           IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                               AT NASHVILLE

               _______________________________________________________

                                               )       C. A. No. 01A01-9701-CV-00028
ROBERT T. IRVIN,                               )       Montgomery Circuit Court No. C11-371
                                               )
   Plaintiff/Appellant.                        )       HON. JAMES E. WALTON, JUDGE
                                               )
VS.                                            )       AFFIRMED AND REMANDED
                                               )
THE PLASMA CENTER, et al,                      )
                                               )       OPINION FILED:
   Defendants/Appellees.                       )
                                               )

Robert T. Irvin, Pro Se

John T. Horton, BREWER, KRAUSE, BROOKS & MILLS, Nashville, for
Defendants/Appellees.

______________________________________________________________________________

                          MEMORANDUM OPINION1
______________________________________________________________________________


                                                       FARMER, J.



               Robert T. Irvin sued the defendants for refusal to continue to accept his donation of

plasma to The Plasma Center. Defendants filed a motion for summary judgment. The trial court

entered an order stating that the complaint failed to state a cause of action and, that if Mr. Irvin’s

cause of action lies in medical malpractice, he failed to meet his requisite burden in responding to

the defendants’ motion for summary judgment. The motion for summary judgment was granted and

Mr. Irvin appeals.



               The complaint alleges that the plaintiff was verbally informed by the manager of The

Plasma Center that he could no longer donate plasma to the center due to his elevated liver enzymes.

It is further alleged that the plaintiff contacted the Center in January, 1996 and informed “Faye,” who


       1
          Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.

                                                   1
he describes as the manager, that he had been tested by a doctor for elevated liver enzymes and was

found to be normal and/or without increased liver enzymes. It further alleges that the defendants

were guilty of medical malpractice.



               Mr. Irvin first argues on appeal that he was denied due process in that, acting pro se,

the trial court was required to liberally construe his complaint. His status as a pro se litigant

notwithstanding, in reviewing a motion to dismiss for failure to state a claim, the court should

construe the complaint liberally in favor of the plaintiff, taking all allegations of fact as true, and

should not dismiss the complaint unless it appears that the plaintiff can prove no set of facts in

support of his claim that would entitle him to relief.         Fletcher v. Board of Professional

Responsibility, 915 S.W.2d 448 (Tenn. App. 1995). See also rules 8.05 and 8.06 T.R.C.P. We do

not find from review of this record that the plaintiff has been deprived of due process.



               Giving a liberal construction to the complaint, it could be interpreted as alleging that

Mr. Irvin was given an incorrect diagnosis when he was advised that he had elevated liver enzymes.

Blood banks, such as the enterprise operated by the defendants in this case, have been held to fall

within the definition of “health care providers” and therefore subject to the same burdens and receive

the same protection as other health care providers under T.C.A. § 29-26-115.2 Estate of Doe v.

Vanderbilt Univ., Inc., 824 F. Supp. 746 (M.D. Tenn. 1993).



               Although §§ 29-26-101 through 114 of the T.C.A. were repealed in 1985, the repealed

sections must be looked to for definitions and understanding of those unrepealed sections. Doe v.

Vanderbilt, 842 F. Supp. at 748. In § 29-26-102(6), a medical malpractice action was defined as “an

action for damages for personal injury or death as a result of any medical malpractice by a health care



       2
         (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.

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provider, whether based upon tort or contract law. The term shall not include any action for damages

as a result of negligence of a health care provider when medical care by such provider is not involved

in such action.” The court stated in Doe v. Vanderbilt that “the determination of what questions to

ask a potential blood donor, the screening procedures for identification of appropriate donors, the

test that should be applied to blood samples, are all questions involving the exercise of medical

judgment.” Id. at 749.



               In support of the motion for summary judgment, defendants presented the affidavit

of Virginia Louise Watson, R.N. Her affidavit states:



                      1. I am over twenty-one years of age, competent to testify,
               and not laboring under any disabilities;

                       2. I am a registered nurse licensed to practice nursing in the
               State of Tennessee. I have been licensed as a nurse since 1981. I
               have been licensed to practice nursing in the State of Tennessee since
               1991. I received my nursing degree from East Tennessee Baptist
               Hospital School of Nursing in 1981. Thereafter, I immediately sat for
               my boards and passed the examination in 1981. I am an employee of
               The Plasma Center and have been employed by The Plasma Center
               since September 30, 1994.

                      3. A copy of my resume is attached hereto as Exhibit A. By
               my education, training, and experience, I am familiar with the
               recognized standards of acceptable professional practice in
               Montgomery County, Tennessee, for the treatment and care of plasma
               donors such as Robert T. Irvin.

                        4. I have reviewed the complete file for Robert T. Irvin
               maintained by The Plasma Center, a copy of which is attached hereto
               as collective Exhibit B, and the complaint and affidavit of Robert T.
               Irvin filed in civil docket number C11-371. Based upon my review
               of that information and by my education, training, and experience, it
               is my opinion that the care and treatment provided to Robert T. Irvin
               by The Plasma Center was at all times appropriate and in keeping
               with the recognized standards of acceptable professional practice for
               the care and treatment of plasma donors in Montgomery County,
               Tennessee, under the same or similar circumstances.

                       5. The medical records attached hereto as collective Exhibit
               B show that on or before August of 1995 Robert T. Irvin approached
               the defendant Plasma Center regarding donating plasma. As part of
               the standard procedure at The Plasma Center, Mr. Irvin was pre-
               screened for eligibility. This pre-screening involves questioning the
               applicant regarding recent blood or plasma donations, alcohol or
               chemical usage, sexual activity, and medical history. Blood testing
               is performed to verify the applicants medical condition and a basic
               physical examination of the applicant occurs at the time as well.
               Specifically, the weight, temperature, and blood pressure of the

                                                  3
               applicant is taken. Blood work is performed from the samples taken.
               This blood work involves testing hematocrit and protein levels.
               Blood samples are sent to an off-premises laboratory for processing.
               Additionally, the applicant is advised that they may be rejected by the
               Center if their blood tests turn positive or abnormal.

                       6. Mr. Irvin went through the above pre-screening process
               and was allowed to donate plasma. Thereafter, on several occasions
               as evidenced by the medical records, Mr. Irvin returned between
               August and November of 1995 to make additional donations. On
               November 27, 1995, Mr. Irvin presented to donate plasma. The
               above described physical examination was performed and blood
               samples taken. A plasma specimen was taken and held pending
               receipt of the results from Mr. Irvin’s blood work. On December 5,
               1995, the results of Mr. Irvin’s blood work were received by
               telephone. The results indicated an elevated ALT level for his
               November 27, 1995, donation. On December 5, 1995, I personally
               mailed a notice to Mr. Irvin requesting he come to the Center to
               discuss his laboratory results. On December 7, 1995, Mr. Irvin
               returned to the Center. On that date he was informed of the elevated
               ALT levels and informed that this required his permanent rejection as
               a plasma donor by The Plasma Center. At the time of the meeting
               with Mr. Irvin on December 7, 1995, written results of the blood tests
               were not available; however, a telephone report had been received
               from the laboratory indicating the elevated ALTs.

                       7. ALTs measure the level of liver enzymes in the blood.
               Elevated ALTs are detrimental to the usability of plasma products.
               The Plasma Center is engaged in the business of acquiring plasma
               products for processing and use in the medical treatment of other
               persons. As such, The Plasma Center cannot use plasma products
               from donors with elevated ALTs because elevated ALT levels in
               plasma products represent a danger and can cause medical problems
               in subsequent recipients. Simply put, plasma from a donor with an
               elevated ALT level presents a risk of harm to any subsequent
               recipient. As such, it is appropriate to reject plasma donation by
               individuals with elevated ALT levels.

                       8. Based upon the test results received by The Plasma Center
               for Robert T. Irvin, Mr. Irvin was referred to his personal physician
               for further testing with regard to his medical condition.

                       Further affiant sayeth not.



                       Summary judgment is appropriate only when there are no genuine issues of

material fact. The trial court must take the strongest legitimate view of the evidence in favor of the

nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing

evidence. If there is such a dispute, the motion must be denied. It is not the province of the court

to weigh the evidence. However, once it is shown by the movant that there is no genuine issue of

material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that

there is a genuine material fact dispute. The respondent cannot simply rely upon his pleadings but

                                                  4
must set forth specific facts by using affidavits or other discovery material. Rule 56.03 T.R.C.P.;

Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993). No presumption of correctness attaches to decisions

granting summary judgment as they involve only questions of law. On appeal, we must make a fresh

determination as to whether the requirements of Rule 56 T.R.C.P. have been met. Cowden v. Sovran

Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).



               The affidavit of nurse Watson establishes that she is familiar with the recognized

standard of acceptable professional practice in the community for the treatment and care of plasma

donors such as Mr. Irvin and that the care and treatment provided was at all times appropriate and

in keeping with the recognized standards. No countervailing expert affidavit or other evidence was

submitted by the plaintiff. The trial court’s grant of summary judgment on the allegation of medical

malpractice is affirmed. Costs of this appeal are taxed to the appellant, Robert T. Irvin.



                                                      ____________________________________
                                                      FARMER, J.



______________________________
LILLARD, J. (Concurs)



______________________________
LEWIS, J. (Concurs)




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