FILED

December 8, 1998

Cecil W. Crowson

Appellate Court Clerk

0ROBERT E. MAYERS, )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9802-CV-00101

v. )

) Davidson Circuit

MILLER MEDICAL GROUP, ) No. 97C-1914

MILLER MEDICAL GROUP, )

An Affiliate of Baptist Healthcare )

Group; RUSSELL D. WARD, M.D. )

and MICHEL KUZUR, M.D., )

)

Defendants/Appellees. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE MARIETTA M. SHIPLEY, JUDGE

ROBERT E. MAYERS, Pro Se

1525 Naples Avenue

Nashville, Tennessee 37207

ROBERT E. PARKER

RICHARD F. RUSSELL

200 Fourth Avenue North, 5th Floor

Nashville, Tennessee 37219

ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

Plaintiff, Robert E. Mayers, acting pro se in this medical malpractice

action, appeals the decision of the Circuit Court of Davidson County denying his

application for relief under Tennessee Rules of Civil Procedure 60.02 from a

final summary judgment rendered in favor of the defendants.

On June 16, 1997, Robert E. Mayers filed suit against Miller Medical

Group and Drs. Russell D. Ward and Michel Kuzur, former physician members

of Miller Medical Group. In the complaint it is alleged that on July 28, 1980,

while plaintiff was employed by the Tennessee Department of Corrections at

Spencer Youth Center, he sustained a work related injury to his mid and upper

chest when kicked by a juvenile inmate.

He was first treated at Miller Medical Group on June 18, 1981, by Dr.

Russell D. Ward, presenting with a complaint of constant pain in his chest. Dr.

Ward prescribed medications for him in 1981 and then retired from the practice

of medicine in 1982. Plaintiff was then treated by the defendant, Michael E.

Kuzur, from 1983 until his last treatment by Dr. Kuzur on April 25, 1989.

During the course of his treatment, Dr. Kuzur prescribed Naprosyn, 375

milligrams, with the prescription issued in 1989 and continually renewed until

a last prescription therefor on February 19, 1991.

Following the last treatment by any of the defendants in February of

1991, Mr. Mayers, on December 18, 1991, was first treated by Dr. Winston

Griner at the Vanderbilt Pain Clinic, still suffering from pain in his chest which

had continued since his original injury in 1980.

On June 18, 1996, plaintiff was first seen by Dr. Richard N. Pearson,

III, who diagnosed his problem as chronic sternal nonunion requiring surgery.

In his report to the pain control center of June 18, 1996, Dr. Pearson stated in

part:

. . . As you well know, he is a 44 year old gentleman who

incurred a fractured sterno manubrial junction in
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approximately 1980, when kicked in the chest by an inmate

during his work as a corrections officer. Although he was

able to manage this discomfort with high doses of nonsteroidal anti-inflammatories, a combination of bleeding

hemorrhoids and persistent anemia due to GI blood loss

necessitated discontinuation of these medications. Since that

time, approximately 3 years ago, he has been managed by

repeat alcohol injections in the peristernal area, which have

been effective for up to 2 months at a time. He remains

employed as a counselor at the Department of Corrections,

and is no longer involved in active physical activity.

On physical examination, Mr. Mayers has clear

evidence of a step-off at a sterno manubrial junction. A

sternal click is readily palpable at this point. It is my clinical

impresion, which is supported by his bone scan data, that he

has chronic inflammation around the pseudo capsule

associated with his unhealed chronic sterno manubrial

dislocation.

Mr. Mayers seems like a responsible individual who is

truly plagued by chronic pain related to a specific physical

disorder which I believe can be corrected at relative low risk.

Dr. Pearson performed the surgery on July 17, 1996, with apparently

satisfactory results.

The defendants filed a joint answer denying all allegations of

negligence and all allegations of fraudulent concealment. Coupled with the

answer, Dr. Kuzur filed his affidavit asserting familiarity with the acceptable

standard of medical practice in Nashville and further asserting his compliance

with the standard of care. As affirmative defenses, all defendants pleaded the

one year statute of limitations provided by Tennessee Code Annotated section

29-26-116(a)(1) and the three year statute of repose provided by Tennessee Code

Annotated section 29-26-116(3).

On August 25, 1997, all defendants filed a motion for judgment on the

pleadings or summary judgment pursuant to Rules 12 and 56 of the Tennessee

Rules of Civil Procedure, together with a statement of material facts pursuant to

Rule 56.03.
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On September 23, 1997, plaintiff filed pro se a motion for an extension

of time to answer which was granted and the Rule 12 and Rule 56 motions reset

for November 7, 1997.

On October 16, 1997, plaintiff responded to the Rule 12 and Rule 56

motion including in his response a copy of the letter from Dr. Pearson of June 18,

1996.

 The Rule 12 and Rule 56 motions were heard on November 7, 1997,

and by order dated November 13, 1997, the trial court held that the summary

judgment motion of the defendatns was well taken in all respects and was

granted.

No appeal was taken from this judgment within thirty days after

November 13, 1997, and it thus became final. 

On January 9, 1998, the plaintiff filed pro se his motion for relief from

the November 13, 1997 judgment pursuant to Rule 60.02 of the Tennessee Rules

of Civil Procedure. This motion was accompanied by an affidavit of Dr. Pearson

stating, in pertinent part:

2. Based on my examination, it is my medical judgment

that Robert Mayers suffered from chronic sternal nonunion

requiring surgery.

3. I believe if a medical diagnosis of chronic sternal

nonunion had been rendered earlier, Robert Mayers medical

condition could have been resolved more quickly.

The Rule 60.02 motion of the plaintiff was heard on February 13, 1998

and denied by the trial court by an order entered on February 17, 1998.

Plaintiff pro se appealed the February 13, 1998 order by filing notice

of appeal on February 19, 1998.

I. THE RULE 60.02 MOTION

This appeal is not from the grant of summary judgment of November
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13, 1997. This judgment had become final thirty days thereafter and the Rule

60.02 motion for relief therefrom was not filed until January 9, 1998.

The only grounds for relief set forth in the Rule 60.02 motion is the

assertion by the plaintiff that the affidavit of Dr. Pearson is newly discovered

evidence. Clearly it is not. When Mr. Mayers attempted to use the June 18,

1996 letter from Dr. Pearson at the November 9, 1997 hearing on the defendants'

Rule 12 and Rule 56 motion, the trial court correctly pointed out, according to

appellant, that same was not in affidavit form and could not be considered in

determining the Rule 56 motion. Mr. Mayers did not present Dr. Pearson's

affidavit until well after appeal time had expired on the November 13 grant of

summary judgment. Even if the affidavit of Dr. Pearson might be characterized

as newly discovered evidence, no relief is available under Rule 60.02 since the

evidence could clearly have been discovered prior to the summary judgment

hearing by the exercise of reasonable diligence. Spence v. AllState Ins. Co., 883

S.W.2d 586, 596 (Tenn. 1994).

The supreme court has held:

To set aside a judgment under rule 60.02 the burden is upon

the movant to prove that he is entitled to relief, and there

must be proof of the basis on which relief is sought.

Brumlow v. Brumlow, 729 S.W.2d 103, 106

(Tenn.Ct.App.1986); Jefferson v. Pneumo Services Corp.,

699 S.W.2d 181, 186 (Tenn.Ct.App.1985). A motion for

relief from a judgment pursuant to Rule 60.02 addresses the

sound discretion of the trial judge; the scope of review on

appeal is limited to whether the trial judge abused his

discretion. Toney v. Mueller Co., 810 S.W.2d 145

(Tenn.1991); Travis v. City of Murfreesboro, 686 S.W.2d 68,

70 (Tenn.1985).

Rule 60.02 "was designed to strike a proper balance

between the competing principles of finality and justice."

Jenkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.1976).

With regard to the purpose of the rule, this Court recently

stated,

"Rule 60.02 acts as an escape valve from possible

inequity that might otherwise arise from the

unrelenting imposition of the principle of finality

imbedded in our procedural rules." Thompson v.

Fireman's Fund Ins. Co., 798 S.W.2d 235, 238
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(Tenn.1990). Because of the importance of this

"principle of finality," the "escape valve" should

not be easily opened.

 Toney v. Mueller Co., 810 S.W.2d at 146.

Banks v. Dement Constr. Co., Inc., 817 S.W.2d 16, 18 (Tenn. 1991).

The action of the trial court in overruling the Rule 60.02 motion filed

by Mr. Mayers was clearly not an abuse of the discretion vested in the trial court

and is therefore affirmed.

II. THE SUMMARY JUDGMENT

Although the affirmation of the Rule 60.02 denial by the trial court is

determinative of this appeal, it is equally clear that the action of the trial judge

in granting summary judgment to the defendants was a correct action.

First, the plaintiff must prove malpractice by expert testimony under

Tennessee Code Annotated section 29-26-115. Such expert testimony must

establish:

(1) The recognized standard of acceptable professional

practice in the profession and the speciality thereof, if any,

that the defendant practices in the community in which he

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 failed to act

with ordinary and reasonable care in accordance with such

standard; . . .

Tenn. Code Ann. § 29-26-115(a)(1)(2).

The affidavit tendered by Dr. Pearson in no way meets the standards

required by the statute.

The record before the court is likewise devoid of any proof that any of

the defendants ever knew that plaintiff suffered from "chronic sternal nonunion".
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The supreme court has held:

[5,6] In order to meet the burden, a plaintiff who seeks

to toll a statute of limitations on the ground of fraudulent

concealment must prove that the cause of action was known

to and fraudulently concealed by the defendant. Ray v.

Scheibert, 224 Tenn. (2 Pack) 99, 104, 450, S.W.2d 578, 580

(1969). Knowledge on the part of the physician of the facts

giving rise to a cause of action is an essential element of

fraudulent concealment. Ray v. Scheibert, 484 S.W.2d 63, 72

(Tenn.App.1972).

Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn. 1992).

Thus, even if the defendants failed to diagnose the condition of the

plaintiff and such failure to diagnose the true condition fell below the applicable

standard of care, it could not also consititute fraudulent concealment. Under the

standards set forth in Benton v. Snyder, and Ray v. Scheibert, how can one

fraudulently conceal that which one does not know?

Thus, in this case regardless of the discovery rule question under the

one year statute of limitations, the action is barred by the three year statute of

repose (T.C.A. § 29-26-116(a)(3)) and the trial court was correct in granting the

motion for summary judgment. 

The judgment of the trial court is affirmed and costs of the appeal

assessed against the appellant. 

____________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

____________________________________

WILLIAM C. KOCH, JR., JUDGE

____________________________________

JERRY L. SMITH, SPECIAL JUDGE
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