TOM AND KAREN MOORE ) ) Appeal No. Plaintiffs/Appellants, ) 01A01-9507-CV-00295 ) v. ) Davidson County Circuit ) Court No.94C-1356 LLOYD A. WALWYN, M.D., ) ) Defendant/Appellee. ) FILED Jan. 19, 1995
Cecil Crowson, Jr. Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE SIXTH CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE THOMAS W. BROTHERS, JUDGE
SHELLEY I. STILES 5214 Maryland Way, Suite 210 Brentwood, Tennessee 37027
CHRISTOPHER K. THOMPSON 117 East Main Street Post Office Box 916 Murfreesboro, Tennessee 37133-0916 ATTORNEYS FOR PLAINTIFFS/APPELLANTS
ROSE P. CANTRELL GARRETT E. ASHER Parker, Lawrence, Cantrell & Dean 200 Fourth Avenue North Fifth Floor Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE OPINION This is an appeal by plaintiffs/appellants, Tom and Karen
Moore, from the trial court's orders granting summary judgment in
favor of defendant/appellee, Dr. Lloyd A. Walwyn, and denying
appellants' motion to reconsider the grant of summary judgment
The procedural history and pertinent facts are as follows.
On 1 May 1993, Mr. Moore fell from the roof of a house. He went
to the emergency room at Tennessee Christian Medical Center
("TCMC"). Appellee examined Mr. Moore and diagnosed him as
having a fractured left wrist and a fractured left distal tibia
and fibula. Appellee treated Mr. Moore's injuries and performed
operations on his wrist and leg. Following Mr. Moore's discharge
from the hospital, appellee followed Mr. Moore's progress through
scheduled office visits.
On 16 June 1993, Mr. Moore went to appellee's office for one
such visit. During the visit, appellee decided that he needed to
remove the external fixator on Mr. Moore's left leg and apply a
long leg cast. Appellee was to perform the procedure on 29 June
1993 at TCMC, but Mr. Moore did not show up for the appointment
and has not been to appellee's office since the June 16 visit.
Later, Mr. Moore developed an infection. As a result, doctors,
other that appellee, performed nine operations.
Appellants filed their complaint on 2 May 1994 alleging that
appellee negligently failed to prescribe antibiotics.1 This
failure, they argued, caused injuries to Mr. Moore which required
the nine additional surgical procedures. In response, appellee
1 Appellants also claimed that TCMC was negligent. The trial court granted TCMC's motion for summary judgment. Initially, appellants' notice of appeal included TCMC, but the trial court entered an order of voluntary dismissal as to TCMC on 20 June 1995.
2 filed an answer and a counterclaim which he later voluntarily
dismissed.
On 19 October 1994, appellee filed a motion for summary
judgment. In support of the motion, appellee filed his own
affidavit. Appellants filed their response opposing the motion
and attached a document prepared by Dr. Bruce Schlafly of St.
Louis, Missouri. Appellants referred to this document as a
counter-affidavit. The document included a letter with a
curriculum vitae ("the letter") and a report on Mr. Moore ("the
report"). On 11 January 1995, the trial court granted the motion
for summary judgment. In his order, the trial judge stated as
follows:
Specifically, the Court finds that there is no genuine issue as to a material fact concerning whether the defendants deviated from the recognized standard of acceptable professional practice in the care and treatment of the plaintiffs. The Court additionally finds that there is no genuine issue as to a material fact on the issue of causation.
On 7 February 1995, appellants filed a motion to reconsider and a
second affidavit from Dr. Bruce Schlafly. On 14 March 1995, the
trial judge entered an order denying the motion.
Appellants filed their first notice of appeal on 13 April
1995 informing the court that they were appealing the March
order. Six days later, the trial court entered final judgment,
and appellants filed a second notice of appeal in regard to this
order.
Appellants presented this court with the following issue:
"Whether the circuit court erred in granting Walwyn's motion for
summary judgment and in denying Moore's motion to reconsider by
concluding that there was no genuine issue of material fact for
trial when a genuine issue of an outcome determinative fact was
raised by counter-affidavits of Bruce Schlafly, M.D., an
3 orthopaedic surgeon." We are of the opinion that the trial court
did not err.
I. Motion for Summary Judgment
The courts of Tennessee have explained the law of summary
judgment in great detail. Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993). Upon the filing of a motion, the moving party has the
burden of proving that there are no genuine issues of material
fact. Id. at 215. The moving party may make such a showing in
several ways, but may not rely solely on a conclusory statement
that the nonmoving party has no evidence. Id. at 215 & n.5.
Once the moving party has provided the court with a properly
supported motion, the burden shifts to the nonmoving party to
show the existence of a genuine issue of material fact or the
need for further discovery. Id. at 215 & n. 6. In satisfying
its burden, the nonmoving party may not simply rely on the
allegations and denials in the pleadings. Instead, the party
must produce evidence that establishes the existence of a
material dispute. Such evidence must be in the form of an
affidavit or in the form of any of the other discovery materials
listed in Tennessee Rule of Civil Procedure 56.03. Id. at 215.
Further, the facts relied on by the nonmoving party must be
admissible at trial, but need not be in an admissible form. Id.
In passing upon a motion for summary judgment, the trial
judge must "view the evidence in a light favorable to the
nonmoving party and allow all reasonable inferences in his
favor." Id. If the trial judge decides that there are no
genuine issues of material fact and that the law entitles the
moving party to a judgment, he must grant the motion. Id. at
214. More specifically, medical malpractice claims require
4 expert testimony as to the issues of negligence and proximate
cause "unless the act of alleged malpractice lies within the
common knowledge of a layman." Bowman v. Henard, 547 S.W.2d 527,
530-31 (Tenn. 1977). Accordingly, "in those malpractice actions
wherein expert medical testimony is required to establish
negligence and proximate cause, affidavits by medical doctors
which clearly and completely refute plaintiff's contention afford
a proper basis for dismissal of the action on summary judgment,
in the absence of proper responsive proof by affidavit or
otherwise." Id. at 531.
Given the above, it is plain to see that affidavits are very
important tools in any summary judgment proceeding, particularly
when the underlying claim is medical malpractice. Affidavits,
however, are not simple statements from a witness or expert. To
the contrary, an affidavit is "[a] written or printed declaration
or statement of facts, made voluntarily, and confirmed by the
oath or affirmation of the party making it, taken before a person
having authority to administer such oath or affirmation."
Black's Law Dictionary 58 (6th ed. 1990); see also Grove v.
Campbell, 17 Tenn. 8 (1836). In addition, for the purposes of
summary judgment, an affidavit "shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein." Tenn. R.
Civ. P. 56.05 (1995). In medical malpractice cases, a witness is
not competent to testify as to the elements of a medical
malpractice claim unless the witness is "licensed to practice in
the state or a contiguous bordering state a profession or
specialty which would make his expert testimony relevant to the
issues in the case and had practiced this profession or specialty
in one of these states during the year preceding the date that
5 the alleged injury or wrongful act occurred." Tenn. Code Ann.
§29-26-115(b) (1980); see also Payne v. Caldwell, 796 S.W.2d 142,
143 (Tenn. 1990) (holding that the competency requirement of §29-
26-115(b) applies to all of the elements listed in §29-26-
115(a)). The failure of a document to meet any one of these
requirements renders it useless as an affidavit for summary
judgment. See Fowler v. Happy Goodman Family, 575 S.W.2d 496,
498-99 (Tenn. 1978) (holding that an affidavit, which failed to
meet the requirements of Tennessee Rule of Civil Procedure 56.05,
was insufficient); State Dep't of Human Servs. v. Neilson, 771
S.W.2d 128, 130 (Tenn. App. 1989) (finding that an affidavit on
information and belief is not based on personal knowledge and is
insufficient unless specifically provided for by statute);
Moncrief v. Fuqua, 610 S.W.2d 720, 724-26 (Tenn. App. 1979)
(holding that affidavits were insufficient where affiants were
not competent to testify in medical malpractice case).
Appellee filed his motion for summary judgment claiming that
there were no genuine issues of material fact. In support of his
motion, appellee filed his own affidavit which he signed and had
notarized. Appellee testified as follows:
I am, and was at all times pertinent to this lawsuit, familiar with the standard of acceptable professional practice in my specialty in this community. I have personal knowledge of the facts contained in this affidavit.
. . . .
7. By experience and training, I am familiar with the recognized standard of professional practice in orthopaedic surgery in Nashville, Tennessee and similar communities. In everything I did in Mr. Moore's case, I acted with ordinary and reasonable care in accordance with such standard. Furthermore, no deviation from the applicable standard of care was the cause of any damage or condition of which Mr. Moore may complain or suffer in this case.
This testimony and the other testimony found in the affidavit
supported appellee's motion and shifted the burden to appellants
6 to prove the existence of a genuine issue of material fact.
In response, appellants filed the letter and the report
mentioned previously. Neither of these documents, however,
created a genuine issue of material fact. In addition, the trial
court should not have even considered these documents because the
testimony contained in them was not admissible and the documents
were neither affidavits nor any of the other types of discovery
materials listed in Tennessee Rule of Civil Procedure 56.03.
To explain, the testimony contained in the letter and the
report was inadmissible as evidence to establish the elements of
the medical malpractice claim because it failed to establish that
Dr. Schlafly met the competency requirements of Tennessee Code
Annotated section 29-26-115(b). See Tenn. R. Evid. 601 (1995).
Although specifically required by that section, the documents did
not prove that Dr. Schlafly's profession or specialty "would make
his expert testimony relevant to the issues in the case" or that
Dr. Schlafly practiced his specialty in Tennessee or a contiguous
state "during the year preceding the date that the alleged injury
or wrongful act occurred." Tenn. Code Ann. §29-26-115(b)
(1980). For these same reasons, the letter and the report failed
to meet the requirements of Tennessee Rule of Civil Procedure
56.05 and were not proper opposing affidavits.
In addition, the letter was not an affidavit because a
notary did not properly authenticate Dr. Schlafly's signature.
The report is the only document properly sworn to by Dr.
Schlafly. This attestation, however, does not apply to the
letter because the notary witnessed the signing of the report on
14 December 1994 and Dr. Schlafly dated the letter 15 December
1994.
7 Despite these apparent flaws in the report, appellees argued
that it was sufficient to withstand the motion. Even if we found
that the report was proper evidence for use on summary judgment,
we would still have to uphold the decision of the trial court
because the report failed to establish a genuine issue of
material fact as to deviation from the acceptable standard of
care and causation.
To prove medical malpractice, a plaintiff must establish
that the defendant's actions fell below the standard of
acceptable professional practice in the defendant's profession or
speciality and in the defendant's community or in a similar
community. Tenn. Code Ann. §29-26-115(a)(1),(2) (1980).
Further, in this case, appellants needed expert testimony to
establish this element because the malpractice was not in the
common knowledge of laymen. Appellants, however, failed to
satisfy their burden.
To explain, in the report Dr. Schlafly stated as follows:
However with a closed fracture, the standard recommendation is to start antibiotics intravenously in the operating room immediately prior to the start of the operation. . . .
In my opinion, intravenous antibiotics should have been given at the time of the operation of 5/2/93, as well as the operation of 5/5/93. . . . In my opinion, it fell below the standard of care for a surgeon to do these operations without standard antibiotic prophylaxis.
This statement does not describe the standard in Nashville or
explain that it is the standard in a similar community.
Moreover, the statement does not even describe a "standard of
acceptable professional practice." Tenn. Code Ann. § 29-26-
115(a)(1) (1980). For example, Dr. Schlafly used the term
"recommendation." This term suggests that a doctor has a choice
as to whether to use prophylactic antibiotics. It does not
suggest a standard that a doctor must follow.
8 At the end of the report, Dr. Schlafly described several
articles that advocated the use of prophylactic antibiotics.
Unfortunately, Dr. Schlafly's synopsis of these articles failed
to establish a standard for the court to apply in this case. The
first article, published in 1974, described a study which found
that the use of prophylactic antibiotics reduced the threat of
postoperative infection from 5% to 2.8%. The second article
reported that many orthopaedic surgeons used prophylactic
antibiotics, and the third article described the recommended
prophylactic regimen. The articles, however, do not describe the
standard in Nashville or a similar community. Further, they do
not clearly set forth a particular standard, but instead, seem to
describe one alternative.
A second element necessary to a medical malpractice claim is
causation. Tenn. Code Ann. §29-26-115(a)(3) (1980). There are
two forms of causation required to sustain a medical malpractice
action. These are cause in fact and proximate cause. Kilpatrick
v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). Cause in fact
"means that the injury or harm would not have occurred 'but for'
the defendant's negligent conduct." Id. at 598. To establish
such, the plaintiff must show within a reasonable degree of
medical certainty that the injury was a probability. Id. at
602. In this case, the report failed to provide the expert
testimony needed to contradict appellee's affidavit because it
failed to establish within a reasonable degree of medical
certainty that the failure to use the antibiotics probably caused
Mr. Moore's injuries.
In the report, Dr. Schlafly stated as follows:
It is entirely possible that Mr. Moore developed his bone infection because the fracture was seeded with bacteria at the time of surgery, bacteria which prophylactic antibiotics could have eradicated. . . .
9 . . . .
Of course, infections can have many different causes, but I believe that the omission of intravenous antibiotics (except for the single dose), during the May hospitalization at Tennessee Christian Medical Center, was probably a contributory factor in the later development of Mr. Moore's bone infection, as best as I can determine from the medical records available to me.
Arguably, this statement satisfied the probability requirement of
cause in fact. Nevertheless, it failed to state that the
conclusion was with a reasonable degree of medical certainty.
Dr. Schlafly's statement that the conclusion was "as best as [he
could] determine from the medical records available to [him]"
failed to provide the court with the degree of certainty required
by the case law. This is further supported by the fact that Dr.
Schlafly did not have all of the medical records available to
him. In the report, he admits that he did not review the actual
x-rays or the "records listing the drugs used in the operating
room or the recovery room." From Mr. Moore's bill, Dr. Schlafly
discovered that someone gave Mr. Moore an antibiotic injection on
2 May 1993, but he did not have the records detailing the actual
time of the injection. Note that one of the operations performed
by appellee occurred on this date. The importance of this lack
of information is without question. Dr. Schlafly's conclusion is
that the failure of appellee to administer prophylactic
antibiotics caused the infection which led to Mr. Moore's
subsequent operations; yet, he makes this conclusion without
having reviewed all of the records describing which medications
appellee administered to Mr. Moore.
In summary, the report and the letter failed to provide the
proof necessary to overcome appellee's motion for summary
judgment. Most important, the documents were not affidavits nor
were they any of the other types of discovery materials mentioned
in Tennessee Rule of Civil Procedure 56.03. Further, the
10 testimony contained in both documents was inadmissible because it
did not establish that Dr. Schlafly was competent under Tennessee
Code Annotated section 29-26-115(b). Thus, the appellants could
not use his testimony to establish the existence of genuine issue
of material fact. In addition, the record, considered as an
affidavit, failed to establish a material dispute as to deviation
from the standard of care and causation. Therefore, the trial
court did not err in granting appellee's motion for summary
judgment.
II. Motion to Reconsider
Appellant's next issue is whether the trial court properly
denied their motion to reconsider. In his order denying the
motion, the judge stated as follows:
The Court finds that the Plaintiffs have submitted and rely upon the affidavit of Bruce Schlafly, M.D., in support of their Motion to Reconsider. The Court finds that the Plaintiffs relied upon affidavit testimony from this same witness in opposition to the Defendants' Motions for Summary Judgment. The Court further finds, that, in this proceeding, the Plaintiffs have not made a sufficient showing as to why the affidavit testimony of Dr. Schlafly in support of the Motion to Reconsider could not have been submitted earlier in response to the Defendants' Motions for Summary Judgment and why the testimony of the same witness should be considered again in this proceeding. Therefore, the Court specifically finds that the affidavit testimony of Dr. Schlafly relied upon to support the Motion to Reconsider is not entitled to consideration.
We are of the opinion that the trial court was correct. The
Tennessee Rules of Civil Procedure do not provide for a "motion
to reconsider." Nevertheless, this court reviews such motions in
light of their substance, not their form. Bemis Co. v. Hines,
585 S.W.2d 574,576 (Tenn. 1979). In this case, we will treat the
motion, which cites to Tennessee Rule of Civil Procedure 59.04,
as a motion to alter or amend.
Appellants argued that the trial court erred when it failed
11 to consider the second affidavit of Dr. Schlafly. In their
brief, appellants cited Schaefer v. Larsen, 688 S.W.2d 430 (Tenn.
App. 1984), and quoted the following passage:
We are of the opinion that when a summary judgement has been granted because the case at that point presents no facts upon which a plaintiff can recover, but prior to that judgment becoming final, the plaintiff is able to produce by motion facts which are material and are in dispute, the motion to alter or amend the judgment should be looked upon with favor. . . .
Schaefer v. Larsen, 688 S.W.2d 430, 433 (Tenn. App. 1984). This
case, however, fails to support appellants' argument. To begin
with, the court did not even address the issue presented in this
case because, unlike the present trial judge, the judge in
Schaefer considered the late filed affidavit in making his
decision. Further, the Schaefer court held that the trial court
should look upon the motion with "favor," not that it must grant
the motion.
Appellants also cited Richland City Country Club v. CRC
Equities, Inc., 832 S.W.2d 554 (Tenn. App. 1991), in support of
their argument. As with Schaefer, this case does not support
appellants' argument. The Richland City court found as follows:
"Considering the fact that the affidavits were filed after the
hearing on the original motion, we are of the opinion that this
alone should not have precluded their consideration." Richland
City Country Club v. CRC Equities, Inc., 832 S.W.2d 554, 557-58
(Tenn. App. 1991). The court then quoted the portion of the
Schaefer opinion quoted above. Analyzing these statements
together, it is clear that a trial court may decide to not
consider an affidavit, filed after the court has granted a motion
for summary judgment, as long as the reason for the decision is
more than the fact that the party filed the affidavit late.
A second opinion written after Schaefer helps to clarify
12 this issue. Braswell v. Carothers, 863 S.W.2d 722, 730 (Tenn.
App. 1993). In Braswell, the trial court granted summary
judgment to the Carothers and to Sleadd. The plaintiffs filed a
motion to rehear and to reconsider the judgment in favor of the
Carothers and a motion to vacate Sleadd's judgment. The trial
court denied the motions, and the plaintiffs appealed. Id. at
724-25. The court of appeals addressed the trial courts'
disposition of the motions separately. As to Sleadd, the court
found that the new evidence offered by the plaintiffs "was , or
should have been, available to counsel prior to the hearing on
the motion and [could not] truly be considered 'newly
discovered.'" Id. at 730. The court then concluded that the
trial judge did not err in failing to vacate the summary judgment
in favor of Sleadd. Id. Thus, a court may uphold its summary
judgment decision if the moving party's evidence is not "newly
discovered."2
In support of their motion, the appellants relied on the
letter, the report, and the affidavit. As previously discussed,
the letter and the report were in an improper form, and the
testimony was inadmissible. The affidavit attached to appellants'
motion to reconsider was not new evidence. The only difference
between the report and the letter and the affidavit was that the
affidavit contained all of the appropriate "buzz" words found in
the statutes and rules. Dr. Schlafly did not state that he
received other records or more information regarding the case
2 Appellants argued that the Braswell decision supports their case because the appellate court not only considered whether the evidence was newly discovered, but also whether it produced material facts. This is a correct statement of the court's reasoning. The problem is that this reasoning only applied to the Carothers. In a separate paragraph, the court addressed the issue as to Sleadd and did not consider whether the evidence was material. In an earlier case, the Western Section concluded that the trial court was correct in denying a motion to reconsider where the evidence was in the possession of the nonmoving party prior to the hearing on the motion for summary judgment. Jay Wiley's Imports, Inc. v. Triangle Imports, Inc., 1987 WL 12838, at *2-*3 (Tenn. App. 12 May 1987). In the course of their opinion, the court specifically distinguished Schaefer on the basis of new versus old evidence. Id. at *3.
13 which was not available to him before. Also, there were no
affidavits from appellants' attorneys suggesting that they could
not have obtained this information earlier. The second affidavit
was nothing more than the first affidavit dressed up. Clearly,
the trial judge did not abuse his discretion in deciding not to
consider the affidavit nor did he err in sustaining the motion
for summary judgment.
Therefore, it follows that the judgment of the trial court
is in all things affirmed and the case is remanded to the trial
court for any further necessary proceedings. Costs on appeal are
taxed to the plaintiffs/appellants.
______________________________ SAMUEL L. LEWIS, JUDGE
Concur:
______________________________ HENRY F. TODD, P.J., M.S.
DISSENTING OPINION WILLIAM C. KOCH, JR., J.