IN THE COURT OF APPEALS OF TENNESSEE

AT MEMPHIS

January 19, 2005 Session

MATTIE P. PATTERSON, Surviving Spouse of LARRY PATTERSON,

Deceased v. MUHAMMAD ARIF

Direct Appeal from the Circuit Court for Shelby County

No. CT-001771-03 James F. Russell, Judge

No. W2004-01837-COA-R3-CV - Filed February 14, 2005

The trial court awarded summary judgment to Defendant physician and dismissed Plaintiff’s action

upon finding it was one for medical malpractice and that Plaintiff had failed to offer competent

expert proof of negligence as required by Tennessee Code Annotated § 29-26-115. Plaintiff appeals,

asserting the trial court erred in determining the action was not one for ordinary negligence and that

the alleged negligence of Defendant was not within the common knowledge exception. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and

Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and HOLLY M. KIRBY, J., joined.

William T. Winchester, Memphis, Tennessee, for the appellant, Mattie P. Patterson.

Jerry O. Potter and Katherine M. Anderson, Memphis, Tennessee, for the appellee, Muhammad Arif,

M.D.

OPINION

On March 28, 2003, Mattie Patterson (Ms. Patterson) filed a wrongful death cause of action

against Dr. Muhammad Arif (Dr. Arif), a licensed physician whose office is on Knight Arnold Road

in Memphis. In her complaint, Ms. Patterson alleges that on April 1, 2002, she telephoned Dr. Arif’s

office because her husband, Larry Patterson (Mr. Patterson), was experiencing shortness of breath.

She alleges that Dr. Arif’s staff instructed her to bring Mr. Patterson to his medical office and told

her that Mr. Patterson could not be admitted to the hospital from home. Ms. Patterson submits she

and her son, Larry Patterson, Jr. (“Son”), took Mr. Patterson to Dr. Arif’s office and that Son

requested that Mr. Patterson be given oxygen and be admitted to the adjoining Delta Medical Center.

According to Ms. Patterson’s complaint, Dr. Arifinstructed them to take Mr. Patterson to St. Francis

Hospital, which is miles away from Dr. Arif’s office. Ms. Patterson alleges that Dr. Arif’s nurse
Tennessee Code Annotated 29-26-115 provides:

1

(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by

subsection (b):

(1) The recognized standard of acceptable professional practice in the profession and the

specialty thereof, if any, that the defendant practices in the community in which the defendant 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; and

(3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered

injuries which would not otherwise have occurred.

(b) No person in a health care profession requiring licensure under the laws of this state 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 or a contiguous bordering state

a profession or specialty which would make the person's expert testimony relevant to the issues in the

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 the defendant as rebuttal witnesses. The court may waive this subsection when it

determines that the appropriate witnesses otherwise would not be available.

(continued...)

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took Mr. Patterson’s blood pressure but administered no other care. Ms. Patterson further submits

that she and Son assisted Mr. Patterson to the car without a wheelchair or any assistance from Dr.

Arif and that, as they were exiting the parking lot, Mr. Patterson stopped breathing. Ms. Patterson

and Son immediately took Mr. Patterson to the Delta Emergency Room, where Mr. Patterson was

diagnosed to be in full cardiac arrest. He was resuscitated, but remained comatose. After five hours,

Mr. Patterson suffered another arrest and died. Ms. Patterson asserts that on the day Mr. Patterson

died, Dr. Arif stated to her that he “did not realize [Mr. Patterson] was that bad.” In her complaint,

Ms. Patterson alleges that Dr. Arif breached his duty of care to Mr. Patterson and that this breach was

the direct and proximate cause of Mr. Patterson’s cardiac arrest and death. She prayed for a trial by

jury and damages in the amount of $1,000,000.

Dr. Arif answered the complaint on April 29. In his answer, Dr. Arif denied Ms. Patterson’s

allegations of breach of the standard of care and further denied that any actions or omissions on his

part proximately caused Mr. Patterson’s death. On November 4, Dr. Arif filed a motion for summary

judgment and statement of undisputed facts. In his statement, Dr. Arif stated that, based on his

professional opinion, he complied with the applicable standard of care. Ms. Patterson responded to

Dr. Arif’s motion on January 2, 2004. In her response, she submitted the action was one for

wrongful death based on ordinary negligence and medical malpractice. She stated, “the ordinary

negligence issue does not require a medical expert to raise a disputed material issue.” Ms. Patterson

did not file an expert affidavit, but attached Son’s affidavit to her response. In March 2004, Dr. Arif

filed an expert affidavit again denying breach of the standard of care. On June 21, 2004, the trial

court granted Dr. Arif’s motion for summary judgment and dismissed Ms. Patterson’s complaint.

In its order, the trial courtfound Ms. Patterson’s action was one for medical malpractice and that Ms.

Patterson did not offer competent expert proof that Dr. Arif had breached the standard of care as

required in a medical malpractice action under Tennessee Code Annotated § 29-26-115. Ms. 1
(...continued) 1

(c) In a malpractice action as described in subsection (a), there shall be no presumption of

negligence on the part of the defendant; provided, there shall be a rebuttable presumption that the

defendant was negligent where it is shown by the proof that the instrumentality causing injury was in

the defendant's (or defendants') exclusive control and that the accident or injury was one which

ordinarily doesn't occur in the absence of negligence.

(d) In a malpractice action as described in subsection (a), the jury shall be instructed that the

claimant has the burden of proving, by a preponderance of the evidence, the negligence of the

defendant. The jury shall be further instructed that injury alone does not raise a presumption of the

defendant's negligence.

Tenn. Code Ann. §29-26-115(Supp. 2004).

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Patterson filed a timely notice of appeal to this Court on July 6, 2004.

Issues Presented

Ms. Patterson raises the following issues for our review:

(1) Whether the trial court erred in granting summary judgment for the

Defendant by finding that this case was not a case of ordinary negligence, but

was a medical malpractice case which required expert testimony.

(2) Whether the trial court erred in granting summary judgment for the

Defendant by finding that the actions and omissions of the Defendant were

not within the ordinary knowledge of a layperson.

Standard of Review

Summary judgment is appropriate only when the moving party can demonstrate that there

are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn.

R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party moving for summary

judgment must affirmatively negate an essential element of the nonmoving party's claim, or

conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d

585, 588 (Tenn. 1998).

When a party makes a properly supported motion for summary judgment, the burden shifts

to the nonmoving party to establish the existence of disputed material facts. Id. A mere assertion

that the nonmoving party has no evidence does not suffice to entitle the moving party to summary

judgment. Id. In determining whether to award summary judgment, the trial court must view the

evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in

that party's favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). The court should

award summary judgment only when a reasonable person could reach only one conclusion based on

the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if

there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at
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588. We review an award of summary judgment de novo, with no presumption of correctness

afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002).

Analysis

Ms. Patterson’s argument before this Court, as we perceive it, is two-fold. First, she asserts

that this is not a medical malpractice case, but one for ordinary negligence. Second,she asserts that,

if this is a malpractice action, expert testimony was not required to establish breach of the standard

of care because “[i]t is within the common knowledge of a layperson that a physician, or his staff,

who is called by a patient experiencing shortness of breath, should advise that patient to call an

ambulance or go to an emergency room.” We disagree with both assertions.

Medical malpractice is but one particular type of negligence. Gunter v. Lab. Corp. of

America, 121 S.W.3d 636, 639 (Tenn. 2003). Tennessee Code Annotated section 29-26-115

codifies the common law elements of negligence insofar as they are to be applied to medical

malpractice actions. Id. When a negligence claim arises from injuries which result from negligent

medical treatment, the action is one for medical malpractice. Id. at 640. In Gunter, the Tennessee

Supreme Court articulated the analysis to be used in Tennessee to distinguish claims for medical

malpractice from claims for ordinary negligence. The Gunter court held,

when a claim alleges negligent conduct which constitutes or bears a substantial

relationship to the rendition of medical treatment by a medical professional, the

medical malpractice statute is applicable. 

Id. at 641.

In light of the allegations as put forth in Ms. Patterson’s complaint, this action is clearly one

for medical malpractice. The actions and omissions which Ms. Patterson’s alleges as negligence on

the part of Dr. Arif, namely, Dr. Arif’s failure to direct Mr. Patterson to go immediately to the

nearest emergency room, were undisputedly related to the rendition of the medical treatment sought

by Mr. Patterson. Dr. Arif’s actions were clearly based on medical decisions. Accordingly, the

action is governed by Tennessee Code Annotated section 29-26-115.

Ms. Patterson asserts, however, that the she was not required to offer expert proof of Dr.

Arif’s breach of the standard of care because it is “within the common knowledge of a layperson that

a person experiencing shortness of breath is experiencing a medical emergency . . . [and] should go,

or be taken to, an emergency room.” She accordingly asserts that the “common knowledge”

exception to the statutory requirement that medical negligence must be established by expert

testimony is applicable in this case. 

The “common knowledge” exception to the general rule is applicable when “the medical

negligence is as blatant as a ‘fly floating in a bowl of buttermilk’ so that all mankind knows that such

things are not done absent negligence.” Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App.
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1986) (quoting German v. Nichopoulos, 577 S.W.2d 197 (Tenn. App.1978)). In Murphy v.

Schwartz, Ms. Murphy suffered a stroke while at home and was taken by ambulance to the Madison

County General Hospital. Id. She was left unattended and unrestrained on a cot in the emergency

room, fell from the cot, and suffered injuries. Id. Additionally, the defendant physicians allegedly

failed to treat her properly for the injuries which resulted from the fall. Id. Defendants in Murphy

filed a motion for summary judgment with an affidavit of one of the defendant physicians that he

“was familiar with the medical standard of care in the community and that neither the affiant or the

other doctor defendant at any time fell below the community standard of care in the examination or

treatment of Mrs. Murphy.” Id. Plaintiffs in Murhpy failed to offer expert proof of negligence, and

the trial court awarded summary judgment to the defendants. Id. Upon appeal, plaintiff asserted

the “common knowledge” exception, arguing that 

it is plain and patent medical negligence to leave a stroke victim unattended or

unrestrained in an emergency room, and therefore no medical affidavits are required.

Further, the failure to treat plaintiff's dislocated shoulder for a period of four days

under the circumstances is also plain medical malpractice which requires no medical

expert proof to show.

Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App. 1986). This court affirmed summary

judgment for the defendants, holding,

we would be hard put to say that the plaintiff's fact create a "common knowledge to

the world" exception to the rule, when there is medical expert proof in the record to

the effect that under plaintiff's fact there is no medical negligence. 

The real issue created by this appeal is not whether the plaintiffs, by lay

opinion, show blatant buttermilk fly floating negligence; but, whether the plaintiff

may refute admissible expert opinion evidence by lay opinion evidence. Plaintiffs

may not do so.

Id. at 779.

As in Murphy, in the case before us, there is expert proof in the record that there was no

medical negligence. Further, we cannot say that it is within the common knowledge of the layperson

that a person suffering shortness of breath, without more, and Ms. Patterson does not allege

additional symptoms, should be taken immediately to the emergency room. Indeed, this obviously

was not within the common knowledge of Ms. Patterson or Son. Ms. Patterson may not refute Dr.

Arif’s expert opinion regarding a decision made in the course of rendering medical care with lay

opinion evidence in this case.

Holding

In light of the foregoing, we affirm the trial court’s award of summary judgment to Dr. Arif.
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This cause of action sounds in medical malpractice, and Ms. Patterson failed to offer competent

expert proof, as required by section 29-26-115, to refute the expert proof offered by Dr. Arif. Costs

of this appeal are taxed to the Appellant, Mattie Patterson, and her surety, for which execution may

issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE