# FILED
December 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk 0ROBERT E. MAYERS, ) ) Plaintiff/Appell

ant, ) 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/Appel

lees. )

)

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 No

rth, 5th Floor Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION
Plaintiff, Robert E. May

ers, acting

pro se in this medical malpractice action, appeals the decision of the Circuit Court of

Davidson County de

nying his application

for relief under Tennessee Rules of Civ il Pro cedur e 60.0 2 from a final summ

ary judgm

ent rendered in fa

vor of the defendant

s.
On June 16, 1997, Robert E. Mayers filed suit against Miller Medical Group and Drs. RussellD. Ward and Michel Kuzur, former physician members of Miller Medical Group. In the complain t it is alleged that on J

uly 28, 1980, whilepla intiff was employed by the Tennessee Departm ent of Corrections at Spencer YouthCenter, 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. RussellD. Ward, pr

esenting with

a complaint of c

onstant pain in his chest. Dr. Ward prescribed me

dications for him in 1981 and then retired from the practice of medicine in 1982.

Plaintiff was the

n treated by the

de fendant, Michael E. Kuzur, from 1983 unti

l his la st treatment by

Dr. Kuzur on Ap

ril 25, 1989. During the course of his tre atm ent, Dr. Kuzur prescribed Napr

osyn, 375 milligram s, with the prescription issued in 1989 and continual ly renewed until a last prescription therefor on Februa ry 19, 1991. Followingthe last treatm ent b y any of the defendants in F ebruary of 199 1, Mr. Mayers,

on December

18, 1991, was fir

st treated by D

r. Winston Griner at the Vanderbilt P

ain Clinic, still suf

fering 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. Pea rson, III, who di agno sed hi s prob lem a s c hronic sterna l nonu nion re quirin g surge ry. In his report to the pain control center of June 18, 1996, Dr. Pearson stated i n part:

. . . A s you well know, he is a 44 year o

ld gentleman w

ho incurred a fractured ster no manubrial jun ction in-3- approximately

1980, when kicked in

the chest by

an inmate during his work as a corrections officer. Although he was able to manage th

is dis comfort with h

igh doses of nonsteroidal ant i-inflamm

atories, a com

bination of bleeding hemorrhoids

and persistent anem

ia due to GI blood loss necessitated discontinuation of these medications. Since that time, approximately 3 years ag o, he has been m anaged by repeat alcohol inj ections in the periste rnal area, whic

h have been effective for up t o 2 months at a time. H e remains employed as a counselor at the Department of C o rrections, and is n o long er invo lved in active physica l activ ity. On physical examination, Mr. M ayers has clear evidence of a step-off a t a ste rno 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 inflam

mation around the

pseudo capsule a ssociated with his unhealed chr onic sterno manu

b ria l dislocation. Mr. Mayers seems like a r esponsible individual w

ho is truly plagued by

chron ic pain related to a specific physical disorderwhich I believe

can be correctedat relative low r isk.

Dr. Pear son performed t

he surgery on July

17, 1996, with appa

rently satisfactory r

esults.

The defendant s file d a joint answer de nying all allega

tions of negligence and all allegation s of fraudulent conc ealment. Couple d with the answer, Dr. Kuzur file

d his affidavit asse

rting familiar

ity with the ac

ceptable standard of medical pra

ctice in Nashville

and further asser

ting his complianc

e withthe standard of care. As affirmative d efenses, a ll defendants pleade d the
one year statute of

limitations provi

ded b y Ten nessee Code Annotat ed section 29-26-116(a)(1)

and the three ye

ar statute of repose provided by Te nnessee Code Annotated section 29-26-116(3).

On August 25, 1997, all defendants filed a m otion for judgm

ent on the pleadings or summar

y judgment

pursuant to Rules 12 an

d 56 of the

Ten nessee Rules of Civil Procedure,

together with a sta

tement of m

aterial facts pur

suant to Rule 56.03.-4- 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 N ovember 7, 1997, and by order dated November 13, 1997, the trial court held that the summar y judgment motion of the def

endatns was well t

aken in all resp ects and was granted.

No appeal was taken from this judgment within thirty day s after November 13, 1997, and it t hus became final.

On January 9, 1998,

the plaintiff filed pro se his motion for relief from the November 13,

1997 judgment pur

suant to Rule 60.02 of the Tennessee Rules of Civil Procedure.This motion wa s accompanied b

y an affidavit

of Dr. Pearson stating, in pertinen

t part: 2. Based on my exam

ination, it i s my me dical judgmen t thatRobert Mayer

s suffered from

chroni c sternal nonunion requir ing su rgery. 3. I believe if a m

edi ca l diagnosis of chronic sternal nonunionhad been rendered earlier, Robert Mayers medical condit ion cou ld have been res olved mo re quic kly.

The Rule 60.02 motion of the plaintiff was heard on February 13, 1998 and denied by the t

rial court by an

order entered on F

ebruary 17, 199 8. Plaintiff pro se appealed the February 13, 1998 order by filing notice of appeal on Februa

ry 19, 1998.

I. THE RULE 60.02 MOTION This appeal is not from the grant of summary judgment of November-5-

13, 1997. This judgment had become final thirty day s therea fter and the Rule 60.02 motion for

relief therefr

om was not file

d until January 9,

1998.

The only grou nds for relief set forth in the Rule 60. 02 motion is the assertion b y the p laintiff that the affidavit of Dr. Pearson is newly discovered evidence. Clearly it is no t. When Mr. Ma

yers attem

pted to use the June 18, 1996 letter from Dr. Pearson at the November 9,

1997 hearing on the def

endants' Rule 12 and Rule 56 moti on , the t rial court correc

tly pointed out, a

ccording to ap pellant, tha t same was not in affidavit form and could not be conside red in determining

th e Rule 56 motion. Mr. Mayers did not present Dr. Pearson's affidavit until well after appeal time had expired on the Nove mber 13 grant of summary judgment. Even if the affidavit of Dr. Pearson m ight be characterized
as newly discover

ed evidence, no

relief is availab

le under Rule 60.02 sinc

e the evidence could clearly h ave been discovered

prior to the summ

ary judgm

ent hearing by the exercise of reasonab le diligence. Spence v. AllSt ate Ins. Co. , 883 S.W.2d 586, 596 (Tenn. 1994).
The supreme c

ourt has held: To set aside a judgme

nt under rule 60.02

the burden is upon the movant to prove that he is entitled to relief, and there mu stbe proof of the basis on which relief is sough t
. Brumlow v. Brum low, 729 S.W.2 d 103, 10 6 (Tenn.Ct.App. 1986) ; Jefferson v. Pne umo Se rv ices Corp., 699 S.W.2d 181, 186

(Tenn.Ct.App. 1985) . A mo tion for relief from a judgment pursuant to Rule 60.02 addresses the sound discretion of the tr ial judge; the scope

of review on appeal is limited to wh ether the trial j ud ge abused his discretion. Toney v. Muelle r 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 p rin ciples of finality and jus tice." Jenkinsv. McKinney , 533 S.W.2d 275, 280 (Tenn.1976). With regard to the purpose

of the rule, this C

ourt re cently stated, "Rule 60.02 acts as an escape valve fr om possible inequity that might other

wise arise from

the unrelenting impos

ition of the

principle of

finality imbedded in our procedural rules." Thompson v. Fireman's Fu n d Ins. Co. , 798 S.W.2d 235, 238-6- (Tenn.199 0)

. Because of the im portance of this "principle of finality," the "escape valve" sh ou ld not be easily open

ed. Toney v. Muelle r Co. , 810 S.W.2d a t 146.
Banks v. Dement Constr. Co., Inc. , 817 S.W.2d 16, 18 (Tenn. 1991).

The action of the trial court in overruling th e Rule 60.02

motion filed by Mr. Mayers was clearly not an abuse of the discretion vested in the trial court and is therefore a

ffirmed.

II. THE SUMMARY JUDGMENT Although the affirma

tion of the Rule 60.02

denial by the tri

al court is determinative

of this appeal, it i s equally clear that the action of the

trial judge in granting summ

ary judgm

ent to the defendants

was a correct a

ction.
First, the plaintiff m

ust prove malpra

ctice by exper

t testim ony under Tennessee Code Annotated sec tion 29-26-115. Such e

xpert testi mony mu st establish: (1) The recognized standard of acceptable pro fessional practice in the pro fessio n and th e speci ality th ereof, i f any, thatt he defe ndant practices in th e communit

y in which he practices or in a similar

community

at the ti me th e alleged injury or wr

ongful action occurr

ed; (2) That the defendant acte

d with less than or failed to act withor dinary 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 m ee ts the st andards required by the statute.

The record before the

court is likewise de

void of any

proof that any of the defendants ever knew that plaintiff suffered from "chronic sternal nonunion".-7- The supreme c

ourt has held: [5,6] In order to

meet the burden, a plaintiff

who seeks t o toll a statute of lim

itations on the ground of fraudulent concealment

must prove that t

he cause of

action was known to and fraudulently concea led by the defendant. Ray v. Scheibert , 224 Tenn. (2 Pack) 99, 104, 450, S.W.2d 578 , 580 (1969). Knowledge on the pa rt of the physician of

the facts giving rise to a ca u se of action is an essential elemen t 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 c ondition o f the plaintiff and such failure to d

iagnose the

true condition fell

below the applicabl

e standard of care, it could not also consititute fraudule ntconcealment.

Under the standards set forth in Benton v. Snyder , and Ray v . Scheibert , how can one fraudulently conceal th at which one does no t know?
Thus, in this case regard

less of the discovery

rule question under th

e one yea r statute of limitations, the action is barred by the three year statute o f 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

tria l court is affirmed and costs of the appeal assessed against t he appellant.

_____ ________ ______________

_ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ __ WILLIAM C. KOCH, JR., JUDGE

__________________________________ __ JERRY L. SMITH, SPECIAL JUDGE-8-