Rose v. H.C.A. Health Services of Tennessee, Inc.

• Decision Date: 27 November 1996
• Citation: 947 S.W.2d 144
• Parties: Herbert E. ROSE, Sr., and Jeannine Marie Rose, Plaintiffs/Appellants, v. H.C.A. HEALTH SERVICES OF TENNESSEE, INC., et al., Defendants/Appellees. Daniel D. HOFFMAN, Plaintiff/Appellant, v. H.C.A. HEALTH SERVICES OF TENNESSEE, INC., et al., Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 144

947 S.W.2d 144

Herbert E. ROSE, Sr., and Jeannine Marie Rose, Plaintiffs/Appellants, v.H.C.A. HEALTH SERVICES OF TENNESSEE, INC., et al.,

Defendants/Appellees.

Daniel D. HOFFMAN, Plaintiff/Appellant, v.H.C.A. HEALTH SERVICES OF TENNESSEE, INC., et al.,

Defendants/Appellees.

Court of Appeals of Tennessee Western Section, at Nashville.

Nov. 27, 1996.

Application for Permission to Appeal

Denied by Supreme Court

May 5, 1997.

Larry D. Wilks, Sidney W. Gilreath, Nashville, Gregory D. Smith, Clarksville, for Plaintiffs/Appellants.

C.J. Gideon, Jr., William S. Walton, Nashville, for Defendants/Appellees.

OPINION

LILLARD, Judge.

This case involves two cases consolidated on appeal, the first filed by plaintiffHerbert Rose("Rose") and the second by plaintiffDaniel Hoffman("Hoffman").Both cases are medical malpractice actions involving the use of pedicle screws in spinal column surgery.In both, the trial court granted summary judgment in favor of defendantH.C.A. Health Services of Tennessee, Inc., d/b/a Centennial Medical Center ("CMC").Both plaintiffs submitted affidavits from the same expert, and the trial court disallowed the affidavits of the plaintiffs' expert on the basis that he did not meet the requirements of Tenn.Code Ann. § 29-26-115(b).We affirm.

Rose and Hoffman both underwent back surgery at CMC.The surgery on both plaintiffs was performed by Dr. David McCord("McCord").In both cases, McCord utilized a surgical procedure involving the use of pedicle screws in the spinal column.In Rose's case, it was later discovered that one of the pedicle screws had loosened.Subsequently, Rose had further surgery to remove the medical instrumentation that McCord had placed in his back.Nineteen months after this operation, Rose saw an episode of the television series 20/20 which featured a segment on the problems associated with pedicle screws used in back surgery.He filed suit against the manufacturer, McCord, Tennessee Spine Center, Inc., and CMC.

Hoffman also developed problems with the pedicle screws used in his spine.A myelogram CAT scan performed in December of 1993 revealed that some of the pedicle screws had broken.After Hoffman watched the same 20/20 episode Rose had seen, he also filed suit against the same four defendants.Both plaintiffs were represented by the same attorneys.Both lawsuits alleged that CMC had been negligent in allowing McCord to perform surgery at the hospital and in failing to properly monitor his use of pedicle screws, allegedly used in a manner not approved by the FDA.CMC filed motions for summary judgment in both cases.In support of both motions, CMC filed affidavits from Wanda Scharf("Scharf") and Teresa Adler("Adler").

Scharf, CMC's medical staff coordinator, indicated that she was familiar with the accepted standards of hospital practice in the Nashville community for credentialing of physicians applying for and reapplying for staff privileges.Scharf stated that CMC complied with those standards in evaluating McCord and granting him staff privileges at the hospital, that McCord was not an employee of CMC during the times in question, and that CMC "did not exercise control over the precise methods or means employed by Dr. McCord in his treatment of Herbert Rose[and Daniel D. Hoffman]."Scharf added, "Dr. McCord exercised his independent judgment and experience, as a physician, in deciding what treatment choices to make."

Adler, a licensed registered nurse, indicated that she was familiar with the recognized standard of care in the operation of a surgical department at a hospital in the Nashville community.She stated that CMC was not involved in selecting the surgical instruments used by surgeons with staff privileges.Adler noted that surgeons with staff privileges were responsible for deciding what equipment to use.She stated that the surgeons informed CMC what equipment to order for any particular operation and that CMC merely provided the equipment as requested.Adler maintained that this procedure was followed in both Rose's and Hoffman's cases and that it complied with the standard of care in Nashville.

Both Rose and Hoffman responded to CMC's summary judgment motion with an affidavit from Arthur Kaufman, M.D.("Kaufman"), who had been teaching and practicing "administrative medicine" since the early 1970's.Kaufman opined that the hospital failed in its duty to ascertain the regulatory status of the pedicle screws when it acquired them for McCord.CMC moved the trial court to strike Kaufman's affidavit on the basis that Kaufman, licensed only in Maryland and West Virginia during the year prior to the alleged negligence in both cases, was not a competent witness, having failed to meet the statutory requirements of Tenn.Code Ann. § 29-26-115(b), requiring health care experts in malpractice actions to be licensed in Tennessee or a contiguous state.Rose and Hoffman filed affidavits from their two attorneys and Kaufman stating that they had diligently searched for an expert in Tennessee or a contiguous state but had been unable to locate one.Both plaintiffs requested a waiver of the contiguous state licensing requirement in Tenn.Code Ann. § 29-26-115(b).In response, CMC filed three affidavits listing the number of hospitals in Tennessee and Arkansas and the number of physicians operating within Tennessee and its contiguous states.The trial court denied the motions for waiver, granted the requests to strike Kaufman's affidavit, and awarded summary judgment to CMC in both cases.In the Rose case, the trial court also found that the statute of limitations ran prior to the filing of the complaint.

Both Rose and Hoffman moved the court to alter or amend its judgment and in support of the motion submitted a second affidavit from Lewis Mustard("Mustard"), a self-styled hospital and health care administrator residing in North Carolina but not licensed in Tennessee or any of its contiguous states as a medical practitioner or specialist.The trial court denied the motions to amend.Although other defendants, including McCord, remained in the lawsuit, the trial court's orders of summary judgment to CMC in both cases were made final under Rule 54.02 of the Tennessee Rules of Civil Procedure.Rose and Hoffman appeal the entry of summary judgment in favor of CMC and the denial of the motion to alter or amend the judgment.The two cases were consolidated on appeal.¹

On appeal, both Rose and Hoffman argue that the trial court abused its discretion in not allowing a waiver of the contiguous state licensing requirement in Tenn.Code Ann. § 29-26-115(b), in striking Kaufman's affidavit, and in denying the motions to alter or amend the judgment, in support of which Mustard's affidavit was filed.In addition, Rose claims that the trial court erred in finding that the statute of limitations had run prior to his filing suit.

A trial court should grant a motion for summary judgment when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law.Tenn.R.Civ.P. 56.03.The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists.Byrd v. Hall, 847 S.W.2d 208, 211(Tenn.1993).On a motion for summary judgment, the trial court and the appellate court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence.Id. at 210-11.The phrase "genuine issue" as stated in Rule 56.03 refers to genuine, factual issues and does not include issues involving legal conclusions to be drawn from the facts.Id. at 211.In Byrd, the Court said:

Once it is shown by the moving party that there is no genuine issue 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 regard Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial."If he does not so respond, summary judgment ... shall be entered against him."

Id.(citations omitted).Summary judgment is only appropriate when the case can be decided on the legal issues alone.Id. at 210.Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment.Johnson v. EMPE, Inc., 837 S.W.2d 62, 68(Tenn.App.1992).Review of the grant of summary judgment is, therefore, de novo.

Rose and Hoffman assert on appeal that the trial court erred in striking Kaufman's affidavit, based on Tenn.Code Ann. § 29-26-115(b).This statutes provides:

(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 he was 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 the alleged injury or wrongful act occurred....The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.

Tenn.Code Ann. § 29-26-115(b)(1980).The record is clear that Kaufman is not, nor was he during the year preceding the alleged injury, licensed to practice in Tennessee or one of its contiguous border states.During the period in question, he was only licensed to practice in Maryland and West Virginia.

Rose and Hoffman argue that this requirement should have been waived.Tenn.Code Ann. § 29-26-115(b) provides that this requirement may be waived if the court"determines that...