his care and t reatment of the plaint iff met the recogni zed standard of accept able professional practice required of him, summary judgment is appropriate i f the plaintiff presents no competent exp ert testimony to challeng e the defendant’s affidavit. Bowman , 547 S.W .2d at 531. Accordingly, the court in Bowman succinctly stated the applicable rule as fo llows: [We] hold that, in those malprac tice actions

wherein expert medical testimony is requi red to establi sh neglig ence and prox imate cause, affidav its by medi cal doctors w hich clearl y and completel y refute plai ntiff’s contention afford a proper basis for dismissal of the action on summary judgment, in the absence of proper respons ive proof by affidavit or ot herwise.
Id

. As we have pre viously stat ed, the defen dants f iled the affi davits of Dr. Craig, Ms. Connie G albraith, R .N., and Dr. Michael Br ueggeman, in support of their motion.9 Dr. Craig deposed that he met with the recognized standard of acceptable professional pr

actice req uired of him; that t he plaintiff had no his tory of any true drug allergy ; that he ordere d post-operati ve Demerol as needed for pain, which was nev er a dmin ist ered to pl aint iff, a nd th at no ne of the m edicatio ns g iv en topla inti ff during her

admission of Octob er 20, 1994, caus ed or contri buted to her str oke or cerebrovas cular acci dent. Ms. Connie G albraith depose d that she met the recognize d standard of acceptable profess ional practi ce required of her as a reg istered nurs e; that she never gav

e the plaintiff any

medication, and t hat she never gave any

narcotic to the plaintiff as alleg ed in the complai nt. She expl ained that she cr ossed out the pre -op medication order

on the chart ent ry w hich she had made. Ms. Galbrai th attached a copy of the only

chart entry

that bore her s ignature, w hich had been made at t he Jackson Clinic, rather than at the hosp ital. Finally, Ms. Galbraith stated that she did not assist D r. Craig in surger y because sh e was on v acation the enti re time that plaintiff was in the hospital. Dr. Brueg geman deposed that heis a board- certified neurol ogist and a consulting treating p hysician in this cas e, that he rev iewed the complaint, the medication rec ords, and the mor phine narcotic administrati on record, that he specializ es in the diag nosis and treat ment of strokes, and opined that he was uncertain as t o whether pl aintiff’s stroke was rel ated to the surg ery or not , and that poss ibl e cau ses of thestroke were a defe ct i n a v esse l w all , thenar row ing of a vessel wall wi th collapse or a restric tion, or an embol us. He testi fied that even though he did not know the precise reason f or the plaintiff’s stroke, h e knew that it did not occur because of any medi cations listed on the medicati on sheet or from the use of the morphine pump. He stated that he was unaware of any studi es that indicated that D emerol, morphine, or any of the medi cations show n on the medication sheet caused or contr ibuted to a str oke, and expressed the opinio n that all of the alleg ations that the pl aintiff suffered a reacti on to narcotics that caused or contributed to a stroke or cerebrovas cular acci dent were fals e.10 Conversel y, the plai ntiff has not adduced any competent exper

t testimony sufficient to sustai n her burden of proof i n accordance w ith the mandates of T.C. A. § 29-26-115. The or iginal and, for that matter, t he amended affidavits o f Dr. Hayek were defici ent for sever al reasons, i ncluding thefollowing : (1) They failed to establish that Dr. Hayek was familiar with the recognized standard of accep table professional pr

actice in Ja ckson, Tennessee; ( 2) He failed to base his affidavi ts on personal know ledge; (3) He failed to st ate his opinio ns to a reasonabl e degree of med ical c erta inty. The judgment is, theref ore, affirmed at the appellant’s costs.

________________________________ W illiam H. I nman, Senior Ju dge
CONCUR:

______________________________ W. Frank Crawford, Pre siding Jud ge (W.S.)

______________________________ Alan E. Hi ghers, Ju dge