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Church v. Perales8/22/2000
ld not have otherwise suffered?
A. There is no way of knowing.
Based on that answer, Dr. Ross, citing the well-established tenet that a verdict cannot be based on mere speculation, conjecture, and guesswork, see Sadek v. Nashville Recycling Co., 751 S.W.2d 428, 431 (Tenn. Ct. App. 1988), argues that any attribution to him of any of Ms. Church's injuries requires engaging in impermissible speculation.
Dr. Ross's argument overlooks Dr. Wolf's May 12, 1997 affidavit in which Dr. Wolf states that the deviations from the acceptable standard of care by Ms. Church's physicians during her post-operative care "caused Dolly Church to get sicker . . .." Dr. Wolf's use of the term "sicker" was all-encompassing. Elsewhere in his affidavit, Dr. Wolf details what "sicker" entailed - weight gain, a stretched-out abdomen, abdominal pain, elevated white corpuscle blood count, fever, bodily weakness, body system poisoning, and compromise of body functions. He also opined that the delay in diagnosing and treating Ms. Church's perforated bowel caused her to suffer and prolonged her recovery process. All of these diminutions in Ms. Church's well-being fit the legal concept of injury to the extent that she suffered them due to the wrongful acts of her physicians.
Dr. Wolf explicitly states in his May 12, 1997 affidavit that part of the worsening of Ms. Church's condition occurred between March 29, 1995, and March 31, 1995, after Dr. Ross had started to cover for Dr. Perales. Viewing the evidence most favorably to Ms. Church, she has demonstrated the existence of a triable issue of fact on whether she suffered injury during the time that Dr. Ross was attending her.
It does not matter that Ms. Church's evidence does not establish the full extent of the injuries she may have suffered under Dr. Ross's care. The extent of injury is not a proper inquiry at the summary judgment stage. The law prohibits damages as too speculative only when the existence of damage is uncertain, not when merely the amount of damage is uncertain. See Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999). Analogously, the plaintiff facing a summary judgment in a medical malpractice case must demonstrate only that he or she has been injured. The question of how much the plaintiff has been injured should be left for the trier of fact. In this case Ms. Church's evidence created an issue of fact concerning whether Dr. Ross injured her. With that material fact in dispute, the trial court should have declined to award Dr. Ross a summary judgment.
V.
Our opinion in this case should not be construed as fixing liability on Drs. Perales, Dunbar, and Ross or even as intimating that Ms. Church has a strong case. We have decided only that the trial court should not have granted the summary judgment to dispose of Ms. Church's medical malpractice claims against Drs. Perales, Dunbar, and Ross based on their alleged delay in diagnosing and treating her perforated bowel and the intra-abdominal process it caused. Accordingly, we affirm the summary judgment dismissing Ms. Church's medical battery and informed consent claims against Dr. Perales and vacate the summary judgments dismissing Ms. Church's medical malpractice claims against Drs. Perales, Dunbar, and Ross. We remand the case to the trial court for further proceedings consistent with this opinion and tax the costs of this appeal jointly and severally to Maria Perales, Laura Dunbar, and Stephen J. Ross for which execution, if necessary, may issue.
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