      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE


SHEILA PROFFITT,                              )
                                              )
      Plaintiff/Appellant,                    )
                                              )      Davidson Circuit
                                              )      No. 95C-2416
VS.                                           )
                                              )      Appeal No.
                                              )      01-A-01-9604-CV-00144
PRISON HEALTH SERVICES, INC.,                 )

      Defendant/Appellee.
                                              )
                                              )                    FILED
                                                                      July 31, 1996
                      CONCURRING OPINION                          Cecil W. Crowson
                                                                 Appellate Court Clerk

      The majority has reached the correct result in this case. A party is not
entitled to a summary judgment when the record contains material factual disputes
with regard to the defense asserted in the motion. Byrd v. Hall, 847 S.W.2d 208,
211 (Tenn. 1993). This record contains material factual disputes concerning
whether Prison Health Services, Inc. was responsible for the delay in providing
Ms. Proffitt the surgery to remove the pins and screw from her left leg and
whether the delay was unreasonable.


                                        I.


      Ms. Proffitt was injured in an automobile accident prior to her incarceration
in the Bradley County Justice Center in February 1994. Two months later a
physician recommended the removal of the pins and screw used to repair a fracture
of her left leg, but Ms. Proffitt was transferred to the Tennessee Prison for Women
before the surgery could be performed. On May 27, 1994, Prison Health Services
informed Dr. Donald Boatwright, the medical director of the Tennessee Prison for
Women, that the surgery had been approved and requested that it be performed
within three weeks unless Ms. Proffitt’s symptoms became more severe or her
condition changed.
      The prison officials arranged an appointment for Ms. Proffitt with Dr.
Patrick LeCorps. Dr. LeCorps insisted on taking x-rays of his own to determine
whether surgery was warranted. According to Ms. Proffitt, Dr. LeCorps informed
her on August 12, 1994 that he recommended the surgery to remove the pins and
screw. Ms. Proffitt also asserted that Dr. Boatwright confirmed Dr. LeCorps’
recommendation on August 19, 1994 and told her that the surgery would be
scheduled. The surgery was never performed and Ms. Proffitt was released from
prison in November 1994. She later underwent the needed surgery at Vanderbilt
University Medical Center in January 1995.


                                        II.


      Based on the present record, I cannot ascribe the delay in performing Ms.
Proffitt’s surgery from April to August 1994 to either Prison Health Services’
negligence or its deliberate indifference to Ms. Proffitt’s medical needs. This
delay was caused by Ms. Proffitt’s transfer from one institution to another and by
Dr. LeCorps’ decision to conduct his own examination of Ms. Proffitt rather than
to rely on the conclusions and recommendations of another physician. Thus, at
least in my mind, the material delay in this case is the delay from August to
November 1994.


      The chief explanation for this delay is that the prison officials were unaware
that Dr. LeCorps had recommended the surgical removal of the pins and screw in
Ms. Proffitt’s left leg. Dr. Boatwright insisted in his deposition that he was never
informed of Dr. LeCorps’ recommendation. This testimony is contradicted both
by Dr. LeCorps who stated that he informed the prison officials of his
recommendations and by Ms. Proffitt herself who stated that Dr. Boatwright
informed her on August 19, 1994 that her surgery would be scheduled.


      The record contains a material factual dispute concerning the prison
officials’ knowledge in August 1994 of Dr. LeCorps’ recommendations. In light
of this dispute, we cannot hold as a matter of law that the delay in providing Ms.
Proffitt the needed surgery was not the result of either negligence or deliberate

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indifference to her medical condition. The record contains some indication that
the delay might have been caused by the loss of Ms. Proffitt’s medical records or
by her pending request for parole. The loss of Ms. Proffitt’s medical records, if
proven, could provide the basis for her negligence claim; while a decision to delay
performing the surgery because of Ms. Proffitt’s pending parole, if proven, could
substantiate her deliberate indifference claim.


      Prison Health Services also asserts that the failure to perform Ms. Proffitt’s
surgery from August 1994 until her release in November 1994 was appropriate
because the surgery was not a high priority procedure. It never explained the basis
for its priority determination or, as the majority points out, what other higher
priority procedures forced a delay in Ms. Proffitt’s procedure. In light of its own
determination on May 27, 1994 that the procedure should be performed within
three weeks, the record contains a material factual dispute with regard to the basis
for Prison Health Services’ priority determination.


                                        ________________________________
                                        WILLIAM C. KOCH, JR., JUDGE




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