SHEILA PROFFITT,                    )
                                    )
      Plaintiff/Appellant,          )


VS.
                                    )
                                    )
                                    )
                                         Davidson Circuit
                                         No. 95C-2416        FILED
                                    )    Appeal No.          July 31, 1996
                                    )    01A01-9604-CV-00144
PRISON HEALTH SERVICES, INC.,       )                        Cecil W. Crowson
                                    )                       Appellate Court Clerk
      Defendant/Appellee.           )


                    IN THE COURT OF APPEALS OF TENNESSEE
                         MIDDLE SECTION AT NASHVILLE


          APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                       AT NASHVILLE, TENNESSEE

                 HONORABLE HAMILTON V. GAYDEN, JR., JUDGE


RONALD W. McNUTT
Williams and Dinkins
203 Second Avenue, North
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLANT


CYRUS L. BOOKER
Booker & Associates
First American Center, Suite 1280
315 Deaderick Street
Nashville, Tennessee 37238-1280
ATTORNEY FOR DEFENDANT/APPELLEE


REVERSED AND REMANDED.


                               HENRY F. TODD
                               PRESIDING JUDGE, MIDDLE SECTION


CONCURS:
SAMUEL L. LEWIS, JUDGE


CONCURS IN SEPARATE OPINION
WILLIAM C. KOCH, JR., JUDGE
SHEILA PROFFITT,                             )
                                             )
       Plaintiff/Appellant,                  )
                                             )       Davidson Chancery
                                             )       No. 95C-2416
VS.                                          )
                                             )       Appeal No.
                                             )       01A01-9604-CV-00144
PRISON HEALTH SERVICES, INC.,                )
                                             )
       Defendant/Appellee.                   )


                                        OPINION


       The captioned Plaintiff has appealed from a summary judgment dismissing her suit

for failure of the Defendant to provide needed treatment to Plaintiff. The complaint alleges:

                  1. Plaintiff is a citizen of Donelson, Davidson County,
               Tennessee. At the time her cause of action arose for deliberate
                indifference to serious medical needs and failure to exercise
               ordinary care to provide medical needs, she was incarcerated at
               the Tennessee Prison for Women in Davidson County, Tennessee.

                 2. Plaintiff was dependent upon Prison Health Services to
               provide for her medical needs while incarcerated in Davidson
               County.

                  3. Plaintiff Sheila Proffitt was incarcerated at the Bradley
               County Justice Center with a broken leg and a leg cast prior to
               her arrival at the Tennessee Prison for Women on April 25, 1994.
               Prior to her departure, she was examined by Pat Younger, M.D.,
               a physician of the Orthopedic Group of Cleveland, Inc., who
               determined that her fracture was not healing and that her
               transfixing screws should be removed from the femur to promote
               healing.

                 4. Ms. Proffitt was transferred to the Tennessee Prison for
               Women. During her April 25, 1994 initial medical evaluation,
               she was examined by Dr. Manning who indicated she would be
               seen by an orthopedic specialist.

                  5. On June 10, 1994, Ms. Proffitt was evaluated by Patrick
               LeCorps, M.D. at Meharry/Hubbard Hospital. Dr. LeCorps
               intended to conduct an x-ray but was informed by the officers
               escorting her that there was no authorization for that diagnostic
               procedure.

                  6. On July 21, 1994, Plaintiff’s attorney called the prison
               to speak to the Assistant Warden to emphasize her need for
               treatment. On July 29, 1994, plaintiff saw Donald Boatwright,
               M.D. at the prison, who informed her she would be evaluated
               again by the orthopedic specialist.



                                              -2-
                 7. On August 12, 1994, plaintiff was again evaluated
               by Dr. Patrick LeCorps at Meharry/Hubbard Hospital. Dr.
               LeCorps determined that Ms. Proffitt needed surgery to
               remove two bolts at the knee to allow the femur bone to
               heal. Despite her immediate need for surgery to remove the
               pins because her bones were not healing, and despite Dr.
               LeCorps’ request that she have the surgery, Prison Health
               Services failed to arrange the surgery.

                  9. Plaintiff was recommended for parole but was unable
               to be paroled to Samaritan Recovery Center because of her
               untreated leg condition. Therefore her parole plan was denied
               on August 22, 1994 by Parole Officer Clara Vaughn. Mr. Tom
               Vance wrote to the Parole Board the appended letter. As a
               result, the Parole Board and Parole Officer allowed her to be
               paroled in November into the custody of Mr. and Mrs. Tom
               Vance.

                 12. Defendant Prison Health Services, Inc. is liable for the
               actions and omissions of its agents that violate plaintiff’s rights
               pursuant to the common law doctrine of respondeat superior.

                  14. Defendant Prison Health Services, Inc., through its
               employees and agents, acted with deliberate indifference to
               Sheila Proffitt’s serious medical needs in violation of the
               Eighth Amendment to the United States Constitution and
               42 U.S.C., Section 1983. Defendant Prison Health Services
               acted under color of state law by virtue of its performance
               of state functions and its authority under state law.


       Although the complaint does not expressly allege a contractual relationship between

the State of Tennessee and the Defendant, the above quotations raise an inference that the suit

is in part based upon violation of a duty imposed by a contract between the State and the

Defendant. The complaint also asserts liability for deliberate indifference which might be

established even though no violation of the existing contract occurred.



       Defendant moved for summary judgment supported by affidavits of two physicians.

The affidavit of Donald Boatwright, M.D., states:

                  My speciality is Internal Medicine. I serve as Medical
               Director at the Tennessee Prison for Women (“TPW”), and
               have served in said position during all time relevant to the
               time period encompassed in this affidavit. I am not an employee
               of PHS, but rather serve as an independent contractor under
               contract with PHS.

                  3. Ms. Proffitt arrived at TPW on or about April 25, 1994.
               I am aware that part of Ms. Proffitt’s complaints related to a


                                               -3-
              request that a pin and/or screw (“screws”) be removed from
              her leg. The screws had been placed prior to Ms. Proffitt’s
              arrival at TPW, as part of the procedure for repairing a
              fracture of Ms. Proffitt’s leg.

                 4. X-rays were taken of Ms. Proffitt’s knee. A request
              was made for approval of surgery to remove the screws. A
              request was made for Dr. LeCorps to see Ms. Proffitt for an
              orthopedic consult.

                5. The request for surgery to remove the screws was
              approved on May 27, 1994. In scheduling the surgery,
              consideration is given to the priority given to the needed
              procedure. To the extent other inmates are in need of
              surgical procedures, surgery for a particular inmate may
              be delayed if there is no medical urgency in performing
              the procedure which has been approved.

                 6. Ms. Proffitt was scheduled to see Dr. LeCorps on
              June 10, 1995 (sic). Dr. LeCorps requested additional
              x-rays, and scheduled Ms. Proffitt for a return visit. The
              requested additional x-rays were taken in June, 1994.

                7. Ms. Proffitt had a return visit to Dr. LeCorps in
              July, 1994.

                8. Ms. Proffitt advised medical personnel on July 23,
              1994, that she was scheduled to appear before the Parole
              Board on August 22, 1994.

                 9. The surgery approved for Ms. Proffitt was not a
              high priority procedure. Ms. Proffitt was released from
              prison in November, 1994, and the surgery had not been
              scheduled prior to her release. There was no refusal on
              the part of PHS to approve the surgery. The surgery was
              approved, but was not scheduled prior to Ms. Proffitt’s
              release from prison.

                10. The delay in performing surgery did not constitute
              deliberate indifference or medical malpractice or negligence.
              Ms. Proffitt’s condition was not such that her medical
              condition was made worse by delaying surgery.

                11. To my knowledge, at no time have any medical
              personnel at TPW exhibited indifference, deliberate or
              otherwise, to any of Ms. Proffitt’s medical needs.

                 12. The medical care rendered to Ms. Proffitt’s medical
               needs were met during the period of her incarceration at
               TPW.


       The affidavit contains evidence that the need for surgery was confirmed on May 27,

1994, and that no surgery was scheduled prior to Plaintiff’s release on parole in November,



                                             -4-
1994, six months later. The only explanation given for the delay is that “consideration is

given to the priority.” Also relevant is that employees of Defendant were aware of the

possibility of parole, and that the affiant was an independent-contract employee of Defendant

who could and should have supported his conclusory statements with evidence that other

more urgent surgery prevented Plaintiff’s needed surgery for approximately six months..



       The affidavit of Craig Underwood states:


                 1. I am currently a Regional Manager for Prison Health
               Services, Inc.

                 2. Prior to occupying my current position, I was the
               Health Services Administrator at the Tennessee Prison for
               Women in Davidson County, Tennessee (“TPW”) and had
               been so employed from June 15, 1991, until December 15,
               1994.

                  3. I am aware of the medical complaints of Plaintiff,
               Sheila Proffitt, Inmate No. 210324, as part of my duties and
               responsibilities at TWP.

                  4. I am aware that part of Ms. Proffitt’s complaints
               related to a request that a pin and/or screw (“screws”) be
               removed from her leg. The screws had been placed prior to
               Ms. Proffitt’s arrival at TPW, as part of the procedure for
               repairing a fracture of Ms. Proffitt’s leg.

                 5. A request was made for approval of surgery to
               remove the screws. The request was approved on May
               27, 1994.

                  6. Once approval is obtained for surgery, the decision
               relating to scheduling the surgery is primarily a medical
               decision. In scheduling the surgery, consideration is given
               to the priority given to the needed procedure. To the extent
               other inmates are in need of surgical procedures, surgery for
               a particular inmate may be delayed if there is no medical
               urgency in performing the procedure which as been approved.

                  8. The surgery approved for Ms. Proffitt was not a high
               priority procedure. Ms. Proffitt was released from prison in
               November, 1994, and the surgery had not been performed
               prior to her release.

                  9. There was no refusal on the part of PHS to approve
               the surgery. The surgery was approved, but was not scheduled
               prior to Ms. Proffitt’s release from prison.

                 10. PHS does not engage in any pattern of practice whereby

                                              -5-
               the profit motive prevails over the medical needs of inmates,
               resulting in necessary medical care being denied to inmates.
               PHS did not engage in any such practice with respect to the
               treatment rendered to Ms. Proffitt.

                  11. Medical staff at TPW are required to treat patients on the
               basis of all known medical conditions, and may not fail to do so
               in retaliation for any conduct or actions on the part of an inmate.
               PHS does not have any policy or custom which permits any of its
               employees to exhibit deliberate indifference to the medical needs
               of an inmate. PHS does not have any policy or custom whereby
               necessary medical care is denied inmates because profit motive
               prevails over medical needs.

                  12. The state of Tennessee retains final authority relating
               to the medical care rendered to inmates who are confined to
               the custody of the Tennessee Department of Corrections and
               housed at TPW.

                 13. At no time have I, or any other medical personnel at
               TPW, exhibited indifference, deliberate or otherwise, to any
               medical needs of Ms. Proffitt.

                 14. To my knowledge, all of Ms. Proffitt’s medical needs
               were met during the period of her incarceration at TPW.


       It is noteworthy that the affiant was an employee of Defendant and that the affidavit

attempts to shift liability to the State by a conclusory statement that is not supported by

documentary evidence.


       Plaintiff filed the affidavit of Charles A. Rosenberg, M.D. which states:

                 Charles A. Rosenberg, M.D., first being sworn according to
               law, deposes and says: I am a physician with specialty in internal
               medicine and have served as a consultant and expert witness in
               the field of delivery of health services in prisons and jails.

                  The level of medical care provided this inmate at TPW was
               inadequate, unacceptable, and below that of the community
               standard. Indeed, the care provided in this respect appeared so
               cursory as to be considered deliberately indifferent to this inmate’s
               serious medical needs. The inescapable conclusion arrived at by
               this reviewer is that the decision to deprive this inmate from
               receiving this clearly indicated orthopedic care was motivated by
               non-medical reasons. An incarcerated inmate, at whatever level
               of custody, city, county, state or federal, is a ward of the
               correctional authority in charge, which is responsible for delivery
               of community-level health care, as well as security. A contract
               health care provider (such as PHS), as an agent of the correctional
               authority in charge, must meet a similar standard. Such a standard
               was not met in this case.



                                               -6-
       On appeal, Defendant insists that this affidavit is inadmissible because the affiant is

not qualified under the geographical qualifications of TCA § 29-26-115(b). It does not

appear from the record that this objection was presented to the Trial Court. Ordinarily a rule

of evidence not invoked is waived. Burchett v. Stephens, Tenn App. 1990, 794 S.W.2d 745;

Wachovid Bank & Trust Co. NA v. Glass, Tenn. App. 1978, 57 5 S.W.2d 950. However, the

judgment of the Trial Court states:


                  Plaintiff’s failure to provide competent expert proof in support of
               Plaintiff’s claims ---”


       This may indicate that the Trial Court excluded the Rosenberg affidavit sua sponte.

In any event, as will appear hereafter, the competence of that evidence is not determinative of

this appeal.



       The deposition of Dr. Patrick J. LeCorps states:

                 Q. Now, with respect to the May 27th, 1994 authorization,
               what does it say with regard to when the surgery is to be
               scheduled?

                 A. It’s to be scheduled within three weeks unless symptoms
               become more serious or the patient’s condition changes.

                  Q. Do you know whether the standard that the Department
               of Correction applies for operations such as this is a standard of
               medical need?

                 A. Well, all I know is that when a case is not considered
               urgent or an emergency, then PHS approved the cases between
               two and four weeks.

                 Q. Do you know why that was not done in this particular
               case?

                 A.   I don’t really know exactly why. No.

                 Q. Is there any medical reason why it should not have been
               done within three weeks or four weeks?

                 A.   No, not that I know of.

                 Q. To your knowledge, how did Prison Health Services
               receive income or profits for medical services?

                                              ---

                                                -7-
                  A. They have a contract with the state. Then the state --
               you know, the states want to have a budget, so they contract
               the Prison Health Services to take care of the medical problems
               of the inmates. They have a straight fee every year. The prison
               has now -- they contract some physicians to provide the care.

                 Q.    Would you get paid by Prison Health Services?

                 A. Yes. Since I was just a consultant, I would bill for my
               services PHS, yes. I would bill PHS for my services.



       The deposition of Dr. Donald Boatwright contains little explicit information, but

apparently attempts to shift the blame for delay to the failure of Dr. LeCorps to request

authorization to proceed with the needed surgery. The deposition does authenticate an

“Authorization of Service” from Defendant’s Utilization Review Coordinator to Dr.

Boatwright under date of May 27, 1994. It states:


                  Based upon the medical information that you have
               provided the Tennessee Women’s Prison Jail/Prison,
               the removal of pins and screw has been approved.

                  An appointment has been approved for the removal
               of pin and screws from the knee as an outpatient
               service.

                 Please schedule within 03 weeks unless symptoms
               become more severe or the patient’s condition changes.

                  Authorization for payment of service is only during
               the period of actual confinement of the inmate under
               the custody of the Tennessee Women’s Prison Jail/Prison.
               Payment is based upon current reasonable and customary
               charges of Blue Cross/Blue Shield, Medicare, Medicaid,
               or current negotiated rates.

               * All further tests, treatments, procedures and or admission
               or extended hospitalization must be pre-authorized to ensure
               payment of service.


       On appeal, no presumption of correctness follows a summary judgment which is a

ruling of law and not of fact. Roberts v. Roberts, Tenn App. 1992, 843 S.W.2d 427.



       It is the burden of a party seeking a summary judgment to show uncontradicted facts

which entitle the movant to judgment as a matter of law. Tucker v. Metropolitan

                                              -8-
Government, Tenn. App. 1984, 686 S.W.2d 87; Read v. Thomas, Tenn. App. 1984, 679

S.W.2d 467.



       In determining whether or not a genuine issue of fact exists in a summary judgment

case, the Court must look at all the evidence, take the strongest legitimate view of the

evidence in favor of the opponent of the motion and indulge all reasonable inferences in favor

of the opponent; and, if there is any doubt as to the conclusion to be drawn from the whole

evidence, the motion must be denied, Dooley v. Everett, Tenn. App. 1990, 805 S.W.2d 380.



       The complaint alleges two causes of action for the same injury, (1) Violation of duty

to provide remedial surgery within a reasonable time as required by contract, and (2)

Independent of contract, failure to provide remedial surgery in deliberate indifference to the

needs of Plaintiff.



       The rules relating to motions for summary judgment place no burden of producing

evidence upon the opponent of the motion except as contradiction or rebuttal of evidence

offered by the proponent which, if uncontradicted or unrebutted, entitle the movant to

judgment as a matter of law.



       In this case, the first inquiry must be, does the evidence supporting the motion for

summary judgment, if uncontradicted and unrebutted, entitle the Defendant to summary

judgment as to either or both of the grounds stated in the complaint. The gravamen of the

complaint is the failure of the Defendant to provide medical service, rather than the quality of

services.



        The defendant recognized this distinction, and undertook to show that the long delay

in delivery of authorized services was not wrongful because of priorities. However, the

conclusory affidavit of a physician that the needs of plaintiff were not high priority, that



                                               -9-
consideration is given to priority of need and that surgery may be delayed by need to perform

other surgery of higher priority is not sufficient to exonerate Defendant of blame for delay as

a matter of law. Uncontradicted evidence that needs of higher priority actually did render

defendant unable to supply the service sooner might suffice, but such specific and definitive

evidence was not offered.



       Defendant relies upon T.C.A. § 29-26-115 which provides in pertinent part as

follows:

                 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 specialty 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.

                  (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 he was 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 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 the alleged injury or wrongful act occurred. This
               rule shall apply to expert witnesses testifying for the
               defendant as rebuttal witnesses. The court may waive
               this subsection when it determines that the appropriate
               witness otherwise would not be available.


       This statute is applicable only where the suit is based upon failure to exercise

professional care and skill. As previously pointed out, the complaint is not based upon a



                                              -10-
violation of professional standards of skill or care in performing professional services, but

upon a delay in providing such services.



       In Rural Educational Assoc. v. Bush, 42 Tenn. App. 34, 298 S.W.2d 761. (1956), this

Court held:

                  Professional or expert testimony was not necessary to
               establish that leaving a sponge in Plaintiff’s body was
               negligence. Any layman would know that fact.
               42 Tenn. App. At 47.


       Following the reasoning of the quoted authority, “any layman (that is, any reasonable

non expert), would know that a six months delay in providing approved surgery for a painful

condition is negligence unless excused by conditions which required the delay.



       The absence of expert testimony as required by the statute does not justify a summary

judgment in cases where an ordinary layman would be authorized to find fault under the

facts. Moreover, the evidence offered by Defendant does not satisfy the requirement of the

statue as to conformity with the statutory professional standards for scheduling surgery.



       Under the circumstances of the present case, the Defendant did not satisfy its burden

of showing that the unreasonable delay in providing surgery to Plaintiff was without its fault

as a matter of law. This being true, the Plaintiff was not under a burden to offer contradictory

or rebuttal evidence, and the issue of the competency of Plaintiff’s professional witness

becomes moot.



       The lack of satisfactory and conclusive evidence explaining the long and facially

unreasonable delay in providing surgery for Plaintiff also prevents a summary judgment in

respect to the charge of deliberate indifference; for, under the evidence in this record, a jury

could properly find that the long delay in scheduling surgery amounted to deliberate




                                              -11-
indifference to the prolonged pain of Plaintiff, for which Defendant might be liable under

West v. Atkins, 487 U.S. 42, 54 (1988).



        The evidence in this record does not establish without dispute that Defendant is not

liable to Plaintiff on either of the grounds of Plaintiff’s suit.



        The summary judgment in favor of the Defendant is reversed and vacated. Costs of

this appeal are assessed against the Defendant. The cause is remanded to the Trial Court for

further proceedings.



REVERSED AND REMANDED

                                                 _______________________________________
                                                 HENRY F. TODD
                                                 PRESIDING JUDGE, MIDDLE SECTION


CONCURS:


_____________________________________
SAMUEL L. LEWIS, JUDGE



CONCURS IN SEPARATE OPINION
WILLIAM C. KOCH, JR., JUDGE




                                                -12-
