Opinion
Appeal No. 01A01-9507-CV-00295.
January 19, 1996
APPEAL FROM THE SIXTH CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE. Davidson County Circuit)Court No. 94C-1356, THE HONORABLE THOMAS W. BROTHERS, JUDGE.
AFFIRMED AND REMANDED
SHELLEY I. STILES and CHRISTOPHER K. THOMPSON, ATTORNEYS FOR PLAINTIFFS/APPELLANTS.
ROSE P. CANTRELL and GARRETT E. ASHER, Parker, Lawrence, Cantrell Dean, ATTORNEYS FOR DEFENDANT/APPELLEE.
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. This failure, they argued, caused injuries to Mr. Moore which required the nine additional surgical procedures. In response, appellee filed an answer and a counterclaim which he later voluntarily dismissed.
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.
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 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 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 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 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.
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.
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. . . .
. . . .
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 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 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 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."
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.
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 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
Both the trial court and the majority of this panel have decided that Tom and Karen Moore are not entitled to a jury trial on their medical malpractice claim against Dr. Lloyd A. Walwyn because of shortcomings in the affidavits they filed in opposition to Dr. Walwyn's motion for summary judgment. While I do not relish defending sloppy lawyering, I am convinced that my colleagues have scrutinized the Moores' counter-affidavits using standards stricter than those required by Tenn. R. Civ. P. 56.05 and Tenn. Code Ann. § 29-26-115 (1980). I would vacate the summary judgment because the counter-affidavits demonstrate the existence of genuine and material factual issues that only a jury should resolve.
I.
Tom Moore severely injured his left forearm and left leg when he fell from a roof on May 1, 1993. He was first taken to the Williamson County Medical Center and was later transferred to the Tennessee Christian Medical Center where he came under the care of Dr. Lloyd A. Walwyn. Dr. Walwyn determined that injuries to Mr. Moore's leg required surgery and on May 2, 1993, performed an open reduction of the fractures of the left fibula and tibia. During this procedure, Dr. Walwyn repaired the fractured fibula using a plate and screws and repaired the fractured tibia using two screws. Three days after the surgery, Dr. Walwyn performed a closed manipulation of the fracture of the tibia and inserted pins into the tibia to stabilize it with an external fixator.
An open reduction of a fracture is a surgical procedure involving the manipulation of the affected bone or bones after an incision into the skin and muscle over the site of the fracture. See Stedman's Concise Medical Dictionary 872 (2d ed. 1994) ("Stedman's").
The closed manipulation did not require a second incision; however, the pins attaching the tibia to the external fixator did protrude through the skin. A fixator is a device providing rigid immobilization through external skeletal fixation by means of rods attached to pins which are placed in or through the bone. See Stedman's 386.
Mr. Moore left the hospital on May 7, 1993. He changed physicians after three office visits with Dr. Walwyn between May 19 and June 16, 1993. In July 1993, the physicians at Metro General Hospital advised Mr. Moore that his leg fracture would require additional surgery because he had "infected pins on his current external fixator which communicate with his fracture site." During surgery on July 21, 1993, Dr. Melvin Law confirmed infection of the pin sites and also infected nonunion of both the left tibia and left fibula. Dr. Law irrigated and debrided the infected tibia, fibula, and pin sites. He also replaced the external fixator Dr. Walwyn had installed. Dr. Law removed the second external fixator and placed Mr. Moore's leg in a cast in October 1993.
Mr. Moore and his wife sued Dr. Walwyn and others on May 2, 1994. They alleged that the infection in Mr. Moore's leg was caused by Dr. Walwyn's negligent failure to prescribe sufficient antibiotics before, during, and after the May 2, 1993 surgery. They also alleged that the infection caused by Dr. Walwyn's negligent failure to prescribe antibiotics required Mr. Moore to undergo "four surgeries including nine different procedures" and to experience pain, suffering, additional medical expenses, and loss of wages. In addition, they alleged that Dr. Walwyn declined to treat Mr. Moore after learning that he lacked the funds to pay him.
From this point on, the case fell into the predicable pattern common to many medical malpractice cases. On October 19, 1994, Dr. Walwyn filed a motion for summary judgment supported by his own self-serving affidavit asserting in the most general terms that he "acted with ordinary and reasonable care" in accordance with "the recognized standard of professional practice in orthopaedic surgery in Nashville and similar areas." This motion placed the burden squarely on the Moores to produce a competent affidavit supporting their claim that Dr. Walwyn had committed malpractice. Failure to produce competent expert testimony contradicting Dr. Walwyn's affidavit would result in the summary dismissal of the Moores' claims against Dr. Walwyn because they could only be substantiated with expert testimony.
This motion was proper because a defendant physician's affidavit is sufficient by itself to support the physician's motion for summary judgment. Smith v. Graves, 672 S.W.2d 787, 789-90 (Tenn.Ct.App. 1984). There is, however, a growing judicial hostility toward expert affidavits used to support or to oppose motions for summary judgment that contain only an opinion without supplying a foundation of specific facts. See Edward Brumet, Summary Judgment Materials, 147 F.R.D. 647, 674-676 (1993) ("Brumet").
Goodman v. Phythyon, 803 S.W.2d 697, 702-03 (Tenn.Ct.App. 1990); Hurst v. Dougherty, 800 S.W.2d 183, 185 (Tenn. Ct. App. 1990); Parker v. Vanderbilt Univ., 767 S.W.2d 412, 420 (Tenn.Ct.App. 1988); Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 160 (Tenn.Ct.App. 1984).
The Moores responded to Dr. Walwyn's motion for summary judgment on December 5, 1994, with a memorandum of law and a promise that counter-affidavits would be filed no later than one day before the hearing on the summary judgment motion. The Moores were apparently unable to locate an orthopaedic surgeon in Tennessee willing to testify against Dr. Walwyn. On the day before the hearing, they filed the "affidavit" of Dr. Bruce Schlafly, a board-certified orthopaedic surgeon practicing in Missouri, who opined that "Dr. Lloyd Walwyn . . . breached the recognized standard of care in failing to administer antibiotics and such breach of care caused Tom Moore injuries that he would not have otherwise suffered."
Dr. Walwyn's lawyers launched a fusillade of objections to the form, substance, and timing of Dr. Schlafly's affidavit at the December 16, 1994 hearing. The trial court decided to consider Dr. Schlafly's affidavit even though it had not been filed within the time required by the local rules of court. On January 11, 1995, the trial court entered an order granting Dr. Walwyn's motion for summary judgment because "there is no genuine issue as to a material fact concerning whether the defendants deviated from the recognized standard or acceptable professional practice."
Rule 12.04(d) of the Local Rules of Practice requires responses to motions, including counter-affidavits, to be filed by the close of business on the Monday preceding the Friday on which the motion is to be heard. Accordingly, Dr. Schlafly's affidavit should have been filed by December 12, 1994. Local rules may require that opposing affidavits be filed earlier than required by the Tennessee Rules of Civil Procedure, see Pfeil v. Rogers, 757 F.2d 850, 857-58 (7th Cir. 1985) cert. denied, 475 U.S. 1107 (1986); 10A Charles A. Wright et al., Federal Practice and Procedure § 2719, at 12-14 (2d ed. 1983); however, trial courts may, in their discretion, accept late affidavits. Beaufort Concrete Co. v. Atlantic States Constr. Co., 352 F.2d 460, 462 (5th Cir. 1965), cert. denied, 384 U.S. 1004 (1966).
The Moores hired a second lawyer who filed a "motion to reconsider" on February 9, 1995. Since Dr. Walwyn's lawyers had taken issue with the form of Dr. Schlafly's original "affidavit," the Moores' motion was accompanied by a second affidavit by Dr. Schlafly that was "more succinct in form for the Court to consider." The motion reiterated that "there was sufficient proof to show that the Defendant deviated from the acceptable standard of care sufficient to raise a question of fact."
The trial court conducted another hearing on February 24, 1995. The trial court declined to consider Dr. Schlafly's second affidavit because the Moores had "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." Accordingly, the trial court denied the Moores' motion and reaffirmed its conclusion that Dr. Walwyn was entitled to a judgment as a matter of law.
II.
Purpose of Summary Judgments
A summary judgment proceeding provides an efficient and effective means to conclude a case that can be decided on legal issues alone. Alexander v. Memphis Individual Practice Ass'n, 870 S.W.2d 278, 280 (Tenn. 1993); White v. Methodist Hosp. South, 844 S.W.2d 642, 651-52 (Tenn.Ct.App. 1992). It should not be used for docket control, Schaefer v. Larsen, 688 S.W.2d 430, 433 (Tenn. Ct. App. 1984), or to replace a trial of genuine, material factual issues. Blocker v. Regional Medical Ctr., 722 S.W.2d 660, 660-61 (Tenn. 1987); Foley v. St. Thomas Hosp., 906 S.W.2d 448, 452 (Tenn.Ct.App. 1995). Accordingly, summary judgment proceedings should not be permitted to become "trials by paper," and should not be used to find facts, to resolve disputed factual issues, or to choose among various factual inferences that may be drawn from undisputed facts. Byrd v. Hall, 847 S.W.2d 208, 216 (Tenn. 1993).
Brumet, supra note 3, 147 F.R.D. at 647.
The party seeking a summary judgment has the burden of demonstrating the absence of material factual disputes and its entitlement to a judgment as a matter of law. Byrd v. Hall, 847 S.W.2d at 215; Gambill v. Middle Tenn. Medical Ctr., 751 S.W.2d 145, 146 (Tenn.Ct.App. 1988). The courts hold parties seeking a summary judgment to stringent standards. Baker v. Lederle Labs., 696 S.W.2d 890, 893 (Tenn.Ct.App. 1985). Accordingly, they will grant a summary judgment only if the facts and the conclusions reasonably drawn from the facts support the conclusion that the moving party is entitled to a judgment as a matter of law. Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn. 1981); Mansfield v. Colonial Freight Sys., 862 S.W.2d 527, 530 (Tenn.Ct.App. 1993). They should not grant a summary judgment if any uncertainty or doubt exists with regard to the facts or the conclusions to be drawn from the facts. Byrd v. Hall, 847 S.W.2d at 211; Poore v. Magnavox, Inc., 666 S.W.2d 48, 49 (Tenn. 1984); Gambill v. Middle Tenn. Medical Ctr., 751 S.W.2d at 147; Baker v. Lederle Labs., 696 S.W.2d at 894.
The courts customarily treat the nonmoving party's papers more indulgently than they do the papers filed by the party seeking the summary judgment. The evidence supporting and opposing the summary judgment will be considered in the light most favorable to the nonmoving party. Speaker v. Cates Co., 879 S.W.2d 811, 813 (Tenn. 1994). The nonmoving party is also entitled to all favorable inferences that can be reasonably drawn from the proof. Byrd v. Hall, 847 S.W.2d at 210-11; Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991); Blocker v. Regional Medical Ctr., 722 S.W.2d at 663. The courts' indulgence may also extend to the form of the nonmoving party's papers. Technically defective papers may be sufficient to defeat a summary judgment if they apprise the court of important relevant evidence that the nonmoving party can and will introduce at trial. 6 James A. Moore et al., Moore's Federal Practice ¶ 56.22[1] (2d ed. 1995); 10A Charles A. Wright et al., Federal Practice Procedure § 2738, at 485 (2d ed. 1983).
III.
The Form of Tenn. R. Civ. P. 56 Affidavits
The trial court decided to consider Dr. Schlafly's original "affidavit" filed on December 15, 1994, even though its form was irregular. The majority has now concluded that the trial court should have excluded the "affidavit" because of defects in the signature and the jurat. I would not find these relatively innocuous defects to be fatal to the Moores' case.
Parties seeking or opposing a summary judgment may, but are not required to, use evidentiary materials to support their respective positions. In most circumstances, the sole purpose of these evidentiary materials is to provide the court with some reliable indication of the proof the parties intend to present at trial. Rooker v. Rimer, 776 S.W.2d 124, 128 (Tenn.Ct.App. 1989), cert. denied, 493 U.S. 1073 (1990). Tenn. R. Civ. P. 56.03 permits the use of various types of materials including affidavits, depositions, answers to interrogatories, and admissions on file. Litigants in Tennessee's courts now generally use affidavits to support and to oppose motions for summary judgment.
An affidavit is nothing more than a written statement made and signed under oath before an authorized person. Harvey v. State, 166 Tenn. 227, 229, 60 S.W.2d 420, 420 (1933); Jas. N. Watt Co. v. Carnes, 51 Tenn. (4 Heisk.) 532, 534 (1871). Tenn. R. Civ. P. 56 contains no additional requirements with regard to the form of affidavits in summary judgment proceedings. Accordingly, documents meeting the general common-law requirements of being made and signed under oath should be considered as long as they comply with the other substantive requirements of Tenn. R. Civ. P. 56.
Dr. Schlafly's "affidavit" filed on December 15, 1994, is not in the customary affidavit form. It consists of three related documents: a one-page introductory statement, a four-page curriculum vitae, and a four-page report of Dr. Schlafly's findings and conclusions about Mr. Moore's medical care. The curriculum vitae and report are specifically incorporated into the statement. Dr. Schlafly's introductory statement recites that he was "duly sworn" and thereafter states that he has practiced his specialty in Missouri for more than one year, that Dr. Walwyn "breached the recognized standard of care in failing to administer antibiotics," and that this "breach caused Tom Moore to suffer injuries he would not have otherwise suffered as is more fully explained in my attached report." Dr. Schlafly signed the statement, but his signature is not immediately followed by a jurat and notary's signature.
The April 1994 curriculum vitae attached to the statement shows that Dr. Schlafly is a board-certified orthopaedic surgeon, that he has been licensed to practice his specialty in Missouri since 1985, and that he currently has admitting privileges at seven St. Louis-area hospitals. The report dated December 13, 1994 contains Dr. Schlafly's expert findings and conclusions based on the copies of Mr. Moore's medical records that had been provided to him. Dr. Schlafly signed the last page of the report, and a customary jurat follows his signature, as well as the seal and signature of a Missouri notary public.
The majority has decided that these documents, taken together, do not qualify as an affidavit because the first document does not contain a jurat following Dr. Schlafly's signature and because the jurat and notary's signature on the last page of Dr. Schlafly's report is dated the day before the date appearing on the first page. The majority apparently views the difference in the dates as undisputable evidence that the jurat on the last page cannot apply to the preceding one-page statement and the curriculum vitae. There are, however, other plausible inferences. Dr. Schlafly could have post-dated or misdated the one-page statement and could have signed both the first and the last page at the same time, before the notary affixed her certificate. This conclusion is consistent with the complementary statements on the first and last pages of the documents that Dr. Schlafly was "duly sworn" before he signed and acknowledged the documents.
Even if these technical defects prevent the December 15, 1994, documents from qualifying as an "affidavit" in the strictest sense of the term, the trial court did not abuse its discretion by considering them. Despite the irregularities in their form, the documents demonstrate that Dr. Schlafly can and will provide competent expert testimony contradicting Dr. Walwyn's conclusions with regard to negligence and proximate cause. Accordingly, I cannot concur with the majority's conclusion that the form of Dr. Schlafly's December 15, 1994 "affidavit" prevents its consideration.
IV.
Expert Affidavits in Medical Malpractice Cases
Tenn. R. Civ. P. 56.05 and Tenn. Code Ann. § 29-26-115 control the substance of affidavits used to support or to oppose motions for summary judgment in medical malpractice cases. Tenn. R. Civ. P. 56.05 contains three requirements. First, affidavits must be made on personal knowledge. Second, they must set forth facts that would be properly admissible at trial, but the affidavits themselves need not be admissible. Third, they must affirmatively show that the affiant is competent to testify to the matters contained in the affidavit. The courts may decline to consider affidavits that do not meet these standards. See Keystone Ins. Co. v. Griffith, 659 S.W.2d at 366.
Price v. Becker, 812 S.W.2d 597, 598 (Tenn.Ct.App. 1991); State v. Hartley, 790 S.W.2d 276, 278 (Tenn.Crim.App. 1990) (affidavit based on information and belief is insufficient); Keystone Ins. Co. v. Griffith, 659 S.W.2d 364, 365-66 (Tenn.Ct.App. 1983) (affidavit based on information and belief is insufficient).
Byrd v. Hall, 847 S.W.2d at 215-16; Teeters v. Currey, 518 S.W.2d 512, 514 (Tenn. 1974); Braswell v. Carothers, 863 S.W.2d 722, 729 (Tenn.Ct.App. 1993); Baker v. Lederle Labs., 696 S.W.2d at 893.
Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978).
In addition to the requirements in Tenn. R. Civ. P. 56.05, Tenn. Code Ann. § 29-26-115 contains five substantive requirements for expert affidavits in medical malpractice cases. The affiant must first demonstrate that he or she satisfies the geographic and durational requirements in Tenn. Code Ann. § 29-26-115(b). Second, the affiant must demonstrate that he or she practices in a profession or specialty that makes his or her testimony relevant to the issues in the case. Third, the affiant must assert familiarity with the recognized standard of professional practice in the community where the defendant practices or in similar communities. Fourth, the affiant must give an opinion concerning whether the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with the proper standard of practice. Fifth, the affiant must give an opinion concerning whether the defendant's negligence more likely than not caused the plaintiff to suffer injuries that he or she would otherwise not have suffered. The "more likely than not" standard has also been expressed in terms of requiring plaintiffs in medical malpractice cases to prove causation in fact as a matter of probability, not mere possibility. Dr. Schlafly's December 15, 1994 Affidavit
Tenn. Code Ann. § 29-26-115(b). The affiant need not practice in the same specialty as the defendant physician. Goodman v. Phythyon, 803 S.W.2d at 701-02.
Tenn. Code Ann. § 29-26-115(a)(3). Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993) (the plaintiff must demonstrate that the defendant's negligence more likely than not caused the injury).
Kilpatrick v. Bryant, 868 S.W.2d at 602 (causation in fact is a matter of probability not possibility); White v. Methodist Hosp. South, 844 S.W.2d at 648-49 (the plaintiff must prove more than a mere possibility); Whittemore v. Classen, 808 S.W.2d 447, 458 (Tenn.Ct.App. 1991) (a jury cannot base a verdict on "it might have been" but must find "it probably was"); St. Martin v. Doty, 493 S.W.2d 95, 97 (Tenn.Ct.App. 1972) (courts cannot stretch "possibilities" into "probabilities").
The majority has concluded that Dr. Schlafly's December 15, 1994 "affidavit" is substantively deficient in three areas. First, it does not demonstrate that Dr. Schlafly is competent to give an expert opinion under the locality rule in Tenn. Code Ann. § 29-26-115(b). Second, it fails to describe the existing standard of care in Nashville and similar communities or Dr. Schlafly's familiarity with this standard. Third, it does not recite that Dr. Walwyn's negligence caused Mr. Moore's injuries "with a reasonable degree of medical certainty." I concur only with the majority's conclusion concerning the standard of care in Nashville and similar communities.
This court has admonished lawyers to couch their medical expert's conclusions in the language of Tenn. Code Ann. § 29-26-115 in order to avoid just the sort of interpretative disputes that are involved in this case. Gambill v. Middle Tenn. Medical Ctr., 751 S.W.2d at 148. Careful practitioners have heeded this advice, but it is not always possible to frame expert conclusions in the precise words of the statute because of differences in the medical and legal vocabularies and frames of reference.
Tenn. Code Ann. § 29-26-115 is not "holy writ," and it should never be so rigidly applied that it requires the ritualistic incantation of its precise terms in order to permit an injured party to maintain a malpractice claim against a health care provider. The courts should expect substantial adherence to the language of Tenn. Code Ann. § 29-26-115 but should never abandon their judicial powers of reasonable interpretation and construction. At the summary judgment stage, any reasonable doubt concerning the meaning or effect of an expert affidavit should be resolved in the nonmoving party's favor.
Viewed in a light most favorable to the Moores, Dr. Schlafly's December 15, 1994 "affidavit" establishes that he is a board certified orthopaedic surgeon in Missouri and that he has been practicing his specialty in and around St. Louis since 1985. This is sufficient to satisfy the geographic and durational requirements of Tenn. Code Ann. § 29-26-115(b).
The curriculum vitae states that Dr. Schlafly completed his internship and residency in 1985 and that he was licensed to practice medicine in Missouri in 1985.
Dr. Schlafly's statement and report also conclude that Dr. Walwyn's "breach caused Tom Moore injuries he would not have otherwise suffered" and that "the omission of intravenous antibiotics (except for the single dose), during the May hospitalization at Tennessee Christian Medical Center, was probably a contributing factor in the later development of Mr. Moore's bone infection." While the report contains other references to "possibilities" and does not preface Dr. Schlafly's opinion with the qualification that it is based on "a reasonable degree of medical certainty," these two statements, taken in a light most favorable to the Moores, should be sufficient to create a jury question on the issue of causation.
Expert opinions in medical malpractice cases must be to a reasonable degree of medical certainty. Kilpatrick v. Bryant, 868 S.W.2d at 602. The concept of "reasonable degree of medical certainty" is a legal, not medical, concept. While an expert's use of these words in laying the foundation to his or her opinion is well-advised, no reported decision requires that medical experts must use this precise phrase when stating an opinion. The phrase usually appears in a lawyer's question, not in a medical expert's answer.
The only material shortcoming in Dr. Schlafly's December 15, 1994 "affidavit" is the omission of any reference to the appropriate recognized standard of professional practice in Nashville or similar communities as required by Tenn. Code Ann. § 29-26-115(a)(1). Dr. Schlafly's report does not state that he is familiar with the standard of practice for orthopaedic surgeons in Nashville or similar communities or that this standard requires antibiotic prophylaxis in clean orthopaedic surgery. The report contains only a general reference to the "recognized standard of care" and to a report that "the overwhelming number of orthopaedic surgeons in the United States have chosen to adopt some type of prophylaxis." The report does not link these general references to Middle Tennessee. Dr. Schlafly's January 30, 1995 Affidavit
Dr. Schlafly stated that his opinion was based on the medical records he had been provided. The majority seems to infer that his opinion was undermined because he did not have all the available records at hand when he formed his opinion. The nature of the records relied on by Dr. Schlafly goes to the weight of his opinion, not his competency to give an opinion. Courts should not weigh the evidence in a summary judgment proceeding. Byrd v. Hall, 847 S.W.2d at 211.
The majority notes that the only difference between Dr. Schlafly's December 15, 1994 and January 30, 1995 affidavits is that the latter "uses all the appropriate `buzz' words found in the statute and the rules." Thus, the majority appears to concede, as well they must, that the January 30, 1995 affidavit meets all the requirements of Tenn. R. Civ. P. 56.05 and Tenn. Code Ann. § 29-26-115. I concur with this conclusion. It follows, therefore, that the January 30, 1995 affidavit, if entitled to consideration, establishes the existence of a material factual dispute sufficient to defeat Dr. Walwyn's motion for summary judgment.
V.
Consideration of the January 30, 1995 Affidavit
The only remaining issue concerns the trial court's decision not to consider Dr. Schlafly's January 30, 1995 affidavit because the Moores did not adequately explain the reasons for their failure to submit a proper affidavit prior to the hearing on Dr. Walwyn's summary judgment motion. The majority has affirmed the trial court's decision because the second affidavit does not contain "new evidence" and because it is "nothing more than the first affidavit dressed up." The majority's reasoning is plainly at odds with our prior opinions permitting the consideration of late-filed affidavits in opposition to motions for summary judgment.
This court has specifically held that the "newly discovered evidence" standard normally associated with motions for new trial should not be used in summary judgment cases to exclude affidavits attached to timely filed Tenn. R. Civ. P. 59.04 motions to alter or amend. Richland Country Club v. CRC Equities, Inc., 832 S.W.2d 554, 557-58 (Tenn.Ct.App. 1991); Schaefer v. Larsen, 688 S.W.2d at 433. Accordingly, we have directed trial courts to look with favor on Tenn. R. Civ. P. 59.04 motions filed before a summary judgment becomes final because the moving party is seeking an opportunity to try its case for the first time.
We have not encouraged the same liberality with regard to affidavits attached to Tenn. R. Civ. P. 60 motions filed after a summary judgment has become final. Braswell v. Carothers, 863 S.W.2d at 730 (the judgment was final and the movant relied on the newly discovered evidence rule); Blair v. Johnson City Medical Ctr., 724 S.W.2d 370, 371 (Tenn. Ct. App. 1986) (the requirements of Tenn. R. Civ. P. 60 were not met).
The Moores' Tenn. R. Civ. P. 59.04 motion was filed before the order granting Dr. Walwyn's motion for summary judgment became final and did not invoke the "newly discovered evidence" standard. Dr. Schlafly's second affidavit was not intended to supply new evidence but rather to cure perceived deficiencies in his first affidavit. Tenn. R. Civ. P. 56.05 specifically authorizes trial courts to permit parties to supplement affidavits filed in summary judgment proceedings. The trial court should have considered Dr. Schlafly's supplemental affidavit in this case because it established that Dr. Walwyn had not carried his burden of demonstrating the absence of genuine, material factual disputes.
__________________________________ WILLIAM C. KOCH, JR., JUDGE