                IN THE COURT OF APPEALS OF TENNESSEE
                                                     FILED
                           AT KNOXVILLE
                                                                                 July 13, 1999

                                                                               Cecil Crowson, Jr.
                                                                              Appellate C ourt
                                                                                  Clerk
ANNA MAY FAIR,                                )      SULLIVAN CIRCUIT
                                              )      (No. C-32130[L] Below)
       Plaintiff/Appellant                           )
                                              )
v.                                            )      NO. 03A01-9812-CV-00422
                                              )
CHARLES FULTON, M.D., and                     )      HON. RICHARD E. LADD
INDIAN PATH HOSPITAL, INC.,                   )      JUDGE
d/b/a HCA INDIAN PATH                         )
MEDICAL CENTER,                               )
                                              )
       Defendants/Appellees                   )      AFFIRMED



Lon V. Boyd, Kingsport, for Appellant.
M. Lacy West and Julia C. West, Kingsport, for Appellee Indian Path Hospital.
Richard M. Currie, Jr., Kingsport, for Appellee Charles Fulton, M.D.


                                       OPINION

                                                     INMAN, Senior Judge

       This is a malpractice action against an emergency room physician. The

plaintiff alleged that on April 17, 1994 she sought treatment at the emergency room

of Indian Path Hospital for severe chest pains which the defendant attributed to a

fractured rib. He obtained no electrocardiogram. Three days later she returned to

the emergency room suffering from chest pains. Another physician diagnosed her

condition as congestive heart failure, and advised her that she had no broken rib.

She alleged that the defendant was negligent in his diagnosis and treatment of her

on April 17, and that he failed to exercise proper care and skill,1 resulting in

“grievous bodily injuries.”




       1
        The record does not reveal the age of the plaintiff. We infer from the affidavits that a
cardiac catheterization on April 25, 1994 was successful.
      The defendant filed a motion for summary judgment alleging that there is no

evidence that he failed to act in accordance with the recognized standard of

acceptable professional practice, or that any act or omission on his part proximately

caused the plaintiff’s injuries. He filed his affidavit in support of the motion,

testifying that the plaintiff related an onset of sharp chest pains, worsening when

she breathed, and that she had been coughing for a week. She had no nausea,

vomiting, or dyspnea on exertion, but had a history of diabetes, bronchitis and

hypertension. He testified that her chest was clear, that her cardiac exam was

normal, and that she was tender in her lower chest. He believed that the sharp pain,

worsened by breathing, was “coming from the lungs, pleura or chest wall” and was

clearly not cardiac pain. A chest x-ray was normal, and he interpreted the rib x-

rays as showing a possible fracture of the 10th rib, stating that it is not uncommon

to see a fractured rib as a result of a hard cough.

      Dr. Fulton further testified that he reassured the plaintiff of the absence of

cardiac findings and that he prescribed an antibiotic for her bronchitis, together

with a medication to suppress her coughing. He advised her to follow up with her

personal physician if pain persisted.

      The defendant reviewed the plaintiff’s records after she was admitted to the

hospital on April 20, three days after she was seen by him in the emergency room.

He testified that the hospital records indicated that the plaintiff’s diagnoses on

discharge were myocardial infarction and congestive heart failure, and that the

cardiac enzymes which are released into the blood as a result of a myocardial

infarction were not elevated, indicating that she did not have the infarction in the

preceding three days, but probably on or about April 10. He testified that when he

saw her on April 17, she was not in congestive heart failure. He further testified



                                          2
that he was familiar with the recognized standard of acceptable professional

practice of emergency room physicians, and that he acted with ordinary and

reasonable care in accordance with such standards, and that no act or omission on

his part proximately caused the plaintiff to suffer any injuries which otherwise

would not have occurred.

      The plaintiff filed the affidavits of Drs. Ralph F. Morton, a cardiologist, and

John J. Bandeian, Jr., in response to the affidavit of the defendant. The sufficiency

of these affidavits is determinative of the issue on appeal. The trial judge held that

the affidavits were not sufficient because “they state no specific act or omission of

Dr. Fulton which constituted a deviation from the accepted standard of medical

practice for emergency room physicians.”

      Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness of

the finding, unless the preponderance of the evidence is otherwise. TENN. R. APP.

P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).

Summary judgment is explained in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993):

      When the party seeking summary judgment makes a supported
      motion, the burden then shifts to the non-moving party to set forth
      specific facts, not legal conclusions, by using affidavits or discovery
      materials listed in Rule 56, establishing that there are indeed material
      facts creating a genuine issue that needs to be resolved by the trier of
      fact and that a trial is therefore necessary. The non-moving party may
      not rely upon the allegations or denials of his pleading in carrying out
      this burden as mandated by Rule 56.05.

Whether the affidavits of Drs. Morton and Bandeian, similar in content, satisfy the

plaintiff’s burden “to set forth specific facts, not legal conclusions” is a narrower

issue. By these affidavits, these experts testified, with reference to Dr. Fulton’s

failure to obtain an electrocardiogram in light of the quality of the plaintiff’s chest

pain and her history of diabetes, hypertension, and smoking, that “many physicians


                                          3
in this setting would obtain an ECG,” and after stating their knowledge of the

recognized standard of care, testified that Mrs. Fair was not treated with the

ordinary and reasonable care in accordance with the recognized standard of

acceptable professional practice of emergency room physicians. They further

testified that “the defendant acted with less than or failed to act with ordinary and

reasonable care in accordance with such standard and as a proximate result of

defendant’s act or omission the plaintiff suffered injuries which might not

otherwise have occurred.”

       When faced with the affidavit of Dr. Fulton, the burden became one for the

plaintiff to prove by expert testimony the requisite standard of care, that the

defendant deviated from the standard, and that as a proximate result of Dr. Fulton’s

negligence or omission the plaintiff suffered injuries which would not otherwise

have occurred.2 Estate of Henderson v. Mire, 955 S.W.2d 56 (Tenn. App. 1997).

       Henderson has significant application to the case at Bar. The defendant

relied on his affidavit that he was familiar with the standard of care, that he did not

deviate from the standard and that he did nothing that caused harm to his patient.

This affidavit was held to be sufficiently precise to shift the burden to the plaintiff

to come forward with proof establishing a disputed material fact respecting (1) the

standard of care, (2) that defendant deviated from that standard, and (3) that as a

proximate result of the defendant’s negligent act, the plaintiff suffered injuries

which would not otherwise have occurred. The plaintiff countered with the

affidavit of an expert who testified that he was familiar with the standard of care,




       2
         Drs. Morton and Bandeian apparently chose their words carefully, since they testified
that the plaintiff suffered injuries that might not otherwise have occurred, appropro to the
language of T.C.A. § 29-26-115(a) and Henderson that . . . would not have occurred. In light
of our disposition of the case, we need not discuss the grammatical effect of the respective
words.

                                              4
that the defendant deviated from the standard and that plaintiff would have

recovered but for defendant’s negligence, but with no specificity.

       We held -

       “We are of the opinion, however, that the Affidavit of Dr. Tanner is
       insufficiently precise to demonstrate that a genuine issue of material
       fact exists.
                                           ...
       Specifically, Dr. Tanner’s Affidavit fails to state with any degree of
       precision, what, if anything, Dr. Mire did wrong in his treatment of
       the deceased. The Affidavit is replete with conclusions. The only
       assertion in Dr. Tanner’s deposition approaching the failure of
       defendants to meet the standard of care is that the defendant
       ‘breached the standard of care in this community when the defendants
       failed to diagnose, treat or intervene to provide plaintiff decedent with
       timely and competent care . . .’ The Affidavit fails to point out the
       diagnosis, if any, that should have been made. It further fails to point
       out the treatment or intervention that should have occurred to prevent
       the plaintiff decedent’s death. There is nothing in the Affidavit to
       demonstrate that as a proximate result of defendant’s negligent act or
       omission, the plaintiff suffered injuries which would not otherwise
       have occurred.”

       The affidavits of Drs. Morton and Bandeian merely state the conclusion that

the defendant failed to treat plaintiff with ordinary and reasonable care in

accordance with the recognized standard of acceptable professional practice and

that as a result of defendant’s negligent act or omission, the plaintiff suffered

injuries which might not otherwise have occurred. The conclusion is not supported

by specific acts or omissions to act and is not sufficient to create a genuine issue

of fact.

       The plaintiff relies at length upon her belief, supported by her experts, that

the defendant mistakenly diagnosed a broken rib. There is no allegation that she

thereby sustained an injury; neither is there evidence of any connection between

the defendant’s opinion that the plaintiff had a fractured rib and her subsequent

congestive heart failure.




                                          5
      The judgment is affirmed. Costs are assessed to the appellant. The motion

of the appellee that the appeal be declared frivolous is denied.



                                       _______________________________
                                       William H. Inman, Senior Judge



CONCUR:




_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Charles D. Susano, Jr., Judge




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