TOM AND KAREN MOORE            )
                               )   Appeal No.
     Plaintiffs/Appellants,    )   01A01-9507-CV-00295
                               )
v.                             )   Davidson County Circuit
                               )   Court No.94C-1356
LLOYD A. WALWYN, M.D.,         )
                               )
     Defendant/Appellee.       )
                                                  FILED
                                                    Jan. 19, 1995

                                                  Cecil Crowson, Jr.
                                                   Appellate Court Clerk


               COURT OF APPEALS OF TENNESSEE
                MIDDLE SECTION AT NASHVILLE


 APPEAL FROM THE SIXTH CIRCUIT COURT OF DAVIDSON COUNTY

                      AT NASHVILLE, TENNESSEE


         THE HONORABLE THOMAS W. BROTHERS, JUDGE




SHELLEY I. STILES
5214 Maryland Way, Suite 210
Brentwood, Tennessee 37027

CHRISTOPHER K. THOMPSON
117 East Main Street
Post Office Box 916
Murfreesboro, Tennessee 37133-0916
          ATTORNEYS FOR PLAINTIFFS/APPELLANTS

ROSE P. CANTRELL
GARRETT E. ASHER
Parker, Lawrence, Cantrell & Dean
200 Fourth Avenue North
Fifth Floor
Nashville, Tennessee 37219
          ATTORNEYS FOR DEFENDANT/APPELLEE




                       AFFIRMED AND REMANDED




                                   SAMUEL L. LEWIS, JUDGE
                                OPINION
     This is an appeal by plaintiffs/appellants, Tom and Karen

Moore, from the trial court's orders granting summary judgment in

favor of defendant/appellee, Dr. Lloyd A. Walwyn, and            denying

appellants' motion to reconsider the grant of summary judgment



     The procedural history and pertinent facts are as follows.

On 1 May 1993, Mr. Moore fell from the roof of a house.            He went

to the emergency room at Tennessee Christian Medical Center

("TCMC").    Appellee examined Mr. Moore and diagnosed him as

having a fractured left wrist and a fractured left distal tibia

and fibula.    Appellee treated Mr. Moore's injuries and performed

operations on his wrist and leg.         Following Mr. Moore's discharge

from the hospital, appellee followed Mr. Moore's progress through

scheduled office visits.



     On 16 June 1993, Mr. Moore went to appellee's office for one

such visit.    During the visit, appellee decided that he needed to

remove the external fixator on Mr. Moore's left leg and apply a

long leg cast.    Appellee was to perform the procedure on 29 June

1993 at TCMC, but Mr. Moore did not show up for the appointment

and has not been to appellee's office since the June 16 visit.

Later, Mr. Moore developed an infection.         As a result, doctors,

other that appellee, performed nine operations.



     Appellants filed their complaint on 2 May 1994 alleging that

appellee negligently failed to prescribe antibiotics.1           This

failure, they argued, caused injuries to Mr. Moore which required

the nine additional surgical procedures.         In response, appellee



     1
         Appellants also claimed that TCMC was negligent. The trial court
granted TCMC's motion for summary judgment. Initially, appellants' notice of
appeal included TCMC, but the trial court entered an order of voluntary
dismissal as to TCMC on 20 June 1995.

                                     2
filed an answer and a counterclaim which he later voluntarily

dismissed.



     On 19 October 1994, appellee filed a motion for summary

judgment.    In support of the motion, appellee filed his own

affidavit.    Appellants filed their response opposing the motion

and attached a document prepared by Dr. Bruce Schlafly of St.

Louis, Missouri.    Appellants referred to this document as a

counter-affidavit.    The document included a letter with a

curriculum vitae ("the letter") and a report on Mr. Moore ("the

report").    On 11 January 1995, the trial court granted the motion

for summary judgment.    In his order, the trial judge stated as

follows:

     Specifically, the Court finds that there is no genuine
     issue as to a material fact concerning whether the
     defendants deviated from the recognized standard of
     acceptable professional practice in the care and
     treatment of the plaintiffs. The Court additionally
     finds that there is no genuine issue as to a material
     fact on the issue of causation.

On 7 February 1995, appellants filed a motion to reconsider and a

second affidavit from Dr. Bruce Schlafly.    On 14 March 1995, the

trial judge entered an order denying the motion.



     Appellants filed their first notice of appeal on 13 April

1995 informing the court that they were appealing the March

order.   Six days later, the trial court entered final judgment,

and appellants filed a second notice of appeal in regard to this

order.



     Appellants presented this court with the following issue:

"Whether the circuit court erred in granting Walwyn's motion for

summary judgment and in denying Moore's motion to reconsider by

concluding that there was no genuine issue of material fact for

trial when a genuine issue of an outcome determinative fact was

raised by counter-affidavits of Bruce Schlafly, M.D., an

                                 3
orthopaedic surgeon."     We are of the opinion that the trial court

did not err.



I.     Motion for Summary Judgment



       The courts of Tennessee have explained the law of summary

judgment in great detail.     Byrd v. Hall, 847 S.W.2d 208 (Tenn.

1993).    Upon the filing of a motion, the moving party has the

burden of proving that there are no genuine issues of material

fact.    Id. at 215.   The moving party may make such a showing in

several ways, but may not rely solely on a conclusory statement

that the nonmoving party has no evidence.     Id. at 215 & n.5.

Once the moving party has provided the court with a properly

supported motion, the burden shifts to the nonmoving party to

show the existence of a genuine issue of material fact or the

need for further discovery.     Id. at 215 & n. 6.   In satisfying

its burden, the nonmoving party may not simply rely on the

allegations and denials in the pleadings.     Instead, the party

must produce evidence that establishes the existence of a

material dispute.      Such evidence must be in the form of an

affidavit or in the form of any of the other discovery materials

listed in Tennessee Rule of Civil Procedure 56.03.      Id. at 215.

Further, the facts relied on by the nonmoving party must be

admissible at trial, but need not be in an admissible form.        Id.



        In passing upon a motion for summary judgment, the trial

judge must "view the evidence in a light favorable to the

nonmoving party and allow all reasonable inferences in his

favor."     Id.   If the trial judge decides that there are no

genuine issues of material fact and that the law entitles the

moving party to a judgment, he must grant the motion.      Id. at

214.     More specifically, medical malpractice claims require


                                   4
expert testimony as to the issues of negligence and proximate

cause "unless the act of alleged malpractice lies within the

common knowledge of a layman."    Bowman v. Henard, 547 S.W.2d 527,

530-31 (Tenn. 1977).    Accordingly, "in those malpractice actions

wherein expert medical testimony is required to establish

negligence and proximate cause, affidavits by medical doctors

which clearly and completely refute plaintiff's contention afford

a proper basis for dismissal of the action on summary judgment,

in the absence of proper responsive proof by affidavit or

otherwise."   Id. at 531.



     Given the above, it is plain to see that affidavits are very

important tools in any summary judgment proceeding, particularly

when the underlying claim is medical malpractice.    Affidavits,

however, are not simple statements from a witness or expert.    To

the contrary, an affidavit is "[a] written or printed declaration

or statement of facts, made voluntarily, and confirmed by the

oath or affirmation of the party making it, taken before a person

having authority to administer such oath or affirmation."

Black's Law Dictionary 58 (6th ed. 1990); see also Grove v.

Campbell, 17 Tenn. 8 (1836).     In addition, for the purposes of

summary judgment, an affidavit "shall be made on personal

knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein."    Tenn. R.

Civ. P. 56.05 (1995).    In medical malpractice cases, a witness is

not competent to testify as to the elements of a medical

malpractice claim unless the witness is "licensed to practice in

the state or a contiguous bordering state a profession or

specialty which would make his expert testimony relevant to the

issues in the case and had practiced this profession or specialty

in one of these states during the year preceding the date that


                                  5
the alleged injury or wrongful act occurred."    Tenn. Code Ann.

§29-26-115(b) (1980); see also Payne v. Caldwell, 796 S.W.2d 142,

143 (Tenn. 1990) (holding that the competency requirement of §29-

26-115(b) applies to all of the elements listed in §29-26-

115(a)).    The failure of a document to meet any one of these

requirements renders it useless as an affidavit for summary

judgment.    See Fowler v. Happy Goodman Family, 575 S.W.2d 496,

498-99 (Tenn. 1978) (holding that an affidavit, which failed to

meet the requirements of Tennessee Rule of Civil Procedure 56.05,

was insufficient); State Dep't of Human Servs. v. Neilson, 771

S.W.2d 128, 130 (Tenn. App. 1989) (finding that an affidavit on

information and belief is not based on personal knowledge and is

insufficient unless specifically provided for by statute);

Moncrief v. Fuqua, 610 S.W.2d 720, 724-26 (Tenn. App. 1979)

(holding that affidavits were insufficient where affiants were

not competent to testify in medical malpractice case).



     Appellee filed his motion for summary judgment claiming that

there were no genuine issues of material fact.    In support of his

motion, appellee filed his own affidavit which he signed and had

notarized.     Appellee testified as follows:

     I am, and was at all times pertinent to this lawsuit,
     familiar with the standard of acceptable professional
     practice in my specialty in this community. I have
     personal knowledge of the facts contained in this
     affidavit.

            . . . .

          7.   By experience and training, I am familiar
     with the recognized standard of professional practice
     in orthopaedic surgery in Nashville, Tennessee and
     similar communities. In everything I did in Mr.
     Moore's case, I acted with ordinary and reasonable care
     in accordance with such standard. Furthermore, no
     deviation from the applicable standard of care was the
     cause of any damage or condition of which Mr. Moore may
     complain or suffer in this case.

This testimony and the other testimony found in the affidavit

supported appellee's motion and shifted the burden to appellants



                                 6
to prove the existence of a genuine issue of material fact.



     In response, appellants filed the letter and the report

mentioned previously.   Neither of these documents, however,

created a genuine issue of material fact.      In addition, the trial

court should not have even considered these documents because the

testimony contained in them was not admissible and the documents

were neither affidavits nor any of the other types of discovery

materials listed in Tennessee Rule of Civil Procedure 56.03.



     To explain, the testimony contained in the letter and the

report was inadmissible as evidence to establish the elements of

the medical malpractice claim because it failed to establish that

Dr. Schlafly met the competency requirements of Tennessee Code

Annotated section 29-26-115(b).       See Tenn. R. Evid. 601 (1995).

Although specifically required by that section, the documents did

not prove that Dr. Schlafly's profession or specialty "would make

his expert testimony relevant to the issues in the case" or that

Dr. Schlafly practiced his specialty in Tennessee or a contiguous

state "during the year preceding the date that the alleged injury

or wrongful act occurred."   Tenn. Code Ann.     §29-26-115(b)

(1980).   For these same reasons, the letter and the report failed

to meet the requirements of Tennessee Rule of Civil Procedure

56.05 and were not proper opposing affidavits.



     In addition, the letter was not an affidavit because a

notary did not properly authenticate Dr. Schlafly's signature.

The report is the only document properly sworn to by Dr.

Schlafly.   This attestation, however, does not apply to the

letter because the notary witnessed the signing of the report on

14 December 1994 and Dr. Schlafly dated the letter 15 December

1994.



                                  7
     Despite these apparent flaws in the report, appellees argued

that it was sufficient to withstand the motion.    Even if we found

that the report was proper evidence for use on summary judgment,

we would still have to uphold the decision of the trial court

because the report failed to establish a genuine issue of

material fact as to deviation from the acceptable standard of

care and causation.



     To prove medical malpractice, a plaintiff must establish

that the defendant's actions fell below the standard of

acceptable professional practice in the defendant's profession or

speciality and in the defendant's community or in a similar

community.   Tenn. Code Ann. §29-26-115(a)(1),(2) (1980).

Further, in this case, appellants needed expert testimony to

establish this element because the malpractice was not in the

common knowledge of laymen.   Appellants, however, failed to

satisfy their burden.



     To explain, in the report Dr. Schlafly stated as follows:

     However with a closed fracture, the standard
     recommendation is to start antibiotics intravenously in
     the operating room immediately prior to the start of
     the operation. . . .

     In my opinion, intravenous antibiotics should have been
     given at the time of the operation of 5/2/93, as well
     as the operation of 5/5/93. . . . In my opinion, it
     fell below the standard of care for a surgeon to do
     these operations without standard antibiotic
     prophylaxis.

This statement does not describe the standard in Nashville or

explain that it is the standard in a similar community.

Moreover, the statement does not even describe a "standard of

acceptable professional practice."   Tenn. Code Ann. § 29-26-

115(a)(1) (1980).   For example, Dr. Schlafly used the term

"recommendation."   This term suggests that a doctor has a choice

as to whether to use prophylactic antibiotics.    It does not

suggest a standard that a doctor must follow.

                                8
       At the end of the report, Dr. Schlafly described several

articles that advocated the use of prophylactic antibiotics.

Unfortunately, Dr. Schlafly's synopsis of these articles failed

to establish a standard for the court to apply in this case.         The

first article, published in 1974, described a study which found

that the use of    prophylactic antibiotics reduced the threat of

postoperative infection from 5% to 2.8%.    The second article

reported that many orthopaedic surgeons used prophylactic

antibiotics, and the third article described the recommended

prophylactic regimen.    The articles, however, do not describe the

standard in Nashville or a similar community.    Further, they do

not clearly set forth a particular standard, but instead, seem to

describe one alternative.



       A second element necessary to a medical malpractice claim is

causation.    Tenn. Code Ann. §29-26-115(a)(3) (1980).    There are

two forms of causation required to sustain a medical malpractice

action.    These are cause in fact and proximate cause.    Kilpatrick

v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993).    Cause in fact

"means that the injury or harm would not have occurred 'but for'

the defendant's negligent conduct." Id. at 598.    To establish

such, the plaintiff must show within a reasonable degree of

medical certainty that the injury was a probability.      Id.   at

602.    In this case, the report failed to provide the expert

testimony needed to contradict appellee's affidavit because it

failed to establish within a reasonable degree of medical

certainty that the failure to use the antibiotics probably caused

Mr. Moore's injuries.



       In the report, Dr. Schlafly stated as follows:

       It is entirely possible that Mr. Moore developed his
       bone infection because the fracture was seeded with
       bacteria at the time of surgery, bacteria which
       prophylactic antibiotics could have eradicated. . . .

                                 9
       . . . .

       Of course, infections can have many different causes,
       but I believe that the omission of intravenous
       antibiotics (except for the single dose), during the
       May hospitalization at Tennessee Christian Medical
       Center, was probably a contributory factor in the later
       development of Mr. Moore's bone infection, as best as I
       can determine from the medical records available to me.

Arguably, this statement satisfied the probability requirement of

cause in fact.    Nevertheless, it failed to state that the

conclusion was with a reasonable degree of medical certainty.

Dr. Schlafly's statement that the conclusion was "as best as [he

could] determine from the medical records available to [him]"

failed to provide the court with the degree of certainty required

by the case law.    This is further supported by the fact that Dr.

Schlafly did not have all of the medical records available to

him.    In the report, he admits that he did not review the actual

x-rays or the "records listing the drugs used in the operating

room or the recovery room."    From Mr. Moore's bill, Dr. Schlafly

discovered that someone gave Mr. Moore an antibiotic injection on

2 May 1993, but he did not have the records detailing the actual

time of the injection.    Note that one of the operations performed

by appellee occurred on this date.    The importance of this lack

of information is without question.    Dr. Schlafly's conclusion is

that the failure of appellee to administer prophylactic

antibiotics caused the infection which led to Mr. Moore's

subsequent operations; yet, he makes this conclusion without

having reviewed all of the records describing which medications

appellee administered to Mr. Moore.



       In summary, the report and the letter failed to provide the

proof necessary to overcome appellee's motion for summary

judgment.    Most important, the documents were not affidavits nor

were they any of the other types of discovery materials mentioned

in Tennessee Rule of Civil Procedure 56.03.    Further, the


                                 10
testimony contained in both documents was inadmissible because it

did not establish that Dr. Schlafly was competent under Tennessee

Code Annotated section 29-26-115(b).     Thus, the appellants could

not use his testimony to establish the existence of genuine issue

of material fact.   In addition, the record, considered as an

affidavit, failed to establish a material dispute as to deviation

from the standard of care and causation.     Therefore, the trial

court did not err in granting appellee's motion for summary

judgment.



II.   Motion to Reconsider



      Appellant's next issue is whether the trial court properly

denied their motion to reconsider.     In his order denying the

motion, the judge stated as follows:

      The Court finds that the Plaintiffs have submitted and
      rely upon the affidavit of Bruce Schlafly, M.D., in
      support of their Motion to Reconsider. The Court finds
      that the Plaintiffs relied upon affidavit testimony
      from this same witness in opposition to the Defendants'
      Motions for Summary Judgment. The Court further finds,
      that, in this proceeding, the Plaintiffs have not made
      a sufficient showing as to why the affidavit testimony
      of Dr. Schlafly in support of the Motion to Reconsider
      could not have been submitted earlier in response to
      the Defendants' Motions for Summary Judgment and why
      the testimony of the same witness should be considered
      again in this proceeding. Therefore, the Court
      specifically finds that the affidavit testimony of Dr.
      Schlafly relied upon to support the Motion to
      Reconsider is not entitled to consideration.

We are of the opinion that the trial court was correct.     The

Tennessee Rules of Civil Procedure do not provide for a "motion

to reconsider."   Nevertheless, this court reviews such motions in

light of their substance, not their form.      Bemis Co. v. Hines,

585 S.W.2d 574,576 (Tenn. 1979).      In this case, we will treat the

motion, which cites to Tennessee Rule of Civil Procedure 59.04,

as a motion to alter or amend.



      Appellants argued that the trial court erred when it failed


                                 11
to consider the second affidavit of Dr. Schlafly.   In their

brief, appellants cited Schaefer v. Larsen, 688 S.W.2d 430 (Tenn.

App. 1984), and quoted the following passage:

     We are of the opinion that when a summary judgement has
     been granted because the case at that point presents no
     facts upon which a plaintiff can recover, but prior to
     that judgment becoming final, the plaintiff is able to
     produce by motion facts which are material and are in
     dispute, the motion to alter or amend the judgment
     should be looked upon with favor. . . .

Schaefer v. Larsen, 688 S.W.2d 430, 433   (Tenn. App. 1984).    This

case, however, fails to support appellants' argument.   To begin

with, the court did not even address the issue presented in this

case because, unlike the present trial judge, the judge in

Schaefer considered the late filed affidavit in making his

decision.   Further, the Schaefer court held that the trial court

should look upon the motion with "favor," not that it must grant

the motion.



     Appellants also cited Richland City Country Club v. CRC

Equities, Inc., 832 S.W.2d 554 (Tenn. App. 1991), in support of

their argument.    As with Schaefer, this case does not support

appellants' argument.   The   Richland City court found as follows:

"Considering the fact that the affidavits were filed after the

hearing on the original motion, we are of the opinion that this

alone should not have precluded their consideration."      Richland

City Country Club v. CRC Equities, Inc., 832 S.W.2d 554, 557-58

(Tenn. App. 1991).   The court then quoted the portion of the

Schaefer opinion quoted above.    Analyzing these statements

together, it is clear that a trial court may decide to not

consider an affidavit, filed after the court has granted a motion

for summary judgment, as long as the reason for the decision is

more than the fact that the party filed the affidavit late.



     A second opinion written after Schaefer helps to clarify

                                 12
this issue.      Braswell v. Carothers, 863 S.W.2d 722, 730 (Tenn.

App. 1993).     In Braswell, the trial court granted summary

judgment to the Carothers and to Sleadd.          The plaintiffs filed a

motion to rehear and to reconsider the judgment in favor of the

Carothers and a motion to vacate Sleadd's judgment.            The trial

court denied the motions, and the plaintiffs appealed.             Id. at

724-25.   The court of appeals addressed the trial courts'

disposition of the motions separately.          As to Sleadd, the court

found that the new evidence offered by the plaintiffs "was , or

should have been, available to counsel prior to the hearing on

the motion and [could not] truly be considered 'newly

discovered.'"     Id. at 730.     The court then concluded that the

trial judge did not err in failing to vacate the summary judgment

in favor of Sleadd.      Id.    Thus, a court may uphold its summary

judgment decision if the moving party's evidence is not "newly

discovered."2



      In support of their motion, the appellants relied on the

letter, the report, and the affidavit.          As previously discussed,

the letter and the report were in an improper form, and the

testimony was inadmissible. The affidavit attached to appellants'

motion to reconsider was not new evidence.          The only difference

between the report and the letter and the affidavit was that the

affidavit contained all of the appropriate "buzz" words found in

the statutes and rules.        Dr. Schlafly did not state that he

received other records or more information regarding the case


      2
         Appellants argued that the Braswell decision supports their case
because the appellate court not only considered whether the evidence was newly
discovered, but also whether it produced material facts. This is a correct
statement of the court's reasoning. The problem is that this reasoning only
applied to the Carothers. In a separate paragraph, the court addressed the
issue as to Sleadd and did not consider whether the evidence was material.
      In an earlier case, the Western Section concluded that the trial court
was correct in denying a motion to reconsider where the evidence was in the
possession of the nonmoving party prior to the hearing on the motion for
summary judgment. Jay Wiley's Imports, Inc. v. Triangle Imports, Inc., 1987
WL 12838, at *2-*3 (Tenn. App. 12 May 1987). In the course of their opinion,
the court specifically distinguished Schaefer on the basis of new versus old
evidence. Id. at *3.

                                     13
which was not available to him before.    Also, there were no

affidavits from appellants' attorneys suggesting that they could

not have obtained this information earlier.    The second affidavit

was nothing more than the first affidavit dressed up.    Clearly,

the trial judge did not abuse his discretion in deciding not to

consider the affidavit nor did he err in sustaining the motion

for summary judgment.



     Therefore, it follows that the judgment of the trial court

is in all things affirmed and the case is remanded to the trial

court for any further necessary proceedings.    Costs on appeal are

taxed to the plaintiffs/appellants.



                                      ______________________________
                                      SAMUEL L. LEWIS, JUDGE

Concur:


______________________________
HENRY F. TODD, P.J., M.S.




DISSENTING OPINION
WILLIAM C. KOCH, JR., J.




                                 14
