Bowman v. Henard

Decision Date31 January 1977
Citation547 S.W.2d 527
PartiesMary BOWMAN, etc., Petitioner, v. Hal HENARD, M.D., et al., Respondents. 547 S.W.2d 527
CourtTennessee Supreme Court

Robert J. Shockey, Frank P. Pinchak, Shockey, Boehm & Pinchak, Chattanooga, for petitioner.

John A. Armstrong, Greeneville, for Dr. Henard.

J. Paul Coleman, Herndon, Coleman, Brading & McKee, Johnson City, for Dr. Reviere.

OPINION

HENRY, Justice.

We granted certiorari in this malpractice action in order to clarify the practice and procedure in the use of motions for summary judgment under Rule 56, Tenn.R.Civ.P. in medical malpractice actions. More specifically, we address the issue of the propriety of dismissing a medical malpractice action on the basis of opinion evidence as contained in affidavits of medical doctors. 1 This is a question of first impression in this jurisdiction.

The trial judge sustained motions for summary judgment and his action was affirmed by the Court of Appeals.

We affirm.

I.

Petitioner's suit charged the respondent physicians with (1) negligent, faulty and erroneous diagnosis, (2) negligent failure to interpret x-rays, tests and studies, (3) negligent failure to obtain proper diagnostic tests, and (4) failure to refer deceased husband to a specialist.

Respondent, Henard, moved the court for a summary judgment, supporting his motion by his affidavit and that of two fellow practitioners of medicine and surgery. In his affidavit, Dr. Henard detailed the specifics of his contact with decedent going back to 1947 and continuing through 1974 and concluded by stating that his diagnosis and treatment "were appropriate, medically advisable and in rendering same I exercised that degree of care and skill ordinarily exercised by other physicians in good standing under the same or similar circumstances in the community. . . ."

Dr. Nathan P. Horner, in his affidavit, asserted that he "carefully inspected and reviewed" the appropriate hospital records to include "x-rays and other interpretations by radiologists" and the office medical records maintained by Dr. Henard, from all of which he stated that the diagnosis and treatment "were appropriate, medically advisable and in rendering same the defendant Hal Henard, M.D. exercised that degree of care and skill ordinarily exercised by other physicians in good standing under the same or similar circumstances in the community. . . ."

Dr. Haskel B. McCollum's affidavit is virtually identical.

Respondent, Reviere, a radiologist, supported his motion for a summary judgment by the affidavits of three Board certified radiologists. Each was familiar with the prevailing standard of care in the community as it relates to radiology and had examined the x-rays and each had examined the interpretations made by Dr. Reviere's radiological group and each was of the opinion that these interpretations reflected the findings as shown on the films. Further, each was of the opinion that the interpretations in connection with the x-rays conformed to the standard of practice in the community.

The petitioner countered with the affidavit of one of her attorneys of record which reads in pertinent part as follows:

3. I have examined the hospital and other medical records that are relevant to this lawsuit, and based upon my experience in the specialty area of medical malpractice, it is my opinion that a case of negligence can be made out.

4. I have done substantial medical research and have learned that the diagnosis that the defendants made in this case was so wrong based upon the facts that were then appearing to the defendants that a jury will likely conclude the defendants were guilty of negligence.

It was on the basis of these pleadings and affidavits that the trial court held that there was no genuine issue of fact.

II.

Justice Harbison, speaking for this Court in Evco Corporation v. Ross, 528 S.W.2d 20 (Tenn.1975), properly pointed out that

(t)he summary judgment procedure was designed to provide a quick, inexpensive means of concluding cases, in whole or in part, upon issues as to which there is no dispute regarding the material facts. 528 S.W.2d at 24-25.

But as Justice Harbison further said in Evco "summary judgment proceedings are not in any sense to be viewed as a substitute for a trial of disputed factual issues." Rule 56, Tenn.R.Civ.P. provides a remedy in the nature of a pre-trial inquiry for the purpose of determining whether there is any genuine issue of fact, but, again, it was not designed to force a party to try his case on affidavits with no opportunity to cross-examine witnesses.

As a general rule summary judgments are not appropriate in negligence cases. See Wright & Miller, Federal Practice and Procedure: Civil Sec. 2729. We particularly consider them inappropriate, as a general rule, in malpractice actions against professionals, recognizing, as we must, the natural tendency of their colleagues to be good Samaritans and come to their rescue in a time of distress. We, of course, do not restrict this view to men of medicine.

Petitioner very forcefully urges upon us the proposition that these affidavits are expert and opinion evidence and, therefore, may not be used to support a motion for summary judgment. Specifically, she quotes Wright & Miller, Federal Practice and Procedure: Civil Sec. 2738 as follows:

Because opinion testimony always is subject to evaluation by the fact finder, it generally has been held not an appropriate basis for summary judgment. (Emphasis supplied). Wright & Miller, Civ. Sec. 2738 at 690-92.

Our research leads us to the conclusion that this is a correct statement of the general rule of law. However, the ensuing sentence, not quoted by petitioner, is of critical significance. It reads:

However, if the only issue is one of the kind on which expert testimony must be presented, and nothing is presented to challenge the affidavit of the expert, summary judgment may be proper. Wright & Miller, Civ. Sec. 2738 at 692-94.

We approve this as an exception to the general rule.

In 16 Am.Jur. Trials, p. 534, these matters are put in proper perspective thusly:

In negligence cases generally, lawyers usually decide against moving for summary judgment, unless a special defense bars the action, because the existence of negligence is a question of fact and lack of merit is difficult to establish by affidavit. In a malpractice case, however, the negligence of the defendant physician usually must be proved by expert testimony. If the defendant makes a showing, therefore, on a motion for summary judgment that the case...

To continue reading

Request your trial
118 cases
  • Shipley v. Williams
    • United States
    • Tennessee Supreme Court
    • August 11, 2011
    ...Physicians, P.C., 133 S.W.3d 587, 591, 596 (Tenn.2004); Moon v. St. Thomas Hosp., 983 S.W.2d 225, 229 (Tenn.1998); Bowman v. Henard, 547 S.W.2d 527, 529–30 (Tenn.1977). The Court of Appeals correctly observed in this case that Dr. Williams presented no proof to negate an element of Mrs. Shi......
  • Rye v. Women's Care Ctr. of Memphis, MPLLC
    • United States
    • Tennessee Supreme Court
    • October 26, 2015
    ...Federal Rules of Civil Procedure ("Federal Rule 56") then in effect. Tenn. R. Civ. P. 56.01 advisory commission cmt.; Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn. 1977). Tennessee Rule 56 was hailed as "one of the most important and desirable additions to Tennessee procedure contained in th......
  • Deuel v. The Surgical Clinic
    • United States
    • Tennessee Court of Appeals
    • August 16, 2010
    ...the expert affidavits filed by the Defendants and to survive the Defendants' summary judgment motion. The Plaintiff cites Bowman v. Henard, 547 S.W.2d 527 (Tenn. 1977), in support of her contention that affidavits of medical experts are not conclusive in common knowledge cases. The Plaintif......
  • Hannan v. Alltel Publishing Co.
    • United States
    • Tennessee Supreme Court
    • October 31, 2008
    ...provided a quick, inexpensive way to conclude cases when there exists no dispute regarding the material facts. Bowman v. Henard, 547 S.W.2d 527, 529 (Tenn.1977); EVCO Corp. v. Ross, 528 S.W.2d 20, 24-25 (Tenn.1975). We also noted that summary judgments were not substitutes for trials of dis......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT