### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON June 21, 2001 Session SUSAN RENEE WIECHERT WILSON, ET AL 

### . v. RUSHTON E.

PATTERSON, JR., M.D.
A Direct Appeal from the Circuit Court for Shelby County No. 70075-2 The Honorable James F. Russell, Judge

No. W2000-02771-COA-R3-CV - August 10, 2001

This is a medical malpractice case. Plaintiffs, husband and wife, sued defendant physician for injuries allegedly caused to Wife by the physician’s neglig ence. Physician moved for summary judgment supported by his affidavit that he conformed to the required standa

rd of care. Plain

tiffs, in opposition to the summary judgment, filed a deposition and affidavit of a physician

practicing in Kentucky that e xpre ssed his knowledg e of the standard

of care in Memphi

s and similar commun

ities. Physician moved to strike the

affidavit primar

ily on the gr

ound that plaintiff

s’ physician

expert did not s how a familiarity

with the standard o

f care in Memphis , Tennessee. The court granted th

e motion to strike the affidavit and also granted summary judgment to defendant

physician. Plaintiffs appeal. We reverse and remand.

Tenn.R.App.P. 3; Appe al as of Right; Judgme

nt of the Circuit C

ourt Reversed and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined.

Lanier Fogg, Memphis, For Appellants, Susan Renee Wiechert Wilson and James K

elly Wiechert

David M. Cook, Karen S. Koplon, Greg A. Ziskind, Memphis, For Appellee, Rushton E. Patterson, Jr., M.D.1 The complaint also included as a defe ndant Patterson G ynecology and Obstetrics, a par tner shi p. On motion, the trial

court dis

missed the complaint agai nst the pa

rtnershi p.

2 A trocar i s a sharp-pointed ins trument used for pierc ing a cav ity wall in pa racentesis. D ORLAND ’ S (continu ed...)
-2- OPINION

On May 24, 1995, plaintiffs, Sus an Renee Wi echert and James Kelly Wiechert, filed a complaint against defenda

nt, Rushton E. Patter

so n, Jr. M.D. 1 The complaint alleges that Susan Renee Wiechert was a

patient of the def

endant, Dr. Patte

rson, an d that on May 25, 1994, she was admitted to the Methodist Hospital in Memphis for a diagnostic laparoscopy. The complaint avers that during the procedure, Ms. Wiechert was caused to suffer multiple lacerations of her abdomen, including a laceration

of her left iliac artery. The complaint further avers that as a result of internal lacerations,

Ms. Wiechert sustained massive internal bleeding and was forced to underg o an emergency exploratory lapa rotomy. Pla

intif fs alleges that the injuries sustained by Ms. Wiechert
were the direct and proximate result of negligence on the part of Dr. Patterson, as he failed to exercise ordinary care a

nd diligence unde

r the circumstanc

es. Plain tiffs seek damages fo

r Ms. Wiechert’ s alleged life threatening injuries, medical expenses, physical pain, mental anguish, permanent scarring, and disability, and Mr. Wiechert’s loss of consortium.

Dr. Patterson’s answer admits that Ms. Wiechert sustained a laceration to her left common iliac artery during diagnostic laparoscopy and that she sustained inter nal bleeding, and that a l apar otomy was necessitated to control the injury, however, he denies that he was guilty of any negligent act or omission which was the proximate cause of any injury or damages to Plaintiffs. Dr. Patterson avers that in treating Ms. Wiechert, he exercised that degree of skill and learning

ordinarily used by members of his pr ofession in

good standing and in similar practice in his community, and that at all times he used reasonable care and diligence in the treatment of Ms. Wiechert. The answer further avers that to the extent Ms. Wiechert sustained any injur y or that eith

er of the plaintiffs sust ained an y damages arising out of the course of medical treatment administered by him, such injury or damage was in

conjunction with known andunknown bodily processes, and had nothing to do with and was not c aused by negligen ce or malpractic

e on his part. He a

lso asserts that al

l medical practices,

treatments and procedures administered by him were accep

table and approp

riate for the physical condition of Ms. Wiechert.

Dr. Patterson file

d a motion for summar

y judgment and an a

ffidavit in support thereof. In his affidavit, Dr. Pattersonexpresses his knowledge of the standard of professional practice required and states that Ms. Wiechert was first seen by him in his office on May 12, 1 994 with a chie f complaint of a persistent breast lump. Ms. Wiechert returned to Dr. Patterson’s office one week later and continued to comp

lain of pelv

ic pain and dyspareunia, and at that time he discussed various treatment options. Ms. Wiechert wanted to proceed with a lapa roscopy to diagnos e possible endometriosis

and was admitted to Methodist Hospital on May 25, 1994. The affidavit states that the laparoscopy revealed no evidence of endometriosis, but that the trocar 2 u s ed in the procedure2 (...continued)
ILLUST RATED M EDICAL D ICTI ONARY 1470 (23 rd ed. 1957).
-3- lacerated th e left common iliac artery which is a known complication of laparoscopy and was expl ainedfully to Ms. Wiechert. An emergency laparotomy was performed to control the inj ury , which was repaired and recovery was uneventful. Dr. Patterson stated t hat all medical prac

tices, treatments,

and procedures administered by him were acceptable an d appropriate fo

r Ms. Wiechert, and that at no time was he guilty of any negligence or malpractice.

In opposition to Dr. Patterson’s motion for summary jud gment, the Wiecherts filed the affidavit of Ms. Wiechert in which she stated as follows: On May 12, 1994, she had an appointment withDr. Patterson to discus s a lump in her breast, some pelvic pain and a urinary tract infection. Dr. Patterson gave her some medication for the infection and scheduled another appointment for May 19, 1994. On that

date, Dr. Patterson examined Ms. Wiechert and informed her that it was necessary that he perform a laparoscopy to determine the cause of the pelvic pain and that no other treatment options were provided. Dr. Patterson described the laparoscopy as “band-aid surge

ry,” however did
n otinform her of the possible adverse consequences of the surgery. As a result of having thi s surgery, Ms. Wiec

hert has a 8 3/4

inch keloid scar from 1 1⁄2 inches above her navel to 1 inch into the pubis.

Plaintiffs filed the affidavit of David S. Swan, M.D. on November 16, 19 95. Dr. Swan is licensedto practice medic ine in Kentucky and is board certified in obstetrics and gynecology. Dr. Swan stated in his affidavit that he is familiar with the recognized s tandards o f acceptable professional medical practice in the field of obstetrics and gynecology and more specifica lly, the care of someone in the position of Ms. Wiechert in an area such as Memphis, Tennessee in 19 94. I n addition, Dr. Swan stated that the standard of care in Memphis would be similar to that of the Lexington , Kentucky area where he practices, and that he was practicing gynec ology in Bere a , Kentucky during the year immediately preceding the date which Dr. Patterso n performed the laparoscopy on Ms. Wiechert. T he affidavit fu rther stated that Dr. Patterson breached the recognized standardof acceptable p

rofessional pra

ctice in Memphis by

failing to carry out a proper evaluation of Ms. Wiechert which resulted in the performance of a laparoscopy which

was unnecessary at that time, and that the injury to Ms. Wiechert’s left iliac artery was a direct result of this unnecessary surgery. Additionally, Dr. Swan states that Dr. Patterson breache d the recogn ized standard of acceptable

professional practice in Memphis by inserting the trocar at an angle and depth whereby he struck the left iliac artery, and that as a direct result of Dr. Patterson’s breach of the standard of care, Ms. Wiechert sustained a laceration to her left iliac artery. Dr. Swan statedthat in his opinion to a reasonable degree of medical certainty, Ms. Wiechert would not have suffere d the injury had Dr. Patterson adhered to the recognized standard of acceptable medical prac tice.
Subsequently, Dr. Swan’s deposition was taken and filed as par t o f the record. Dr. Swan testified that in the evaluation of pelvic pain and the indications of performing a laparoscopy there is a nationwide standard. As to the procedure itself, Dr. Swan agreed that nicking the left iliac artery-4-

is a recognized risk of performing a l aparoscopy, however stated that when that artery is nicked during the procedure, it is the result of a deviation from the standard of care.

On March6, 200 0, Dr. Patterson filed a second motion for summary judgment and memorandum

in support thereof asserting that Plaintiffs had failed to satisfy their burden pursuant to T.C.A. § 29-26-115 which requires that plaintiffs prove by expert testimony the standard of care in the defendant’s speciality of obstetrics and gynecology, a devi ation from t he standard, and an injur y caused by the deviation. D r. Patterson aver

s in his motion that Plai

ntiffs disclosed a

s their only non-treat ing expert wit ness Dr. David Swan, a doctor from Berea, Kentucky. The motion asserts that Dr. Swan had made no inquiry into the Memphis medical community, had never been to Memphis, other than to testif y in medical malpractice trials, and that Plaintiffs had not shown, be yond a conclusory ass

ertion of a nation

al standard of ca

re, that Dr. Swan

is fami liar with the Memphis medical community.

Plaintiffs then filedanother affida vit from Dr. Swan in opposition to Dr. Patterson’s motion for summary judgme

nt which states:

1. I am familiar with the recog nized standard o f acceptable professionalmedical practice in the field of obstetrics and gynecology for Lexington, Kentucky.

2

. In my opinion, the Lexington, Kentucky area is a similar area t o Memphis, Tennessee with regard to the standardof care of acc

eptable professional medical practice i n the field of ob stetrics and gynecology and in regard to t he medical servi ces provided in thi

s area. Both Lexington, Kentucky and Memphis, Tennessee are regional medical centers and are

the locations of th

eir state medica

l schools.

3. I am familiar with

the recognized stan

dard of care of

acceptable professional medical practice in the fiel d of obstetrics and gynecology in Lexin g ton, Kentucky because I was an assistant professor in the Department

of Obstetrics a

nd Gynecology at the University of Kentucky which is loca te d in Lexington, Kentucky for two years from 1970 to 1972 . At the ti me of Ms. Wiechert’s subject injury, I
was an assistant clinical professor in the Department of Obstetrics and Gynecology at

the University of Kentucky located in Lexington, Kentucky. I also had courtesy p ri vileges at three hospitals in Lexington, Kentucky which I utilized from time to time.

4. Fur ther, I have testified in at least ten medical malpractice cases in Memphis, Tennessee. A s a consequence, I have had the opportun ity to r eview the depositions of and hear the testimony of
numerous Memphis, Tennessee physicians on t he recognized-5- standardo f ca re of acceptable professional medical practice in the field of gynecology and ob s tetrics. This has confirmed my opinion that the recognized

standard of car

e of accepta

ble pr ofessional medical practice in the field of obstetrics and gy n ecology in Memphis, Tennessee is the same as that of Le

xington, Kentucky

in regard to the way that pat ient s are evaluated for diagnostic laparoscopys and the manner in whichthe laparoscopic procedure is executed.

Dr. Patterson filed a motion to strike the affidavit of Dr. Swan, arguing that statements made in his affidavit re

garding his familia

rity with the standa

rd of care in

Memphis are in

contradiction withhis deposition testimony that the applicable stand ard of care is a

national standard of care. Dr. Patterson asserts that bec ause Dr. Swan dir

ectly contradic

ts hims elf in sworn affidavits and depo sitions on the issue of his familiarity with the local standard of care, his affidavit must be stricken as inherently untrustworthy and therefore, inadmissab le. On October 5, 2000, after a hearing, the trial court en tered an order g

ranting defenda

nt’s motion to strike

Dr. Swan’s last affidavit and gr

anting summary judg

ment to defendant

. The order state

s in pertinent par

t:
[T]he plaintiff is not abl

e to establish

the requirements of

Tennessee Code A nnotated § 29-26-115(a)( 1) insofar as the locality rule is concerned

as has been interpreted in the case of Mabon v. JacksonMadison County General Hospita l, 968 S.W. 2d 826 (Tenn

. C t. App. 1997). The Court specifi cally rejects

plainti ff’s argument that the standard of care is a national standardor that the standa rd of care in Memphis, Tennessee is the same as in Lexington, Kentuc ky because all gynecologist read the same journals and articles and because they have to pass

the same examination to be board certified. The Court relies upo n the case of Beaty v. Irwin, 2000 WL 66028 (Ten n. Ct. App. 2000), in which the Court of Appeals for the Eas tern Section rejected the identical argument. The Court further finds Dr. Swan’s conclusion that Dr. Patterson deviated from th

e stan dard of care because he cut t he ilia c artery, without having any basis for the opinio n, amou nts to a presumption of negligence. T.C.A. § 24-26- 115(c) strictly disallows any presumption of negligence. For all the foregoing reasons, the Cou rt is of the considered opinion that the motion to strike the affidavit should be granted and the motion for summary judgment should likewise be granted.

Plaintiffs appeal the judgment of the trial court and present three issues for review which, as stated in their brief, are:

I. Did Plaintiffs make a prima facie showing that Dr. David Swan had-6- knowledge of the recognize d st andard of acceptable professional practice in Memphis, Tennessee or in a similar community as to the treatment of pelvic pain and of the performance of a diagnostic laparoscopy.

II. Did the Plaintiffs, in response to the Motion For Summary Judgmentfiled by Defendant on October 11, 1 995 , make a prima fac ie showing that the De fendant deviate

d from the appropr

ia t e standardof

accept able medical practice in his performance of a diagnostic laparoscopy upon Plaintiff.

III. Did the trial court

err in striking the affidavit of Dr. David Swan datedSeptember 28, 2000 which w as sub mitted by Plaintiffs i n opposition to the Defendant’s MotionFor Summary Judgment And Supporting Memorandum filed on April 6, 2000.

A motion for summary judgment should be granted when

the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence i n fa vor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of mater ia l fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In

this regard, Rule 56.05 [now Rule 56.06] provides that the nonmoving p arty ca nnot simply rely upon his pleadings but must set forth specific facts showing that there

is a genuine issue of ma

terial fact for

trial.

Id. at 211 (citations omitted) (emphasis in original).
Summary judgment is only appr opriate when the facts and the legal conclusions drawn from the facts reasonabl y permit only one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of

summary judgment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of

summary judgment is de novo on the record be fore this C ourt. Warren v. Estate of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).-7-

In determining whether summary judgment was proper, we firs t address the cor

rectness of the trial court’s dec

ision to strike Dr. Swan’s affidavit, as the dispositive issue on appeal is whether the opinion of Plaintiffs ’ ex pert, that defendant’s treatment of Ms. Wiechert did not meet the standardof professional care in the community, or a similarcommunity, is admissible in evidence. A plaintiff’s burden in a medical malpractice case is defined in T.C.A. § 29-26-115:

(a) In a malpractice

action, the claima

nt shall have the burden of proving by evidence as provided by subsection (b):
(1) The recognized standar d o f acceptable professional practice in the profession and the specialty thereof, i f any, th at the defendant practices in the community in which the claimant practices
or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or fai led to ac t withordinary and re

asonable care

in accordance

with such standard; and
(3) As a proximate result of the defendan t's ne gligent act or omission, the p laintiff suffer ed injuries which w

ould not otherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws of this sta

te shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state o r a c ontiguous bordering state a profession or specialty which wou l d make the person's expe

rt testimony relev

ant to the issues in th

e case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for th e defendant as rebuttal witnesses. The court may waive t hi s s ubsection when it determines that the appropriate witne sse s otherwise would not be available.
(c) In a malpractice ac

tion as described

in subsection (a), there shallbe no presumption of negligence on the part of the def en dant; provided, there shall be a rebutta ble presumption that the defendant
was negligent

where it is shown by the pro of that the instrume

ntality causing injury was in the defendant's (or defen dants') exclusive control and that the acci dent or injury was

one which ordinar

ily doesn't occur in the absence of negligence.-8-

T.C.A. § 29-26-115 (a) - (c) (2000). In order to qualify as an expert in a medical malpractice action,
a physician is

not required to

be fa mil iar wit h al l th e me dic al s tat ist ics of a p art icu lar com mun ity. Ledford v. Moskowitz, 742 S.W.2d 645 (Tenn. Ct. App. 1987). An expert tendered to demon

strate
a breach of duty must be familiar with the standard of care in the community in which the defendant practices or in a

similar community in order to meet the threshold requirement regarding the standard stan dard of car e in the locality. Although the trial court has broad discretion in determining the qualifications of

expert witnesses and the admissibility of their testimony, Shelby County v. Barden, 527 S.W.2d 124 (Tenn. 1975), reversal of the trial court’s discretionis appropriate where the trial court’s action is clearly erroneous or where there ha s been an abuse of discr et ion. Thomas v. Harper, 53 Tenn. App. 549, 385 S.W.2d 130 (1964).

The trial court found

that Plaintiffs wer

e not able to estab

lishthe requirements of

T.C.A. § 29-26-115(a)(1 ) insofar as the locality rule is concerned as interpreted in Mabon v. JacksonMadison County General Hospita l, 968 S.W. 2d 826. However, the facts in Mabon appear to be distinguishable

from the inst ant ca se. In Mabon , this Court found that the plaintiff’s expert was not qualifiedto give anopinion as to whether the plaintiff’s wife’s death was caused by a doc tor’s breach of the standard of care

in treating her

bowel obstruction because the expert was not familiar with the standardof care in the area of Jackson, Tennessee, where the treat ment took place. In that case, plaintiff’s expert, Dr. Shane, stated in his affidavit that he was familiar with the recognized standard of acceptable

medical practice in areas such as Jackson, Tennessee and at a hospital the size of the facilit y at which th e plaintiff’s wife received treatment. The Mabon Court noted that Dr. Shane stated that the standard of care in Jackson would be comparable to citiesand facilities in whichhe practiced medicine, and is the same standard used f or New York an d other large c ities, which, in effect, is a national standard. Id. At 830. The Court found significant Dr. Shane’s statement that the defendant failed to meet the standard of care that “should have been ava ilable” i n a city the size of Jackson, Tennessee, finding that the statement “illustr ates that his state

ment in his affidav

it regarding the standard

of care is premised on the national standard of care and not on the standard of care for Jackson or similar communities.” Id. In addition, the Court noted that in hi

s deposition, Dr. Shane “readily

admits his complete lack of knowledge of Jackson’s medical community...” Id. The Mabon Court found a complete lack of knowledge concerning a com munit y’s medical resources would be contrary to knowledge of the required standa rd of care. Id.

The trial court also relied on the case of Beaty v. Irwin, No. E1999-00014-COA-R3-CV, 2000 WL 66028 (Jan. 27, 2000), stating that in Beaty , the Eastern Section of the Tennessee Court of Appeals rejected the same argument as presented in the instant case. The trial court pre sents the argument as: “that the stand

ard of care is

a national standard or that thestandard of car e in Memphis, Tennessee is the same as in L exin gton, Kentucky be

cause all gy

necologist rea

d the same journal

s and articles and because they have to pass the same examination to be board certified.” However,
we distinguish

the facts in Beaty from the facts before us. In Beaty the plaintiff’s expert stated that he had not done anything

to determine the standard of care in Knox County, the community where the defendant p racticed as a dentist. In a ddition, although plaintiff’s expert claimed that he believed that Knox County and Augusta, Georgia, where he lived, were similar communities, he had notdone any research to determine

if that was true. Id. at *1. In Beaty the plaintiff made efforts to buttre

ss-9-

their expert’s o pinion by fil ing a supp lementary affidavit containing claims of having written an article for the Tennessee Dental Association, having taken a course in Tennessee, though no t in Knox county, con

tact with individua

ls in Knox County, and a

familiarity

with the number of d

entist in that area. The expert claimed to be familiar with the standard of care in Knoxville based on

his belief that the standard of care was the same throughout the Southeast reg ion and possibly the
cou ntr y. On appeal, the Cou rt found no abuse

of discretion in not allowing the testimony of plaintiff’s expert sta

ting that a

lthough plaintiff’s expert testified that he thought Knoxville and Augusta were similar communities, he had not produced facts to support that this was true. Dr. Swan, in his

deposition, indicates that there is a national standard of care for physicians in this particular specialty and that therefore he is fa miliar with th

e standard of ca

re in Memphis, Tennessee. In his second a ffidavit, which w

as stricken by

the trial court, he

establishes that he

is familiar with the recognized standard of care in the field of obstetrics and gynecolo gy in Lexington, Ken tuc ky, by virtue of his experience set out in h i s affidavit. He also opines that Lexington, Kentucky and Memphis, Tennesseeare similar areas with regard to the standard of

care of acce

ptable pr ofessi onal medical services, stating: “Both Lexington, Kentucky and Memphis, Tennessee are regional m edical centers

and are the loca

tions of their state

medical schools.”

The affidavit

goe s somewhat further stating

that because of D

r. Sw a n’s involvement in me dical malpractic

e cases in Memphis , Tenn essee, he has the opinion that the re

cognized standa

rd of care of ac

ceptable professional medical service s of obstetrics an

d gynecol

ogy in Memp

his is the same as tha

t in Lexington.

Dr. Patterson additionally argues that according to Tennessee law, Dr. Swan’ s stat ements cancel each other out as they are in direct c onflict with one another.

Tennessee follows the rule that contradictory statements by the same witness reg ardin g a single fact cancel each other out. See State v. Matthews, 888 S.W.2d 446, 449 (Te nn.Crim.App.1993); Gambill v. Middle T

enn. Med. Ctr., 751 S.W.2d at 149-50. The Tennessee Supreme Court has characterized mutually contradictory statements

by the same witness a

s "no evidence"

of the fact soug

ht to be proved. See Johnston v. Cincinnati N.O. & T.P. Ry., 146 Tenn. 135, 160, 240 S.W. 429, 436 (192 2). However, in order to be disregarded

under the so-called cancel lat ion rule, the alle gedly contradictory

statements must be unexplained and neither statement
can be corroborated by other competent evidence

. See State v. Matthews, 888 S.W.2d at 450; Gambill v. Middle Tenn. Med. Ctr., 751 S.W.2d at 151. When the cancellation ru

le is invoked at t

h e summary judgment st age to challe nge evidence opposing the motion, the courts must view the challenged ev

idence in the lig

ht most favorable to the opponent of the motion.

Church v. Perales, No. M1997-00227-COA-R3-CV, 2000 WL 1183074 at *17 (Tenn.Ct.App. Aug. 22, 2000).3 Dr. McDaniel is a general surgeon wh o assisted Dr. Patterson in the laparo tomy a t Dr. Patterson’s

request when he di

scovered tha

t blood was acc

umulating in Ms. Wiechert’ s abdominal cavi ty.
-10- Upon a review of the re

cord in a light tha

t is most favorable to Plaintiffs, we do not find statements

made by Dr. Swan regarding the applica ble standard of car

e to b e in conflict with one another. In response to questions regarding the standard of care for the treatment of pelvic pain, Dr. Swan stat es in his deposition that there is a nationwide standard of care. In his first affidavit, Dr. Swan states that “

t he standard of care in Memphis would be similar to that of the Lexington, Kentucky the area where I practice” and furthe r that “I was prac

ticing Gyneco logy in Berea, Kentucky during the year immediately precedi n g the date which Dr. Patterson performed the laparoscopy

on Susan Wiechert.” In his second affidavit, Dr. Swan enumerates similarities between Memphis and Lexington and gives facts

to substantiate his f

amiliarity w

ith the standard of

care in Memphis including his involvement in other medical malpractice case in Memphis. We fin d no inherent contradiction in the statements made by Dr. Swan. “Moreover, when the cance llation rule is invoked at

the summary judgment stage, the challenged e vidence opposing the motion, the court must view the challenge d evidence in the light most favorable to the opponent of the motion.” Church , 2000 WL 1183074 at *17 (Aug. 22, 2000).

The trial court also found that Dr. Swan concluded that Dr. Patterson dev iated from the standardof care becau

se he cut the iliac

artery without ha

ving any basis for the opinion, thereby making a presumption of negligence which is strictly disallowed by T.C.A. § 29-26-115(c). When
an expert’s opinion is challenged, the court is to determine whether the opinion is based

on creditable facts or data sufficient to providesome basis for the opinion. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). Our task is not to determine the expert’s credibility or the weight to be giving the evidence, but rather to revie

w the challenge

d opinion and deter

mine if it has some legally- acceptable

basis from which the expert’s conclusion could be rationally drawn. Ch urc h , 2000 WL 1183074 at *13 (citing Devore v. Deloitte & Touche, No. 01A01-9602-CH-00073, 1998 WL 68985 , at *9-10 (Tenn. Ct. App. Feb. 20, 1998)). Although a lack of precision b y Dr. Swa

n may eventually undermine the w eight of his testimony , it is not the task of t

he appellate cou

rt to weigh the evidence at the summary judgment s stag e of the proceedings. Id , at *18.

Dr. Swan’s opinions are based on his per sonal revi ew of Ms. Wiechert’s medical records including th e office r ecords of Drs. Patterson and McDaniel 3 , the hospital rec ords for Methodist Hospital from May 25 through June 1, 1994, the deposition of Dr. Patterson takenAugust 24, 1995, and Dr. Patterson’s affidavit. Dr. Swan’s affidavit states that he graduated fr

om medical school in 1962, and is currently licensed to practice medicine in Kentucky. He is board certified in obstetrics and gynecology . Dr. Swan testified that nicking the left iliac artery in this procedure, e ven though considered

to b e a recognized risk and complication, is a result of deviation from the standard of care, stating in his deposition:

A. Oka y. I have already defined the standard of care, that th e trocar must be pas sed into the abdominal cavity parallel to the midline in the midline. It should b e pass ed to a depth that pe rmits-11- entry into the peritoneal cavity at the level of the anterior abdominal wall.
Q. Right.

A. That is the standard of care.
A. Right.

A. As previously

testified to, the iliac artery is far deeper, far further from that point. One person has the control of the placement of that trocar and that is the surg

eon. If that t

rocar goes a

nywhere else but directly in the midline and dir

ectly into the

peritoneal cavi

ty, th e n who is doing it, the surgeon. He is responsible for that deviation from standard of care.

Ms. Wiechert s uf

fered damages resulting from a laceration to her left iliac arter y which occurred durin

g a procedure

preformed by

Dr. Patterson. I

n his deposition, Dr. Patterson testified that during the surgery he made two insertions of the troca r into the peritoneal cavity because the first insertion was too small to accommodate the insertion of the laparoscope. When Dr. Patterson
was abl e to vie w th e per ito neal cavi ty, he noticed significant bleeding in the cavity and requeste d the assistance of

Dr. McDaniel. According to Dr. Patterson’s deposition the distance from the point of entry to Ms. Wiechert’s left iliac artery injury wa s significantly more than the entry point of the trocar to the location whe

re Dr. Patterson

intended to

place the tro car t o en ter the peri ton eal cavi ty. Dr. Patterson further testified that the risk of striking the left iliac artery was remote, and injur

y to the iliac artery could be caused by the angle at which the trocar is inserted and/or the distance that the trocar enters the cavity. He states that there wereno abnormalities in Ms. Wiechert’s anatomical structures.

Adm itt edl y, when a plaintiff is relying on the standard of care in a

similar community, there must be proof that the c

ommunity is

similar to the one where the defendant physician practices. See Mabon v. Jackson-Madison County General Hosp. , 968 S.W.2d 826, 831 (T enn. Ct. App. 1997). Although Dr. Swan’s testimony concerning thesimilarity of Lexington and Memphis is somewhat meager, we believe this te sti mony in conjunction w ith Dr. Swan’s test

imony concerning

his knowledge of the standard of care of Memphis i

s barely suffic

ien t to withstand attack at the summary judgment stage of t he proceeding. T

herefore, the o

rder striking Dr.

Swan’s affidavi

t should be revers

ed and his testimony

in its entirety cons

idered for summa

ry judgment purpose

s. Viewing the record as a whole and considering Dr. Swan’s testimony along with the testimony of Dr. Patterson, there does appear to be material issues of fa ct in dispute concerning deviation from the standard of care.-12-

Accordingly, the order of the trial court granting summary judgment to defendant is re verse d. The case is remanded to the trial court for further proceedings as may be necessary. Costs of the appeal are assessed against the appellee, Dr. Rushton E. Patterson.

__________________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE , W.S

.