                    IN THE COURT OF APPEALS OF TENNESSEE
                            EASTERN SECTION AT KNOXVILLE
                                                                               FILED
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                                                                                  March 5, 1996
TINA HARVEY et ux,                                 )
                                                                      Cecil Crowson, Jr.
                                                   )        HAMILTON CIRCUIT C ourt Clerk
                                                                      Appellate
        Plaintiffs/Appellants                      )
                                                   )        No. 03A01-9512-CV-00452
v.                                                 )
                                                   )
GENETH WOLFER, D.O.,                               )
                                                   )        REVERSED AND REMANDED
        Defendant/Appellee                         )




Selma Cash Paty, Chattanooga, For the Appellant

David E. Harrison and Tonya Kennedy McIntosh, Chattanooga, For the Appellee



                                            OPINION


                                                                                INMAN, Senior Judge



                                                       I

        Initially, this action was one for damages for the alleged medical malpractice

of the defendant in dropping the plaintiff Tina Harvey or preventing her from falling

and fracturing her ankle after an injection which may have caused numbness in her

legs.

        The defendant filed her answer insisting that she exercised a degree of care

commensurate with that exercised by other osteopathic physicians in Chattanooga

and thus was entitled to the defenses provided by T ENN. CODE ANN . § 29-26-101 et

seq., the Medical Malpractice Review Board and Claims Act.

        Whereupon, the plaintiffs were allowed to amend their complaint to allege

that the defendant was negligent in the manner in which Tina Harvey was moved

from the examination table which resulted in her being dropped.

        The defendant moved for summary judgment, supported by her affidavit that
"all actions taken by me to Mrs. Harvey were appropriate and proper and in full

conformity with the applicable standard of care for my profession." The plaintiffs

filed no countervailing affidavit by an expert medical witness, relying instead on the

testimony of the defendant that, following an injection, Mrs. Harvey became

nauseous and experienced numbness in her legs while sitting on an examination

table. A wheelchair was provided for Mrs. Harvey because a gurney was too large

for the room. But Mrs. Harvey never made it to the wheelchair. She began to fall

forward and the defendant, with an assistant, "sat her on the floor." During this time

interval, Mrs. Harvey's legs were numb, and the defendant testified "when she did a

twisting motion her foot got twisted under her," resulting in a fractured ankle.

       The plaintiff Tina Harvey testified that "they either let go or dropped me."

       Because the plaintiff filed no affidavit which countervailed that of the

defendant, the trial judge was of the opinion that the motion of the defendant for

summary judgment was well taken. The complaint was thereupon dismissed, the

propriety of which is presented for review.

                                           II

       If this case was simply one for damages for medical malpractice, we would

readily agree with the trial judge and affirm the judgment at this juncture. But in our

opinion, the facts sound more in common law negligence than medical malpractice,

and the case of Graniger v. Methodist Hospital Healthcare System, Inc., No. 02A01-

9309-CV-00201 (filed at Jackson, September 9, 1994), relied upon by the

defendant, is inapposite. Mrs. Graniger made no complaint of weakness in her legs,

which were swollen. She was left unattended in the examination room and, when

she attempted to alight from the table, she fell and suffered fractures. She charged

the defendants with malpractice and common law negligence, but submitted no

countervailing affidavit on the issue of malpractice. Her insistence upon appeal

centered upon the issue of common-law negligence. The Graniger court held that

the distinction between ordinary negligence and malpractice turns on whether the


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acts or omissions complained of involve a matter of medical science or require

specialized skills not ordinarily possessed by lay persons or whether the conduct

complained of can instead be assessed on the basis of the common everyday

experience of the trier of fact. The Court continued that expert medical testimony

was necessary as to whether the plaintiff's condition necessitated assistance.

       In the case at bar, the defendant admits that Mrs. Harvey needed assistance

and was actively assisting her when the fracture occurred. From the perspective of

the defendant, Mrs. Harvey's fractured ankle occurred when her numb leg "got

twisted under her" notwithstanding that she was under the complete control of the

defendant at the time. From the perspective of the plaintiff, her ankle was fractured

when the plaintiff and his assistant "dropped her." The plaintiff is of short stature

and normal weight; the defendant is a large person. Her assistant's dimensions are

not in the record.

                                           III

       A Rule 56 motion requires a court to determine whether there exists any

genuine issue of a disputed material fact. To do this, we look to all the evidence,

take the strongest legitimate view of it favorably to the opponent of the motion,

discard all countervailing evidence and recognize that summary proceedings are not

substitutes for trials. Robinson v. Tenn. Farmers Mut. Ins. Co., 857 S.W.2d 559,

566 (Tenn. App. 1993). We cannot weigh the evidence and must proceed in the

light most favorable to the non-moving party. Byrd v. Hall, 847 S.W.2d 208, 210-11

(Tenn. 1993). If there is a genuine doubt as to the conclusions to be drawn from the

facts, the case should be tried on its merits.

       Against these settled principles, there can be no doubt that summary

judgment was inappropriate. The plaintiff testified that the defendant dropped her,

an act not implicative of medical science and, one that may be assessed on the

basis of common experience.

       Whether Mrs. Harvey's injury was sustained as a result of the ordinary


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negligence of the defendant is a disputed issue of fact, see Brooks v. Memphis and

Shelby County Hospital Authority, 717 S.W.2d 292 (Tenn. 1986), for resolution by a

trier of fact pursuant to McIntyre principles.

       The judgment is reversed and the case is remanded for trial, with costs

assessed to the appellee.




                                           William H. Inman, Senior Judge


Concur:




Herschel P. Franks, Judge




Charles D. Susano, Jr., Judge




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