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Payne v. Shumake12/15/1999
eeks to rely would, at best, be evidence of what Dr. Shumake did or did not do. Presumably, those records would be relevant if appellant put forth an expert to testify as to the standard of care and then, through use of the medical records, showed that Dr. Shumake failed to conform to that standard. However, without knowing the standard of care, appellant's medical records are useless. Therefore, we reject appellant's contention that his medical records would have been sufficient to take the place of expert medical testimony.
Without evidence as to the standard of care, the appellant cannot demonstrate any breach of duty. See Cardwell, 724 S.W.2d at 754. Appellant therefore failed to carry the burden placed on him by T.C.A. ยง 29-26-115. As such, there was no genuine issue of material fact, and Dr. Shumake was entitled to judgment as a matter of law. The trial court correctly granted summary judgment to Dr. Shumake.
Alan Bargery and CCA
We believe that the dismissal of the case against Dr. Shumake is also dispositive of the claims against Alan Bargery and CCA. Appellant alleges that Bargery and CCA allowed the "gross negligence" of Dr. Shumake to "continue to happen." Appellant's claim against these two defendants is based on a respondeat superior theory predicated on the medical malpractice of Dr. Shumake. Having dismissed the claim against Dr. Shumake, we find that appellant is unable to state a claim for relief against Bargery or CCA. All other issues raised by appellant are similarly without merit.
Conclusion
For the foregoing reasons, the trial court's dismissal of appellant's complaint is hereby affirmed in all respects. Costs of this appeal are taxed to the appellant, for which execution may issue if necessary.
CONCUR:
FARMER, J.
LILLARD, J.
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