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Dunham v. Stones River Hospital5/5/2000
standard of acceptable professional practice, (2) that the defendant deviated from that standard, and (3) that as a proximate result of the defendant's negligent act or omission, the plaintiff has suffered injuries which would not otherwise have occurred. Tenn. Code Ann. § 29-26-115. Summary judgment in a medical malpractice case may be appropriate where the defendant produces expert proof that completely refutes the plaintiff's allegations of negligence and the plaintiff does not produce rebuttal proof by expert testimony. Dolan v. Cunningham, 648 S.W.2d 652, 653 (Tenn. Ct. App. 1982).
IV.
First, with respect to the hospital, there was no proof that the hospital personnel were negligent, and the hospital was not sued on a theory of vicarious liability for Dr. Singh's negligence. Therefore, summary judgment for the hospital was proper.
V.
As to Dr. Singh and Team Health, Inc., the trial court ruled that there was no genuine issue of material fact and that the appellees were entitled to judgment as a matter of law. Accordingly, the trial court granted the appellees' motions for summary judgment. Ms. Dunham now contends that the trial court erred because Dr. Smith's testimony that Dr. Singh misdiagnosed the cause of her condition creates a genuine dispute as to a material fact. Ms. Dunham further argues that Dr. Smith's testimony does not fall within the parameters of the Peer Review Law codified at Tenn. Code Ann. § 63-6-219 and that it is therefore admissible. However, we find no need to address the issue of the admissibility of Dr. Smith's deposition testimony because we find that, even if admissible, such testimony is inadequate to establish the necessary elements of a medical malpractice claim.
In his deposition, Dr. Smith testified that, in his opinion, Dr. Singh had misdiagnosed Ms. Dunham, that such misdiagnosis fell below "community practices," and that had Dr. Singh properly diagnosed Ms. Dunham "there is a chance [the residual effects of the myocardial infarct] would have been lessened or possibly eliminated at that time." Ms. Dunham argues that this alleged "misdiagnosis" is sufficient to preclude summary judgment in this case. However, liability for malpractice is dependent upon whether the physician is lacking in and fails to exercise the reasonable degree of learning, skill, and experience that is ordinarily possessed by others of his profession. Hurst v. Dougherty, 800 S.W.2d 183, 185 (Tenn. Ct. App. 1990) (quoting Ward v. United States, 838 F.2d 182, 186 (6th Cir. 1988)). "An honest mistake in judgment is not sufficient to find a physician negligent." Hurst, 800 S.W.2d at 185. We cannot find that Dr. Smith's deposition testimony is sufficient to establish "the recognized standard of acceptable professional practice" in the community, nor that Dr. Singh "acted with less than or failed to act with ordinary and reasonable care in accordance with such standard." See Tenn. Code Ann. § 29-26-115. As Ms. Dunham offered no other expert testimony to rebut Dr. Singh's expert testimony indicating that he complied with the recognized standard of acceptable professional practice or to rebut Ms. Edwards' expert testimony that the nursing and hospital staff complied with the recognized standards of acceptable professional practice, summary judgment was appropriate in this cause. See Tenn. Code Ann. § 29-26-115; Dolan, 648 S.W.2d at 653.
Accordingly, the judgment of the trial court is affirmed. Remand this cause to the Circuit Court for Franklin County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Kathleen Dunham.
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