                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE


JAMES MARK BLICK,                   )
                                    )
                                                        FILED
            Plaintiff/Appellant,    ) Montgomery County No. C10-329
                                    )                   November 13, 1998
VS.                                 ) Appeal No. 01A01-9708-CV-00393
                                    )                   Cecil W. Crowson
STEPHEN W. KENT, M.D., et al,       )                  Appellate Court Clerk
                                    )
            Defendants/Appellees.   )


       APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                     AT CLARKSVILLE, TENNESSEE
               THE HONORABLE JAMES E. WALTON, JUDGE




MARK R. OLSON
OLSON & OLSON, PLC
Clarksville, Tennessee
Attorney for Appellant



DAN L. NOLAN
MARIE ANTOINETTE JOINER
BATSON, NOLAN, BRICE, HARVEY & WILLIAMSON, PLLC
Clarksville, Tennessee
Attorneys for Appellees




REVERSED AND REMANDED




                                                      ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
         In this medical malpractice action, Plaintiff James Mark Blick appeals the trial court’s

final order entering summary judgment in favor of Defendants/Appellees Stephen W. Kent,

M.D., William D. Shippen, M.D., Robert Douglas Doty, M.D., and Robert Hector, P.A. For

reasons hereinafter stated, we reverse the trial court’s judgment and remand for further

proceedings.



         On August 23, 1992, Blick was treated for a head laceration by Physician’s Assistant

Robert Hector at the Clarksville Memorial Hospital emergency room. Hector was employed

by Clarksville Emergency Physicians, a partnership of doctors which, pursuant to a

contract, provided emergency medical services at the Hospital. Defendants William D.

Shippen, M.D., and Robert Douglas Doty, M.D., were partners of Clarksville Emergency

Physicians, as was Defendant Stephen W. Kent, M.D. Dr. Kent acted as the supervising

physician in the emergency room on the day Blick was treated.



         After cleaning Blick’s head laceration and inspecting it for any foreign matter, Hector

sutured the wound and proceeded to discharge Blick. Although Dr. Kent did not personally

treat Blick, Dr. Kent reviewed Blick’s chart and authorized his discharge from the Hospital.

Over one year later, Blick sought treatment from another physician for continuing problems

with his head wound. A subsequent surgery revealed the presence of a piece of glass

imbedded in Blick’s head which Hector’s examination apparently had missed. The glass

was triangular in shape and measured approximately two centimeters on its widest side.



         In October 1994, Blick filed this action for medical malpractice against Hector, Dr.

Kent, and the other Defendants. 1 In his amended complaint, Blick alleged that Hector

negligently failed to discover the piece of glass when he treated Blick’s head wound in

August 1992. Blick additionally alleged that Dr. Kent was negligent in failing adequately to

supervise Hector in violation of the Physician Assistants Act, codified at Tennessee Code

Annotated sections 63-19-101 to 63-19-114 (1990 & Supp. 1992).



         1
          Blick ’s amended complaint also named Paul Stampli, LPN, Jean Harris, LPN, and the Hospital as
defe nda nts, b ut the se de fend ants were subs equ ently d ism isse d fro m th e law suit a nd ar e not partie s to th is
appea l.

                                                            2
       After participating in discovery, the Defendants moved for summary judgment,

contending that the undisputed evidence failed to support Blick’s claim that Hector deviated

from the applicable standard of care in his treatment of Blick. In support of their motion,

the Defendants relied on the depositions of Defendants Hector and Kent. The Defendants

also relied on the affidavit of Blick’s expert, Dr. David H. Lander, and the deposition

testimony of Dr. Harry S. Creekmore, the surgeon who removed the piece of glass from

Blick’s head.



       In granting the Defendants’ motion for summary judgment, the trial court made the

following ruling:

                       The Court considered [the] Defendants’ Motion for
                Summary Judgment, and the Court finds that the deposition
                testimony of Dr. Kent and Dr. Creekmore do [sic] not establish
                that Defendants violated the standard of care. The Court finds
                that the Affidavit of David H. Lander, M.D., states what he
                believes to be the applicable standard of care. However, he
                does not say or intimate that the Defendants violated that
                standard. The Court finds that the Plaintiff has failed to
                present evidence that the Defendants violated the applicable
                standard of care. Therefore, there is no genuine issue as to
                any material fact, and Defendants are entitled to judgment as
                a matter of law. Without any expert medical proof in
                opposition to the Defendants’ Motion for Summary Judgment,
                the Court enters summary Judgment in favor of the only
                remaining Defendants, Stephen W. Kent, M.D., William D.
                Shippen, M.D., Robert Douglas Doty, M.D., individually and as
                general partners of Emergency Room Physicians, a
                Partnership, and Robert Hector, P.A., as a final judgment
                pursuant to Rule 56.04 of the Tennessee Rules of Civil
                Procedure. The Plaintiff’s cause against these Defendants is
                hereby dismissed.


       Our standard of review of the trial court’s order granting the Defendants’ motion for

summary judgment is summarized in Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995):

                        Since our inquiry involves purely a question of law, no
                presumption of correctness attaches to the trial court’s
                judgment, and our task is confined to reviewing the record to
                determine whether the requirements of Tenn. R. Civ. P. 56
                have been met. Cowden v. Sovran Bank/Central South, 816
                S.W.2d 741, 744 (Tenn. 1991). [Rule 56.04] provides that
                summary judgment is only appropriate where: (1) there is no
                genuine issue with regard to the material facts relevant to the
                claim or defense contained in the motion, Byrd v. Hall, 847
                S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is
                entitled to a judgment as a matter of law on the undisputed
                facts. Anderson v. Standard Register Co., 857 S.W.2d 555,
                559 (Tenn. 1993). The moving party has the burden of proving


                                              3
               that its motion satisfies these requirements. Downen v.
               Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn. 1991).

                     . . . Courts must view the evidence in the light most
               favorable to the nonmoving party and must also draw all
               reasonable inferences in the nonmoving party’s favor. Byrd,
               847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the conclusions to be
               drawn from the facts permit a reasonable person to reach only
               one conclusion. Id.

Carvell v. Bottoms, 900 S.W.2d at 26.



       This court has recognized that, as a general rule, a defendant moving for summary

judgment may avail itself of two avenues: (1) the defendant “may negate an essential

element of the nonmoving party’s claim,” or (2) the defendant “may establish an affirmative

defense, such as the statute of limitations, that defeats the claim.” Allied Sound, Inc. v.

Neely, 909 S.W.2d 815, 820 (Tenn. App. 1995) (citing Byrd v. Hall, 847 S.W.2d 208, 215

n.5 (Tenn. 1993)). In this case, the Defendants sought to obtain a summary judgment by

the first avenue, that of negating an essential element of Blick’s claim for medical

malpractice.



       In a medical malpractice action, the plaintiff is required to prove three elements by

competent expert testimony: (1) the applicable standard of care, (2) the defendants’

deviation from that standard, and (3) injury to the plaintiff as a proximate result of such

deviation. Roddy v. Volunteer Med. Clinic, Inc., 926 S.W.2d 572, 578 (Tenn. App. 1996);

Parker v. Vanderbilt Univ., 767 S.W.2d 412, 420 (Tenn. App. 1988). In the present case,

the trial court ruled that the undisputed evidence failed to establish that Hector deviated

from the applicable standard of care in his treatment of Blick. Accordingly, the trial court

agreed that the Defendants had successfully negated an

essential element of Blick’s claim, and the court granted the Defendants’ motion for

summary judgment.



       After reviewing the expert testimony presented in this case, we conclude that,

contrary to the trial court’s ruling, the record reveals the existence of a genuine issue of

material fact as to whether Hector deviated from the required standard of care and whether


                                             4
this deviation proximately caused Blick’s injury. This case was somewhat unusual in that

the parties essentially agreed on the applicable standard of care. According to the various

experts, the standard of care required Hector, prior to suturing or otherwise closing the

wound, to examine the wound for the presence of foreign objects by probing to the depth

of the wound. Hector’s recollection of treating Blick was vague, and he relied to a large

extent on the notations he had made in Blick’s chart. Hector testified that he visually

inspected Blick’s wound to the depth of the wound to ensure that no foreign bodies were

present. Hector also scrubbed Blick’s wound to its depth with Betadine.



       Hector’s testimony revealed, however, that he did not probe the wound. During

Hector’s deposition, the following exchange transpired:

                     Q.     But none of your notes reflect any action you
              took actually probing inside the wound, do they?

                      A.     No. I didn’t probe inside the wound. I inspected
              it visually and I scrubbed it out.

                      Q.     Once again my question is: None of your notes
              state that you actually probed or investigated inside the wound;
              correct?

                     A.     I didn’t probe the wound, no, not with an
              instrument.

                      Q.      And there’s nothing else in your notes here that
              reflect that there was any kind of probing or investigation inside
              the wound.

                     A.     The wound was visually inspected just by the fact
              that I noted the size and location and the condition of the
              wound.

Inasmuch as Hector’s own testimony indicates that he failed to probe the wound as

required by the applicable standard of care attested to by the parties’ experts, we conclude

that the trial court improperly granted summary judgment on this issue.



       Without citation to the record, the Defendants assert that Hector testified in his

deposition “that he did probe to the depth of the wound.” After reviewing Hector’s

deposition, we can only surmise that the Defendants are referring to Hector’s testimony

whereby he stated that he visually inspected the wound for foreign debris and that he




                                              5
scrubbed the wound to its depth. As the above-quoted portions of Hector’s deposition

reveal, however, Hector specifically testified that he did not probe the wound.2



        In urging this court to affirm the trial court’s entry of summary judgment in their favor,

the Defendants contend that the testimony of Blick’s experts failed to reveal any deviation

from the required standard of care by Hector. It is true that Dr. Lander deferred to Dr.

Creekmore on the issue of whether Hector’s failure to discover the glass constituted

negligence. It also is true that, when asked his opinion on the issue, Dr. Creekmore

declined to characterize Hector’s failure to find the piece of glass as negligence. Dr.

Creekmore testified that, “I cannot say that Mr. Hector was guilty of negligence. I mean,

it is possible for someone to try to find something and not find it.” Dr. Creekmore agreed

that, just because a piece of glass was missed in an examination, it did not necessarily

follow that the examining physician or physician’s assistant failed to follow the applicable

standard of care. Dr. Creekmore explained that “there are conceivably some occasions

when a piece of tissue can overlap and make one think one is at the bottom of a wound

when one is not and, therefore, one can make an erroneous judgment there.” In this

manner, a piece of tissue could obscure an underlying piece of glass. Dr. Creekmore also

explained that a foreign body, such as a piece of glass, could migrate toward the surface

of the skin over a period of time and, thus, not be discovered until after some time had

passed. Dr. Creekmore believed that he would have found the piece of glass during the

initial examination of Blick’s wound, but he did not necessarily believe Hector was negligent

for failing to find it.



        Despite this testimony, we conclude that the summary judgment entered in favor of

the Defendants must be reversed. Dr. Creekmore’s testimony revealed that, even in the

exercise of due care, Hector still could have failed to detect the presence of the glass in

Blick’s wound. Dr. Creekmore’s testimony, however, was predicated on the assumption



        2
          Based on the record before us, we are unable to conclude that Hector’s act of scrubbing the wound
to its depth complied with the requirement that he probe the wound. One available authority indicates that the
terms “scrub” and “probe” have very different meanings, and we note that H ecto r’s us e of th ese term s in his
deposition was co nsistent w ith this autho rity’s definitions. Mer riam -W ebs ter’s Medical Desk D ictionary 575,
642 (19 93).

                                                        6
that Hector had, in fact, complied with the applicable standard of care by probing the

wound to its depth. In light of Hector’s own admission that he did not probe the wound, the

cited testimony fails to negate Blick’s claim that Hector deviated from the applicable

standard of care in his treatment of Blick’s wound.3



         The judgment of the trial court is hereby reversed, and this cause is remanded for

further proceedings consistent with this opinion. Costs on appeal are taxed to the

Defendants, for which execution may issue if necessary.




                                                                        HIGHERS, J.


CONCUR:



CRAWFORD, P.J., W.S.



LILLARD, J.




         3
          W e decline to address Blick’s alternative ar gum ent th at Dr . Ken t neg ligent ly supe rvise d He ctor in
violation of the Physician Assistants Act, inasmuch as the trial court apparently has not ruled on this issue.
Carver Plumbing Co. v. Beck, No. 01A01-9708-CV-00377, 1998 W L 161112, at *7 (Tenn. App . Apr. 8, 1998).

                                                          7
