The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This medical malpractice case is before the Court on two pretrial motions: defendant Schoeller's Motion for Summary Judgment [Doc. 15] and defendant Schoeller's Motion to Strike Affidavit of Julie A. Jiles, R.N. [Doc. 32]. The parties have filed extensive briefs and supporting materials regarding these motions [Docs. 16, 17, 23, 33, 34, 35, 41, 48, 50, 56, 58, 59] which the Court has carefully reviewed.
This case arises from plaintiff Lela French's treatment at the All Care Medical Clinic in Sevier County, Tennessee, on August 20, 2003. Plaintiff was examined by defendant Katherine Schoeller, a registered nurse (R.N.) and certified nurse practitioner (CNP), for complaints of nausea, diarrhea, and pain. Schoeller prescribed an intramuscular injection of Phenergan for nausea and Toradol for pain. The injection was administered by defendant Amanda Hardin, a medical assistant at the clinic. Plaintiff claims that the injection was improperly administered and that she has suffered injury to her sciatic nerve as a result. Plaintiff alleges that Schoeller was negligent in allowing Hardin to administer the injection and further that Schoeller deviated from the standard of care by failing to properly supervise the administration of the injection.
Under Fed. R. Civ. P. 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Id. at 249. Thus, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.
Tennessee's medical malpractice statute, Tenn. Code Ann. § 29-26-115(a), states as follows:
In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subjection (b): (1) [t]he recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) [t]hat the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) [a]s a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. Section 29-26-115(b) states in part:
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 subjection (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 (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred.*fn1
As identified by Tennessee courts, this statute contains five requirements for expert testimony in a medical malpractice case:
[First,] [t]he affiant must demonstrate that he or she meets the geographic and durational residence and practice requirements. Second, the affiant must demonstrate that he or she practices in a profession or specialty that makes the affiant's opinion relevant to the issues in the case. Third, the affiant must demonstrate that familiarity with the recognized standard of professional practice in the community where the defendant practices or in similar communities. Fourth, the affiant must give an opinion concerning whether the defendant physician met or failed to meet the relevant standard of professional practice. Finally, the ...