                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    March 4, 2008 Session

               DONNA FAYE SHIPLEY, ET AL. v. ROBIN WILLIAMS, M.D.

                     Appeal from the Circuit Court for Davidson County
                        No. 02C-3204     Barbara N. Haynes, Judge



                   No. M2007-01217-COA-R3-CV - Filed August 14, 2009


In reliance on plaintiff’s experts, the trial court granted defendant doctor’s motion for partial
summary judgment on the medical malpractice claim pertaining to defendant’s failure to admit
plaintiff into the hospital. The trial court later granted the defendant doctor summary judgment on
the remaining malpractice claims finding that the plaintiff’s medical expert proof previously relied
upon by defendant failed to comply with Tenn. Code Ann. § 29-26-115. We reverse the grant of
partial summary judgment on the failure to admit claim since the defendant doctor relied solely on
plaintiff’s experts, whose testimony was later found inadmissable. We also reverse the summary
judgment of the remaining malpractice claims since the defendant doctor never presented proof to
negate an element of those claims. Consequently, the plaintiff had no duty to create issues of fact
at the summary judgment phase.

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

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the court, in which ANDY D. BENNETT
and RICHARD H. DINKINS, JJ., joined.

Steven R. Walker, Memphis, Tennessee; Joe Bednarz, Sr., Nashville, Tennessee, for the appellant,
Donna Faye Shipley, and as Next Friend and Surviving Wife of Frank Shipley, Deceased.

Wendy Lynne Longmire, Julie Bhattacharya Peak, Nashville, Tennessee, for the appellee, Robin
Williams, M.D.

                                            OPINION

       The plaintiffs, Donna and Frank Shipley, filed suit against the hospital, Columbia Medical
Center, d/b/a Summit Medical Center (“the Hospital”), a hospital emergency room doctor, and
another doctor to recover for injuries she sustained due to defendants’ alleged negligence.
        Mrs. Shipley alleges in her complaint that on November 18, 2001, she went to the Hospital’s
emergency room complaining of abdominal pain, fever, and a sore throat. She was seen by the
emergency room doctor, Dr. Walker, who ordered tests that showed an elevated white blood cell
count. After being given fluids and medication for pain, Dr. Walker sent Mrs. Shipley home with
instructions to stay on a clear liquid diet and to call Dr. Robin Williams, her surgeon, for further
follow-up treatment.

        Mrs. Shipley alleges that she called Dr. Williams’s office several times for an appointment
and later was told by the office manager that since it was a non-surgical matter, Dr. Williams would
not see her. On the evening of November 21, 2001, Mrs. Shipley again went to the Hospital
emergency room and was admitted in critical condition with sepsis and pneumonia. As a result, Mrs.
Shipley allegedly suffered a stroke and other permanent damage. The Hospital and emergency room
doctor were dismissed, and those dismissals were not appealed.

         With regard to the sole remaining defendant, Dr. Robin Williams, Mrs. Shipley alleges Dr.
Williams negligently failed to admit her to the Hospital, failed to properly assess her condition,
failed to provide necessary medical treatment, failed to have her promptly referred to another doctor,
and failed to adequately follow-up Mrs. Shipley’s progress. The claim that Dr. Williams negligently
failed to admit Mrs. Shipley was dismissed by partial summary judgment on September 1, 2006. The
trial court granted Dr. Williams full summary judgment on the remaining claims on February 6,
2007. The Shipleys appealed the two orders granting Dr. Williams summary judgment.

                                                      I. FACTS

        The following facts are not in dispute as evidenced by the Shipleys’ responses to Dr.
Williams’s two Statements of Undisputed Facts.1 Dr. Williams was a general surgeon in Nashville.
In January of 2001, Dr. Williams performed surgery on Mrs. Shipley at the Hospital, removing her
colon and small intestine. As of September 2001 when Dr. Williams saw Mrs. Shipley, she was
doing well and making progress. At that time, Dr. Williams was concerned that Mrs. Shipley faced
potential hydration problems. Mrs. Shipley makes no claims of negligence regarding her surgery or
Dr. Williams’s routine surgical follow-up care.

       Mrs. Shipley’s allegations of negligence concerned what transpired between November 17
and 21 of 2001. On Saturday, November 17, 2001, Mrs. Shipley called Dr. Williams’s office to
complain of a sore throat and abdominal pain. That same day, Dr. Williams’s office returned Mrs.
Shipley’s call to inform her to come in to see Dr. Williams on Tuesday, November 20. Mrs. Shipley
was also told that if her condition worsened to call back and Dr. Williams would send her to the
emergency room. The next day, on Sunday, November 18, Mrs. Shipley called Dr. Williams and

         1
           Dr. W illiams submitted a Statement of Undisputed Facts in support of her motion for partial summary judgment
(“First Statement”) that concerned primarily Mrs. Shipley’s claim that Dr. W illiams negligently failed to admit her to
the Hospital. Mrs. Shipley responded to this Statement. Dr. W illiams also submitted a second Statement of Undisputed
Facts to support her motion for summary judgment on the remaining negligence claims that Mrs. Shipley admitted for
the purposes of the motion (“Second Statement”).

                                                          -2-
reported a fever of 102 degrees and persistent abdominal pain. Dr. Williams told Mrs. Shipley to
go to the emergency room. Dr. Williams called the Hospital emergency room to advise them that
Mrs. Shipley was coming in for evaluation with complaints of fever and abdominal pain.

        Dr. Walker was the emergency room physician who saw Mrs. Shipley at the Hospital on
Sunday, November 18. Dr. Walker got Mrs. Shipley’s medical history, performed an exam, and
ordered various tests, including a complete blood count, urinalysis, chest x-ray, a serum amylase, a
urine drug test, and a blood alcohol test. The tests showed Mrs. Shipley had an elevated white blood
cell count. Dr. Walker believed Mrs. Shipley to be mildly dehydrated. Dr. Walker also ordered CT
scans to rule out an abdominal abscess or gallstones.

        Dr. Walker was unable to determine the cause of Mrs. Shipley’s pain and made a general
diagnosis that she suffered from abdominal pain of unclear origin and that she was dehydrated.
Everyone agrees that Dr. Walker then called and spoke with Dr. Williams describing all of his
findings, the lab data, and the result of the CT scans. Mrs. Shipley relies on Dr. Walker’s account
of his conversation2 with Dr. Williams, wherein he said he told Dr. Williams that Mrs. Shipley
should be reexamined because she had unexplained abdominal pain. Dr. Williams thought Mrs.
Shipley might have been significantly dehydrated, suggested a second bag of I.V. fluid and told Dr.
Walker that she would see Mrs. Shipley in her office. Dr. Walker testified in his deposition that an
elevated white blood cell count could come from many different things, including dehydration.

        When Mrs. Shipley was discharged from the emergency room, she was given the following
instructions: “Abdominal pain of unclear origin, rest, push fluids vigorously, and stay on clear liquid
diet for next 10-12 hours, call Dr. Williams in A.M. to arrange recheck and further care.”

        After Mrs. Shipley left the emergency room, it was arranged for her to see her primary care
doctor, Dr. Lisa Long, for a follow-up on Wednesday, November 21, 2001, instead of Dr. Williams.
Unbeknownst to Dr. Williams, Mrs. Shipley’s primary care physician, Dr. Long, became ill with
meningitis and could not see Mrs. Shipley for her Wednesday, November 21 appointment. Later that
evening, on November 21, Mrs. Shipley was admitted into the hospital in critical condition with
sepsis and pneumonia.

                                           II. SUMMARY JUDGEMENT

        A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 84 (Tenn. 2008);
Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary judgment
decision as a question of law. Id. Accordingly, this court must review the record de novo and make


         2
           Dr. W illiams’s First Statement of Facts varies slightly from Dr. W alker’s recollection of this conversation.
Dr. W illiams recalls that Dr. W alker told her that Mrs. Shipley did not have an acute abdomen. Dr. W alker’s deposition
testimony is silent on this issue. In Mrs. Shipley’s response to the Statement, she relies on Dr. W alker’s account of the
conversation. W e do not believe this dispute is determinative in the summary judgment issue.

                                                           -3-
a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been met. Eadie v.
Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v. West Town Mall, 130 S.W.3d 761,
763 (Tenn. 2004).

        The moving party has the burden of demonstrating it is entitled to judgment as a matter of
law and that there are no material facts in dispute. Martin, 271 S.W.3d at 83. To be entitled to
summary judgment, a defendant moving party must either (1) affirmatively negate an essential
element of the non-moving party’s claim or (2) show that the nonmoving party cannot prove an
essential element of the claim at trial. Hannan v. Alltel Publishing Co., 270 S.W.3d 1,9 (Tenn.
2008). If the party seeking summary judgment makes a properly supported motion, the burden shifts
to the nonmoving party to set forth specific facts establishing the existence of a genuine issue of
material fact. Martin, 271 S.W.3d at 84; Hannan, 270 S.W.3d at 5; Staples v. CBL & Associates,
15 S.W.3d 83, 86 (Tenn. 2000) (citing Byrd v. Hall, 847 S.W.2d at 215).

                   III. EXPERT PROOF IN MEDICAL MALPRACTICE CLAIMS

        Expert testimony is required to establish negligence and causation in medical malpractice
cases, except where the act of alleged malpractice lies within the knowledge of ordinary laymen.
Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn. Ct. App. 2003); Mercer v. HCA Health Services of
Tennessee, 87 S.W.3d 500, 507 (Tenn. Ct. App. 2002). Tennessee Code Annotated § 29-26-115 sets
out the requirements for establishing a malpractice claim, providing 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 defendant 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


                                                -4-
       witnesses testifying for the defendant as rebuttal witnesses. The court may waive this
       subsection (b) when it determines that the appropriate witnesses otherwise would not
       be available.

        Appellate courts employ the “abuse of discretion” standard when reviewing a trial court’s
decision regarding competency of experts in medical malpractice actions. Robinson v. LeCorps, 83
S.W.3d 718, 725 (Tenn. 2002); Eckler v. Allen, 231 S.W.3d 379, 384 (Tenn. Ct. App. 2006);
Kenyon, 122 S.W.3d at 759. Under this standard, if “reasonable minds” can disagree about the
propriety of the decision, it will be upheld. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
A trial court is deemed to have abused its discretion if it applies an incorrect legal standard, or
reaches a conclusion that both is against logic and reasoning and causes an injustice to the
complaining party. Id. See Mercer v. Vanderbilt University, 134 S.W.3d 121, 131 (Tenn. 2004).
This standard prohibits the appellate court from substituting its judgment for the trial court.
Eldridge, 42 S.W.3d at 85.

                                          IV. ANALYSIS

        Mrs. Shipley appeals the trial court’s order granting Dr. Williams partial summary judgment
on the failure to admit claim and the trial court’s later order granting Dr. Williams summary
judgment on the remaining medical malpractice claims. Therefore, our analysis shall address each
order separately.

       A) Partial Summary Judgment On Failure To Admit Claim

         In June of 2006, Dr. Williams sought summary judgment of the claim that she negligently
failed to admit Mrs. Shipley to the Hospital on November 18, 2001. Dr. Williams’s motion for
partial summary judgment rests on two grounds. First, Dr. Williams relies on the plaintiff’s expert
testimony as proof that the failure to admit did not breach the applicable standard of care. Second,
Dr. Williams argues that since the failure to admit claim had been dismissed against the emergency
room physician, Dr. Walker, then the “law of the case” requires that the failure to admit claim
against the surgeon, Dr. Williams, also be dismissed.

        The trial court granted Dr. Williams’s partial summary judgment on the failure to admit
claim, on September 1, 2006, without specifying the ground relied upon.

        Dr. Williams relies on the expert testimony of Mrs. Shipley’s emergency room expert, Dr.
Shaw, to support a finding that Dr. Williams did not violate the standard of care. Dr. Shaw testified
as follows:

       Q.      Did you see anything in the medical record of 11/18/01 which would tell you,
               as an emergency room physician, that you felt this patient must be admitted?

       A.      No.


                                                -5-
        Q.      All right. So you have no fault with Dr. Williams or Walker in discharging
                this patient?

        A.      No.

        Q.      Is that correct?

        A.      That’s correct.

        Q.      And based upon a reasonable degree of medical certainty?

        A.      That’s correct.

        The plaintiff’s surgical expert, Dr. Rerych, also testified about whether Dr. Williams’ failure
to admit Mrs. Shipley was malpractice. Dr. Rerych testified that Dr. Williams should have either
admitted Mrs. Shipley to the hospital or provided follow up care the next day, i.e., that it was an
“either/or” situation. According to Dr. Rerych, admission was not an absolute imperative and, in his
opinion, Mrs. Shipley’s condition did not require immediate admission.

        Normally a defendant offers its own expert witnesses to negate an essential element of
plaintiff’s claim. As discussed earlier, where defendant fails to offer proof, the plaintiff has no
obligation to create a material fact. That having been said, a defendant can certainly rely on
plaintiff’s experts to negate essential elements of plaintiffs’ claims. As the Supreme Court in Martin
noted, “the moving party must either produce evidence or refer to evidence previously submitted by
the nonmoving party that negates an essential element of the nonmoving party’s claim.” 271 S.W.3d
at 84. Here, Dr. Williams does just that and relies on the expert proof offered by plaintiff. There
were no objections to the admission of the testimony of Dr. Shaw or Dr. Rerych at this point in the
proceedings.

       Since Dr. Williams relied on expert proof to negate the claim that failure to admit Mrs.
Shipley violated the standard of care and Mrs. Shipley came forward with no countervailing
evidence, the trial court granted Dr. Williams partial summary judgment on the failure to admit
claim.

        Subsequent rulings by the trial court, however, cast in doubt reliance upon the testimony of
Drs. Shaw and Rerych. Later in the proceedings, as part of a second summary judgment motion to
dismiss the remaining claims, Dr. Williams moved to find that Drs. Shaw and Rerych did not meet
the requirement of Tenn. Code Ann. § 29-26-115. In other words, Dr. Williams relied on the
testimony of plaintiffs’ experts to get the failure to admit claim dismissed, yet when the plaintiff later
sought to rely on these same two experts, Dr. Williams claimed the plaintiff’s expert testimony could
not be used since they failed to comply with Tenn. Code Ann. § 29-26-115.




                                                   -6-
         The trial court agreed that neither doctor met the requirements of Tenn. Code Ann. § 29-26-
115. The trial court first found that Dr. Shaw, an emergency room physician, failed to meet the
requirements of Tenn. Code Ann. § 29-26-115 since he did not practice the appropriate speciality,
i.e., surgery. Based upon the abuse of discretion standard, we cannot disagree that an emergency
room physician’s opinion is not helpful in determining whether a surgeon committed malpractice.

        The trial court also excluded Dr. Rerych’s testimony, since he also failed to meet the
requirement of Tenn. Code Ann. § 29-26-115. Dr. Rerych did not prove he was familiar with the
applicable standard of care in Nashville. He also failed to prove that Nashville is similar to his
medical community. Dr. Rerych testified that his community of Asheville, North Carolina, had acute
beds and general surgeons and that the hospital where he practiced was a teaching hospital. The
agreed upon Statement of Facts showed the medical communities of Nashville and Asheville to be
quite different. Nashville has more hospitals than Asheville and has medical schools which
Asheville does not. Demographically, Asheville is much smaller. Based upon the discussion in
Badgett v. Adventist Health Systems Sunbelt, Inc., M2007-02192-COA-R3-CV, 2009 WL 2365567
(Tenn. Ct. App. July 31, 2009), we cannot conclude that the trial court abused its discretion in
finding that Dr. Rerych failed to prove that the medical communities of Asheville and Nashville are
similar.

      Based upon the finding that neither Dr. Shaw nor Dr. Rerych met the requirement of Tenn.
Code Ann. § 29-26-115, we find that Dr. Williams failed to provide proof that negated an essential
element of plaintiff’s failure to admit claim. Consequently, we must reverse the grant of partial
summary judgment pertaining to failure to admit, because it was made in reliance on their testimony.

        As an alternate ground to sustain partial summary judgment, Dr. Williams also argues that
the order granting the emergency room physician, Dr. Walker, summary judgment necessarily
decided that Dr. Williams’s decision not to admit Mrs. Shipley was not negligent. When the trial
court granted Dr. Walker’s motion, it had before it a Statement of Undisputed Facts, to which Mrs.
Shipley filed no response, establishing through Dr. Walker’s affidavit that Dr. Walker fully complied
with the applicable standard of care in his evaluation, care and treatment of Mrs. Shipley. It was thus
established that Dr. Walker, the emergency room doctor, was not negligent in the failure to admit
Mrs. Shipley. Proof that failure to admit by an emergency room physician is not negligent does not
automatically mean that the same decision by a surgeon who had treated Mrs. Shipley for months
is not negligent. One doctor is an emergency room physician who saw Mrs. Shipley one time, while
the other was a treating surgeon who had treated Mrs. Shipley for a period of time. Dismissal of Dr.
Walker does not, in and of itself, establish that Dr. Williams was not negligent.

       B) Remaining Claims Against Dr. Williams

       In addition to negligent failure to admit, Mrs. Shipley also alleged that Dr. Williams
negligently failed to properly assess Mrs. Shipley’s condition, failed to provide necessary medical
treatment, failed to have Mrs. Shipley properly referred to another doctor, and failed to adequately
follow up on Mrs. Shipley’s progress. In December of 2006, as discussed above, Dr. Williams


                                                 -7-
moved for summary judgment of Mrs. Shipley’s remaining negligence claims on the sole ground that
the expert proof offered by Mrs. Shipley, the testimony of Dr. Stephen Rerych and Dr. Ronald Shaw,
did not meet the requirement of Tenn. Code Ann. § 29-26-115.3 Dr. Williams, however, offered no
proof to negate Mrs. Shipley’s remaining negligence claims whatsoever, but moved for summary
judgment based solely on the inadmissibility of Mrs. Shipley’s experts. The trial court granted Dr.
Williams’s motion finding that Drs. Rerych and Shaw do not meet the requirements of Tenn. Code
Ann. § 29-26-115.

         According to Dr. Williams, she should be granted summary judgment because both of Mrs.
Shipley’s experts fail to meet the statutory requirements. As discussed earlier, we have found that
the trial court did not abuse its discretion when it found that plaintiff’s experts failed to meet the
statutory requirements. We do not believe, however, that the adequacy of plaintiff’s proof is
dispositive since Mrs. Shipley was under no obligation to create issues of fact. This is true because,
as an initial matter, Dr. Williams failed to negate an essential element of plaintiff’s claim.

        In support of her motion for summary judgment, Dr. Williams filed excerpts from her
deposition that do not address the applicable standard of care and whether she met it. Unlike Dr.
Walker, Dr. Williams has filed no affidavit about the applicable standard of care and whether she
met it. Dr. Williams filed a second Undisputed Statement of Facts (Second Statement)4 with her
motion. The statements contained therein do not address Dr. Williams’s familiarity with the
standard of care or compliance therewith, but predominantly address only facts pertaining to the
communities of Mrs. Shipley’s experts and their familiarity with the Nashville medical community.
Dr. Williams also relied upon the affidavit and deposition excerpt of Dr. Walker that do not opine
on whether Dr. Williams met the applicable standard of care on the four remaining malpractice
claims.

        Consequently, since Dr. Williams never negated an essential element of Mrs. Shipley’s
remaining negligence claims, Mrs. Shipley was under no obligation to offer expert proof creating
issues of fact. Whether to grant summary judgment on the remaining negligence claims did not
hinge on the admissibility of Mrs. Shipley’s expert proof but on Dr. Williams’ failure to negate an
essential element of her claim. The admissibility of Mrs. Shipley’s expert testimony then became
irrelevant to the issue of whether to grant summary judgment on these four remaining claims. As
discussed earlier, however, since Dr. Williams relied on plaintiff’s experts to negate essential
elements of Mrs. Shipley’s failure to admit claim, the admissibility of Mrs. Shipley’s experts was
relevant as to whether to grant Dr. Williams partial summary judgment on the failure to admit claim.




         3
           As discussed above, there are dangers in relying upon plaintiff’s experts at one stage in the proceeding when
their testimony is beneficial and then later disqualifying the plaintiff’s experts when their testimony is not helpful.

         4
          Mrs. Shipley’s attorney objected to the Second Statement of Facts as irrelevant to the motion but admitted each
statement for the purpose of the motion only.

                                                          -8-
                                                  CONCLUSION

        The order granting partial summary judgment on the failure to admit claim is reversed. The
order of the trial court granting Dr. Williams summary judgment on the remaining claims is reversed.
The matter is remanded to the trial court for further proceedings.5 Costs of this appeal are assessed
against the appellee, Dr. Robin Williams, for which execution may issue if necessary.



                                                               _____________________________________
                                                               PATRICIA J. COTTRELL, P.J., M.S.




        5
          After the trial court granted summary judgment, Mrs. Shipley filed a motion to amend offering two additional
experts. Since we reverse the trial court, there is no need to review the trial court’s denial of the motion.

                                                         -9-
