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Travis v. Ferraraccio9/19/2005
e defendant's conduct proximately caused injuries that would not otherwise have occurred. Tenn. Code Ann. ยง 29-26-115(a)(1)-(3). Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 640 (Tenn. 2003); White v. Vanderbilt Univ., 21 S.W.3d 215, 226 (Tenn. Ct. App. 1999).
As this court has previously noted, it is now commonplace for defendants in medical malpractice cases to file motions for summary judgment to test the strength of their adversary's case. Hessmer v. Miranda, 138 S.W.3d at 244; Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn. Ct. App. 2003). Defendant medical professionals generally support their summary judgment motions with their own affidavits stating that, in their own professional opinion, their actions neither violated the applicable standard of professional practice nor caused the complained- of injury. Hessmer v. Miranda, 138 S.W.3d at 244; Kenyon v. Handal, 122 S.W.3d at 758 & n.14. Affidavits of this sort effectively negate the allegations of negligence in the medical malpractice plaintiff's complaint and force the plaintiff to demonstrate the existence of a genuine, material factual dispute that warrants a trial. Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 438 (Tenn. 1998); Dunham v. Stones River Hosp., Inc., 40 S.W.3d 47, 51 (Tenn. Ct. App. 2000).
Demonstrating the existence of a genuine, material factual dispute can be challenging in a medical malpractice case. A plaintiff faced with a properly supported summary judgment motion cannot rest on the allegations in the complaint, Tenn. R. Civ. P. 56.06; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Blocker v. Reg'l Med. Ctr., 722 S.W.2d 660, 661 (Tenn. 1987), but instead must demonstrate the existence of triable factual disputes by either: (1) pointing to evidence ignored or overlooked by the defendants; (2) rehabilitating evidence attacked by the defendants; or (3) producing additional evidence establishing the existence of a genuine factual issue, Kenyon v. Handal, 122 S.W.3d at 758.
In other words, the plaintiff must point to or produce expert testimony establishing the applicable standard of care, the defendant's violation of that standard, and a causal connection between the defendant's conduct and the plaintiff's injury. Hessmer v. Miranda, 138 S.W.3d at 244. The plaintiff who is unable to do so faces almost certain dismissal of the complaint, because the defendant has effectively negated one or more essential elements of the plaintiff's case. Without opposing expert testimony, the plaintiff cannot demonstrate the existence of a genuine factual dispute regarding whether the defendant breached the applicable standard of professional practice or caused the plaintiff's injuries. Hessmer v. Miranda, 138 S.W.3d at 244; Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn. Ct. App. 1997).
Expert testimony used either to support or to oppose a summary judgment motion in a medical malpractice case must be admissible at trial. Byrd v. Hall, 847 S.W.2d at 215-16; Tenn. R. Civ. P. 56.06. If the evidence opposing a properly supported motion for summary judgment is inadmissible, the motion will be granted. As the Tennessee Supreme Court has explained, " o permit an opposition to be based on evidence that would not be admissible at trial would undermine the goal of the summary judgment process to prevent unnecessary trials since inadmissible evidence could not be used to support a jury verdict." Byrd v. Hall, 847 S.W.2d at 216.
In order for an expert opinion to be admissible in a medical malpractice case, the person offering the opinion must, like any other expert, demonstrate that he or she is qualified to render an opinion and that his or her opinion will substantially a
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