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Conger v. Gowder3/29/2001
In this medical malpractice case arising out of surgery, the trial court granted the defendant summary judgment on the plaintiff's claims of surgical negligence and lack of informed consent. The plaintiff appeals, arguing (1) that disputed issues of material fact exist that make summary judgment inappropriate and (2) that the trial court erred in refusing to allow the plaintiff to take the depositions of the defendant and another physician pending a hearing on the defendant's motion for summary judgment. Because we find that the trial court erred in refusing to allow the plaintiff to take the subject depositions, we vacate the grant of summary judgment and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Case Remanded
Charles D. Susano, Jr., J., delivered the opinion of the court, in which Herschel P. Franks and D. Michael Swiney, JJ., joined.
OPINION
I.
The defendant, Timothy D. Gowder, M.D., specializes in the practice of obstetrics and gynecology in Oak Ridge. On June 1, 1998, the plaintiff, Melanie Dee Conger, presented herself at Dr. Gowder's office complaining of persistent pain in the left lower quadrant of her abdomen. After an examination, Dr. Gowder discussed with Conger the option of performing laparoscopic surgery in order to identify and remedy the cause of the pain. Conger consented to the proposed surgery. Dr. Gowder performed the surgery on July 13, 1998. During the procedure, Dr. Gowder identified and removed adhesions that had been caused by earlier abdominal surgery. Conger was discharged from the hospital on July 16, 1998.
The day after her discharge, Conger returned to the hospital complaining of abdominal pain, nausea, and vomiting. After being evaluated by the emergency room physician, Conger was seen by Dr. Thomas Metcalf, a gynecologist, and Dr. Glen Weight, a general surgeon. Conger was readmitted to the hospital, and Dr. Weight performed an exploratory laparotomy on July 18, 1998. The laparotomy revealed that a portion of Conger's bowel was ischemic, or dead from a lack of blood supply. Dr. Weight removed the ischemic portion of Conger's bowel.
II.
On July 13, 1999, the one-year anniversary of Dr. Gowder's surgery, Conger filed a complaint against the doctor alleging that he was guilty of negligence that constituted medical malpractice in that (1) he failed to "us due care to avoid cutting essential blood vessels when dissecting adhesions in Plaintiff's abdominal and pelvic cavities and to avoid causing other injury to the small bowel" and (2) that he "fail to discover and repair any injury caused by the surgery."
Dr. Gowder filed an answer on August 2, 1999, following which he filed a motion for summary judgment on December 23, 1999. In support of his motion, Dr. Gowder filed his own affidavit, in which he states that he "know the recognized standard of acceptable professional practice for physicians practicing gynecology in Oak Ridge, Tennessee or a similar community." He proceeds to deny the plaintiff's allegations of negligence, malpractice, and deviation from the recognized standard of care. He asserts that during the pre-operative office visit, " ll risks and rewards of the surgery were discussed with Ms. Conger at length." Dr. Gowder states that in his opinion the plaintiff's injuries were not caused by any negligent act or omission on his part. In support of this general statement, Dr. Gowder notes that the ischemic portion of Conger's bowel removed by Dr. Weight was examined by a pathologist and that no perforation or burns were found. Going to the heart of the plaintiff's claim of malpractice,
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