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Estate of Shelton v. Greeneville Urgent Care and Occupational Medicine Clinic

Court of Appeals of Tennessee, Knoxville

June 24, 2019

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

          Session April 15, 2019

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

         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

          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.

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

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         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 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.

         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 ...


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