                 IN THE COURT OF APPEALS OF TENNESSEE

                                EASTERN SECTION                  FILED
                                                                  October 16, 1997

ANNETTE CHRISTENBERRY             ) C/A NO. 03A01-9701-CV-00039
                                                    Cecil Crowson, Jr.
and J.G. CHRISTENBERRY,           )                 Ap pellate Co urt C lerk
                                  ) KNOX CIRCUIT
    Plaintiffs-Appellants,        )
                                  ) HON. WHEELER ROSENBALM,
v.                                ) JUDGE
                                  )
HENRY S. NELSON, JR., M.D., ET AL,) AFFIRMED
                                  ) AND
    Defendants-Appellees.         ) REMANDED




ANNETTE CHRISTENBERRY, Pro Se, Seymour, Tennessee.

HOWARD H. VOGEL and STEPHEN C. DAVES, O’NEIL, PARKER &
WILLIAM SON, Knoxville, for Defendants-Appellees.



                                     OPINION


                                                         Franks. J.



              In this medical malpractice action, the Trial Court granted the defendant,

Henry S. Nelson, Jr., M.D., summary judgment, and plaintiffs have appealed.

              Plaintiffs’ daughter was involved in a tragic motor vehicle accident and

was taken to the U.T. Medical Center in Knoxville, where she died. Nelson is one of

the physicians that plaintiffs sued, alleging negligent treatment of their daughter.

              Nelson filed a motion for summary judgment, attaching his affidavit and

the deposition of a neuro-surgeon. Nelson, in his affidavit, stated that he was familiar

with the appropriate standard of acceptable medical care for general surgeons

practicing in Knoxville, Tennessee community, and stated:

              I am familiar with the appropriate standard of acceptable medical care
              for general surgeons practicing in the Knoxville, Tennessee community,
              inclusive of November 1993.
On November 15, 1993, at approximately 2:35 a.m., Denise
Christenberry was brought by ambulance to the University of Tennessee
Medical Center and was initially treated in the Emergency Room .
Attached is a copy of the Discharge/Death Summary, Exhibit 1. The
medical records indicate that upon arrival at the Emergency Room , a
history was obtained that this was a twenty-three year old female who
was an unrestrained driver in a motor vehicle crash. Upon arrival in the
Emergency Room, she was unresponsive. Her pupils were dilated and
unresponsive to light. She had no response to deep pain and had a
Glasgow coma scale of 3. She had agonal respirations and was
intubated shortly after arrival. A CT scan was ordered and obtained. I
was contacted at home by telephone at approximately 3:00 a.m. as Ms.
Christenberry was being taken to have the CT scan performed. I was
contacted a second time at home by the hospital personnel and was
informed of the results of the CT scan. The CT scan of the head
revealed the presence of diffuse cerebral edema and subarachnoid
hemorrhage, a possible thin left frontal subdural hematoma, and a right
parietal and temporal squamosal fracture. The CT scan of the spine
indicated a comminuted fracture involving T-11 with associated
posterior element fractures. The CT scan of the abdomen showed no
significant injury to the abdom inal organs.

From the information provided to me by the personnel who were caring
for the patient at the hospital, which included four physicians, it was my
opinion that she did not have an injury that required general surgical
treatment, and it was further my opinion that there was no treatment I
could provide within my specialty of general surgery. The assessment
was that the patient had a severe closed head injury. Appropriate
treatment was initiated by the medical personnel in the Emergency
Room by intubation, hyperventilation, and supportive care. A
consultation with neurosurgery was ordered. The patient was taken to
Intensive Care.

Ms. Christenberry was seen by a neurosurgeon, whose clinical findings
were consistent with brain death. Other tests and examinations were
performed that confirmed no brain function. I saw and examined the
patient on the morning of November 15, 1993 and results of my
examination were consistent with these findings. It was my opinion
within a reasonable degree of medical certainty, that there was no
general surgical treatment that I could have performed at any time that
would have assisted the patient.

The patient died as a result of her injuries on November 16, 1993.

It is my opinion, within a reasonable degree of medical certainty, that in
my role in the care of Denise Christenberry on November 15 and 16,
1993, that I complied with appropriate standards of acceptable medical
care for general surgeons practicing at that time in the Knoxville,
Tennessee community. It is my opinion that I did not deviate from such
standards. It is further my opinion, within a reasonable degree of
medical certainty, that no act or omission on my part caused or
contributed to the injuries and death of Denise Christenberry.



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              In response to the motion, one of the plaintiffs, Annette Christenberry,

filed her affidavit, which essentially states that she was familiar with the appropriate

guidelines set out by the American College of Surgeons for care in a level one trauma

center, and stated:

              It is my opinion that Dr. Sperry Nelson treated my daughter with very
              questionable drugs, paralyzing agents that turn off brain transmission,
              without anyone knowing he was the person seeing to her. He was never
              in a room to explain her condition to the family and we only because
              aware through the records after my daughter’s death he was the primary
              physician.

The General Assembly has established the plaintiff’s burden of proving malpractice

against a physician. This is set forth in T.C.A. §29-26-115, which states:

              29-16-115. Claimant’s burden in malpractice action - Expert
              testimony - Presumption of negligence - Jury instructions. - (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 standards; and
                     (3) As a proximate result of the defendant’s negligent act or
              omission, the plaintiff suffered injuries which would not otherwise have
              occurred. . . .

              When plaintiffs were confronted with the motion for summary judgment

with affidavits of expert witnesses stating that defendant had acted with reasonable

care in accordance with the recognized acceptable standard of professional practice in

his medical specialty, the burden shifted to plaintiffs to offer evidence to dispute this

fact. The plaintiffs were required to offer contradictory expert testimony and absent

such response to defendant’s affidavit, summary judgment was appropriate. Ayers v.

Rutherford Hosp., Inc., 689 S.W.2d 155 (Tenn. App. 1984).

              In this case, plaintiff’s affidavit only offers lay opinions, and essentially

expresses the affiant’s personal beliefs, which do not constitute admissible evidence

on the issue. See Fowler v. Happy Goodman Family, 575 S.W .2d 496 (Tenn. 1978).

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Consequently, we conclude that plaintiffs have failed to meet the requirements for

maintaining this action as required in T.C.A. §29-26-115. We affirm the judgment of

the Trial Court, with costs of appeal assessed to appellants.




                                           ________________________
                                           Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Goddard, P.J.




___________________________
Clifford E. Sanders, Sp.J.




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