                       IN THE COURT OF APPEALS OF TENNESSEE
                                   AT KNOXVILLE
                                February 15, 2001 Session

            BOBBY J. EVERETT, ET AL. v. B. GORDON McCALL, M.D.

                           Appeal from the Circuit Court for Blount County
                               No. L-11466     W. Dale Young, Judge

                                             FILED APRIL 3, 2001

                                       No. E2000-02012-COA-R3-CV


The complaint in this medical malpractice case was dismissed on motion for summary judgment.
The plaintiff filed a Rule 56.07 Response to the motion, requesting additional time within which to
take the defendant’s deposition for the purpose, inter alia, of ascertaining his thought processes
during the 27-day period he treated the plaintiff for a gastroenterological condition which ended in
her death. The request for additional time was denied, and the motion for summary judgment was
granted because the affidavit of the defendant was not countervailed. The judgment is reversed.

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

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS ,
J., and CHARLES D. SUSANO, JR., J., joined.

Donna Keene Holt and David E. Waite, Knoxville, Tennessee and Rebecca C. McCoy, Sevierville,
Tennessee, for the appellant, Bobby J. Everett, Individually and as Executor of the Estate of Edith
Mae Everett.

Wynne C. Hall, Knoxville, Tennessee, for the appellee, B. Gordon McCall, M. D.


                                                    OPINION

                                                          I.

       This is a medical malpractice case. The complaint was filed May 1, 1998,1 the thrust of
which was directed to the alleged failure of the defendant to perform, or have performed,
appropriated diagnostic testing of the plaintiff’s decedent in accordance with acceptable medical
standards.



       1
           The complaint was initially filed April 1, 1997 and non-suited one month later.
                                                    The Complaint

       The plaintiff alleged that the decedent, Ms. Everett, consulted the defendant on March 5,
1996 complaining of a gastroenterological condition. Following a five-day hospitalization, she was
discharged on March 10, 1996. The symptoms persisted and a barium enema, administered on an
outpatient basis on March 15, 1996 indicated a severe abnormality of the colon. The decedent was
readmitted on March 21, 1996 for a colonoscopy which revealed a severe ulceration of the mucosa
of the colon. Colostomy procedures were performed but Ms. Everett died April 2, 1996 from
complications attributable to blood loss.

       The specific allegations charge the defendant failed to (1) timely diagnose the condition of
the decedent, (2) timely treat her condition, and (3) timely consult a specialist.

                                                   II. The Answer

      The defendant denied all allegations of negligence, and averred that other physicians
examined or treated the decedent during her illness. The answer was filed January 8, 1999.2

                                   III. The Motion for Summary Judgment

       Interrogatories were exchanged,3 and the case lay fallow until February 8, 2000 when the
defendant filed a motion for summary judgment supported by his affidavit, medical records, and a
statement of undisputed material facts. He deposed that he saw the decedent in his office on March
5, 1996 when she complained of cramping, abdominal pain and diarrhea. She was dehydrated,
unable to eat, and was admitted to a hospital for treatment.

        Her condition did not improve. An x-ray series on March 5, 1996 revealed no abnormalities.
A sonogram of the pelvis on March 9, 1996, performed by a radiologist, revealed no abnormality.
A later x-ray study revealed no obstruction.

        The defendant further deposed that he recommended a colonoscopy, a sigmoidoscopy, or a
barium enema study, which the decedent refused. She requested that she be allowed to leave the
hospital, and was discharged on March 10, 1996 with the understanding that if her symptoms
persisted, she would return to have the tests performed.

      Thereafter, on March 15, 1996 the decedent consented to a barium enema when her
symptoms persisted. This procedure revealed a severe abnormality of the colon. A colonoscopy was
recommended which the decedent refused.


        2
             There was a de lay of several months in serving proce ss.

         3
           The plaintiff’s answers to interrogatories were unsworn and thus canno t be noticed except as allegations.
Johnso n v. Smith , 621 S.W.2d 570 (Tenn. App. 1981).


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       On March 21, 1996, the defendant was readmitted to the hospital and consented to a
colonoscopy, which was performed by Dr. Richard Cline, a gastroenterologist, on March 23, 1996.

       On March 26, 1996, the decedent began to experience a rectal hemorrhage. Dr. Marvin
Peterson performed surgery but the decedent’s condition worsened and she died April 2, 1996.

       The defendant deposed that his consultation, diagnosis, care and treatment of the decedent
was in no way the cause of or a contributing factor to her illness and that he did not deviate from
acceptable standards of care.

                                                            IV.

        The plaintiff filed a Rule 56.07 Response to the motion for summary judgment on March 6,
2000 requesting “that any hearing or requirement of response by the plaintiff be continued so that
discovery can be conducted in this case.” The Response stated that “any expert witness the
plaintiff(s) may consult would not be expected to give an expert opinion for the trial of this action
without having considered all facts that are to be assumed as a basis for that opinion,” and that “the
deposition of Dr. McCall must be completed and available to expert review before the plaintiff can
produce a responsive affidavit to defendants’ motion.” The Rule 56.07 Response was supported by
the affidavit of counsel.

                                                             V.

       A hearing on the motion was held March 17, 2000. Following an extended colloquy, the
motion for summary judgment was granted because the plaintiff filed no countervailing affidavit.4

       To refocus the time element, the motion for summary judgment was filed February 8, 2000;
the Rule 56.07 Response was filed March 6, 2000; the Motion was heard March 17, 2000.

                                                            VI.



         4
             The plaintiff filed a Rule 59 Mo tion to Alter o r Amend , accomp anied by thre e affidavits of fam ily members
that the defendant made no recommendations for treatment to the decedent which were refused, and the affidavit of a
Professor of Medicine at the University of Arkansas that the defendant deviated from the recognized standard of care
by failing to make th e diagnostic tests timely, “assuming that the lay affidavits were truthful.” These affidavits were filed
13 days afte r judgmen t was render ed on the m otion for sum mary judgm ent.

         The lay affidavits were obviously available at any time, but the impe rative need for them did no t arise until the
motion for summa ry judgmen t was filed. The se affidavits, standing alone, would not countervail the affidavit of the
defendan t. In light of the late filing of the motion for summary judgment, and the Rule 56.07 Response, the defense of
lack of diligence on the part of the plaintiff is not apropo s.

         The Rule 59 Motion was denied, the propriety of which we do not reach in light of the reversal of this case on
another ground.


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        We restate the dispositive issue:

                   Should the trial judge have granted the plaintiff’s request for
                   additional time within which to take the defendant’s discovery
                   deposition?

                                                         VII.

        We conclude the issue must be answered in the affirmative following the rationale of Byrd
v. Hall, 847 S.W.2d 208 (Tenn. 1993), which teaches that after a moving party has established the
absence of a genuine issue of material fact, “summary judgment is appropriate when the nonmoving
party after being given a reasonable opportunity to establish its claims, or after a sufficient time for
discovery has elapsed, is unable to demonstrate that he or she can indeed do so.”

         The plaintiff is taken to task, not only by the defendant, but by the trial judge, for his failure
to discover the defendant during the two, perhaps three, years of the pendency of the action. We
reflect that the plaintiff was not required to take any action other than normal trial preparation until
the motion for summary judgment was filed, when the requirement of Bryd, supra, that the plaintiff
must be given a sufficient time for discovery was triggered. It cannot be seriously argued that in light
of the fact that the motion for summary judgment was filed February 8, 2000,5 and heard March 17,
2000, the plaintiff was given a “sufficient time for discovery.”

                                                        VIII.

        Rule 56.07 provides:

                   When Affidavits Are Unavailable
                           Should it appear from the affidavits of a party opposing the
                   motion that such party cannot for reasons stated present by affidavit
                   facts essential to justify the opposition, the court may refuse the
                   application for judgment or may order a continuance to permit
                   affidavits to be obtained or depositions to be taken or discovery to be
                   had or may make such other order as is just.

        The Rule, prima facie, involves the reviewable discretion of the trial judge, see: Benton v.
Snyder, 825 S.W.2d 409 (Tenn. 1990), which he exercised in denying the plaintiff a continuance in
order to take discovery of the defendant. Appellate review involves no presumption of correctness,
since the issue is one of law, Rule 13(d), Tenn. R. App. P., and the standard of review is to determine
if the trial judge abused his discretion in not affording the plaintiff the opportunity to conduct
discovery of the defendant. By virtue of the holding in Byrd, supra, which we have quoted, we
conclude that the trial court erred in denying the plaintiff additional time within which to conduct

        5
            It could have been filed as early as May 31, 1998, Rule 56.01.


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discovery of the defendant.

       The judgment is accordingly reversed and the case is remanded for all appropriate purposes.

       Costs are assessed to the appellee..




                                                    __________________________________
                                                    WILLIAM H. INMAN, SENIOR JUDGE




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