                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE

   GLENDA CLICK, as next of kin to CURTIS HUGH CLICK, deceased v.
                 NELSON J. MANGIONE, ET AL.

                  Direct Appeal from the Circuit Court for Davidson County
                            No. 97-C-267 Walter C. Kurtz, Judge



                     No. M1999-00129-COA-R3-CV- Decided July 7, 2000


        This is a medical malpractice case. The plaintiff’s husband died of a cardiac rupture while
in the care of the defendant physicians. The plaintiff filed a wrongful death suit, asserting medical
malpractice in the care of her husband. The trial court granted summary judgment to the defendant
doctors, finding that the plaintiff’s expert’s testimony failed to show that a breach of the standard
of care by the defendants caused the death of the plaintiff’s husband. The plaintiff appeals. We
affirm, finding that the plaintiff did not present evidence that, to a reasonable degree of medical
certainty, a breach of the standard of care by the defendants caused the death of the decedent.

Tenn. R. App. P. 3; Judgment of the trial court is affirmed

HOLLY KIRBY LILLARD , J., delivered the opinion of the court, in which ALAN E. HIGHERS , J., and
DAVID R. FARMER , J. joined.

Hugh P. Garner, Chattanooga, Tennessee, for the appellant, Glenda Click.

Michael A. Geracioti, Nashville, Tennessee, for the appellees, Nelson J. Mangione, Douglas A.
Waldo, and Douglas A. Waldo, M.D., P.C.

                                             OPINION

       This case arises out of the death of Curtis Hugh Click (“Click”), whose heart ruptured while
undergoing a diagnostic test. On February 2, 1996, forty-five-year-old Click, a maintenance worker,
experienced chest pains while shoveling snow at his job at Emerald Hodgson Hospital in Sewanee,
Tennessee. Click sought treatment at the Southern Tennessee Medical Center in Winchester,
Tennessee, where he was diagnosed with an “acute myocardial infarction” i.e., a heart attack. The
next day, Click was airlifted to Centennial Medical Center in Nashville, Tennessee, where he was
admitted under the care of Defendant Nelson J. Mangione, M.D. (“Dr. Mangione”), a cardiologist
employed by a professional association of cardiologists, Defendant Douglas A. Waldo, M.D., P.C.
Defendant Douglas A. Waldo, M.D. (“Dr. Waldo”) assisted Dr. Mangione in his treatment of Click.
Over the next several days, they ordered a number of diagnostic tests for Click, including blood tests,
echocardiograms and an arteriogram.
        On February 6, 1996, Click underwent a pharmacological “stress test” known as a Persantine
perfusion study. This test involves the injection of the drug Persantine1 into the patient’s
bloodstream, followed by the injection of a radio isotope, allowing a technician to scan the flow of
blood into the patient’s heart. Persantine has the effect of increasing the coronary blood flow into
the patient’s heart. The Persantine test is used in order to obtain a better view of the blood flow to
the heart of a patient who is unable to take the standard “treadmill” physical stress test.
        Approximately one and one-half hours after the Persantine had been injected into his
bloodstream, Click went into cardiac arrest and died, despite the efforts of medical personnel to
resuscitate him.2 The autopsy revealed that Click had suffered a rupture of the left posterolateral
wall of the heart, and that the rupture was associated with the myocardial infarction he had
experienced several days before.
        On January 24, 1997, Click’s widow, Plaintiff Glenda Click, filed a malpractice claim against
Dr. Mangione, Dr. Waldo, and Douglas A. Waldo, M.D., P.C., the professional association to which
Waldo and Mangione belonged. The Plaintiff alleged that the Defendants had breached the standard
of care by ordering a Persantine perfusion test on her husband rather than performing heart bypass
surgery or angioplasty. She contended that, had the Defendants performed surgery or angioplasty
instead of ordering the Persantine stress test, her husband would not have died.
        The Defendants filed a motion for summary judgment, supported by their affidavits stating
that their care of Click complied with the recognized standard practices of cardiology in their
community, and that no act or omission on their part caused or contributed to his death. The Plaintiff
responded with the affidavit of Alabama cardiologist Ronald Hanson, M.D. (“Dr. Hanson”). Dr.
Hanson stated that, in his opinion, the Defendants’ actions in performing a stress test rather than
angioplasty or bypass surgery fell below the applicable standard of care, and “precipitated” Click’s
death. The Defendants then withdrew their motion for summary judgment in order to take Dr.
Hanson’s deposition.
        In his deposition, Dr. Hanson testified that the Persantine stress test was “medically
unnecessary,” and that the test had precipitated Click’s death by increasing the stress on the left
ventricular wall of his heart. Dr. Hanson stated that, in his opinion, the Defendants should have
performed angioplasty or bypass surgery on Click rather than subjecting him to the Persantine stress
test. He testified that angioplasty or bypass surgery would have increased the flow of blood to
Click’s heart, thereby decreasing the risk of cardiac rupture. However, Dr. Hanson also testified that
angioplasty or bypass surgery would merely make cardiac rupture “less likely to occur”; neither


       1
         Persantine is also known as “Dipyridamole,” the name by which the Plaintiff’s expert refers
to the drug in his deposition.
       2
         The Persantine Perfusion test is performed in two stages. During the first, the “resting
stage,” the technician intravenously administers the radio isotope into the patient’s bloodstream, in
order to scan the patient’s heart “at rest.” After the first scan is completed, the patient is
administered Persantine, followed by a second injection of the radio isotope, allowing the technician
to conduct a second scan of the patient’s heart. Click’s cardiac arrest occurred approximately one
and one-half hours after administration of the Persantine, as the technician was preparing to start the
second scan of his heart.

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would prevent a cardiac rupture. Dr. Hanson noted that once a patient sustains a cardiac rupture,
according to Dr. Hanson, “almost nothing”can be done to save his life. Although Dr. Hanson opined
that Click’s cardiac arrest was precipitated by the Persantine stress test, he acknowledged that the
package insert that came with the drug contained no report of any linkage between use of the drug
and the risk of cardiac rupture, and that he had not seen a single reported case in which the use of
a Persantine perfusion test had been associated with cardiac rupture. Therefore, he could not testify
within a reasonable degree of medical certainty that use of the drug caused Click’s cardiac rupture,
although he insisted that “it’s still within the realm of possibility.”
        The Defendants then filed a supplemental motion for summary judgment. In support of the
motion, the Defendants filed the deposition of Dr. Hanson, the Defendants’ depositions and
affidavits, the affidavit of the pathologist who conducted the autopsy of Click’s heart, and the
affidavit of the medical technician who performed the Persantine perfusion scan. In the motion, the
Defendants argued that they were entitled to summary judgment based on the Plaintiff’s failure to
present expert medical testimony stating, to a reasonable degree of medical certainty, that the
Defendants had breached the standard of care in their treatment of Click, or that their treatment of
Click caused his death.
        The trial court granted the Defendants’ motion for summary judgment. The trial court found
that the testimony of the Plaintiff’s expert failed to show that the Defendants breached the standard
of care by ordering the Persantine perfusion study for Click, or that the Persantine test caused Click’s
death. The trial court’s order stated:

                 On the entire record the Court is of the opinion that the plaintiff has presented
        no evidence to indicate that any breach of the standard of care by the defendant
        doctors caused the death of Mr. Click. The affirmative evidence before the Court is
        that the cardiac rupture would have happened and that the stress test did not cause the
        cardiac rupture.

From this order, the Plaintiff now appeals.
        On appeal, the Plaintiff argues that Dr. Hanson’s testimony is sufficient to raise a genuine
issue of material fact as to whether the Defendants breached the standard of care and caused the
death of her husband. The Plaintiff contends that whether the Persantine stress test caused her
husband’s heart to rupture, or whether angioplasty or bypass surgery could have prevented the
rupture, are questions of fact to be resolved by the jury.
        Summary judgment is proper only when the party moving for summary judgment is able to
show that there are no genuine issues of material fact, and that it is entitled to judgment as a matter
of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). Once that party has filed a properly supported motion for summary judgment,
however, demonstrating that there are no genuine issues of material fact, “the burden of production
of evidence shifts to the non-moving party to produce evidence which would establish a genuine
factual dispute.” Masters v. Rishton, 863 S.W.2d 702, 705 (Tenn. Ct. App. 1992). If the non-
moving party is unable to offer evidence to establish the essential elements of his claim, then
summary judgment is appropriate. Blair v. Allied Maintenance Corp., 756 S.W.2d 267, 269-70
(Tenn. Ct. App. 1988). Since the trial court’s grant of the Defendants’ motion for summary

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judgment involves only questions of law, no presumption of correctness attaches to the trial court’s
decision. Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary
judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723
(Tenn. 1997).
        Claims for medical malpractice are governed by Tennessee Code Annotated Section 29-26-
115. Moon v. St. Thomas Hosp., 983 S.W.2d 225, 229 (Tenn. 1998); Kilpatrick v. Bryant, 868
S.W.2d 594, 597 (Tenn. 1993). This statute provides that a plaintiff asserting a claim for medical
malpractice has the burden of proving, by expert testimony, the standard of care, a breach of the
standard of care by the defendant, and that the defendant’s breach of the standard of care caused the
plaintiff’s injury:

            29-26-115.        Claimant’s burden in malpractice action –Expert
       testimony–Presumption of negligence–Jury instructions.–(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 speciality thereof, if any, that the defendant practices in the community in
       which he 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.

Tenn. Code Ann. § 29-26-115 (1980).
        To withstand a motion for summary judgment, the plaintiff in a malpractice claim must
present competent medical testimony, to a reasonable degree of medical certainty, which raises a
genuine issue of material fact as to each element of the plaintiff’s claim. White v. Methodist Hosp.
South, 844 S.W.2d 642, 648 (Tenn. Ct. App. 1992). In order for the Plaintiff to survive the
Defendants’ motion for summary judgment, she had to establish, through expert testimony, that a
genuine issue of fact existed as to whether the Defendants breached the recognized standard of care
in the community, and whether that breach of care caused her husband’s death. Howse v. State, 994
S.W.2d 139, 141 (Tenn. Ct. App. 1999); Russell v. Pakkala, No. 02A01-9703-CV-00053, 1998 WL
10212, at * 2 (Tenn. Ct. App. Jan. 14, 1998); White, 844 S.W.2d at 648.
        In this case, the Plaintiff’s medical expert was unable to testify to a reasonable degree of
medical certainty as to the Defendants’ deviation from the standard of care. Dr. Hanson’s affidavit
stated that it was his belief that the Defendants “fell below the standard of care” in their treatment
of Click, and that “performing a stress test on a patient who is four to five days post a major
myocardial infarction would approach negligence per se.” In his deposition, however, Dr. Hanson
admitted that the standard of care for patients who have undergone recent myocardial infarctions
includes pharmacological stress tests, and that he could not say that it would be a deviation from the
standard of care to order a Persantine perfusion test to be performed within four days after a patient
had suffered a myocardial infarction:


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        Q. All right. My question was: Is it a deviation from the standard of care to perform
        pharmacologic stress testing four or five days after a myocardial infarction?

        A. I would say that that is a borderline area which you would have differences of
        opinions. I cannot say with absolute certainty that it is below the standard of care.


Dr. Hanson stated that he would not have performed a Persantine perfusion study on Click, had Click
been his patient. The fact that Dr. Hanson would have undertaken a different course of treatment
is not sufficient to establish that the Defendants breached the standard of care in their treatment of
Click. Roddy v. Volunteer Medical Clinic, Inc., 926 S.W.2d 572, 578 (Tenn. Ct. App. 1996); Lewis
v. Hill, 770 S.W.2d 751, 754 (Tenn. Ct. App. 1988). Indeed, Dr. Hanson acknowledged that the
mortality rate for Persantine perfusion tests, at .05%, is roughly half the mortality rate for
angioplasty or bypass surgery, and that there is a school of thought among cardiologists that acute
myocardial infarctions and coronary artery disease should be treated conservatively, without
angioplasty, unless the patient has first failed a diagnostic stress test. It is not a departure from the
standard of care for a physician to choose one of several different medically accepted courses of
treatment for his patient. Harris v. Buckspan, 984 S.W.2d 944, 952-53 (Tenn. Ct. App. 1998).
         Moreover, even if ordering the Persantine perfusion test were a deviation from the standard
of care, Dr. Hanson could not testify to a reasonable degree of medical certainty that the test caused
Click’s cardiac rupture. At most he said there could have been a cause and effect relationship
between the drug and Click’s cardiac rupture, that it was “within the realm of possibility.” In a
medical malpractice action, the mere possibility of causation is not sufficient to establish the
plaintiff’s claim; the plaintiff’s expert must testify that the defendant’s alleged breach of the standard
of care, to a reasonable degree of medical certainty, caused the plaintiff’s injury:

                [P]roof of causation equating to a “possibility,” a “might have,” “may
                have,” “could have,” is not sufficient, as a matter of law, to establish
                the required nexus between the plaintiff’s injury and the defendant’s
                tortious conduct by a preponderance of the evidence in a medical
                malpractice case. Causation in fact is a matter of probability, not
                possibility, and in a medical malpractice case, such must be shown to
                a reasonable degree of medical certainty.

Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993) (citing White v. Methodist Hosp. South,
844 S.W.2d 642, 648-49 (Tenn. Ct. App. 1992)).
       The certified nuclear medical technician who conducted the Persantine perfusion study on
Click, Michael Albritton, stated in his affidavit that Click’s cardiac rupture occurred more than an
hour after the administration of Persantine. Dr. Hanson was questioned on the likelihood that a
cardiac rupture which occurred more than an hour after the administration of the drug could have
been causally related to the drug:

        Q. When did Mr. Click suffer the complication that you associate with the perfusion scan?


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A. The record does not say.

Q. Assume that it occurred more than one hour after he received Dipyridamole. Do you still
associate his complication to the perfusion scan or the use of the drug Dipyridamole?

A. The effect of dipyridamole is relatively short lived.
       If you administer Dipyridamole, the patient had adverse symptoms, you
administered Aminophylline, I think it would be reasonable to assume under this
hypothetical case that one hour later, probably the effect of the Dipyridamole was
gone.
       If you administered IV Dipyridamole, the patient had symptoms and you did
not reverse it with IV Aminophylline, then it’s possible that it might have an effect
as much as one hour later. But I believe the duration of Dipyridamole is generally
considered to be less than one hour.

Q. So in this instance–and this is a hypothetical question–if this gentleman received the
Dipyridamole, reported chest pain, and then received Aminophylline which reverse [sic] the
effects and relieve the chest pain, then from that point forward, more than an hour elapsed
before the cardiac rupture or other cardiac event occurred, is it your opinion that the
Dipyridamole was not the cause of the cardiac rupture or subsequent cardiac event?

A. In that theoretical scenario of cardiac arrest occurring more than an hour after the
administration of Dipyridamole, I would say there would be some serious question as to
whether or not the cause, effect between the rupture and the administration of the medication.

Q. Would you agree that you could not relate the Dipyridamole or the testing to the cardiac
event within a reasonable degree of medical certainty under the fact scenario that I’ve
presented to you in my hypothetical question?

A. In a hypothetical question, if it’s more than an hour, generally speaking, I would suspect
it would become less and less likely to be causually related.

Q. Does that mean that you could not state causation to a reasonable degree of medical
certainty under the hypothetical facts that I’ve asked you to consider?

A. I did not specifically research that particular question, but I would say that it would be
difficult to say with absolute medical certainty that there was a cause and effect relationship
more than one hour after the administration of the Dipyridamole.

Q. Would it be fair to state that it is more likely than not that the Dipyridamole did not have
a causative effect on the hypothetical question that I asked you?

A. I cannot say it’s more likely than not or less likely than not.


                                         -6-
       Q. Can’t say one way or the other, can you?

       A. No, I don’t think I can.

Dr. Hanson was also unable to testify to a reasonable degree of medical certainty that bypass surgery
or angioplasty would have prevented Click’s cardiac rupture:

       Q. Would angioplasty prevent cardiac rupture?

       A. It would reduce the chances, but it would not prevent it.

       Q. Will bypass, cardiac bypass surgery, prevent cardiac rupture?

       A. By increasing the blood flow to the affected area, it’s less likely to rupture, but it will not
       prevent it.

        In sum, Dr. Hanson’s testimony on causation indicated his belief of the possibility that the
Persantine perfusion test caused Click’s cardiac rupture, and that Click would have been “less likely”
to have experienced a cardiac rupture had the Defendants performed angioplasty or bypass surgery.
These statements are insufficient to establish causation for the Plaintiff’s medical malpractice claim.
        Consequently, we find that the Plaintiff failed to present competent medical testimony
sufficient to create a genuine issue of material fact in her malpractice claim against the Defendants.
Therefore, the trial court’s grant of the Defendants’ motion for summary judgment is affirmed.
         The decision of the trial court is affirmed. Costs on appeal are taxed to the Appellant,
Glenda Click, for which execution may issue, if necessary.

                                       HOLLY KIRBY LILLARD, J.

                                       ALAN E. HIGHERS, J.

                                       DAVID R. FARMER, J.




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