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Anderson v. Howser8/30/2001
t. The Andersons filed a motion under Rule 59 of the Tennessee Rules of Civil Procedure, seeking to alter or amend the judgment. This motion was denied. The Andersons now appeal.
On appeal, the Andersons argue that the trial court erred in granting summary judgment to the defendants because Dr. Swafford's affidavit created a genuine issue of material fact as to whether Dr. Howser deviated from the applicable standard of care in his treatment of Mr. Anderson. The Andersons assert that, because Dr. Swafford's affidavit was never withdrawn, it was competent expert testimony that effectively rebutted Dr. Howser's affidavit in support of the defendants' motion for summary judgment. The Andersons also argue that the trial court gave them insufficient time to get another expert. They contend that, had the trial court given them sufficient time, Dr. Swafford might have changed his mind and agreed to testify, or they might have been able to obtain another expert for trial.
The Andersons also argue that summary judgment was improper because they had filed a notice of voluntary non-suit. They acknowledge that they had no right to a voluntary dismissal in light of the pending motion for summary judgment, but argue that the trial court nevertheless retained the discretion to award such a voluntary dismissal. Since the decision to grant the voluntary dismissal was within the trial court's discretion, they argue that, absent some showing of legal prejudice, the trial court abused its discretion by refusing to award a voluntary dismissal without prejudice.
Dr. Howser argues that summary judgment was appropriate because the Andersons had no expert willing to testify at trial to establish the elements of malpractice, as required under Tennessee Code Annotated § 29-26-115(a). Dr. Howser maintains that Anderson could not take a voluntary non-suit because of the pending motion for summary judgment.
A party faced with a motion for summary judgment should neither ignore it nor treat it lightly. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). Summary judgment is an important vehicle designed to enable courts a process by which to determine whether a justiciable claim exists justifying the time and expense of a trial, or whether the claim can and should be resolved on legal issues alone. Id.(citations omitted). Thus, a motion for summary judgment goes to the merits of the litigation and should be granted only when the movant demonstrates that there are no genuine issues of material fact and, therefore, the movant is entitled to a judgment as a matter of law. Id.; Tenn. R. Civ. P. 56.04. In order to defeat a motion for summary judgment, the non-movant must establish "by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial." Byrd, 847 S.W.2d at 211 (citations omitted). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Therefore, our review of the trial court's grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
In a medical malpractice action, expert testimony is required by statute to prove the standard of care and deviation from the standard of care. See Tenn. Code Ann. § 29-25-115; Moon v. St. Thomas Hosp., 983 S.W.2d 225, 229 (Tenn. 1998). Therefore, to defeat summary judgment in such an action, the non-moving party must produce competent expert opinion, by affidavit, supporting his claim of malpractice. Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn. 1997). Summary judgment is inappropriate if there is conflicting competent ex
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