1 Mrs. Robe rts’s suit is derivative for loss of consortium , compan ionship, and serv ices. For ease of reference,

we will refer to the Plaintiffs as Plaintiff or D r. Roberts.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON June 19, 2001 Session
WILLIAM H. ROBERTS, M.D., ET AL 

### . v. S. LANE BICKNELL, M.D., ET AL 

### .

A Direct Appeal from the Circuit Court for Madison County No. C-96-141 The Honorable Roy B. Morgan, Judge

No. W2000-02514-COA-R3-CV - August 16, 2001

In this medical malpractice case, patient and wife sued physici ans and their professional association for damages resulting from defendants’ negligence, deviation from applicable standard of care, and lack

of informed consent. The trial court granted defendants a partial summary judgment for all claims

concerning incidents that occ urred more than o

ne year pr ior to the date suit
was filed, as barre

d by the statu

te of limitations. Subsequently, the trial court granted summary judgment on the me

rits as to all remai

ning claims. Plain

tiff appeals. We a

ffirm.
Tenn.R.App.P. 3; Appe al as of Right; Judgme

nt of the Circuit C

ourt Affirmed and Remanded

W. F RA NK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which H OLLY K IRBY L ILLARD , J. and J OHN F RANKLIN M URCHISON , S P .J., joined.
Oscar C. Carr, I

II, Memphis, For Ap

pellant, Rosemary

Roberts

Thomas H. Rainey, Marty R. Phillips; Jackson, For

Appellees, S. Lan

e Bicknell, M.D., Harvey C. Harmon, M.D., Roy Appleton, M.D. and The Jackson Clinic Professional Association

OPINION
Plaintiffs, William H. Roberts, M.D. andw ife, Rosemary Roberts (hereinafter Plaintiff or Dr. Roberts) 1 sued Defendants, S. Lane Bicknell, M.D., Harvey C. Harmon, M.D., Roy Appleton, M.D., and the Jackson Clinic, Professional Association (hereinafter Dr. Bicknell, Dr. Harmon, Dr. Appleton, and the Clinic, respectively), for damages resulting from the Defendants’ negligence in deviating from

the applicable standard of care in their treatment of Dr. Roberts, and their failure to have Dr. Roberts’s informed consent to perform certain procedures. Defendants’ answer denied the2 “Cryoablati on” of the pro state is a procedure i n which a pati

ent is pl aced under genera

l anesthe sia and a

probe filled wit

h liquid nitrogen i s inserted i nto the patient’ s prostate t o freeze and kill t

he prostate tissue.

3 Dr. Roberts

has died si

nce fili ng this appeal, and hi s wife, Ros emary Roberts, has been subst

ituted.
-2- mat erial allegations of the complaint concer

ning negligence a

nd lack of informe

d consent and furthe r specifically ple

aded Plaintiff’s a

ction was barre

d by the applicable

statute of limitatio

ns.

Dr. Roberts’s claim ha

s its origin in a procedureknown as “cryoablation” for treatment of prostate cancer

2

. In Decembe r of 1994, Dr. Robe rts, 3 an ophthalmologist,

was diagnosed with prostate cancer. A fter the diagnosis, Dr. Bicknell recommended that Dr. Roberts consider cryo sur gery as a treatment option. Dr. Bicknell explained that Dr. Roberts would be a good

c andidate for the procedure, and that the procedure would give Dr. Roberts a ch ance for a “relatively” normal life. Whe n Dr. Ro berts asked Dr. Bicknell what the disadvantages of the procedurewere, Dr. Bicknell responded that, since the procedure was considered experimental, Dr. Roberts’ insurance might not cover the cos t. However, Dr. Bicknell indicated that he expected insurance providers would soon approve coverage for the procedure.
Following his diagnosis, Dr. Roberts decided to have his cancer treated by cryoablation. The record indicates that

Dr. Roberts did little or no research on the efficacy of the cryoablation procedure, relyin g in stead upon Dr. Bic knell’s recommen

dation and informa

l conversations w

ith other physicians with who

m Dr. Roberts had c

ontact. On Dece

mber 27, 1994, Dr.

Bicknell and his colleague, Dr. Appleton, performed the procedure on Dr. Roberts at The Jackson-Mad

ison County General Hospita

l. On December 3 0, 1994, Dr. Rober ts was discharge

d from the hospital.

The day after his hospital discharge, Dr. Roberts began to experience severe pain in his right thigh. Dr. Bicknell was n ot available that day, s o Dr. Roberts spoke with another urologist at the Jackson Clinic, who prescribed some medication. On January 5, 1995, Dr. Roberts began to notice air coming out of his penis, and he called Dr. Bicknell and told him about his problem. He met Dr. Bicknell at the Clinic and, after some tests, Dr. Bicknell told him that there a ppeared to be som

e rectal damage. Dr. Bicknell re-admitted Dr. Roberts to the hospital on January 6, 1995, and referred him to a surgeon, Defendant, Dr. Harmon, for further tests. During the hospital stay and prior to an operation on J anuary 9 , 1995, he started passing feces thr

ough his penis and ur

ine through his rectum.

At some point during Dr. Robert’s second hospitali zation, it became clear that he had developed

a “urethrorectal fistula”: a hole bet ween h is urethra and rectum. Dr. Harmon recommended

a temporary colostomy to bypass the fistula and allow it to heal on its own. The record indicates that Drs. Bicknell a nd Appleton appro

ved of this course

of treatment and assured Dr. Robe rts that t

he fistula would heal without surgery. Following the colostomy surgery, Dr. Roberts was re-admitted to the hospital in February of 1995, and again in June of 1995. Dr. Roberts also suffered numerous complications, including recurring urinarytract infections , yeast infection s,-3-

bleeding into the suprapubic tube and catheter which were left in hisbody following surgery, and a deep vein thrombosis in his left leg.
During his June hospital stay, Dr. Harmon advised Dr. Roberts that he be lieved the fistula hadhealed, and that the colostomy should be reversed. At that time, Dr. Roberts told Dr. Harmon that if the fistula had not healed, he “would prefer to have another physician deal wi

th [his] medical problemsbe cause [ he] had lost confidence in the urology department at The Jackson Clinic.” In spiteof this request, on June 23, 1995, Dr. Harmon attempted to repair the fistula and reversed the colostomy. Within two days of the operation, Dr. Roberts again noticed fecal material in his urine andurine coming through his rectum. Dr. Ha rmon was forced

to perform an emer

gency colostomy

on Dr. Roberts. At his f

amily’s insistence

, Dr. Roberts was trans ferred to Vande rbilt University Hospital in Nashvill

e, where Dr. Jos

eph Smith

surgically repaired the urethrorectal fistula. Later, the second colostomy w

as reversed, Dr

. Robertshad to have 14 1⁄2 inches of his colon removed, and several hernias at the site of the colostomies repaired.

On April 22, 1996, Dr. Roberts and his wifefiled this action f or damages in

Madison County Circuit Court, alleging negligence, failure to give or obtain informed co nsent, and deviation from the applicable stand

ard of care ag

ainst Drs. Bicknell, Appleton, Harmon, and The Jackson Clinic. On Ja nuary 12, 199 8, the trial court g ranted a Motion fo

r Protective Orde

r filed by non-par

ty Jackson-Madison C oun ty General Hospital District which prevented Plaintiff from discovering certain documents deemed privileged information under T.C.A. § 63-6-219. Defendants filed a Motion for Partial Summar y Judgment, allegin

g that the statute of

li mi tations for medical malpractice, codified at T.C.A. § 29-26-116(a)(1), barred Plaintiff’s claims occurring before April 22, 1995. The trial co

urt granted the mo

tion on July 14, 1998 a

nd Pl aintiff’ s motion to alter or amendthe judgment was de nied. This C ou rt also denied Plaintiff’s application for interlocutory appeal.

On Septe mber 15, 2000, the trial court entered an order granting Defendants’ motion for summary judgment filed on February 29, 1997, but which was def erred pending De

fendants’ depositions. In the Order, the trial court found that Plaintiff’s only expert witness, Dr. David Nigel Armstrong (“Dr. Armstrong”), wa s not competent to te

stify as to the appli

cable standard of care, and dismissed all Plaintiff’s remaining claims.

Plaintiff has appealed and presents three issues for review: (1) Whether the trial court erred in finding the statute

of limitations barr

ed Plaintiff’s cla

ims occurring bef

ore April 22 , 1995; (2) Whether the tria

l court erred in g

ranting summary jud

gment toDr. Harmon because of the trial court’s disqualification o

f Plaintiff’s expe

rt, Dr. Armstrong ; and (3) Whether the trial court er

red in granti ng Jack son-Madison County General Hospital’s Motion for a Protective Order barring discovery of documents from the Institutional Review Board.

A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fac t and that the moving

party is ent

itled to a judgmen

t as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of-4-

demonstrating that no genuine issue of material fact exists. See Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a

motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasona ble infer ences in

favor of that part y, and disca

rd all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving party that there is no ge nui ne issu e of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this rega rd, Rule 56.05 [now Ru

le 56.06] provides that the nonmov ing part y cannot simp ly rely upon his pleadings but must set forth specific facts s howing that ther

e is a genuine issue of

material fact f

or trial.

Id. at 211 (citations omitted) (emphasis in original).
Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably

permit only one conclusion. See Car vell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's g

rant of summary

judgment. See Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant o

f summary jud

gment is de novo on the record before this Court. See Warren v. Estate of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).

Plaint iff’s firs t issue is whether t he trial court er

red in granting

summary judg

ment for all claims occurring prior to April 22, 1995. Dr. Roberts’s suit was filed April 22, 1996, and his claims affected by the trial court’s ruling include his action against Drs. Bickne ll and A ppleton based on lack of informed consent and negligence in rendering medical servic es. Both of thes e causes o f action are subject to the one-year statute of limitations in T.C.A. § 29-26-116 (2000), which states in pertinent part:

(a)(1) The statute

of limitations in malpractice actions shall be one (1) year as set forth in § 28-3-104.
(2) In the event the alleged injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the dat e of s uch dis cov ery.

Under T.C.A. § 29-26-116 (a)(2), the statute of limitations commences to run when the patient “discovered, or reasonably should have discovered (1) the occasion, the manner, and the means by which a breach of duty

occurred that p roduced injuries and (2) the identity of the defendant who breached the duty.” Foster v. Harris , 633 S.W.2d 304, 305 (Tenn. 1982); see Stanbury v. Bacardi , 953 S.W.2d 671, 677 (Tenn. 1997). In Shadrick v. Coker , 963 S.W.2d 726 (Tenn. 1998), the Court said:-5- The plaintiff may not, however,delay filing suit until all the injurious effects and con

sequences of the

alleged wrong

are actually known to the plaintiff. Wyatt v. A-Best Company , 910 S.W.2d 851, 855 (Ten n. 1995) . Similarly, the statute of limitations is not tolled until the plaintiff actually knowsthe “specific type of legal claim he
or she has,” Stanbury , at 672, or that “th e inj ury co

nstitute[d ] a breach of the appropriate legal standard,” Roe v. Jefferson , 875 S. W.2d 653, 657 (Tenn. 1994). Rather, as we have recentl y emphasized, the statute of limitations begins to run whenthe plaintiff knows or in the exerc ise of reasonabl e care and dilig

ence should know that an injury

has been sustained as a result of wrongful or tortious conduct by the defendant. Stanbur y , at 677; see also Roe , 875 S.W.2d at 657 (“[T]he plaintiff is deemed to have discovered the rightof ac tion if he is aware of facts sufficient to put a reasonabl e person on notice that he has suffered an injury as a result of wrong ful conduct.”). “It is knowledge of facts suff icient to put a plaintiff on notice that

an injury has been sustained which is crucial.” Stanbury , at 678. Such knowledge includes not onl y an aw aren ess of t he i nju ry, butalso the tortious origin or wrongful nature o f th at i nju ry. Hathaway v. Middle Tennessee Anesthesiology , P.C. , 724 S.W.2d 355, 359 (Tenn. App. 1986).

Id. at 733-34.

Plaintiff asserts that the statute of lim itations should only

begin to run whe

n Dr. Roberts became aware o f the tor tious origin of his injuries and notes Defendants’ answer, in which Def endants admit that “Dr. Roberts was not informed that the fistula could be result of medica l negligence

. . . .” The record

establishes that by

January 9, 19

95, Dr. Roberts

not only notic

ed air coming out of his penis, but he noticed feces in his urine, was passing urine through his rectum, and
was experiencing severe pain in his leg. He admits he knew something was wrong, and he knew that he had not bee n informed prior to the surgery that such conditions could or might occur. D r

. Roberts, an ophthalmologist by training, testified b y deposition t

hat he knew that a

fistula was a “abnormal communication between two internal organs,” although he noted that in his practice he did not deal with tha

t particular ty

pe of fistula. Dr.

Roberts also testif

ied that:

I know a little bit abo

ut the basic princ

iples of medicine; a

nd when you have urine coming out of the rectum and

feces coming out of the penis, you have to have a hole of some kind there.

Cle arl y, Dr. Roberts knew for a year before his suit was filed that when he gave his consent for the
sur gery, he had not been informed of anything approaching the complications that he encountered. By the same token, he was aware that there was an unusual and unexpected condition and, at the very least, was put on inquiry that some wrongful conduct had caused this condition.-6-

Plaintiff argues that the statute of limitations should notbegin to run until t he Defendants’ doct or -patient

relationship with D

r. Roberts termina

ted, because De

fendants continuo

usly represented

to Dr. Roberts that the fistula would heal by itself. Because of these continuing representations and assurances , Plaintiff assert s that Dr . Roberts could not have known of the tortious origin of

his injuri es until af ter the co urt-impos ed date of discover y of Ap ril 22, 199

5. We disagree.
First, this theory c

annot apply

to Dr. Robert’s la

ck of informed consent claim. A lack of informedconsent claim, by its very nature, ar ises when anindividual becomes aware of the fact that his physicians did not

disclose some risk or complication. See Church v. Perales , No. M19997- 00227-COA-RS-CV, 2000 W L 11830 74, at *6 (Te nn. Ct . App. 2000) . In this case, when Dr. Roberts disc overed th at he had a “hole of some kind,” he had knowledge of a sy mptom or complication of which his physicians faile d to adequately warn him. Therefore, continued
assurances that the unexpected complication would “heal itself” are irrelevant to a determination of the dat e of d isc ove ry.

Sec ond ly, we note that the Tenne ssee Supreme Court has expres sly abrogated the “continuing medical treatment doctrine.” See Stanbury v. Bacardi , 953 S.W.2d 671, 676 (Tenn. 1997). The continuing medical treatment doctrine was a presumption that a patient could not discover an injury while me di cal treatment continued. See id. The Stanbury court clearly stated the rule a

pplicable to cases involving

continuing medica l treatment and assurances, “If there is actual proof that the patient knows or reasonably should know o

f the in jury or harm before termination of medical treatment , the statute

of limitations is not tolled.” Id. We believe such proof exists in this case, and that there is no genu

ine dispute of the f

acts which estab

lish the applicable

discovery d

ate. For these reasons, we affirm the trial court’s grant of partial summary judgment

to Defendants Bicknell and Appleton.

The second issue for reviewis whether the trial court erred in granting summary judg ment to Drs. Bicknell, Appleton, and Harmon on the remaining claims. T.C.A. § 29-26-115 provide s in pertinent part:
(a) In a malpracticeaction, the claimant shall have the burden of proving by evidence as provided by subsection (b): (1) The recognized standard of acceptable professional practicein the profession and the specialty thereof, if any , that the defendant practices in the community in which the claimant practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) That the defen dant acte d with less than or failed to act withordinary a

nd reasonable c

are in accordance w

ith such standard; and-7- (3) As a prox imate re sult of the defendant's negligent act or
om i ssion, the plaintiff suff ered injuries whi

ch would not otherw

ise 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 pro fession or specialty which would make the person's expert testimony relevant to the issues in the case andhad practiced this profession or specialty in one (1) of these states during the year pr

eceding the da

te that the alleged injury

or wrongful act occurred.

Both Dr. Bicknell and

Dr. Appleton fil

ed a ffidavits and testified by depositions that they complied with the recogn ized standard of a

cceptable professional practice

as urologists in Jackson, Tennessee. In addition, they presented similar proof from another physician. Plaintiff did not put
on any expert proof concerning the standard of car e required of

Drs. Bicknell and Appleton or that they deviated from

any standard of car

e which caused in

jury to Dr. Ro

berts. The trial c

ourt correctly granted summary judgment on the remaining claims ag ainst Drs. Bicknell and Appleton.

Plaintiff’s cause

of action again

st Dr. Harmon, as s

et out in his complain

t, is as follows:

Plaintiffs allege that Harmon was negligent and de viated from the applicable standard of care in his care and treatment of Dr. R obert s both in general and for the follow

ing specific re

asons, including, but not limited to:

A. In failing timely and appropriately to diag nose and trea

t th e urethrorectal fistula;

B. In failing to

refer Dr. Rober

ts to a physician competent to repair the urethrorectal fistula;

C. In concurri

ng with or r ecommending to Bicknell and Appleton that the colostomy be reversed when Harmon knew or should have known the urethrotectal fistula had not healed;

D. In reversing the colostomy when the urethrorectal fistula was not healed to a sufficient degree

to prevent

the subsequent complications experienced by

Dr. Roberts;

E. In faili

n g generally to treat Dr. Roberts in accor dance with the applicable standard of care.-8-

The only expert witness offered by Plaintiff to prove the standard of care for surgeons in the Jackson community and Dr. Harmon’s deviation therefrom was Dr. David Armstrong . The trial court determined that he was incompetent to testify, because he had no knowledge of the standard of care in Jackson or a similar community. Plaintiff has raised no specific issue concerning the trial court’s ruling but has pre sented some argument disputing the ruling. As noted above, under Tennessee law, proof of failure of a physician to adhere to an acceptable standard of care in treating
a patient must be by ex pert med ica l te sti mon y. In the case at bar, the trial court found that Plaintiff’s expert, Dr. David Armstrong, was not a qualified expert under the “locality rule,” codified at T.C.A. § 29-26-115. We agree with the trial court that Dr. Armstrong, Plaintiff’s only expert witness who has expertise

in the area of tre

atment of urethro

rectal fistula, d

oes not conform to t

he requirements of T.C.A. § 29-26-115(a)(1).

The plaintiff in a

medical malpractice action carries the burden of proof as to the statutory requirement

that medical experts practice in a community

similar to the one in

which the claim arose. See Mabon v. Jackson-M adison Coun ty General Hosp. , 968 S.W.2d 826, 828 (Tenn. Ct. App. 1997). Although this Court has “admonished lawyers to couch their medical experts’ conclusions in the language

of” the statute, w

e realize th

at “a mere ritu

alistic in cantatio n of statut

ory buz z evidences very little.” Church , 2000 WL 1183074 at *13. Rather, we must look at the expert’s opinion to determine if it is based upon “trustworthy facts or data sufficient to providesome basis for the opinion.” Id. We must, therefore, examine the record for evidence that Dr. Armstrong was qualifiedto testify as to the recognized standard of accep table professional practice required of a surgeon practicing in Jackson, Tennessee, or a similar community, in 1995.

Before examining the record, we note that the trial court is vested with broad discretion to determine the “admissibility, qualifications, relevancy and competency of expert testimony.” McDaniel

v. CSX Transp., Inc. , 955 S.W.2d 257, 263 (Tenn. 1997). See Shelby County v. Barden , 527 S.W.2d 124, 131 (Tenn. 1975) ; Mabon , 968 S.W.2d at 829. The tr ial court’s rulings in this regard will be upheld except upon a showing of an abuse of this discretion. See McDan iel , 95 5 S.W.2d

. at 263-64. Althou gh it is undi sputed that Dr. Armstrong’s affidavit recites the statutory buzz-words, “I am familiar with the standard of care in Jackson, Madison County, Tennessee. . . ,” at deposition, Dr. Armstrong quite candidl y admitted to knowing nothing about the practice of medicine in Jackson, Tennessee and the applica ble s tandard of care for that locality. Dr. Armstrong’s deposition includes the following exchange:

Q (Defense counsel): And [sic] what fields of m edic ine do y o u consider yo

urself an expert? A (Dr. Armstrong): Col orec tal sur gery. Q: Have you ever been to Jackson, Tennessee? A: No, sir. Q: Do you know where it’s located? A: No, sir. Q: Do you know the size of Jackson? A: No, sir.-9- Q: Do you know how many hospitals there were in Jackson in 1995? A: How many hos

pitals? Q: Yes. A: No. Q: Do you know anyone that lives in Jackson, Tennessee? A: No. Q: Do you know of anyone who has ever practice d surgery in Jackson, Tennessee? A: No. Q. Are you familiar

with the skills of any

surgeons in

Jackson, Tennessee? A. No, sir. Q: Have you ever treated a patient from Jackson, Tennessee? A: I don’t believe so. Q: How many colleges or universities were in Jackson in 1995? A: I don’t know, sir. Q: Were there any medical schools in Jackson in 1995? A. I don’t know. I’ve never been there

. Q. Were there any teaching hospitals in Jackson in 1995? A: I don’t know th

at. Q: How ma n y medical specialties were represented in Jackson, Tennessee in June of 1995? A: I don’t know.
Although we agree with Plaintiff’s counsel that this Court is in “as good a position as the trial court

. . . to determine this

issue because the

trial court consid

ered only D

r. Armstrong’s affidavit an d deposition,” we cannot say that the trial court abused its discretion in ruling Dr. Arm st rong’s testimonyinadmissible. The l aw on expert witnes ses, as it exists in Tennessee, requires the expert to have some

knowledge of the practice of medicine in the c ommunity at iss ue or a similar
com mun ity. We believe that it is reasonable to base such knowledg e , among other things, upon information such as th

e size of the community

, the existence or n

on-existence of te

aching hospitals in th e com mun ity and the location of the community . Without such informa tion, it is difficult t

o compare communities for the purpose of satisfying the locality rule.

In their brie

f, Plaintiff arg

ues that:

Dr. Armstrong’s knowledge of the legal differences between a local standardof care versus a nat ional s tandard of care are unimportant andirrelevant and do not affect the validity of

his opinion with regard to whether Dr. Har

mon rendered pr

oper medical tr

ea tment to Dr. Roberts.-10-

Plaintiff is, essentially

, arguing that

the locality

rule be abandone

d in favor of a nationalstandard for medical care. However, this Court has settled this argument in a case in which we rejected an expert witness who premised his opinion on a national standard of care. See Mabon , 968 S.W.2d at 830. In that case, the expert witness’s depositiontestimony was nearly identical to that of Dr. Armstro ng, reproduced above. See id. at 830-31.

Plaintiff’s brief argues t

hat a factual dis

pute is created by

the testimony of Dr. Joseph Smith,
one of Dr. Roberts’s treating physicians, and also the testimony of one of the Defe ndan ts’ expert witnesses, Dr. Guy Voeller. However, from the record it appears that Dr. Smith was not revealed by the Plaintiff as an

expert witness against Dr. Harmon, and Dr. Smith’s testimony shows that he didnot know the recognized standard of acceptable professional practice for surgeons, such as Dr. Harmon, in the Jackson area. As to Dr. Voeller, he determined from t he documented record that there woul d be no deviation from the standard of care on Dr. Harmon’s part. Moreover, Dr. Voeller’s deposition was taken pursuant to Tenn.R.Civ.P. 26.02 (4). Thus, his deposition may not be used at trial, exce

pt for imp eachment purp oses. See Tenn.R.Civ.P. 32.01 (1). The evidence supporting or opposing summa ry judgmen

t must be such fact

s as would be admiss

iblein evidence. See Tenn.R.Civ.P. 56.06.

Under the record in this

case as to the ca

use of action ag

ainst Dr. Harmon,

there isno genuine issue as to any material

fact, and Defendant, Dr. Harmon, was cor rectly gr anted summary

judgment.

S ince the Defendant, The Jackson Clinic, was sued only on the theory of respondeat superior , the trial court correctly granted summary judgment to The Jackson Clinic.

The third issue concerns the court’s protective order regarding certain records of the Jackson Madison County Gener

al Hos pital. The information sought from the hospital concerned the cryoablation

pr ocedure performed by Drs. Bicknell and Appleton on Dr . Roberts. Summary judgment was granted on

this cause of act

ion because it wa

s barred by

the statute of limita

tions. Therefore, the records soug ht under th

is issue ha ve no relevance to the case and, therefore, we pretermit this issue.

In summary, the

order of the tria

l court granting

summary judg

ment to Defendan

ts is affirmed. The case is r ema nde d to the tri al c our t fo r su ch fu rth er pr ocee din gs as may b e nec ess ary. Cos ts o f th e app eal are a sse sse d aga ins t th e app ell ant , Ro sem ary R obe rts , an d he r su ret y.

__________________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S

.