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Smith v. Haley

3/2/2001

Freddie Dean Smith and Anita Ann Smith ("Plaintiffs") filed a medical malpractice action against Tony O. Haley, M.D. ("Defendant"). Defendant moved for summary judgment with his affidavit filed in support thereof. The motion was granted after Plaintiffs failed to file timely any competent medical proof to defeat the motion. Plaintiffs filed a Motion to Reconsider along with the affidavit of Joseph Bussey, M.D. The Trial Court granted the motion and reinstated the case to the active docket. Dr. Bussey later refused to give his deposition because he was not comfortable giving a deposition after reviewing the medical records and because he did not believe the case was going to "go this far" when he provided the affidavit. Defendant moved to strike the affidavit of Dr. Bussey and requested the Trial Court to reinstate its previous dismissal. The Trial Court granted Defendant's motion. Seeking additional time to locate another medical expert, Plaintiffs then filed a motion to alter or amend the judgment pursuant to Rule 59.04, Tenn. R. Civ. P., and for relief from the judgment pursuant to Rules 60.02(1) and 60.02(5), Tenn. R. Civ. P. The Trial Court denied this motion, and Plaintiffs appeal this denial. We affirm.


Tenn. R. App. P. 3 Appeal As Of Right; Judgment of the Law Court Affirmed; and Case Remanded.


D. Michael Swiney, J., delivered the opinion of the court, in which Houston M. Goddard, P.J., and Hershel P. Franks, J., joined.


OPINION


Background


The original complaint was filed in this medical malpractice action on September 11, 1995, by Freddie Dean Smith and Anita Ann Smith ("Plaintiffs"). Tony O. Haley, M.D. ("Defendant") is a physician practicing medicine in Johnson City, Tennessee. The lawsuit centers around a surgical procedure performed on Freddie Dean Smith on September 9, 1994, by Defendant. On October 10, 1995, Defendant moved for summary judgment pursuant to Rule 56 of the Tenn. R. Civ. P. Plaintiffs did not respond to this motion. Instead, Plaintiffs filed a motion requesting that the action be voluntarily dismissed. An order granting the motion for voluntary dismissal was entered on February 23, 1996.


One year later, Plaintiffs refiled the complaint. On March 12, 1997, Defendant filed a Motion to Dismiss and/or for Summary Judgment with his supporting affidavit. This motion was set for hearing on April 21, 1997. No response was filed by Plaintiffs. At the hearing, the Trial Court agreed to allow Plaintiffs to depose Defendant. On May 7, 1997, an Agreed Order was entered which provided that Plaintiffs could depose Defendant. This Agreed Order gave Plaintiffs two weeks after receipt of Defendant's deposition transcript in which to file "competent medical evidence" establishing a genuine issue of material fact. The Agreed Order further provided that "in the absence of such evidence the Defendant shall be entitled to judgment without further notice to the Plaintiffs or their counsel." Defendant was deposed on September 3, 1997. The deposition transcript was served on Plaintiff's counsel on September 11, 1997, thereby giving Plaintiffs until September 25, 1997, in which to file their medical proof in accordance with the Agreed Order.


On September 24, 1997, Plaintiffs filed a Motion for an Extension of Time in which to file an affidavit opposing the summary judgment motion. Plaintiffs indicated that they had been in contact with a medical consulting firm in Atlanta, Georgia, and anticipated obtaining an affidavit within one week. Plaintiffs explained in their motion that they were having trouble obtaining the affidavit because of the "logistics involved in obtaining a competent medical expert in an appropriate field

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