             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE

                                                         FILED
                                                           June 12, 1998

RUTH PHARES,                             )              Cecil W. Crowson
                                         )             Appellate Court Clerk
      Plaintiff/Appellant,               )
                                         )    Appeal No.
                                         )    01-A-01-9709-CV-00485
VS.                                      )
                                         )    Davidson Circuit
                                         )    No. 96C-3072
KITTIE MYATT, ED.D.,                     )
                                         )
      Defendant/Appellee.                )


       APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

               THE HONORABLE MARIETTA M. SHIPLEY, JUDGE




JAMES L. HARRIS
2400 Crestmoor Road
Nashville, Tennessee 37215
      Attorney for Plaintiff/Appellant

NOEL F. STAHL
E. TODD PRESNELL
Suite 2700, Nashville City Center
511 Union Street
Nashville, Tennessee 37219
       Attorney for Defendant/Appellee




                             AFFIRMED AND REMANDED




                                         BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.

                                OPINION
             A licensed practical nurse filed suit against a psychological examiner

who evaluated her after the nurse’s license was suspended for professional

misconduct. The plaintiff claimed that as a result of a negligent report by the

examiner, her license reinstatement was conditioned on the completion of

unnecessary treatment for drug and alcohol abuse, leading her to suffer severe

emotional distress. The trial court granted summary judgment for the defendant

psychological examiner. We affirm.



                                    I. The Facts



             Plaintiff Ruth Phares is a licensed practical nurse. She worked as a

nursing shift supervisor at Vanco Manor Nursing Home in Goodlettsville, where she

supervised the work of four nurses’ aides in the care of 64 patients, and dispensed

medication pursuant to doctors’ orders. In March of 1994, she was fired by the

home’s Director of Nursing for making various charting errors, failing to follow

protocols, and failing to administer medication properly.



             The Tennessee Board of Nursing subsequently brought charges against

Ms. Phares for unprofessional conduct and unfitness to engage in the practice of

nursing. She obtained legal counsel, who advised her to waive her rights to a formal

hearing and sign an Agreed Order of Suspension.



             The terms of the Agreed Order, which was signed in June of 1995, were

that Ms. Phares would accept the allegations against her as true, and her license

would be suspended for six months, during which time she was to submit to a

psychological examination and drug evaluation, conducted by the Tennessee Nursing

Foundation’s Peer Assistance Program (PAP). If those requirements were met, she

could appear before the Board in December and request the lifting of her suspension.




                                        -2-
              Ms. Phares contacted PAP, which referred her to defendant Kittie Myatt,

Ed.D., for evaluation. After filling out a five-page intake questionnaire and signing a

release form, Ms. Phares took two standardized written tests, and submitted to two

interviews conducted by Dr. Myatt: a clinical interview designed to elicit information

about substance abuse or dependence, and a psychosocial interview.



              During the interviews, Ms. Phares advised Dr. Myatt that she was an

insulin-dependent diabetic, and suggested that her employment problems may have

stemmed, at least in part, from her condition. Dr. Myatt graded the tests and

evaluated the interviews with the participation of her supervisor, a licensed

psychologist. Dr. Myatt then prepared the report which is the source of contention in

the present action.



              Dr. Myatt’s report discussed in detail the results and implications of the

various tests and interviews she conducted, and ended with three conclusions and

four recommendations. Ms. Phares’ grievance stems from the conclusion that “the

possibility of alcohol abuse as a contributing factor in her performance problems

cannot be ruled out,” and from recommendations that she undergo random breath

tests for alcohol abuse, and random drug screening “to confirm her self-reported

information that she is negative for substance abuse.” Other recommendations

included outpatient psychotherapy and proper medical care and monitoring of her

diabetes.



              Dr. Myatt’s report was submitted to PAP.          The director of PAP

summarized Dr. Myatt’s concerns and recommendations for the Department of

Health, but did not send a copy of the report to the Department or to the Board of

Nursing, since it contained private information about Ms. Phares that was not relevant

to the matter at hand.




                                         -3-
              On December 8, 1995, the Board of Nursing met and agreed to reinstate

Ms. Phares’ nursing license on a probationary basis, as long as she met seven

requirements, which included maintaining a contract with PAP, and submitting

quarterly reports of urine drug screens. A contract with PAP implies attendance at two

12-step meetings weekly.



              On August 22, 1996, Ms. Phares filed a complaint alleging that she does

not have and that she has never had an alcohol or substance abuse problem, that the

tests she took did not indicate any such problem, and that in evaluating her and in

reporting her findings to Ms. Phares’ detriment, Dr. Myatt failed to meet the standard

of care for her profession. Damages alleged included severe emotional distress and

having to undergo unnecessary treatment for drug and alcohol abuse. Ms. Phares

asked for $300,000 in compensatory damages. The defendant filed a motion for

summary judgment, which the court granted on April 15, 1997. This appeal followed.



                              II. Summary Judgment



              Summary judgment is “an important vehicle for concluding cases that

should be resolved on legal issues alone. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.

1992). It may only be granted where the proof shows “that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Tenn.R.Civ.P. 56.04; Taylor v. Nashville Banner Publishing Co., 573 S.W.2d

476 (Tenn. App. 1978).



              A “material fact” is, for the purposes of a summary judgment motion, one

that relates directly to the claim or defense embodied in the motion. To be material,

a fact at issue must be essential to the legal questions that will ultimately decide the

case. Rollins v. Winn-Dixie, 780 S.W.2d 765 (Tenn. App. 1989). Thus, a fact that




                                         -4-
may be of surpassing importance to one of the parties will not be material if raising

that fact does not alter the parties’ legal positions.



              To proceed on a motion for summary judgment, the moving party usually

supports her contention that there are no genuine issues of material fact with sworn

affidavits. Such affidavits must be made on personal knowledge, setting forth facts

that would be admissible in evidence. Sworn or certified copies of all papers referred

to in an affidavit should be attached or served with it. Tenn.R.Civ.P. 56.06. The

opponent of the motion may then respond with counter-affidavits or other competent

proof to demonstrate that there are indeed genuine disputes as to material facts.



              In considering a motion for summary judgment, the trial court must view

the evidence in the light most favorable to the opponent of the motion, and must draw

from it all the legitimate conclusions of fact that favor the opponent. National Mfg. Co.

v. Washington, 744 S.W 2d, 574 (Tenn. App. 1987); Gray v. Amos, 869 S.W.2d 834

(Tenn. App.1993). No presumption of correctness attaches on appeal to decisions

granting summary judgment, because such judgments involve only questions of law.

Roberts v. Roberts, 845 S.W.2d 225 (Tenn. App.1992); Hembree v. State, 925

S.W.2d 513 (Tenn. 1996).




                            III. Professional Malpractice



              In her complaint, Ms. Phares asserted that although she does not have

any alcohol or substance abuse problems, Dr. Myatt’s conclusions and

recommendations, which were premised on the possible existence of such problems,

were negligent and “did fall short of the standard of care for professionals in this area.”

She further claimed that Dr. Myatt “did not exercise the degree of care or skill or

possess the degree of knowledge ordinarily exercised by others of this profes-


                                           -5-
sion . . . .”



                Ms. Phares’ claim is thus one for professional malpractice. To establish

such a claim, the plaintiff must be prepared to offer competent testimony as to the

recognized standard of acceptable practice in the profession, and that the defendant

failed to act with ordinary and reasonable care in accordance with that standard.

Tenn. Code Ann. § 29-26-115(a).



                Such testimony must come from one who is familiar with the recognized

standard of practice for the profession in question. In the case of a claim against a

person who practices in a health care profession requiring licensure under the laws

of this state (such as a psychological examiner, see Tenn. Code Ann. § 63-11-207),

this means a person licensed in the same or a similar specialty, who practiced his

profession in Tennessee or a contiguous state in the year preceding the injury or

wrongful act complained of. Tenn. Code Ann. § 29-26-115(b).



                The requirement of expert testimony can be dispensed with in situations

where the matter in dispute is within the common knowledge of the ordinary layman.

See Baldwin v. Knight, 569 S.W.2d 450 (Tenn. 1978). This so-called “common

knowledge exception” only applies to the most obvious forms of negligence, acts “so

blatant that all mankind knows such things are not done absent negligence.” Murphy

v. Schwartz, 739 S.W.2d 777 (Tenn. App. 1986). We do not believe that the common

knowledge exception applies to this case.



                Dr. Myatt submitted an affidavit which set out in great detail her

interactions with Ms. Phares, including the results of the written tests and the content

of the interviews. She also discussed the reasoning process she followed in reaching

the disputed conclusions and recommendations.




                                          -6-
              The defendant acknowledged in her affidavit (as she did in her report)

that Ms. Phares’ profile on the test called the “Substance Use Disorders Diagnostic

Schedule” was negative for substance abuse but high on defensiveness. Dr. Myatt

noted that the high defensiveness score had the effect of casting doubt on the validity

of the rest of the test. The MCMI-III test was also negative for alcohol or drug

dependence, but Ms. Phares’ score on that test was high enough to indicate

“features” consistent with alcohol dependence, rather than “traits” of such a problem,

or a full-blown “disorder,” which would require higher scores.



              Dr. Myatt observed that Ms. Phares appeared to slur her speech during

the interview, had poor memory ability, was unable to give a consistent chronological

history, and denied the seriousness of her patient care problems. The defendant

stated that the test results and her observations were sufficient to support the

conclusion that “the possibility of alcohol abuse as a contributing factor in her

performance problems cannot be ruled out.” We note that the affidavit of the director

of PAP, the organization which ordered the evaluation, states that the primary goal of

PAP is to protect the public from impaired practitioners, and secondarily to assist

impaired practitioners in overcoming psychological or physical problems, or problems

of substance abuse.



              Dr. Myatt affirmed that in dealing with Ms. Phares, she fully complied

with the applicable standard of practice.      Dr. Myatt’s testimony as to her own

compliance with that standard was certainly competent under Tenn. Code Ann. § 29-

25-115(b), as she was a licensed psychological examiner who had been practicing

that profession in Tennessee for at least ten years.



              Ms. Phares responded with the affidavit of William D. Kenner, M.D., who

first saw her on August 7, 1996, fifteen days before she filed her complaint. Dr.

Kenner stated that he was a psychiatrist familiar with the recognized standard of


                                         -7-
acceptable professional practice for Mental Health Professionals, and that he

interviewed Ms. Phares and referred her to Pam Auble, Ph.D., a clinical psychologist,

for an evaluation.



              Dr. Kenner noted that Dr. Myatt did not evaluate Mrs. Phares’ diabetic

status, and did not consult with a licensed physician about the impact of her diabetes

on her professional conduct. He stated that in his professional opinion, the most likely

cause for Ms. Phares’ problems at Vanco Manor were that the enormous

responsibilities of her position left her no time to monitor her own glucose levels,

leading to physical symptoms that rendered her unable to discharge her duties

correctly. Significantly however, Dr. Kenner did not state that Dr. Myatt’s conduct

violated the standard of practice for psychological examiners.



              The Forensic Psychological Evaluation that was prepared by Dr. Auble

was attached as an exhibit to Dr. Kenner’s affidavit. The evaluation was based upon

six tests, which included a clinical interview. Dr. Auble concluded from those tests

that Ms. Phares was a woman with strong dependency needs, who felt overwhelmed

by stress and by continuing grief over the death of her parents. She also found that

Ms. Phares was very defensive about admitting to faults or weaknesses, but found no

evidence of alcohol or drug abuse.



              Dr. Auble’s evaluation did not deal at all with the question of what

constituted the standard of practice for psychological examiners, or whether Dr. Myatt

had violated that standard in preparing her own report. Further, the evaluation was

not a sworn statement, and was not certified, as is required by Tenn. R. Civ. P. 56.06.

The defendant argues that it was thus incompetent evidence as a matter of law.



              Putting aside the question of the competence of Dr. Auble’s evaluation

for the moment, it is clear that either the evaluation or the affidavit of Dr. Kenner would


                                           -8-
have been sufficient to raise a genuine issue of fact as to whether drug or alcohol

abuse played a rule in Ms. Phares’ conduct at Vanco Manor, even if that issue had not

already been raised by the tentative nature of Dr. Myatt’s conclusion.



              But although that issue may be of surpassing importance to Ms. Phares,

it is not material to her claim against Dr. Myatt, absent some proof that Dr. Myatt

violated the standard of practice.     The fact that Dr. Myatt came to a different

conclusion than did another practitioner is not sufficient to raise a question of

professional malpractice, so long as Dr. Myatt exercised the degree of care normally

exercised by psychological examiners in the practice of their profession. See

Methodist Hospital v. Ball, 362 S.W.2d 475 (Tenn. App. 1961); Lewis v. Hill, 770

S.W.2d 751 (Tenn. App. 1988). There appears to be no proof in the record that Dr.

Myatt’s actions deviated in any way from the standards established by her profession.




                                   IV. Other Issues



              The defendant has asserted several other grounds for summary

judgment.    These include the immunity from suit extended to medical review

committees and peer review committees under Tenn. Code Ann. § 63-6-219 for

actions taken in good faith and without malice; a purported waiver of liability contained

in the release that Ms. Phares signed prior to being evaluated by Dr. Myatt; and the

fact that Dr. Myatt’s report was not actually furnished to the Nursing Board, and thus

(defendant argued) could not be considered a cause in fact of any injury suffered by

Ms. Phares as a result of the Nursing Board’s action.




                                          -9-
             We pretermit all these arguments, as they are not necessary for

resolution of this case, once we have determined that Ms. Phares had failed to

overcome her burden on the motion for summary judgment to bring forth proof that

the actions of Dr. Myatt constituted a deviation from the standard of practice for

psychological examiners.



             The defendant has also asked this court to impose sanctions on the

plaintiff for frivolous appeal under Tenn. Code Ann. § 27-1-122. After a thorough

examination of the record, we have determined that this is not an appropriate case for

the imposition of such sanctions.




                                         V.



              The judgment of the trial court is affirmed. Remand this cause to the

Circuit Court of Davidson County for any further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.




                                                 ____________________________
                                                 BEN H. CANTRELL, JUDGE



CONCUR:

                                        - 10 -
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_____________________________
WILLIAM C. KOCH, JR., JUDGE
