 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kenyon v. Handal3/10/2003
yrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Blocker v. Regional Med. Ctr. at Memphis, 722 S.W.2d 660, 661 (Tenn. 1987). They must demonstrate the existence of triable factual disputes either by (1) pointing to evidence ignored or overlooked by the physician, (2) rehabilitating evidence attacked by the physician, or (3) producing additional evidence establishing the existence of a genuine factual issue. See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 45 S.W.3d 588, 598 (Tenn. Ct. App. 2001). Because the practitioners most often file their summary judgment motions before much discovery has occurred, the only practical alternative available to most patients is to file an expert affidavit contradicting their physician's affidavit.
Patients who are unable to produce an expert affidavit of their own face almost certain dismissal of their complaint because their physician has effectively negated an essential element of their case. Without an opposing expert affidavit, patients cannot demonstrate the existence of a genuine factual dispute regarding whether the physician breached the professional standard of professional practice in the community. Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn. Ct. App. 1997).
The substance of the evidence offered by the patient to oppose a physician's summary judgment motion must be admissible at trial but need not be in admissible form. Messer Griesheim Indus. v. Cryotech of Kingsport, Inc., 45 S.W.3d at 598; Versa v. Policy Studies, Inc., 45 S.W.3d 575, 582 (Tenn. Ct. App. 2000). The affidavit must contain sufficient information to demonstrate that the affiant is qualified to render an expert opinion [Tenn. R. Evid. 104(a)] and that the affiant's opinion will substantially assist the trier of fact [Tenn. R. Evid. 702]. Knight v. Hospital Corp. of Am., No. 01A01-9509-CV-00498, 1997 WL 5161, at *5-6 (Tenn. Ct. App. Jan. 8, 1997) (No Tenn. R. App. P. 11 application filed). It must also comply with the requirements of Tenn. R. Civ. P. 56.06 and Tenn. Code Ann. § 29-26-115. Church v. Perales, 39 S.W.3d 149, 166 (Tenn. Ct. App. 2000).
A medical malpractice claim may not survive a summary judgment motion even when the patient files an opposing affidavit. It is now commonplace for medical practitioners to challenge the qualifications of the patient's expert. These challenges most frequently focus on the ability of the patient's medical expert to satisfy the mandatory qualifications in Tenn. Code Ann. § 29-25-115. Decisions regarding the qualifications or competency of an expert are entrusted to the trial court's discretion. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997). Accordingly, appellate courts reviewing a trial court's decision regarding the qualifications or competency of a patient's medical expert employ the "abuse of discretion" standard. Robinson v. LeCorps, 83 S.W.3d 718, 725 (Tenn. 2002); Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn. 1998); Roberts v. Bicknell, 73 S.W.3d 106, 113 (Tenn. Ct. App. 2001); Howell v. Baptist Hosp., No. M2001-002388-COA-R3-CV, 2003 WL 112762, at *4 n.5 (Tenn. Ct. App. Jan. 14, 2003).
The analysis of the qualifications of the patient's medical expert most often entails examining the expert's recitation of his or her qualifications either in an affidavit opposing the motion for summary judgment or in a deposition, if one has been taken. We have not heretofore explicitly described the standard for interpreting these statements. Even though we have repeatedly urged lawyers to couch their medical experts' affidavits in the language of Tenn. Code Ann. § 29-26-115, we do no
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|