                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                    Assigned on Briefs March 9, 2007

               KENNETH B. WHITE v. WILLIAM BACON, M.D., ET AL.

                           Appeal from the Circuit Court for Davidson County
                                 No. 02C-3644     Walter Kurtz, Judge



                        No. M2005-02295-COA-R3-CV - Filed on April 24, 2007


Inmate filed medical malpractice action against hospital for the allegedly negligent performance of
his surgery and the failure to order appropriate post-operative treatment instructions. Hospital filed
motion for summary judgment, alleging that it was an improper party to the suit because it was not
a legal entity capable of being sued. The trial court granted the motion and inmate appeals. We
affirm the decision of the trial court, finding that (1) hospital is not a legal entity capable of being
sued; and (2) the trial court did not abuse its discretion by allowing hospital to reset its motion for
summary judgment.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK
G. CLEMENT , JR., JJ., joined.

Kenneth B. White, Memphis, Tennessee, Pro Se.

Nashville Metropolitan General Hospital, Appellee, not represented on appeal.

                                           MEMORANDUM OPINION1

        On December 22, 2001, Mr. Kenneth White, an inmate confined at the South Central
Correctional Facility in Clifton, Tennessee, slipped and fell in the common area of his living unit,
fracturing his left femur. Mr. White was thereafter brought to the emergency room at Metropolitan
Nashville General Hospital (the Hospital), where he was treated by Dr. William Bacon, an

        1
            Tenn. R. Ct. App. 10 states:

       This Court, with the 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. W hen 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       “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any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 any unrelated case.
orthopedic surgeon. On December 24, 2001, Dr. Bacon performed surgery to correct Mr. White’s
fracture. Mr. White was later transferred to a special needs facility and ultimately back to his
correctional facility, where he was under the care of medical personnel.

        Mr. White complained of continued pain in his left leg, therefore another x-ray was ordered
on March 6, 2002. The x-ray revealed that Mr. White’s surgery had been unsuccessful. A remedial
surgery was performed by another surgeon on April 7, 2002. On December 20, 2002, Mr. White
filed a medical malpractice action against various persons and entities, including the Hospital and
its employees, alleging medical negligence in the performance of his first surgery as well as a failure
to order appropriate post-operative treatment.

        On March 12, 2003, the Hospital filed a motion for summary judgment; however, the hearing
was stayed, along with all dispositive motions filed by other Defendants, until Mr. White’s medical
records could be provided to the trial court. On March 17, 2003, the Hospital filed a notice of
indefinite continuance in accordance with the court’s order of stay. After the case was transferred
from the Eighth Circuit to the Fifth Circuit, the court entered an order on January 28, 2004, lifting
the stay and requiring that all dispositive motions be reset within forty-five (45) days. The Hospital
failed to do so, but upon discovering its error over a year later, moved the court to allow a resetting
of its motion. The court thereafter granted leave to reset, and the Hospital reset its summary
judgment motion for August 12, 2005.2 The trial court granted the Hospital’s motion for summary
judgment on August 24, 2005. Mr. White appeals.

        In reviewing a motion for summary judgment, the Court must examine the evidence and all
reasonable inferences from the evidence in the light most favorable to the non-moving party. Kelley
v. Middle Tenn. Emergency Physicians, P.C., 133 S.W.3d 587, 591 (Tenn.2004). The Court reviews
the record de novo with no presumption of correctness below. Kelley, 133 S.W.3d at 591. Summary
judgment is appropriate where the moving party demonstrates that there are no genuine issues of
material fact and that judgment may be rendered as a matter of law. Tenn.R.Civ.P. 56.04.

        The Hospital based its motion for summary judgment on the grounds that it is an improper
party to the suit because it is not a legal entity capable of being sued. Instead, the Hospital asserts
that Mr. White should have sued the operator of the Hospital, the Metropolitan Hospital Authority.
Pursuant to Tennessee Code Annotated section 7-57-201, ownership of the Hospital was transferred
from the Metropolitan Government to the Metropolitan Hospital Authority in March 1999. The
employees working at the Hospital at the time of the alleged negligence, are and were employees of
the Metropolitan Hospital Authority, not the Hospital or the Metropolitan Government, pursuant to
an intergovernmental agreement between the Metropolitan Government and the Metropolitan
Hospital Authority. See Tenn.Code Ann. § 7-57-301(10). Despite being served with the Hospital’s
motion for summary judgment in March 2003, Mr. White never amended his complaint to substitute


         2
         W e would note that all other Defendants in this case have been dismissed, including the Hospital’s employee,
Dr. Bacon, upon whom Mr. W hite bases the Hospital’s vicarious liability.



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the Metropolitan Hospital Authority for the Hospital. Because the Hospital is not a legal entity
subject to suit, we find that summary judgment in favor of Metropolitan Nashville General Hospital
was proper. See Butler v. Madison County Jail, 109 S.W.3d 360, 369 (Tenn.Ct.App.2002).

        We would also note that Mr. White failed to address the substance of the Hospital’s argument
or the Hospital’s statement of undisputed facts in his response to the Hospital’s motion for summary
judgment. Tennessee Rule of Civil Procedure 56.03 requires that:


               Any party opposing the motion for summary judgment must, not later than
       five days before the hearing, serve and file a response to each fact set forth by the
       movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is
       undisputed for purposes of ruling on the motion for summary judgment only, or (iii)
       demonstrating that the fact is disputed. Each disputed fact must be support by
       specific citation to the record. Such response shall be filed with the papers in
       opposition to the motion for summary judgment.


The purpose of this requirement is to “assist the Court in focusing on the crucial portions of the
record” so that the court may determine whether there is a genuine issue of material fact requiring
a trial on the merits. See Advisory Committee Comment to Tenn.R.Civ.P. 56.03. Instead, Mr.
White attacks the Hospital’s admitted procedural failure to reset the motion within forty-five (45)
days of the court’s January 28, 2004, order, arguing that the Hospital’s motion must therefore be
automatically denied.


        The decision to grant or deny a motion which continues and resets a motion or hearing is
within the trial court’s discretion. Sanjines v. Ortwein & Assocs., P.C., 984 S.W.2d 907, 909
(Tenn.1998). “An appellate court cannot interfere with the trial court’s decision unless such decision
constitutes an abuse of discretion and causes prejudice.” Sanjines, 984 S.W.2d at 909. Under the
abuse of discretion standard, the trial court’s determination “will be upheld so long as reasonable
minds can disagree as to [the] propriety of the decision made.” State v. Scott, 33 S.W.3d 746, 752
(Tenn.2000). We believe that the trial court was well within its discretion in allowing the Hospital
to continue and reset its motion for summary judgment.


      The decision of the trial court is affirmed. The costs of appeal are assessed against Appellant,
Mr. White.



                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE



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