Lewis ex rel. Lewis v. Brooks

• Decision Date: 29 August 2001
• Docket Number: No. W2000-02682-COA-R3-CV.,W2000-02682-COA-R3-CV.
• Citation: 66 S.W.3d 883
• Parties: Emanuel LEWIS, A Minor, by his Mother and Next Friend, Lonnie Davis LEWIS, and Lonnie Davis Lewis, Individually v. Dr. Todd BROOKS, Dr. Michael Washington, Methodist Hospitals of Memphis and Methodist Health Systems, Inc. v. Dr. Dwight Moore and Dr. J.K. Lawrence.
• Court: Tennessee Court of Appeals

66 S.W.3d 883

Emanuel LEWIS, A Minor, by his Mother and Next Friend, Lonnie Davis LEWIS, and Lonnie Davis Lewis, Individually v. Dr. Todd BROOKS, Dr. Michael Washington, Methodist Hospitals of Memphis and Methodist Health Systems, Inc. v. Dr. Dwight Moore and Dr. J.K. Lawrence.

No. W2000-02682-COA-R3-CV.

Court of Appeals of Tennessee, Western Section, at Jackson.

August 29, 2001.

Application for Permission to Appeal Denied by Supreme Court December 27, 2001.

L. Anthony Deal, Memphis, for appellant.

Jerry E. Mitchell, John H. Dotson, Memphis, for appellees.

OPINION

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

This appeal involves a claim of medical malpractice. The plaintiff's minor child suffered brain damage during delivery. The only remaining defendants, Dr. Moore and Dr. Lawrence, moved for summary judgment, which the trial court granted. Plaintiff appeals. For the following reasons, we affirm the trial court's grant of summary judgment to defendants.

Facts and Procedural History

This is a medical malpractice action. Lonnie Davis Lewis (Ms. Lewis) was pregnant and had received prenatal care from Dr. Moore and Dr. Lawrence. Ms. Lewis was a high risk patient due to her age, hypertension, and obesity.

Ms. Lewis visited Methodist Hospital on March 3, 1995, for a prenatal evaluation called a nonstress test. At the time of the evaluation, Dr. Lawrence was on duty. Dr. Lawrence left the hospital without having discharged Ms. Lewis. Beginning at 5:00 p.m. on March 3, 1995, Dr. Brooks had begun covering for Dr. Moore and Dr. Lawrence. Dr. Brooks was not advised about Ms. Lewis' presence in the hospital nor did he see Ms. Lewis. Ms. Lewis was discharged at approximately 6:00 p.m. on March 3, 1995, by another doctor not associated with the defendants.

Ms. Lewis came back to the hospital on the evening of March 5, 1995, at approximately 8:00 p.m. Dr. Moore and Dr. Lawrence were not on duty at this time. Due to a previous arrangement, Dr. Brooks was covering for them. When Ms. Lewis arrived at the hospital on March 5, Dr. Brooks was at home. Dr. Brooks was advised by telephone sometime in the late evening that Ms. Lewis was at the hospital. At 10:00 p.m., Dr. Brooks ordered that the plaintiff be admitted to the hospital. There were several calls between Dr. Brooks and the hospital, and Dr. Brooks was advised that there were indications that Ms. Lewis' baby was in distress. At 2:46 a.m. on March 6, 1995, Dr. Brooks ordered that Ms. Lewis be prepared for a c-section, and he left for the hospital. At 3:09 a.m., before Dr. Brooks had arrived, an emergency call known as a "Dr. Stork" page was put out at the hospital indicating that there was an emergency and directing physicians to come to the delivery room. Dr. Washington responded to the call, but he did not deliver the child. When Dr. Brooks arrived at 3:17 a.m., Ms. Lewis was not prepared for a c-section as he had ordered. Dr. Brooks then performed a vaginal delivery. Unfortunately, the child suffered brain damage.

The plaintiffs filed a complaint and amended complaint asserting medical malpractice. The complaint asserted three theories of liability: 1) that Dr. Moore and Dr. Lawrence were negligent in the prenatal care of Ms. Lewis; 2) that Dr. Moore and Dr. Lawrence were negligent in selecting Dr. Brooks to cover for them when they were not on duty; and 3) that Dr. Brooks and Methodist Hospital were guilty of negligence during the delivery of Ms. Lewis' child.¹

On February 18, 2000, Dr. Moore and Dr. Lawrence moved for summary judgment. Ms. Lewis responded, and the parties argued the motion on May 5, 2000. The court denied the defendants' motion for summary judgment. However, no order was entered. The case was set for trial on September 18, 2000. Sometime shortly before trial, the defendants served the plaintiffs with a supplemental memorandum in support of its motion for summary judgment. The motion was argued the morning of trial, and the judge granted the defendants' motion for summary judgment. Ms. Lewis appeals the ruling from the court below, and raises the following issues, as we perceive them, for our review:

I. Whether the trial court erred in granting summary judgment to Dr. Moore and Dr. Lawrence.

II. Whether the trial court erred in limiting discovery as to the opinions of Dr. Moore and Dr. Lawrence.

III. Whether the trial court erred in refusing to grant Plaintiff a partial summary judgment as to the reasonableness and necessity of medical expenses.

We will address each issue in turn.

Standard of Review

Summary judgment is appropriate if the movant demonstrates that no genuine issues of material fact exist and that he is entitled to a judgment as a matter of law. See TENN. R. CIV. P. 56.03. We must take the strongest view of the evidence in favor of the nonmoving party, allowing all reasonable inferences in his favor and discarding all countervailing evidence. See Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn.1998) (citing Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.1993)). Since our review concerns only questions of law, the trial court's judgment is not presumed correct, and our review is de novo on the record before this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997).

Law and Analysis

Ms. Lewis argues that it was error for the trial court to grant a summary judgment to Dr. Moore and Dr. Lawrence. Dr. Moore and Dr. Lawrence filed a motion for summary judgment on February 18, 2000. The motion was heard by the trial court on May 5, 2000, and the motion was denied. However, no order was entered memorializing the trial court's denial. The case was set for trial on September 18, 2000. On the morning of trial, Defendant's counsel faxed Plaintiff's counsel a supplemental memorandum and advised that he would be seeking summary judgment. At trial, counsel for Moore and Lawrence argued for a summary judgment. Plaintiff's counsel objected that proper notice had not been given. The court excluded Ms. Lewis' expert witness, Dr. Heath, based upon its decision that Ms. Lewis had not properly identified Dr. Heath as an expert in her interrogatories. The court then granted Defendants' motion for summary judgment. The court entered an order granting Defendants' motion for summary judgment on September 20, 2000. On the same day, an order was entered memorializing the May 5, 2000, denial of summary judgment.

First, we address Plaintiff's contention that it was error for the trial court to exclude her expert, Dr. Heath. The trial court excluded Dr. Heath as an expert witness based upon Rule 26.05 of the Tennessee Rules of Civil Procedure, which provides:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:

(1) A party is under a duty seasonably to supplement the party's response with respect to any question addressed to ... (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of that testimony.

TENN. R. CIV. P. 26.05. Upon a review of the record, it is apparent that Plaintiff did not list Dr. Heath as an expert in her answers to Defendants' interrogatories. "The decision of the trial court in discovery matters will not be reversed on appeal unless a clear abuse of discretion is demonstrated." Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn.1992). In the instant case, we find that the trial court did not abuse its discretion in disallowing Plaintiff's expert for failure to comply with discovery rules.

Now, we turn to the notice issue. Ms. Lewis argues that she was not given proper notice of the September 18, 2000, summary judgment proceedings. She cites Rule 56.04 of the Tennessee Rules of Civil Procedure for the proposition that "[t]he [summary judgment] motion shall be served at least thirty (30) days before the time fixed for the hearing." Ms. Lewis also argues that Rule 6.04 of the Tennessee Rules of Civil Procedure provides that in the case of any motion, other than an ex parte motion, notice of the hearing must be given at least five days in advance.

As noted above, although the motion for summary judgment heard on May 5, 2000, was technically denied, no order was entered memorializing the denial. We note the well-settled rule that "[a] court speaks only through its written judgments, duly entered upon its minutes. Therefore, no oral pronouncement is of any effect unless and until made a part of a written judgment duly entered." Environmental Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530, 536 (Tenn.Ct.App.2000) (citations omitted). Since there was no order denying the court's May 5, 2000, decision regarding summary judgment, the May 5, 2000, motion was still pending and the court was free to revisit the motion.

We note the case of Jarred v. Hendrix, No. W1998-00550-COA-R3-CV, 1999 WL 1336084, at *1 (Tenn.Ct.App. Dec. 15, 1999). In Jarred, the plaintiff filed a complaint alleging dental malpractice on August 16, 1994. See id. On September 5, 1997, three years after the original complaint was filed, the defendant filed a motion for summary judgment, arguing that the plaintiff had failed to satisfy the requirements for a claim of medical malpractice. See id. Three weeks later, the plaintiff responded by filing the affidavit of a Memphis dentist. See id. At the expert's deposition on April 9, 1998, however, the dentist's testimony was vastly different from the conclusions in his affidavit. See id. At the deposition, the dentist testified that he was not able to conclude that the defendant's conduct fell below the standard of care. See id. As a result of the dentist's testimony, defendant immediately renewed his ...