1 The complaint was initially f iled April 1, 1997 and non-suited one month later. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE February 15, 2001 Session BOBBY J. EVERETT, ET AL 

### . v. B. GORDON McCALL, M.D.

Appeal from the Circuit Court for Blount County No. L-11466 W. Dale Young, Judge FILED APRIL 3, 2001 No. E2000-02012-COA-R3-CV

Th e complaint in this medical malp ractice case w

as dismissed on motion

for summary

judgment. The plaintiff fileda Rule 56.07 Respons e to the motion, reque

sting additional ti

me within which to take the defendant’s deposition for the purpose, i nter alia , of ascertaining his thought processes during the 27-day period he treated the plaintiff

for a gastroen

terological co

ndition which ende

d in her death. The request for additional time was denied, and the motion for summary judgment was granted because the affidavit of the defendant was not countervailed. The judg ment is reversed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed W ILLI AM H. I NMAN , S R . J., delivered the opinion of the court, in which H ERSCHEL P ICKENS F RANKS , J., and C HARLES D. S USANO , J R ., J., joined. Donna Keene Holt and David E. Waite, Knoxville, Tennessee and Rebecca C.

McCoy, Sevierville, Tennessee, for the appellan t, Bobby J. Everett, Individually a nd as Executor of the Estate of Edith Mae Everett. Wynne C. Hall, Knoxville, Tennessee, for the appellee, B. Gordon McCall, M. D.

OPINION I. This is a medical malpractice ca se . The complaint was filed May 1, 1998, 1 the thrust of which was directed to the alleged failure of the defendant to perform, or have pe rformed, appropriated

diagnostic testing of the plaintiff’s decedent in accordan ce with a cceptable medical standards.2 There was a de lay of several months in serving proce ss. 3 The plaintiff’s answers to interrogatori es were u nsworn and thus canno t be noticed except as allegations. Johnso n v. Smith , 621 S.W.2d 570 (Tenn. App. 1981). 

### -2- The Complaint The plaintiff all

eged that the decedent, Ms. Everett, consulted the defendant on March 5, 1996 complaining of a gastroenterological condition. Following a five-day hospitalization, she was discharged on March 10, 1996. The symptoms persisted and a barium enema, administered on an outpatient basis on March 15,

1996 indicated a s

evere abnorma

lity of the colon. The decedent was readmittedon March 21, 1996 for a colonoscopy which revealed a severe ulceration of the mucosa of the colon. Colostomy procedures were performed but Ms. Everett died April 2, 1996 from complications attr

ibutable to blood los s. The specific al legations c harge the defendant failed to (1) timely diagnose the condition of the decedent, (

2) timely tre

at her condition, a

nd (3) timely

consult a special

ist. II. The Answer The defen dant denied all allegations of negligence, and averred that other phy sicians examined or treated the decedent during her illness. The answer was filed January 8, 1999. 2 III. The Motion for Sum mary Judgment Interrogatories

were exchanged, 3 and the case l ay fallow until February 8, 2000 w hen the defendant filed a motion for summary judgment supported by his affidavit, medical records, and a statement of undisputed mate

rial facts. He deposed that he saw the deceden

t in his office on March 5, 1996 when she comp

lained of crampi

ng, abdomin

al pa in and diarrhea. She was dehydrated, unable to eat, an

d was admitted to a h

ospital for treat

ment. Her condition did not improve. An x-ray series on March 5, 1996 revealed no abn

ormalities. A sonogram

of the pelvis on March 9, 1996, performed by a rad iol ogis t, r evea led no a bno rma lit y. A later x-ray study revealed no obstruc tion. The defendant further deposed that he recommended a colonoscopy , a sigmoidoscopy, or a bariumenema

study, which

the decedent refused. She requested that she be allowed to leave the hospital, and was discharged o n March 10, 1 996 with the unders tanding that if he

r symptoms persisted, she would return to have the tests performed. Thereafter, on March 15, 1996 the decedent consented to a ba rium enema when her symptoms

persisted. This procedure revealed a severe abnormality

of the colon. A colonoscopy was recommended which the decedent refused.4 The plaintiff filed a Rule 59 Mo tion to Alter o r Amend , accomp anied by thre e affidavits of fam ily members

that the defendant made no r ecommendations for t

reatment to t

he decedent which

were refused, and the affidavit of a Professor

of Medicine at the University of Arkansas th

at the defendant

deviatedfrom the recognized standard of care by failing to make th e diagnostic tests timely, “assuming t hat the lay

affidavi ts were tru

thful. ” These affidavi

ts were fi led 13 days afte r judgmen t was render ed on the m otion for sum mary judgm ent. The lay affidavits were obviously available at any time, but the impe rative need for them did no t arise until the motionfor summa ry judgmen t was filed. The se affidavits , standing al one, would not countervail the affi davit of the defendan t. In lig

ht of t he late fili ng of the motion f

or summary judgment,

and the Rul

e 56.07 Response , the def ense of lack of diligence on the part of the plaintiff is not apropo s.

The Rule 59 Motion wa s denied, the propri

ety of w hich we do n

ot reach i

n light of the r eversal of thi s case on another g

round. 

### -3- On March 21, 1996, the defendant was r

eadmitted to the hospital a nd consented to a col ono sco py, which was performed by Dr. Richard Cline, a gastroenterologist, on March 23, 1996. On March 26, 1996, the decedent began to experience a rectal hemorrhage. D r. Marvin Peterson performed surgery but the decede nt’s condition worsened and she died April 2, 1996. The defendant

deposed that his consultation, diagnosis, care and treatment of the decedent was in no way the cause of or a contribut ing factor to her illness and that he did not deviate from acceptable standards of care. IV

. The plaintiff filed a Rule 56.07 Response to the motion for summary judgment on March 6, 2000 requesting “that any hearing or requir ement of response by the

plaintiff be continued so that discovery can be conducte

d in this c as e.” The Response stated that “any expert witness the plaintiff(s) may consult would not be expected to give an expert opinion for thetrial of this action withouthaving considered all facts that are to be assumed as a basis for that opinion,” and that “the deposition of Dr. McCall must be completedand available to expert review before the plaintiff can produce a responsive aff

idavit to defendants’ motion.” TheRule 56.07 Response was supported by the affidavit of c

ounsel. V. A hearing on th

e motion was held March 17, 2000. Following an extended colloquy, the motion for summary judgment was granted because the plaintiff filed no countervailing affidavit. 4 To refocus the time element, the motion for summary judgment was filed February 8, 2000; the Rule 56.07 Response was filed March 6, 2000; the Motion was heard March 17, 2000. VI

.5 It could have been f iled as early a

s May 31, 1998, Rul

e 56.01. 

### -4- We restate the dispositive issue: Should the trial j ud ge have granted the plaintiff’s request for additional time withinwhich to take the defendant’s discovery deposition? VII. We conclude the issue

must be answered

in the affirmativ

e following the r

ationale of Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993), which teaches that after a moving party has established the absenceof a genuine iss

ue of material fa

ct, “summary ju

dgment is appropriate when the nonmoving party after being g

iven a reasonab

le opportunity t

o establish its clai

ms, or after a sufficient time for discovery has elapsed , is unable to demonstrate that he or she can indeed do so.” The plaintiff

is taken to task, not only by the defendant, but by the trial judge, for his failure to discover the defendant during the two, perhaps three, years of the pe ndency of the act

ion. We reflect that the plaintiff was not required to take any action other than normal trial preparation unti

l the motion for summary judgment was filed, when the requirement of Bryd, supra, that the plaintiff must be given a sufficient time for discovery was triggered. It cannot be seriously argued that

in light of the fact that

the motion for summary judgment was filed February 8, 2000, 5 and heard March 17, 2000, the plaintiff was given a “sufficient time for discovery.” VIII. Rule 56.07 provide

s: When Affidavits Are Una vailable Should it appear from the affidavits of a par ty opposing the motion that such party cannot for reasons stated present by affidav

it facts essential to just

ify th e opposition, the court may refuse the appli cati on for judgment or m ay order a

continuance to pe

rmit affidavits to be obtained or depositions to be taken or discovery to be had or may ma

ke such other ord

er as is just. The Rule, prima facie , involves the reviewable discretion of the trial judge, see: Benton v. Snyder , 825 S.W.2d 409 (Tenn. 1990), which he exercised in denying th

e plaintiff a con

tinuance in order to take discovery

of the defendan

t. Appellate

review involves no presumptionof correctness , since the issue is one of l

aw, Rule 13(d), Tenn. R. App. P., and the standard of review is to determine if t he trial judge abused his discretion in not affording the plaintiff the opportunity to con duc t discovery of the defendant. By virtue of the holding in Byrd , supra, which we have quoted, we conclude that the trial court erred in denying the plaintiff additional time within which to

conduct

### -5-

discovery o

f the defendant. The judgment is accordingly reversed and the case is remanded

for all appropri

ate purposes. Costs are assessed to the appellee..

__________________________________ WILLIA M H. INMAN, SENIOR JUDGE