Waterman v. Damp, No. M2005-01265-COA-R3-CV (Tenn. App. 10/9/2006)
| Decision Date | 09 October 2006 |
| Docket Number | No. M2005-01265-COA-R3-CV.,M2005-01265-COA-R3-CV. |
| Parties | PHEBE M. WATERMAN v. PETER HELGE DAMP, M.D., ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County; No. 03C-571; Hamilton V. Gayden, Judge.
Judgment of the Circuit Court Affirmed in Part, Reversed in Part and Remanded.
Richard L. Duncan and Cary L. Bauer, Knoxville, Tennessee, for the appellant, Phebe M. Waterman.
Wendy Lynne Longmire and Julie Bhattacharya, Nashville, Tennessee, for the appellee, Peter H. Damp, M.D.
Mary Martin Schaffner, Nashville, Tennessee, for the appellee, St. Thomas Hospital.
William B. Cain, J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and Frank G. Clement, Jr., J., joined.
This appeal comes from the trial court's summary judgment grant in favor of the defendants in a malpractice case. The appellant challenges the trial court's finding that, since the experts she proffered did not offer satisfactory testimony on the statutory "locality rule," she failed to present a prima facie case under the state's malpractice statute. See Tenn. Code Ann. §29-26-115. We hold that, despite the infirmities in the plaintiff's proffered experts, the deposition testimony of the defendant doctor was sufficient to demonstrate a genuine issue of material fact as to the standard of care, and the affidavit of the plaintiff's expert Dr. Childs was sufficient proof of causation to preclude summary judgment. Therefore, the grant of summary judgment in favor of the defendant doctor is reversed. We also conclude that the undisputed facts in the record demonstrate that the summary judgment in favor of the defendant hospital was appropriate and affirm that portion of the trial court's ruling. The judgment of the trial court is affirmed in part, reversed in part and remanded for trial on the merits as to the claim against the defendant doctor.
On May 16, 2002, Plaintiff Phebe Waterman was transported to St. Thomas Hospital's ("St. Thomas") emergency room by ambulance after a small tree fell on her. She was treated by Dr. Peter H. Damp who conducted a physical exam and requested x-rays. Dr. Richard B. Stewart, a radiologist, then read the x-rays and noted a possible compression fracture of unknown age at the T5 portion of Ms. Waterman's spine. According to the complaint, Dr. Damp did not inform Ms. Waterman of these findings. He prescribed pain medication and released her. Mrs. Waterman signed the release forms that advised her to return to the hospital's emergency room if her pain increased.
Two days later Ms. Waterman went instead to the Vanderbilt Clinic complaining of increased pain and decreased mobility. She was treated at Vanderbilt on May 18 and 20, 2002. She informed Vanderbilt personnel of her previous St. Thomas visit and told them that x-rays were taken but that no fracture was found. She was again treated and released with pain medication. She did not follow up with an orthopedist until June 3, when she visited Dr. Dave A. Alexander at Tennessee Orthopedic Alliance. Dr. Alexander's notes reveal the following diagnosis:
I reviewed her x-rays from St. Thomas Hospital at the time of injury. Shoulder x-rays look normal except for some degenerative changes. Thoracic spine x-rays reveal mid-thoracic spine area about T5 or T6 compression fracture (marked by the radiologist at T5).
She asks about possible bracing for her back and though this is certainly possible I would rather get an opinion from one of our experts, Dr. Stahlman. I would like for him to see her and decide whether she may be becoming a candidate for vertebralplasty as I think she might....
Dr. Stahlman saw the plaintiff on June 10, 2002. His notes confirm Dr. Alexander's impression:
IMPRESSION:
It is certainly conceivable that [Ms. Waterman] has an acute compression fracture in her thoracic[spine]. However, by x-ray alone, I cannot ascertain the acuity. She could certainly have a rib or sternal injury as well, given the forward compressive force she suffered.
RECOMMENDATIONS:
I have recommended an MRI of her thoracic and lumbar spine. I have also recommended a bone scan to assess any rib fractures. I have given her a prescription for a Cash orthosis and suggested trying Ultram. I will see her back after her imaging studies are performed.
Dr. Stahlman's notes indicate that by the time the new imaging had been performed, "the vertebral collapse is so great that kyphoplasty or vertebralplasty would be technically unfeasible."
Ms. Waterman brought suit against Dr. Damp and St. Thomas alleging medical malpractice which resulted in physical injury and increased treatment cost. She filed her complaint on May 30, 2003, and made the following specific allegations:
6. If Defendants had properly interpreted the x-rays performed on May 16, 2002 and/or immediately referred the plaintiff to an orthopedist within the standards of acceptable professional practice, then to a reasonable degree of medical certainty, Plaintiff's fracture would have been diagnosed as acute and would have been properly treated resulting in a substantially better outcome.
7. Defendant Dr. Peter Damp, was negligent and/or deviated from the recognized standard of professional practice. Such negligence and/or deviations consisting of, inter alia:
a. Failing to treat Plaintiff's acute compression fracture and/or immediately refer Plaintiff to an orthopedist;
b. Discharging Plaintiff without ordering any bracing devices and immediate referral to an orthopedist;
c. Failing to be adequately trained in the care and treatment of compression fractures of uncertain age;
d. Other Acts of negligence that will be shown at trial.
The Complaint made these same allegations against St. Thomas on principles of vicarious liability. The Complaint further alleged that as a result of this conduct, St. Thomas answered the Complaint on July 15 denying any agency relationship sufficient to trigger vicarious liability. Dr. Damp filed his answer on August 18, 2003, denying any malpractice. The following June, Plaintiff took Dr. Damp's deposition.
A. THE MOTIONS FOR SUMMARY JUDGMENT
In August 2004, Dr. Damp moved for summary judgment. The motion was supported by Dr. Damp's own affidavit averring that his treatment of Ms. Waterman comported with the standard of care for emergency physicians in Nashville, Tennessee and that no breach of the standard on his part proximately caused Ms. Waterman's injuries. He argued that in the absence of proof of the standard, the breach and proximate cause of the alleged injury, under Tennessee Code Annotated section 292-6-115, Plaintiff Waterman had failed to establish a prima facie medical malpractice claim. The motion was also accompanied by a statement of undisputed facts filed pursuant to Tennessee Rule of Civil Procedure 56. Of particular import are the following statements:
3. Dr. Damp ordered various x-rays of Plaintiff including her left scapula, [thoracic] spine, and chest.
4. Dr. Richard B. Stewart, a radiologist, interpreted the Plaintiff's x-rays and diagnosed a "moderate compression of T5 of uncertain age" in the Plaintiff's thoracic spine and stated that the Plaintiff had degenerative changes and "likely long-standing" anterior wedging.
5. Upon examination and finding no actual thoracic and lumbar spine tenderness, Dr. Damp prescribed Plaintiff pain medication and released her with the express warning to return to the emergency room upon any worsening, sudden pain or shortness of breath.
6. On her discharge papers document signed by plaintiff, Dr. Damp advised that if the Plaintiff's pain persisted or worsened, she was to ["]return to ER otherwise follow up with primary care physician."
7. Dr. Damp's diagnosis, treatment, testing and management of Plaintiff's condition fell within the acceptable range of professional care rendered by an emergency room physician in the Nashville, Davidson County, Tennessee medical community.
8. There were no acts or omissions on Dr. Damp's behalf that breached the standard of care or that caused or proximately caused injury to the Plaintiff on May 16, 2002 or any day thereafter.
The summary judgment motion was set to be heard on October 8, 2004. Ms. Waterman made no formal response to the summary judgment motion other than filing responses to Dr. Damp's statements of undisputed facts. In these responses filed on October 1, 2004, Ms. Waterman admitted statements 1-3 for purposes of summary judgment and admitted that the medical records cited in statements 4-6 speak for themselves. She denied statements 7-8 and referred to the following portion of Dr. Damp's testimony:
[BY MR. BAUER]:
Q. Okay. And you don't feel that an ER doctor in 2002 in Davidson County has an obligation to the patient to inform them of non-acute injuries that they may not be aware of?
A. I think if they are potentially medically relevant in the future, such as seeing like a lung nodule or something that may be dangerous in the future, yes.
Q. Okay. What about if you don't know?
A. It could be.
Q. Could be the standard of care?
A. Like I said, it depends on that the — what you don't know.
Q. Okay. If you don't know for sure the age of a compression fracture at T5 of the spine, is that something that the standard of care would require an ER doctor to inform the patient on?
A. If you're unsure, yes.
Q. Okay. Does the standard of care require that you tell the patient that I think this is a chronic condition but there's a possibility that it's an acute condition?
A. Possibly, yes.
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