                                                                                                        06/24/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      April 15, 2019 Session

       ESTATE OF HERBERT ROSS SHELTON v. GREENEVILLE
     URGENT CARE AND OCCUPATIONAL MEDICINE CLINIC, ET AL.

                       Appeal from the Circuit Court for Greene County
                       No. 14CV317TJW      Thomas J. Wright, Judge


                                 No. E2018-00862-COA-R3-CV


The Estate of Herbert Ross Shelton (“Plaintiff”)1 appeals the judgment of the Circuit
Court for Greene County (“the Trial Court”) granting summary judgment to Greeneville
Urgent Care and Occupational Medicine Clinic and Takoma Regional Hospital in this
healthcare liability action after finding and holding that Plaintiff’s sole expert witness
was not qualified to testify in this case. We find and hold that Plaintiff’s expert did not
practice in a profession or specialty during the relevant time period which would make
his testimony relevant to the issues in this case, and thus, was not qualified to testify
pursuant to Tenn. Code Ann. § 29-26-115. We, therefore, affirm.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and RICHARD H. DINKINS, JJ., joined.

Jeffrey A. Cobble, Greeneville, Tennessee, for the appellant, the Estate of Herbert Ross
Shelton, by Executor Jeffrey A. Cobble.


Heidi A. Barcus and Hillary B. Jones, Knoxville, Tennessee, for the appellees,
Greeneville Urgent Care and Occupational Medicine Clinic and Takoma Regional
Hospital.




1
  Mr. Shelton died during the pendency of this suit and his estate was substituted as the party plaintiff.
For ease of reading only, we use the term ‘Plaintiff’ in this Opinion when referring to Mr. Shelton and
also when referring to his estate.
                                         OPINION

                                        Background

       In April of 2013, Plaintiff presented to Greeneville Urgent Care and Occupational
Medicine Clinic (“the Clinic”) seeking pain medication. Plaintiff previously had been a
patient at the Clinic. Allegedly, medical assistant Carole Hayes (“Hayes”) was alone in
an examination room with Plaintiff, and she instructed Plaintiff to get on the examination
table. Plaintiff told Hayes that he could not, and she insisted that she needed for him to
get on the examination table in order to take his blood pressure. Plaintiff tried to step up
on a stool, and allegedly the stool slipped or moved causing Plaintiff to lose his balance
and fall. Plaintiff alleged that he struck the wall of the examination room and came to
rest on his buttocks on the concrete floor. Allegedly, Hayes and Judy Seaton (“Seaton”),
a licensed practical nurse (“LPN”), assisted Plaintiff in rising from the floor and sitting in
a chair. Hayes disputes that Plaintiff suffered a fall. She testified that as Plaintiff went
down she held him, and he sort of slid down her leg. Seaton, who was outside of the
room, testified that she heard a noise, and she found Plaintiff sitting on the examination
table when she entered the exam room. Seaton stated that Hayes told her what had
happened, but Seaton could not remember what Hayes told her. No fall was documented
in the medical records.

       After the alleged fall, Plaintiff was seen by nurse practitioner Marsha
Montemarano (“Montemarano”) who arranged for Plaintiff to be transported by
wheelchair to the adjacent Takoma Regional Hospital (“the Hospital”). X-rays were
taken, and Plaintiff was sent home despite his complaints of pain. The next day, Plaintiff
received a telephone call from someone at the Hospital advising that they were sending
an ambulance to pick Plaintiff up to take him to the Hospital because the x-rays showed
that Plaintiff had broken his back. Plaintiff then underwent surgery and physical therapy.

       Plaintiff filed suit against the Clinic and the Hospital (“collectively Defendants”)
alleging, in part, that the stool was dangerous, that despite knowing of Plaintiff’s physical
handicaps the Clinic staff insisted that he mount the examination table without assistance,
that the Clinic failed to document the fall in his medical records suggesting a cover-up of
negligence, and that the Hospital failed to promptly diagnose and treat his injuries.
Defendants filed motions for summary judgment supported, in part, by expert affidavits.
As pertinent to this appeal, Defendants filed a motion for summary judgment seeking to
disqualify Plaintiff’s expert, Edward S. Kaplan, M.D.

       After a hearing, the Trial Court entered its order on August 9, 2017, granting
summary judgment on all of the healthcare liability claims after finding and holding, inter
alia, that Plaintiff failed to show that any of the alleged acts of Hayes, Seaton, or
                                              2
Montemarano caused or contributed to his injuries, that Plaintiff failed to submit
evidence showing that his expert, Dr. Kaplan, was familiar with the standard of care for
nurse practitioners, LPNs, or medical assistants in an urgent care setting, that Plaintiff
failed to demonstrate that Dr. Kaplan practiced in a similar specialty during the year
preceding April 2013 when the alleged fall occurred, that Plaintiff had failed to show that
Dr. Kaplan was familiar with the standard of care for emergency room physicians, and
that Dr. Kaplan while having impressive credentials had retired as a practicing
neurosurgeon in 2001 and did only occasional neurology consultations and volunteer
work at a non-profit clinic during the year preceding April of 2013. The Trial Court
allowed the premises liability claim against the Clinic with regard to the allegedly
defective stool to continue.

        Plaintiff filed a motion to reconsider judgment with regard to the motion for
summary judgment to exclude Dr. Kaplan’s testimony. Plaintiff also filed a motion to
alter or amend. The Trial Court treated both motions as Tenn. R. Civ. P. 59.04 motions
to alter or amend and denied them reiterating that Dr. Kaplan was incompetent to testify
about the standard of care for medical assistants and LPNs in an urgent care setting and
incompetent to testify because he had not practiced during the relevant time period. The
Trial Court also addressed the argument that Plaintiff did not need a standard of care
expert pursuant to res ipsa loquitur finding that an expert would be needed to explain
how a medical assistant should have responded to assisting Plaintiff and that an expert
would be needed on the issue of what should and should not have been documented in the
chart.

        The Trial Court then addressed the motion for summary judgment with regard to
the allegedly defective stool. Defendants filed the affidavit of Montemarano stating that
the stool was not defective as evidenced by other patients who had used it on the day of
the alleged fall and that nothing had happened to the stool to render it defective before
Plaintiff was seen or during the time when Plaintiff was seen. Plaintiff responded and
pointed to his own deposition testimony stating that the stool was defective.

       After a hearing, the Trial Court entered its order on January 19, 2018 finding and
holding that Plaintiff had failed to produce any evidence of negligence and failed to
produce evidence that Defendants had any actual or constructive notice that the stool was
defective. The Trial Court dismissed the premises liability claim.

       Plaintiff filed another motion to alter or amend or for additional findings of fact
alleging that when the Trial Court made its finding that Dr. Kaplan had not practiced
during the relevant time period it had not addressed the fact that Dr. Kaplan was in the
business of performing independent medical examinations and testifying as an expert
witness.
                                            3
        After a hearing on Plaintiff’s motion, the Trial Court denied the motion to alter or
amend or to make additional findings of fact finding and holding: “Dr. Kaplan testified
that he was engaged in providing expert testimony and medical advisory services for
plaintiffs and defendants during the year preceding the incident in this case but the
undersigned, assuming this to be true, does not find this to be evidence that he practiced
medicine in any legally relevant capacity in the year preceding April 2013.” Plaintiff
appeals to this Court.

                                        Discussion

       Although not stated exactly as such, Plaintiff raises eight issues on appeal: 1)
whether the Trial Court erred in hearing Defendants’ motions for summary judgment
when the statement of material facts was filed less than thirty days prior to the hearing; 2)
whether a licensed neurosurgeon who examines patients, assists patients on to
examination tables, and keeps his own records is competent to testify as to the standard of
care of a LPN; 3) whether a licensed neurosurgeon who examines patients, assists
patients on to examination tables, and keeps his own records is competent to testify as to
the standard of care of a medical assistant; 4) whether being available for hire to perform
independent medical examinations qualifies as practicing pursuant to Tenn. Code Ann. §
29-26-115 regardless of the fact that no independent medical examinations were
performed during the relevant one year period; 5) whether performing any portion of an
independent medical examination qualifies as practicing pursuant to Tenn. Code Ann. §
29-26-115; 6) whether volunteer work at a community clinic qualifies as practicing
pursuant to Tenn. Code Ann. § 29-26-115; 7) whether any combination of the actions
described in issues 4 through 6 qualify as practicing pursuant to Tenn. Code Ann. § 29-
26-115; and, 8) whether the issues in this case require expert opinion or are governed by
res ipsa loquitur. Defendants raise a separate issue, which we restate as: whether this
Court lacks jurisdiction over the appeal because Plaintiff allegedly failed to file a timely
notice of appeal due to his filing of serial post-judgment motions in violation of Tenn. R.
Civ. P. 59.01.

       We first will address Defendants’ issue regarding whether this Court lacks
jurisdiction over the appeal because Plaintiff allegedly failed to file a timely notice of
appeal due to his filing of serial post-judgment motions in violation of Tenn. R. Civ. P.
59.01. As pertinent, Tenn. R. Civ. P. 59.01 provides:

       59.01. Motions Included. – Motions to which this rule is applicable are:
       (1) under Rule 50.02 for judgment in accordance with a motion for a
       directed verdict; (2) under Rule 52.02 to amend or make additional findings
       of fact, whether or not an alteration of the judgment would be required if
       the motion is granted; (3) under Rule 59.07 for a new trial; or (4) under
                                             4
       Rule 59.04 to alter or amend the judgment. These motions are the only
       motions contemplated in these rules for extending the time for taking steps
       in the regular appellate process. Motions to reconsider any of these
       motions are not authorized and will not operate to extend the time for
       appellate proceedings.

Tenn. R. Civ. P. 59.01.

       The Trial Court treated the two motions filed by Plaintiff after entry of the order
granting summary judgment to Defendants on the healthcare liability claims as Tenn. R.
Civ. P. 59.04 motions to alter or amend and denied the motions. Defendants argue that
because of this, the motion to alter or amend or for additional findings of fact filed by
Plaintiff after entry of the January 19, 2018 order granting summary judgment on the
premises liability claim was actually a motion to reconsider the earlier motions, which is
disallowed pursuant to Tenn. R. Civ. P. 59.01.

       A careful and thorough review of the record on appeal reveals that Plaintiff did
indeed file more than one motion pursuant to Tenn. R. Civ. P. 59. Only one of these
motions, however, was filed after entry of the final order, i.e., the January 19, 2018 order
granting summary judgment on the premises liability claim with regard to the allegedly
defective stool. Rule 54.02 of the Tennessee Rules of Civil Procedure provides, in
pertinent part:

       54.02. Multiple Claims for Relief – Motion to Intervene. – (1) When
       more than one claim for relief is present in an action, whether as a claim,
       counterclaim, cross-claim, or third party claim, or when multiple parties are
       involved, the court, whether at law or in equity, may direct the entry of a
       final judgment as to one or more but fewer than all of the claims or parties
       only upon an express determination that there is no just reason for delay
       and upon an express direction for the entry of judgment. In the absence of
       such determination and direction, any order or other form of decision,
       however designated, that adjudicates fewer than all the claims or the rights
       and liabilities of fewer than all the parties shall not terminate the action as
       to any of the claims or parties, and the order or other form of decision is
       subject to revision at any time before the entry of the judgment adjudicating
       all the claims and the rights and liabilities of all the parties.

      The Trial Court did not direct entry of a final judgment pursuant to Rule 54.02
when it granted summary judgment on the healthcare liability claims. As such, the
August 9, 2017 order was not a final order. The final order in this case was the Trial
Court’s January 19, 2018 order granting summary judgment on the premises liability
                                             5
claim, which fully and finally disposed of all remaining issues in the case. Plaintiff filed
only one motion pursuant to Tenn. R. Civ. P. 59.01 after entry of this order. As such, we
do not find that Plaintiff filed serial post-judgment motions, nor do we find that Plaintiff
failed to timely file a notice of appeal. This issue is without merit.

        We turn now to the issues raised by Plaintiff. Of these issues, we first consider
whether the Trial Court erred in hearing Defendants’ motions for summary judgment
when the statement of material facts was filed less than thirty days prior to the hearing.
In his brief on appeal, Plaintiff states that Defendants filed their statement of material
facts less than thirty days prior to the hearing on the motions for summary judgment and
argues that because of this alleged violation of Tenn. R. Civ. P. 56 the hearing should
have been continued. In support of this argument, Plaintiff points to the transcript of the
hearing on the motions for summary judgment wherein he alleges that he attempted to
bring this alleged error to the Trial Court’s attention.

        A review of the page cited by Plaintiff shows that at the very end of the
arguments, Plaintiff attempted to point out something to the Trial Court and was correctly
told that Defendants were entitled to the last word as it was their motion and that
argument was concluded. It is not clear from this exchange what point Plaintiff was
attempting to raise, but it is clear that he waited until the very last minute to attempt to
raise it. Nowhere within the record on appeal does it show that Plaintiff ever timely
requested a continuance of the hearing because the statement of material facts was filed
less than thirty days prior to the hearing. Plaintiff claims that he should have been
allowed additional time to respond to the motions for summary judgment, but he makes
no showing that he requested additional time at an appropriate point during the
proceedings. As Plaintiff failed to properly request a continuance of the hearing on the
motions for summary judgment, this issue is without merit.

       We next address Plaintiff’s second and third issues regarding whether a licensed
neurosurgeon who examines patients, assists patients on to examination tables, and keeps
his own records is competent to testify as to the standard of care of either a LPN or a
medical assistant. The issue Plaintiff is attempting to raise is whether the Trial Court
erred in finding that Plaintiff’s expert Dr. Kaplan was not qualified to testify pursuant to
Tenn. Code Ann. § 29-26-115, which provides, in pertinent part:

       (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 the person was
       licensed to practice in the state or a contiguous bordering state a profession
       or specialty which would make the person’s expert testimony relevant to
       the issues in the case and had practiced this profession or specialty in one
                                              6
       (1) 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 (b) when it determines that the appropriate witnesses otherwise
       would not be available.

Tenn. Code Ann. § 29-26-115(b) (2012). Specifically, Plaintiff is contesting the Trial
Court’s finding that Plaintiff had “failed to demonstrate that, in the year preceding April
2013; Dr. Kaplan practiced in a similar specialty to render an opinion about the standard
of acceptable professional practice governing Nurse Practitioner Montemarano, Nurse
Seaton, or Medical Assistant Hayes.”

        Plaintiff points to Dr. Kaplan’s testimony wherein Dr. Kaplan testified he is not
trained as a LPN or certified as a LPN but stated: “But I have dealt with LPN and the ser
- - LPNs and the services they provide. I’ve dealt with nurse practitioners and the
services they provide. And I know better than most people what to expect of the quality
of care and the service provided.” Plaintiff then correctly focuses on the fact that our
Supreme Court has noted that an expert witness need not practice the same specialty as
the defendant as long as the expert witness is sufficiently familiar with the standard of
care at issue and otherwise is qualified. Cox v. M.A. Primary and Urgent Care Clinic,
313 S.W.3d 240, 260 n.24 (Tenn. 2010). Plaintiff, however, overlooks the fact that Dr.
Kaplan then testified that he had not worked with LPNs or nurse practitioners in an
urgent care setting during the relevant time period. Dr. Kaplan testified that he did
“interact” with LPNs and nursing assistants during his work at the Church Health Center.
When questioned further about his work at the Church Health Center, Dr. Kaplan
testified: “I was rendering - - rendering neurological and neurosurgical opinions for
patients who came to that center because they were sort of caught in a financial gap or
insurance gap where they really didn’t have coverage.”

      Dr. Kaplan testified that he is a “neurosurgeon consultant.” When asked what a
neurosurgeon was, he stated:

              A neurosurgeon is a physician who takes care of patients with
       diseases of the central nervous system, peripheral nervous system, pituitary
       glands, narrowing of the arteries in the neck, fractures when accompanied
       by neurological problems, soft tissue injuries in the region of peripheral
       nerves, head injuries. Those are the major topics that we deal with.

Dr. Kaplan testified that he sees patients and he “advise[s] them what they need to do
with regard to their neurosurgical and sometimes neurological problems.”

                                             7
       Dr. Kaplan was asked if he had been retired from the clinical practice of medicine
for over fifteen years, and he stated:

              From the performance of neurosurgery for 15 years.             I have
       consulted at the Church Health Center.

              I get and have received innumerable calls over the years from
       doctors concerned about their condition which would be neurosurgical, and
       I have advised them. The same holds true for friends, relatives, old
       patients, et cetera.

Dr. Kaplan then was asked if that was the extent of his practice of medicine, and he
stated: “That - - I think you’ve covered it.”

       Dr. Kaplan stated that he was familiar with urgent care facilities because he had
taken his wife to one several times. He was asked how he was familiar with the standard
of care for urgent care physicians in Greene County, and Dr. Kaplan stated that urgent
care facilities in Greene County would be similar to urgent care facilities that he has seen
in Memphis. He then stated:

              Well, I’ve been to urgent care facilities. I’ve taken my wife there
       several times. And some of the facilities that I’ve been involved with over
       the years were like an urgent care center in a either home for the disabled or
       assisted living type situation. Those are very similar I’ve seen to urgent
       care centers.

               But I have seen urgent care centers in Collierville, in Memphis and
       probably - - probably others. I would think maybe during some of my
       visits to areas where people would refer in to us, we would pass through
       their facilities which were basically urgent care centers.

              But I was not involved there. I was not employed there. I may have
       received referrals from those places.

Dr. Kaplan then was asked how the nursing homes and homes for the disabled were
similar to the urgent care center involved in this case, and he stated: “Well, they have
examining rooms. Many times, the examining rooms are staffed by nurses, nurses’
assistants, nurse practitioners.” When asked if that was the extent of the similarities, Dr.
Kaplan stated: “Yes. I think those are - - I think those are similar.” He also stated that
when he visited his family practitioner as a patient that he “would see the way that they
managed the situation. And it seemed very similar to urgent care; although, they were
                                             8
not as prepared for emergencies as at an urgent care center.” Dr. Kaplan reiterated that
he was familiar with urgent care by virtue of taking his wife, a friend, or a neighbor there
and further stated: “So I am familiar with urgent care facilities to some degree.” Dr.
Kaplan admitted, however: “I have not worked in an urgent care center. The closest that
I’ve come to that would be the Church Health Center. It’s similar in ways, but it’s not
urgent care. Those persons who come to the Church Health Center don’t frequently have
emergencies. They are not urgent patients.”

        In essence, Plaintiff asserts in his brief on appeal that because Dr. Kaplan himself
examines patients his opinions about patient safety in an examination room and charting
entries in a medical record are relevant. We, as did the Trial Court, disagree. If this were
the case then any provider who examined patients in any examination room would be
competent to testify in this case, an outcome which clearly does not comport with Tenn.
Code Ann. § 29-26-115(b). Dr. Kaplan’s experience is in the area of neurological and
neurosurgical work. He admittedly has no experience in the urgent care setting either in
practicing urgent care medicine or in supervising LPNs, medical assistants, or nurse
practitioners who practice urgent care medicine.

        Furthermore, Dr. Kaplan lacks familiarity with the standard of care of
professionals working in an urgent care facility. He testified that his understanding of
this standard comes from being a patient at an urgent care facility and from taking his
wife and friends to urgent care facilities. Dr. Kaplan attempted to show that urgent care
facilities were similar to nursing homes or homes for the disabled, with which he claimed
to have some familiarity. The only similarities he was able to articulate, however, were
that all of these facilities have examining rooms that often are staffed by nurses, nursing
assistants, or nurse practitioners. Many other types of medical facilities also share these
similarities. These similarities are wholly insufficient to establish Dr. Kaplan’s
familiarity with the standard of care of professionals working in an urgent care facility.
Plaintiff failed to show that Dr. Kaplan’s profession of rendering neurological and
neurosurgical opinions is sufficiently similar to the profession of either a LPN, a medical
assistant, or a nurse practitioner working in an urgent care setting to make Dr. Kaplan’s
testimony relevant to the issues in this case.

       Although Plaintiff does not raise a specific issue regarding whether Dr. Kaplan
was qualified to testify as to the standard of care of an emergency room physician2, we
note that the Trial Court correctly held:

                At oral argument, the Court held that Dr. Kaplan was incompetent to
        testify about the actions of Dr. Boggs because Dr. Kaplan could not opine
2
  The Hospital’s liability in this case, if any, would arise out of the actions or omissions of its emergency
room physician, Dr. Boggs.
                                                        9
       about the standard of acceptable professional practice governing
       emergency-room physicians in Greene County, Tennessee since he neither
       specialized in emergency-room care nor did he practice emergency-room
       care or similar specialty in the year preceding April 2013; although Dr.
       Kaplan listed numerous medical facilities that he has been affiliated with in
       his affidavit and CV, he failed to demonstrate any evidence that he
       practiced in the same or similar specialty as Dr. Boggs in the year
       preceding April 2013. Dr. Kaplan, though possessing exemplary and
       impressive credentials, retire[d] as a practicing nuerosurgeon [sic] in 2001
       and did only occasional nuerology [sic] consultations as a volunteer at a
       non-profit clinic in the year preceding this incident. So too, Dr. Kaplan
       failed to come forward with evidence demonstrating how he was familiar
       with the standard of acceptable professional practice governing emergency-
       room physicians in Greene County, Tennessee.

       We agree with the Trial Court that Plaintiff failed to show that Dr. Kaplan
practiced in the same or a similar specialty as the emergency-room physician in the year
preceding April 2013. We also agree that Plaintiff failed to show evidence that Dr.
Kaplan was familiar with the standard of acceptable professional practice governing
emergency-room physicians in Greene County, Tennessee. As such, Dr. Kaplan was not
qualified to testify about the actions or omissions of the emergency-room physician in
this case.

        Plaintiff’s fourth, fifth, sixth, and seventh issues all concern whether the Trial
Court erred in finding that Dr. Kaplan did not practice during the relevant one year period
prior to the incident alleged in this case. Specifically, in its April 19, 2018 order the Trial
Court amended its prior order to add the following finding:

              Dr. Kaplan testified that he was engaged in providing expert
       testimony and medical advisory services for plaintiffs and defendants
       during the year preceding the incident in this case but the undersigned,
       assuming this to be true, does not find this to be evidence that he practiced
       medicine in any legally relevant capacity in the year preceding April 2013.

       Although providing expert testimony does not qualify as practicing medicine, we
find that Dr. Kaplan did practice medicine during the relevant time period. Specifically,
Dr. Kaplan’s work at the Church Health Center, although unpaid, qualifies as practicing
medicine. This practice, however, as discussed more fully above, was not in a profession
or specialty that would make Dr. Kaplan’s testimony relevant to the issues in the instant
case. We need not consider whether the other alleged actions on the part of Dr. Kaplan
constituted practicing during the relevant time period as we already have determined that
                                              10
Dr. Kaplan did practice during the relevant time period. The fact that Dr. Kaplan may
have practiced as a “neurosurgeon consultant” during the relevant time period, however,
is immaterial to the case now before us on appeal.

      Finally, we consider whether the issues in this case require expert opinion or are
governed by res ipsa loquitur. As this Court explained in Gilreath v. Chattanooga-
Hamilton Cty. Hosp. Auth.:

       Historically, res ipsa loquitur, defined, in pertinent part, by Black’s Law
       Dictionary, 10th ed., as “the thing speaks for itself,” was reserved for cases
       where the act was so obviously negligent that a layperson’s common
       knowledge allowed an inference of negligence. German v. Nichopoulos,
       577 S.W.2d 197, 202 (Tenn. Ct. App. 1978), overruled by Seavers v.
       Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86 (Tenn. 1999). Our
       Supreme Court later expanded the reach of the doctrine to include cases
       that concern complex medical issues that are beyond the layperson’s
       general understanding and that require expert testimony to prove causation,
       the standard of care, and/or that the injury does not ordinarily occur in the
       absence of negligence. Seavers, 9 S.W.3d at 97. Application of the
       doctrine is precluded in cases where evidence of a specific act of
       negligence is introduced at trial. Hughes v. Hastings, 469 S.W.2d 378, 397
       (Tenn.1971).

Gilreath v. Chattanooga-Hamilton Cty. Hosp. Auth., No. E2015–02058–COA–R3–CV,
2016 WL 3435788, at *8 (Tenn. Ct. App. June 15, 2016), no appl. perm. appeal filed. As
pertinent, Tenn. Code Ann. § 29-26-115 provides:

       (c) In a health care liability action as described in subsection (a), there shall
       be no presumption of negligence on the part of the defendant; provided,
       that there shall be a rebuttable presumption that the defendant was
       negligent where it is shown by the proof that the instrumentality causing
       injury was in the defendant’s (or defendants’) exclusive control and that the
       accident or injury was one which ordinarily doesn’t occur in the absence of
       negligence.

Tenn. Code Ann. § 29-26-115(c) (2012).

       In his brief on appeal Plaintiff asserts that there were only two people in the
examination room at the time of the incident, Plaintiff and Hayes, and that Hayes
“controlled both the conduct of [Plaintiff] and the use of the examination table.” Plaintiff
also asserts that the issues in this case fall within acts of negligence so obvious that they
                                              11
are within the common knowledge of laymen. In his reply brief on appeal, Plaintiff
asserts that because no entry of Plaintiff’s fall was made in the medical record,
“[Plaintiff’s] fall must rely upon circumstantial evidence.

       Defendants assert in their brief on appeal that res ipsa loquitur has traditionally
been used in cases “where direct evidence of a defendant’s negligence is either
inaccessible to or unknown by the plaintiff,” such as when an unconscious plaintiff is
injured during medical treatment. Defendants argue that Plaintiff was conscious and alert
when the alleged injury occurred and that he specifically described the incident in detail,
and therefore, res ipsa loquitur should not apply to this case.

       Defendants further assert that the ‘instrumentality’ that caused Plaintiff’s alleged
injury was not the examination table or a footstool, but instead was Plaintiff’s “own
slipping and falling, under his own power,” and because of this, Defendants “cannot be
construed as having exclusive control of [Plaintiff’s] walking, of his own volition, toward
the examination table.” Defendants point to the evidence that Plaintiff walked down the
hallway to the examination room “fine,” that he did not need assistance walking, and that
he had no trouble stepping up on to a scale. Defendants also argue that even if the
footstool were considered to be the ‘instrumentality’ causing injury, according to
Plaintiff’s complaint when he used the footstool to mount the examination table the stool
slipped from under his foot, causing him to fall. Defendants argue that his shows that
Plaintiff “alone controlled the alleged footstool . . . .”

        We do not find the case now before us on appeal to be the type of case where res
ipsa loquitur applies. Plaintiff failed to show that the ‘instrumentality’ that caused his
alleged fall was in Defendants’ exclusive control. He further failed to show that his
alleged injury was one which ordinarily doesn’t occur in the absence of negligence.
Furthermore, it is beyond the common knowledge of laypersons what actions on the part
of Hayes were required to meet the standard of care required of a medical assistant in a
situation such as the one at issue in this case.

      Having found no error, we affirm the Trial Court’s grant of summary judgment to
Defendants.




                                            12
                                       Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, the Estate of Herbert Ross Shelton.


                                          ____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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