0ROBERT E. MAYERS,                     )
                                   )
     Plaintiff/Appellant,          )       Appeal No.
                                   )       01-A-01-9802-CV-00101
v.                                 )
                                   )
                                                    FILED
                                           Davidson Circuit
MILLER MEDICAL GROUP,              )       No. 97C-1914
                                                    December 8, 1998
MILLER MEDICAL GROUP,              )
An Affiliate of Baptist Healthcare )                Cecil W. Crowson
Group; RUSSELL D. WARD, M.D. )                     Appellate Court Clerk
and MICHEL KUZUR, M.D.,            )
                                   )
     Defendants/Appellees.         )
                                   )


                 COURT OF APPEALS OF TENNESSEE


   APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

                     AT NASHVILLE, TENNESSEE


          THE HONORABLE MARIETTA M. SHIPLEY, JUDGE




ROBERT E. MAYERS, Pro Se
1525 Naples Avenue
Nashville, Tennessee 37207




ROBERT E. PARKER
RICHARD F. RUSSELL
200 Fourth Avenue North, 5th Floor
Nashville, Tennessee 37219
     ATTORNEYS FOR DEFENDANTS/APPELLEES




                     AFFIRMED AND REMANDED




                                           WILLIAM B. CAIN, JUDGE
                               OPINION
         Plaintiff, Robert E. Mayers, acting pro se in this medical malpractice
action, appeals the decision of the Circuit Court of Davidson County denying his
application for relief under Tennessee Rules of Civil Procedure 60.02 from a
final summary judgment rendered in favor of the defendants.


         On June 16, 1997, Robert E. Mayers filed suit against Miller Medical
Group and Drs. Russell D. Ward and Michel Kuzur, former physician members
of Miller Medical Group. In the complaint it is alleged that on July 28, 1980,
while plaintiff was employed by the Tennessee Department of Corrections at
Spencer Youth Center, he sustained a work related injury to his mid and upper
chest when kicked by a juvenile inmate.


         He was first treated at Miller Medical Group on June 18, 1981, by Dr.
Russell D. Ward, presenting with a complaint of constant pain in his chest. Dr.
Ward prescribed medications for him in 1981 and then retired from the practice
of medicine in 1982. Plaintiff was then treated by the defendant, Michael E.
Kuzur, from 1983 until his last treatment by Dr. Kuzur on April 25, 1989.
During the course of his treatment, Dr. Kuzur prescribed Naprosyn, 375
milligrams, with the prescription issued in 1989 and continually renewed until
a last prescription therefor on February 19, 1991.


          Following the last treatment by any of the defendants in February of
1991, Mr. Mayers, on December 18, 1991, was first treated by Dr. Winston
Griner at the Vanderbilt Pain Clinic, still suffering from pain in his chest which
had continued since his original injury in 1980.


          On June 18, 1996, plaintiff was first seen by Dr. Richard N. Pearson,
III, who diagnosed his problem as chronic sternal nonunion requiring surgery.
In his report to the pain control center of June 18, 1996, Dr. Pearson stated in
part:
          . . . As you well know, he is a 44 year old gentleman who
          incurred a fractured sterno manubrial junction in

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          approximately 1980, when kicked in the chest by an inmate
          during his work as a corrections officer. Although he was
          able to manage this discomfort with high doses of non-
          steroidal anti-inflammatories, a combination of bleeding
          hemorrhoids and persistent anemia due to GI blood loss
          necessitated discontinuation of these medications. Since that
          time, approximately 3 years ago, he has been managed by
          repeat alcohol injections in the peristernal area, which have
          been effective for up to 2 months at a time. He remains
          employed as a counselor at the Department of Corrections,
          and is no longer involved in active physical activity.

               On physical examination, Mr. Mayers has clear
          evidence of a step-off at a sterno manubrial junction. A
          sternal click is readily palpable at this point. It is my clinical
          impresion, which is supported by his bone scan data, that he
          has chronic inflammation around the pseudo capsule
          associated with his unhealed chronic sterno manubrial
          dislocation.

                Mr. Mayers seems like a responsible individual who is
          truly plagued by chronic pain related to a specific physical
          disorder which I believe can be corrected at relative low risk.



          Dr. Pearson performed the surgery on July 17, 1996, with apparently
satisfactory results.


          The defendants filed a joint answer denying all allegations of
negligence and all allegations of fraudulent concealment. Coupled with the
answer, Dr. Kuzur filed his affidavit asserting familiarity with the acceptable
standard of medical practice in Nashville and further asserting his compliance
with the standard of care. As affirmative defenses, all defendants pleaded the
one year statute of limitations provided by Tennessee Code Annotated section
29-26-116(a)(1) and the three year statute of repose provided by Tennessee Code
Annotated section 29-26-116(3).


          On August 25, 1997, all defendants filed a motion for judgment on the
pleadings or summary judgment pursuant to Rules 12 and 56 of the Tennessee
Rules of Civil Procedure, together with a statement of material facts pursuant to
Rule 56.03.



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           On September 23, 1997, plaintiff filed pro se a motion for an extension
of time to answer which was granted and the Rule 12 and Rule 56 motions reset
for November 7, 1997.


           On October 16, 1997, plaintiff responded to the Rule 12 and Rule 56
motion including in his response a copy of the letter from Dr. Pearson of June 18,
1996.


           The Rule 12 and Rule 56 motions were heard on November 7, 1997,
and by order dated November 13, 1997, the trial court held that the summary
judgment motion of the defendatns was well taken in all respects and was
granted.


           No appeal was taken from this judgment within thirty days after
November 13, 1997, and it thus became final.


           On January 9, 1998, the plaintiff filed pro se his motion for relief from
the November 13, 1997 judgment pursuant to Rule 60.02 of the Tennessee Rules
of Civil Procedure. This motion was accompanied by an affidavit of Dr. Pearson
stating, in pertinent part:
           2. Based on my examination, it is my medical judgment
           that Robert Mayers suffered from chronic sternal nonunion
           requiring surgery.
           3. I believe if a medical diagnosis of chronic sternal
           nonunion had been rendered earlier, Robert Mayers medical
           condition could have been resolved more quickly.



           The Rule 60.02 motion of the plaintiff was heard on February 13, 1998
and denied by the trial court by an order entered on February 17, 1998.


           Plaintiff pro se appealed the February 13, 1998 order by filing notice
of appeal on February 19, 1998.


I.         THE RULE 60.02 MOTION
           This appeal is not from the grant of summary judgment of November


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13, 1997. This judgment had become final thirty days thereafter and the Rule
60.02 motion for relief therefrom was not filed until January 9, 1998.


         The only grounds for relief set forth in the Rule 60.02 motion is the
assertion by the plaintiff that the affidavit of Dr. Pearson is newly discovered
evidence. Clearly it is not. When Mr. Mayers attempted to use the June 18,
1996 letter from Dr. Pearson at the November 9, 1997 hearing on the defendants'
Rule 12 and Rule 56 motion, the trial court correctly pointed out, according to
appellant, that same was not in affidavit form and could not be considered in
determining the Rule 56 motion. Mr. Mayers did not present Dr. Pearson's
affidavit until well after appeal time had expired on the November 13 grant of
summary judgment. Even if the affidavit of Dr. Pearson might be characterized
as newly discovered evidence, no relief is available under Rule 60.02 since the
evidence could clearly have been discovered prior to the summary judgment
hearing by the exercise of reasonable diligence. Spence v. AllState Ins. Co., 883
S.W.2d 586, 596 (Tenn. 1994).


         The supreme court has held:
         To set aside a judgment under rule 60.02 the burden is upon
         the movant to prove that he is entitled to relief, and there
         must be proof of the basis on which relief is sought.
         Brumlow v. Brumlow, 729 S.W.2d 103, 106
         (Tenn.Ct.App.1986); Jefferson v. Pneumo Services Corp.,
         699 S.W.2d 181, 186 (Tenn.Ct.App.1985). A motion for
         relief from a judgment pursuant to Rule 60.02 addresses the
         sound discretion of the trial judge; the scope of review on
         appeal is limited to whether the trial judge abused his
         discretion. Toney v. Mueller Co., 810 S.W.2d 145
         (Tenn.1991); Travis v. City of Murfreesboro, 686 S.W.2d 68,
         70 (Tenn.1985).

              Rule 60.02 "was designed to strike a proper balance
         between the competing principles of finality and justice."
         Jenkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.1976).
         With regard to the purpose of the rule, this Court recently
         stated,
              "Rule 60.02 acts as an escape valve from possible
              inequity that might otherwise arise from the
              unrelenting imposition of the principle of finality
              imbedded in our procedural rules." Thompson v.
              Fireman's Fund Ins. Co., 798 S.W.2d 235, 238


                                       -5-
                 (Tenn.1990). Because of the importance of this
                 "principle of finality," the "escape valve" should
                 not be easily opened.
              Toney v. Mueller Co., 810 S.W.2d at 146.



Banks v. Dement Constr. Co., Inc., 817 S.W.2d 16, 18 (Tenn. 1991).


          The action of the trial court in overruling the Rule 60.02 motion filed
by Mr. Mayers was clearly not an abuse of the discretion vested in the trial court
and is therefore affirmed.


II.       THE SUMMARY JUDGMENT
          Although the affirmation of the Rule 60.02 denial by the trial court is
determinative of this appeal, it is equally clear that the action of the trial judge
in granting summary judgment to the defendants was a correct action.


             First, the plaintiff must prove malpractice by expert testimony under
Tennessee Code Annotated section 29-26-115. Such expert testimony must
establish:
             (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; . . .

Tenn. Code Ann. § 29-26-115(a)(1)(2).



             The affidavit tendered by Dr. Pearson in no way meets the standards
required by the statute.


             The record before the court is likewise devoid of any proof that any of
the defendants ever knew that plaintiff suffered from "chronic sternal nonunion".




                                          -6-
          The supreme court has held:
               [5,6] In order to meet the burden, a plaintiff who seeks
          to toll a statute of limitations on the ground of fraudulent
          concealment must prove that the cause of action was known
          to and fraudulently concealed by the defendant. Ray v.
          Scheibert, 224 Tenn. (2 Pack) 99, 104, 450, S.W.2d 578, 580
          (1969). Knowledge on the part of the physician of the facts
          giving rise to a cause of action is an essential element of
          fraudulent concealment. Ray v. Scheibert, 484 S.W.2d 63, 72
          (Tenn.App.1972).

Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn. 1992).



          Thus, even if the defendants failed to diagnose the condition of the
plaintiff and such failure to diagnose the true condition fell below the applicable
standard of care, it could not also consititute fraudulent concealment. Under the
standards set forth in Benton v. Snyder, and Ray v. Scheibert, how can one
fraudulently conceal that which one does not know?


          Thus, in this case regardless of the discovery rule question under the
one year statute of limitations, the action is barred by the three year statute of
repose (T.C.A. § 29-26-116(a)(3)) and the trial court was correct in granting the
motion for summary judgment.


          The judgment of the trial court is affirmed and costs of the appeal
assessed against the appellant.




                                               ____________________________
                                               WILLIAM B. CAIN, JUDGE


CONCUR:


____________________________________
WILLIAM C. KOCH, JR., JUDGE


____________________________________
JERRY L. SMITH, SPECIAL JUDGE

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