# FILED
March 5, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

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TINA HARVE Y et ux, ) ) HAMILTON CIR CUIT Plaintiffs/Appella nts ) ) No. 03A01-9512- CV-00452 v. ) ) GENETH WOLFER, D.O., ) ) REVERSED AN D REMAND ED Defendant/Appellee )

Selma Cash Paty , Chattanooga, For the Appell ant David E. Harrison a nd Tonya Kennedy McIntosh, C hattanooga, For the Appellee

O P I N I O N INMAN, Se nior Jud ge

I Initially, this action was one for damages for the alleged medical malpractice of the defendant in droppin g the plaint iff Tina Harvey or preven ting her from fal ling and fracturing her ankle after an injection w hich may have caused numbness i n her legs. The defen dant filed her answer insisting that she exercised a degree of care
comme nsurate with that e xercised b y other ost eopat hic physici ans in Cha ttanoo ga and thus was en title d to t he de fen ses p rovid ed by T ENN . C ODE A NN . § 29-26-101 et seq. , the Medical Malpracti ce Review Board and Clai ms Act. W hereup on, the plaintif fs were all owed to am end the ir compla int to all ege that the defendant w as neglig ent in the manner i n which Tin a Harvey was moved from the examinati on table whi ch resulted i n her being d ropped. The defendant moved for summar y judgment, supported by her affidavit t hat-2-

"all actions taken by me to Mrs. Harvey were appropriate and proper and in f ull confo rmi ty w ith the a ppli cabl e st anda rd o f care for my p rofe ssi on." The p lai ntiffs filed no counterv

ailing affidav it by an ex pert medical w itness, rel ying i nstead on the testi mony o f the defen dant th at, foll owin g an i nject ion, M rs. H arve y bec ame nauseous and exp erienced numbness in her leg s while sitting on an examinati on table. A wheelcha ir was provide d for Mrs. Harvey becau se a gurne y was too large for the room. But Mrs. Harvey never made it to the wheelchair. She began to f all forwa rd and the defen dant, w ith an assis tant, " sat her on the fl oor." Duri ng thi s time interval , Mrs. Har

vey's legs w ere numb, and the defendant t estified "when she did a twisti ng motion her foot got twi sted under her," resulting in a fractured ankle. The plaintiff Tina Harv

ey testified that "they ei ther let go or dropped me." Because the plai ntiff filed no affidavit w hich counterv ailed that of the defendant, the trial judge was of the opinion that the motion of the defendant for summary judg ment was well taken. The complaint was thereupon dismi ssed, the prop riety o f whic h is pr esen ted f or revi ew. II If this case was simply one for damages f or medical malpractice, we would readily agree w ith the trial judge and affirm the judgment at thi s juncture. But in our opinion, the facts sound more in common l aw negli gence than medic al malpracti ce, and t he ca se of Graniger v. Methodist Hospital Healthcare Syste m, Inc. , No. 02A01- 9309-CV-00201 (filed at Jackson , September 9, 1994) , relied upon b y the defendant , is inapposite. Mrs. Graniger made no complain t of weakness in her legs, which were swol len. She w as left unattended in the examinati on room and, w hen she attempted to ali ght from the table , she fell and suffered frac tures. She char

ged the defendants wi th malpractic e and common law neglige nce, but submitted no countervai ling affidavi t on the issue o f malpractice. Her insistence upon appeal centered upon the i ssue of common-law neglige nce. The Graniger court held that the distincti on between or dinary neg ligence and malpractice t urns on whe ther the-3-

acts or omissions complained of involve a matter of medical science or require specialized skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed o n the basis of the common everyday experience of the trier of fact. The Court contin ued that exper t medical testi mony
was necess ary as to whether the plaintiff's condi tion necessit ated assistanc e. In the case at bar, the def endant admits that Mrs. Harvey needed assistance and was acti vely a ssisting her when t he fracture occur red. From the perspective of the defendant, Mrs. Harvey 's fractured ank le occurred when her numb l eg "got twisted un der her" notw ithstanding that she was under the complet e control of the defendant at the time. F rom the perspect ive of the plai ntiff, her ankle was fractured when the plaintiff and his assistant "dropped her." The plaintiff is of short stature and normal weight; the defen dant is a large person. Her assistant's dimensions are not in the reco rd. III A Rule 56 motion requires a court to deter mine whether there exi sts any genuine iss ue of a disputed materi al fact. To do this , we look to all the ev idence, take the strong est legiti mate view of it favorably

to the opponent of the moti on, discard all countervai ling ev idence and recog nize that s ummary proceed ings are no t substitutes for trials. Robinson v. T enn. Farm ers Mut. Ins . Co. , 857 S.W.2d 559, 566 (Tenn. App. 1993). We cannot weigh the ev idence and must pr oceed in the light most favorable to th e non-moving party. Byrd v. Hall , 847 S.W.2d 208, 210-11 (Tenn. 1993). If there is a genui ne doubt as to the conclusions to be drawn from t he facts, the case should be tried on its merits. Against these settled principles, there ca n be no doubt that sum mary judgment was inappropriate. The pla intiff testifie d that the defen dant dropped her, an act not impli cative of medical science and , one that may beassessed on the basis of common ex perience. W hether Mrs. Harvey's injury was sustained as a result of the ordinary-4-

negligenc e of the defendant is a di sputed issue of fact, see Brooks v. Memphis and Shelby County H

ospital Author

ity , 717 S.W .2d 2 92 (T enn . 198 6), f or res olut ion b y a trier of fact pur

suant to McIntyre

principles. The judgment is reversed and the case is remanded for trial , with c osts assessed to the appellee.

W illiam H. I nman, Senior Ju dge
Concur:

Hersche l P. Franks , Judge

Charles D. Susano , Jr., Jud ge