 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Taylor v. Shelby County Health Care Corp.11/10/2005
e and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.
Tenn. Code Ann. ยง 29-26-115(a)-(b) (2005).
"To withstand a motion for summary judgment, the plaintiff in a medical malpractice claim must present competent medical testimony, to a reasonable degree of medical certainty, which raises a genuine issue of material fact as to each element of the plaintiff's claim." Click, 2000 Tenn. App. LEXIS, at *10-11 (citing White, 844 S.W.2d at 648). Thus, Appellant must show through expert testimony that there is a genuine issue of material fact as to whether Appellee has "breached the recognized standard of care" and whether the breach was the proximate cause of Appellant's injury. Id. at *11 (citing Howse v. State, 994 S.W.2d 139, 1412 (Tenn. Ct. App. 1999); Russell v. Pakkala, No. 02 A01- 9703-CV-00053, 1998 WL 10212, at *2 (Tenn. Ct. App. Jan. 14, 1998); White, 844 S.W.2d at 648)).
In her affidavit, Appellee stated that she "used, possessed and exercised that degree of skill and learning ordinarily used, possessed and exercised by physicians in good standing in this community under the same or similar circumstances. . . ." In response, Appellant failed to show through expert testimony that Appellee breached the standard of care. While Appellant's expert, Dr. Fred Mushkat, testified, to a reasonable degree of medical certainty, what the recognized standard of care was in Appellee's position, Dr. Mushkat never testified that Appellee breached the recognized standard of care. Rather, Dr. Mushkat stated that Appellee's actions were "not necessarily below the standard of care" assuming there was "a plan to image this patient in some way to check out any risk for occlusive vascular disease" when she turned over care of Appellant to Dr. Overby, the oncoming physician. Further, Dr. Mushkat testified that he had no knowledge of whether Appellee and Dr. Overby formulated any plan regarding the treatment of Appellant. Given the recognized standard of care that Dr. Mushkat asserts, it is impossible for him to state whether Appellee breached that standard of care without knowing this fact.
Additionally, even assuming that Appellee breached the recognized standard of care, Appellant has not demonstrated that Appellee's breach proximately caused Appellant's injuries. Appellee has stated in her affidavit that even if her actions breached the recognized standard of care, those actions did not proximately cause Appellant's injuries. In his deposition, Dr. Mushkat never asserts that, if Appellee failed to form a plan with the oncoming physician when she turned over care of Appellant, this failure proximately caused Appellant's injuries. Accordingly, we affirm the decision of the circuit court.
In her brief, Appellee raises an additional issue of whether the trial court erred in denying Appellant's motion to alter or amend. Because Appellant was the party who submitted the motion to alter or amend, this issue is pretermitted.
V. Conclusion
For the reasons set forth herein, we affirm the decision of the circuit court granting summary judgment to Appellee. Costs of this appeal are taxed to Appellant, Ms. Dena M. Taylor, and her surety, for which execution may issue if necessary.
Page 1 2 3 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|