                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                   Assigned on Briefs May 31, 2001

           DANNY RAY THOMAS v. DR. MOLLY P. O’TOOLE, ET AL.

                         Appeal from the Circuit Court for Davidson County
                          No. 00C-2531    Hamilton V. Gayden, Jr., Judge



                       No. M2001-00305-COA-R3-CV - Filed August 22, 2001


Appellant, Danny Ray Thomas, a prison inmate, brought suit against two medical doctors, Molly P.
O’Toole and Donald J. Boatright, on September 1, 2000 alleging various acts of malpractice. On
November 9, 2000, Plaintiff sought a default judgment. On November 15, 2000, counsel for
Defendants made his appearance and, on November 22, 2000, answered the complaint. Both
Defendants filed motions for summary judgment, which motions were granted by the trial court.
Plaintiff appealed, and after consideration, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR. and
PATRICIA J. COTTRELL , JJ., joined.

Danny Ray Thomas, Clifton, Tennessee, Pro Se.

George A. Dean, Nashville, Tennessee, for the appellees, Dr. Molly P. O’Toole and Dr. Donald J.
Boatright.

                                                    OPINION

        On September 1, 2000, Plaintiff/Appellant, Danny Ray Thomas, acting Pro Se, filed suit
against Dr. Molly P. O’Toole and Dr. Donald Boatright seeking $750,000 in compensatory damages
and $250,000 in punitive damages. Plaintiff alleged, in substance, that Dr. O’Toole refused to give
him any medication for stress and that Dr. Boatright had not given him appropriate treatment for
kidney stones.

        On November 13, 2000, Plaintiff filed a default judgment certificate pursuant to the local
rules in Davidson County but did not file a motion for default judgment.1 On November 15, 2000,


       1
           No default judgment was entered in the case prior to the November 22, 2000 a nswer filed on beh alf of both
                                                                                                       (continu ed...)
counsel for Defendants made his appearance and, on November 22, 2000 filed an answer on behalf
of both Dr. O’Toole and Dr. Boatright.

        On November 28, 2000, Defendants filed their motion for summary judgment based upon
the affidavit of Dr. Boatright, which stated that neither of the Defendants had violated the recognized
standards of acceptable professional practice in the Nashville, Tennessee community and similar
communities in their treatment of Mr. Thomas. His affidavit asserted his familiarity with such
recognized standards of acceptable professional practice in both psychiatry and internal medicine
in the Nashville, Tennessee community, where all of the treatment by both doctors was done.

       The affidavit of Dr. Boatright details the treatment administered both by himself and Dr.
O’Toole from the time Plaintiff arrived at the SPR-Middle Tennessee Correctional Complex in
Nashville on April 1, 1999 until the filing of suit in this case. He was treated for complaints of
extreme pain and allegations of kidney stones. The treatment was periodic through the end of
January of 2000. The affidavit states in part:

                 15.    I am familiar with the recognized standards of acceptable professional
         practice in my specialty, internal medicine, in the Nashville, Tennessee community
         and similar communities as it existed during the time I was involved in the care of
         Mr. Thomas. In everything that I did in the care and treatment of Mr. Thomas, I
         complied with the recognized standard of acceptable professional practice in my
         specialty in the Nashville, Tennessee community and similar communities. In
         addition, nothing that I did or didn’t do caused any injury to Mr. Thomas.

       The affidavit of Dr. Boatright further establishes that he had reviewed the medical records
of Mr. Thomas relating to the treatment undertaken by Dr. O’Toole relative to psychiatric problems
including prescriptive medication abuse and anxiety. He further asserted:

                 25.     I am familiar with the recognized standards of acceptable professional
         practice in the specialty of psychiatry, in the Nashville, Tennessee community and
         similar communities as it existed during the time Dr. O’Toole was involved in the
         care of Mr. Thomas. She complied with the recognized standard of acceptable
         professional practice in that specialty in the Nashville, Tennessee community and
         similar communities in the care and treatment of the patient. In addition, nothing she
         did or did not do caused any injury to Mr. Thomas.




         1
           (...continued)
Defendan ts. For this reason, the trial court denied default judgment to Plaintiff. Default judgment is not mandatory
under Rule 55.01 of the Tennessee Rules of Civil Procedure, and Rule 55.02 the answer of Defendants, filed nine days
after the defau lt judgment certificate was filed, shows a meritorious defense. B oth the an swer of D efendan ts and their
motion for summary judgment were filed before any hearing on the issue of default judgment. The trial court did not
err in ove rruling the application for defau lt judgm ent. Creed v. Valentine, 967 S.W .2d 325 (Tenn. C t. App. 19 97).

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       In Tennessee, in order to prevail in a malpractice action, a plaintiff must sustain his burden
under Tennessee Code Annotated section 29-26-115. This statute provides in pertinent part:

                 (a) In a malpractice action, the claimant shall have the burden of proving by
         evidence as provided by subsection (b):
                 (1) The recognized standard of acceptable professional practice in the
         profession and the specialty thereof, if any, that the defendant practices in the
         community in which the claimant2 practices or in a similar community at the time the
         alleged injury or wrongful action occurred;
                 (2) That the defendant acted with less than or failed to act with ordinary and
         reasonable care in accordance with such standard; and
                 (3) As a proximate result of the defendant’s negligent act or omission, the
         plaintiff suffered injuries which would not otherwise have occurred.
                 (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 the person was licensed to
         practice in the state or a contiguous bordering state a profession or specialty which
         would make the person’s expert testimony relevant to the issues in the case and had
         practiced this profession or specialty in one (1) of these states during the year
         preceding the date that the alleged injury or wrongful act occurred. This rule shall
         apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court
         may waive this subsection when it determines that the appropriate witnesses
         otherwise would not be available.

Tenn. Code Ann. § 29-26-115 (2000).

        Generally, this burden can only be established by expert testimony. Only in cases where the
alleged act of malpractice lies within the common knowledge of a layman is expert testimony
unnecessary. Baldwin v. Knight, 569 S.W.2d 450 (Tenn. 1978). Proper treatment of alleged pain
resulting from kidney stones and appropriate drug therapy for stress and anxiety are obviously not
matters within the knowledge of a layman and expert testimony is necessary.

        While it is true that summary judgment is generally inappropriate in professional malpractice
cases, if the only issue is one which requires expert testimony and there is no expert response to an
affidavit by an expert, then summary judgment is proper. Bowman v. Henard, 547 S.W.2d 527
(Tenn. 1977); Ayers v. Rutherford Hospital, Inc., 689 S.W.2d 155 (Tenn. Ct. App. 1984).


         2
           This is a m iscodificatio n. Section 14 of Chapter 299 of the Public Acts of 1975 actually provides: “(1) The
recognized standard of accep table prof essional pr actice in the p rofession and the sp ecialty there of, if any, tha t the
defendant practices in th e comm unity in which he practices o r in a similar community at the time the alleged injury or
wrong ful action o ccurred ;” (emp hasis add ed).




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        Appellant complains that the trial court should not have relied on the “untrustworthy opinion
affidavit” of Dr. Boatright because he was one of the defendants. We are dealing with Tennessee
Code Annotated section 29-26-115, which requires, under the facts in this case, that Plaintiff
establish by expert testimony the necessary standard of care and the deviation by Defendant
therefrom. It is common practice to accept the affidavit of Defendant stating his position in support
of a motion for summary judgment, thereby shifting to the plaintiff the duty of coming forth with
countervailing expert testimony. Smith v. Graves, 672 S.W.2d 787, 789-90 (Tenn. Ct. App. 1984).

        Dr. Boatright was a specialist in internal medicine. He was not a specialist in psychiatry, but
his affidavit exonerates the psychiatrist, Dr. O’Toole, from any violation of applicable standards of
professional practice. The Supreme Court of Tennessee has held:

                   The statute contains no requirement that the witness practice the same
          specialty as the defendant. The issue at trial was whether the defendant’s
          performance in attempting to prevent the surgical wound infection and in treating it
          after it developed was negligent. Dr. Stratton stated that he was familiar with the
          applicable standards of surgeons in the prevention and treatment of surgical wound
          infections, and his testimony supports that statement. His expert testimony was,
          therefore, relevant to the issues in the case. For that reason, he was competent to
          testify as to those standards, even though he was not himself a surgeon.

Searle v. Bryant, 713 S.W.2d 62, 65 (Tenn. 1986).

        In this case, the affidavit of Dr. Boatright requires an affidavit from an expert for the plaintiff
in order to avoid summary judgment. Bowman, 547 S.W.2d 527.

        In efforts to comply with the mandates of Tennessee Code Annotated section 29-26-115,
Plaintiff presented the affidavits of Dr. Gulla Krishna and Dr. Allen Craig, physicians practicing in
Coffee County, Tennessee who had previously treated the appellant. However, neither affidavit is
sufficient under the statute. Neither Dr. Krishna nor Dr. Craig assert any familiarity with the
recognized standard of acceptable professional practice in Nashville, Tennessee. Neither affidavit
asserts that either Dr. Boatright or Dr. O’Toole “acted with less than or failed to act with ordinary
and reasonable care in accordance with such standard.” Tenn. Code Ann. § 29-26-115(a)(2).

          The record before the court reflects that Plaintiff cannot prove essential elements of his case,
to wit:

1.        The recognized standard of acceptable professional practice in Nashville, Tennessee, or a
          similar community; and

2.        That the defendants acted or failed to act in accordance with such standards.




                                                    -4-
This failure is fatal to the case of the appellant on a summary judgment motion. Byrd v. Hall, 847
S.W.2d 208 (Tenn. 1993).

        The inadequacy of the appellant’s proof in the face of a summary judgment motion is
demonstrated in the analogous case of Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d
826 (Tenn. Ct. App. 1997). In that case, the plaintiff presented an expert who had no familiarity with
the standard of care for Jackson, Tennessee or similar communities, but simply testified that a
national standard applied and would be the same in any community. In rejecting the position of the
plaintiff, this Court observed:

               Mabon contends that he has met that threshold and that this case is
       distinguishable from Ayers and Osler because there was evidence in those cases that
       the standards of care were different and that there is no proof in this case that the
       standard of care in Jackson, Tennessee is different from that propounded by Dr.
       Shane. He argues that once Dr. Shane set forth his opinion that the national standard
       of care is the same as the standard of care in Jackson, the burden then shifted to Dr.
       Thomas to set forth a different standard of care for Jackson.

                We respectfully disagree with this contention. It is the plaintiff who is
       charged with the burden of proof as to the standard of care in the community in
       which the defendant practices or in a similar community. T.C.A. § 29-26-115(a)(1).
       A plaintiff who chooses to prove the standard of care in a similar community
       necessarily must prove that community is similar to the one in which the defendant
       practices. To shift this burden to the defendant directly contradicts the plain language
       of the statute and would render the statute a nullity. Under the principles of summary
       judgment, once Dr. Thomas moved for summary judgment and submitted an affidavit
       stating that he complied with the standard of care in Jackson, the burden then shifted
       to Mabon to set forth specific facts that Dr. Thomas failed to meet the standard of
       care in Jackson or a similar community.

               In this case, Dr. Shane’s deposition testimony leads us to conclude that he is
       not familiar with the standard of care in Jackson, Tennessee. Moreover, we cannot
       accept Dr. Shane’s bare assertion that the standard of care in Jackson is the same
       nationwide and that the level of care with which Dr. Shane is familiar should have
       been available in Jackson. This does not comply with the nonmoving party’s burden
       on a motion for summary judgment to set forth specific facts. From our review of the
       record, Dr. Shane simply failed to establish that he had knowledge of the requisite
       standard of care in Jackson, Tennessee or in a similar community.

              Without evidence as to the standard of care in Jackson or in a similar
       community, Mabon cannot demonstrate any breach of duty to Mrs. Mabon. See
       Cardwell, 724 S.W.2d at 754. Mabon therefore failed to carry the burdens placed on
       him by T.C.A. § 29-26-115. As such, there was no genuine issue of material fact,


                                                 -5-
       and Dr. Thomas was entitled to judgment as a matter of law. The trial court correctly
       granted summary judgment to Dr. Thomas.

Mabon, 968 S.W.2d 826, 831.

         The trial court was correct in granting summary judgment to Defendants, and the judgment
of the trial court is affirmed.

       Costs of this cause are assessed against Appellant.



                                                     ___________________________________
                                                     WILLIAM B. CAIN, JUDGE




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