1 The record does not reveal the ag

e of the plaintiff

. We infer from th

e affidavits that

a cardiac cathe

terization on Apr

il 25, 1994 was succ

essful. 

### FILED July 13, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

ANNA MAY FAIR, ) SULLIVAN CIRCUIT ) (No. C-32130[L] Below) Plaintiff/Appell

ant )

) v. ) NO. 03A01-9812-C V-00422 ) CHARLES FU

LTON, M.D ., and ) HON. RICHARD E. LADD INDIAN PATH HOSPITAL, INC., ) JUDGE d/b/a HCA INDIAN PATH ) MEDICAL CENTER, ) ) Defendants/Appellees ) AFFIRMED

Lon V. Boyd,

Kingsport, for A

ppellant. M. Lacy W

est and Julia C. W

est, Kingsport, f

or Appellee Indian

Path Hospital. Richard M. Currie, Jr., Kings port, for Appellee Charl es Fulton, M.D.

O P I N I O N

INMAN, Senio

r Judge This is a malpr actice a ction a gainst an emerge ncy room p hys ici an. The plaintiff alleged that on Apr

il 17, 1994 she sought tre

atment at the e

mergency room of Indian Path Hospital for severe chest pains which the defendant attributedto a fracturedrib. He obtained no electrocardiogram. Three days later she returned to the emergency

room sufferin

g from chest

pains. Another

physician diagnosed her condition as congestive heart failure, and advised her that s he had no broken rib. She alleged that the defendant was negligent in hisdiagnosis and treatment of her

on April 17, and that h

e failed to exerci se proper care an d skill, 1 re sulting in “grievous bodily injuries .”2 The defendant

filed a motion for summary judgment alle

ging that there is no evidence that he failed to ac t in accordance w

ith the recog niz ed standard of acceptable

professional practice , or

that any act or

omission on his par

t proximately caused the plaintiff’s i

njuries. He fi

led his affida

vit in suppo rt of the motion, testifying that the plaintiff

related an onset of sharp chest pains, worsening when she breathed, a nd tha t she had been coughing for a week. She had no nausea, vomiting, or d ys pnea on exertion, but had a history of d

iabetes, bronchiti s and hypertension. He testified that her chest was clear, that her cardiac exam wa s normal, and that she was ten der in her lower c

hest. He believedthat the sharp pain, worsened by breathing, w as “coming

from the lungs, pleura or chest wall” and was cle arly not car diac pain. A ches t x-ray was nor

mal, and he int

erpreted the rib xrays as showing a possible f racture of the 10th rib, stating that it i s not uncommo n to see a fracture

d rib as a result of a

hard cough. Dr. Fulton further testified that he reassured the plaintiff of the absence of cardiac findings and that he pres c ribed an antibiotic for her bronchitis, together witha medication to suppress her coughing. He advised her to follow up with her personal physici

an if pain persisted. The defendant reviewed the plaintiff’s records after she was admitted to the hospital on April 20, three days after she was seen by him in the emergency

room. He testif ied t hat the hospital reco rds indicated that the

plaintiff’s diag

noses on discharge were my ocardial infarct

ion and congestive hea

rt fai lure, and that the cardiac enzymes w

hich are release

d into the bloo d as a result of a myocardial infarction were not elevated, indicat

ing that she

did not have the infar

ction in the precedingthree days, bu

t probably on or

about April 10. He testifiedthat when he

saw her onApril 17, she was not in congestive heart failure. He further testified3

thathe was f

am iliar with the recognized standard of acceptable professional practice of emergency

room physic

ians, a nd that he acted wit h ordinary and reasonable

care in accordance with such standards, and that no act or om

ission on his part proximate

ly caused the plaintiff to suffer any injuries w

hich otherwise would not have occurr

ed. The plaintiff filed the

affidavits of Dr

s. Ralph F. Morton, a cardiologist, and John J. Bandeian, Jr. , in response to the affidavit of the defendant. The sufficiency of these affidavits

is determinati

ve of the issue on appeal. The trial judge held that the affidavits were

not sufficient because

“they stat e no specific act or

omission of Dr. Fulton which co ns tituted a deviation from the accepted standard of medical practice for emergency room physicians.” Our review of

the findings of fact

made by the trial Co

urt is de novo upon the record of

the trial Court, a

ccompanied by

a presumption of the c

orrectness of the finding, unless

the preponderance of the evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d); Campbell v. Flo r ida Steel Corp., 919 S.W.2d 26 (Tenn. 1996). Summary judgment is exp

lained in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993): When the party seeki

ng summary

judgment m

akes a supp orted motion, the burden then shifts to the non-movin

g party to set for

th specificfacts, not legal c

onclusions, by

using affidavits or discovery materials listed in Rule 56, establishing that there are indeed material facts creating a genuine i ssue that needs to be resolved by the trier of fact and that a trial is therefore necessary. The non-moving party m ay not rely upon the all

egations or

denials of

his pleading in carr

ying out this burden as ma

ndated by Rule 56. 05. Whether the affidavits of D

rs. Morton and Bande

ian, similar

in content, satisfy

the plaintif f’s burden “to set

forth specific fa

cts, not legal conclusions” is a narrower issue. By these affi

davits, these e xperts tes tified, wit h reference to Dr. Fulto n’s failure to obtain an electro cardiogram in light of the quality of theplaintiff’s che st pain and her history of diabetes, hypertension, and smoking, that “many physicians2 Drs. Morton and Bandeian apparently chose their words carefully, since they testified

that the plaintiff

suffered injurie

s that might

not otherwise have occurred, appropro to the language of T.C.A. § 29-26-115(a) and Henderson that . . . would not have occurred. In light of our disposition of the case, we need not discuss the grammatical effect of the respective words. 4 in this setting would obtain an ECG,” and after s tating their knowledge of t he recognized standard of care, testif ied that Mrs. Fair

was not treated w

ith the ordinary an d reasona

ble care in accor

dance with the rec

ognized standard of acceptable

professional pract

ice of emerge

ncy room phy

sicians. They

further testified that “the defe

ndant acted with less tha

n or failed to

act with ordinary

and reasonable

care in accordan

ce with such standar

d and as a proximate result of defendant ’s act or omission t he plaintiff suffe

red injuries whic

h might not otherwise have occurre d.” When faced with the af

fidavit of Dr. Fulton, the b

urden became o

ne for the plaintiff to prove by expert testimony the req u isite standard of ca

re, that the defendant deviated from the standard, and that as a proximate result of Dr. Fulton’s negligence or om

ission the plaintiff suffere

d injuries which w

ould not otherwise have occurred. 2 Estate of Henderson v. Mire, 955 S.W.2d 56 (Tenn. App. 1997). Henderson

has significant appli

cation to the case a

t Bar. The defe

ndant relied on his affidavit that he was familia r with the standard

of care, that he

did not deviate from the standa

rd and that he did

nothing that caused har

m to his patient. This affidavit

was held to be suffi

ciently precise to shift the burden to the plaintiff to come forwar

d withproof establishing a disputed mater

ial fact respecti

ng (1) the standard of care,

(2) that defendant devia

ted from that st

andard, and (3) tha

t as a proximate

resul t of the defendant’s negligent act, the plaintiff suffered injuries which would not otherwise have occurred. T

he plaintiff counter

ed with the affidavit of an expert who testified that he was familiar with the standard of

care,5

thatthe de fenda nt dev iated from t h e standard and that pl aintiff would have

recove red but for defe ndant’ s negli gence, b ut with no spec ificit y. We held - “We are of

the opinion, however

, that the Affida

vit of Dr. Tanne

r is insufficiently

precise to demonstrate that a genuine

issue of material fact exists.

. . . Specif ically, Dr. Tanner’s Affidavit fails to state with any degree of precision, what, if anyt hing, Dr. Mire d id wrong in his treat

ment of th e deceased. The A

ffidavit is replete

with conclusions. T

he only assertion in Dr. Tanner’ s deposition appro aching the failure of defendants to meet the sta ndard of care is th

at the defendant ‘breached the standard of

care in this comm

unity when the de

fendants failed to dia gn ose, treat or inte rvene to provide plai

ntiff decedent wi

th timely and competent care . . .’ The Affidavit f ails to point out the diagnosis, if any, that sh

ould have been made. It further fails to point out the treatment

or intervention that should have occurred to preven

t the plaintiff decedent ’s d ea th. There is nothin g in the Affidavit to demonstrate

that as a proximate res

ult of defendant’s negl

igent act or omission, the plaintiff suffered inj uries which would not otherwise have occurred.” The affidavits of Drs. Morton and Bandeian merely state the conclusion that the defendant failed t

o treat plaintiff w

ith ordinary and r

eason able car e in accordance with the recognize d standard of accep

tabl e professional pract

ice and thatas a result of defe ndant ’s negligent act or omission, the plaintiff suffered injuries which might not ot herwise have

occurred. The c

onclusion is not supported by specific acts or om

issions to act and is not suffi cient to create a genuineissue of fact. The plaintiff relies a

t length upon her belief, supported by her experts, that the defendant mist

akenly diagnosed a broken ri

b. There is no all

egation that she thereby sustained an injury; neither is there evidence of an y co nnection between the defe ndant’s opinion that t he plaintiff had a f

ractured rib and he

r subseque n t congestive heart failure.6 The judgment is affirmed. Costs are assessed to the appellant. The motion of the appellee that

the appeal be decla

red frivolous is denie

d.

_______________________________ William H.

Inman, Senio

r Judge

CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Charles D. Susa

no, Jr., Judge