Markina Westmoreland v. William L. Bacon, M.D.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 21, 2012 Session

MARKINA WESTMORELAND, ET AL. v. WILLIAM L. BACON, M.D.,
ET AL.

Appeal from the Circuit Court for Davidson County
No. 05C3729 Joseph P. Binkley, Jr., Judge

No. M2011-01811-COA-RM-CV - Filed February 26, 2013

The Tennessee Supreme Court remanded this case to us for consideration in light of its
opinion in Shipley v. Williams. In the original appeal of this medical malpractice case, this
court affirmed the trial court’s grant of summary judgment to the defendants on the basis that
the plaintiff’s only expert witness was not competent to testify pursuant to the Tennessee
Medical Malpractice Act, Tenn. Code Ann. § 29-26-115. On remand we conclude the trial
court erred in ruling that the plaintiffs’ expert was not competent to testify and, consequently,
the plaintiffs created genuine issues of material fact, making summary judgment for
defendants inappropriate. We reverse the grant of summary judgment and remand the case
back to the trial court for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY
D. B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Donald N. Capparella, Amy J. Farrar, Bill M. Wade, Candi Renee Henry, Nashville,
Tennessee: William Bryan Smith, Memphis, Tennessee, for the appellants, Markina
Westmoreland, et al.

Robert Lee Trentham, James A. Beakes, III, Nashville, Tennessee, for the appellee, William
L. Bacon, M.D.;

Michael A. Geracioti, Kelly R. Thomas, Nashville, Tennessee, for the appellee, Wichai
Chinratanalab, M.D.;

Thomas W. Lawrence, Jr., Matthew A. Moushon, Nashville, Tennessee, for the appellee,
Chukwuemeka Venatius Ikpeazu, M.D.

OPINION

This medical malpractice case was initially appealed to this Court in 2010. We
affirmed the trial court’s grant of summary judgment to the defendant physicians in early
2011. Westmoreland v. Bacon, 2011 WL 350428 (Tenn. Ct. App. Jan. 31, 2011). The
Tennessee Supreme Court granted the plaintiff’s application solely for the purpose of
remanding the case to this Court to reconsider in light of Shipley v. Williams, 350 S.W.3d
527 (Tenn. 2011), which was decided after this Court’s earlier decision. For the reasons
stated below, we now reverse the trial court’s award of summary judgment and remand this
case to the trial court.

I. F ACTUAL B ACKGROUND

Dorris Dennis was a fifty-two year old woman who suffered from several medical
conditions. She began seeing Dr. Wichai Chinratanalab, who was a hematologist, beginning
in July 2003. Dr. Chinratanalab diagnosed Ms. Dennis with pancytopenia, which is a blood
disorder, hepatitis C, and alcohol abuse.

Ms. Dennis complained of hip pain in December 2004, and Dr. Chinratanalab referred
her to Dr. William Bacon, an orthopedic surgeon. Dr. Bacon performed a hip replacement
on Ms. Dennis on December 13, 2004. Following the surgery, Dr. Bacon prescribed an anti-
coagulant drug called Lovenox for Ms. Dennis to prevent her from developing blood clots.
Dr. Bacon ordered a lower than normal dose because of Ms. Dennis’s pre-existing blood
disorders and propensity for bleeding. Dr. Chinratanalab was consulted on December 16
because Ms. Dennis’s potassium level was low. Dr. Chinratanalab lowered Ms. Dennis’s
Lovenox dosage, and on December 20 Dr. Chinratanalab suggested the Lovenox be
discontinued. Dr. Chukwuemeka Venatius Ikpeazu, another hematologist, performed a
hematology consultation on December 20, and following this consultation he recommended
Ms. Dennis be given an alternative drug to Lovenox. Ms. Dennis’s condition began to
decline on December 22, and she died the following day from internal bleeding, specifically
from a severe diffuse pulmonary and gastrointestinal hemorrhage.

II. P ROCEDURAL B ACKGROUND

Ms. Dennis’s children (the “Plaintiffs”) filed a medical malpractice action in
December 2005 against Dr. Bacon, Dr. Chinratanalab, and Dr. Ikpeazu, (together, the
“Defendants”), as well as others who have been dismissed from the case. Each of the
Defendants filed a motion for summary judgment in April 2009, supported by an affidavit

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asserting he had not breached the applicable standard of care. In response, the Plaintiffs
submitted an affidavit from Dr. Richard M. Sobel, an emergency room physician, in
opposition to the Defendants’ motions for summary judgment, asserting that each of the
Defendants had breached the applicable standard of care.

The trial court granted the Defendants’ motions for summary judgment. The court
found the Defendants’ affidavits were sufficient to shift the burden to the Plaintiffs to show
there was a genuine issue of material fact with regard to whether the Defendants had
breached the applicable standards of care. The trial court then found that Dr. Sobel’s
affidavit failed to demonstrate Dr. Sobel was familiar with the recognized standards of
acceptable professional practice applicable to the Defendants’ specialties of hematology and
orthopedics. The court wrote:

Plaintiffs failed to make an adequate showing that Dr. Sobel is familiar with
the recognized standard of acceptable professional practice applicable to the
Defendants . . . . [T]he Court finds that the Affidavit of Dr. Sobel does not
comply with the requirements of Tenn. Code Ann. § 29-26-115(a) and (b). Dr.
Sobel is not competent to testify as to the recognized standard of acceptable
professional practice applicable to the Defendants . . . in this matter, and his
Affidavit is therefore inadmissible.

The Plaintiffs offered no other expert proof to support their malpractice claim, and the
trial court thus granted the Defendants’ motions. The Plaintiffs filed a motion to alter or
amend the summary judgment award supported by a supplemental affidavit from Dr. Sobel.
The trial court denied the Plaintiffs’ motion to alter or amend, stating,

[T]he Supplemental Affidavit of Dr. Sobel provides no new or additional
information showing him to be sufficiently familiar with the specialties of
Orthopaedic Surgery and/or Hematology in order to comply with the
requirements of T.C.A. § 29-26-115(a) and (b). Therefore, Dr. Sobel’s
previously submitted Affidavit, as well as his recently filed Supplemental
Affidavit, fail to raise a genuine issue of material fact, and the Defendants . .
. are entitled to summary judgment as originally ordered by this Court on July
15, 2009.

The Plaintiffs appealed the dismissal of their complaint to this court, which affirmed
the trial court’s grant of summary judgment and dismissal of the Plaintiffs’ complaint. This
court described the dispositive issue as whether the trial court erred in excluding Dr. Sobel’s
affidavits: “[W]e must determine whether his medical training or his experience as an
emergency room specialist makes his testimony ‘relevant to the issue in this case’ as required

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by Tenn. Code Ann. § 29-26-115(b).” This Court then reviewed Dr. Sobel’s affidavits and
concluded that the trial court had not abused its discretion in finding that Plaintiffs failed to
establish that Dr. Sobel was a qualified witness as required in Tenn. Code Ann. §
29–26–115(a)(1), (b). Since there was no other expert witness for Plaintiffs, they had failed
to create a genuine issue of material fact. Consequently, we affirmed the trial court’s grant
of summary judgment. Westmoreland, 2011 WL 350428, at *11.

Eight months later the Tennessee Supreme Court issued its opinion in Shipley
v.Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley the Supreme Court addressed, inter
alia, the requirements a party must satisfy to show its expert is competent to testify in a
medical malpractice action. Recognizing that its opinion could alter the outcome in this case,
the Supreme Court granted the Plaintiffs’ application for permission to appeal for the purpose
of remanding the case back to this Court to reconsider in light of Shipley v. Williams.

III. S TANDARD OF R EVIEW

The party moving for summary judgment has the burden of persuading the trial court
that there are no genuine issues of material fact and that it is entitled to judgment as a matter
of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). The moving party
may make the required showing and thereby shift the burden of production to the nonmoving
party by either (1) affirmatively negating an essential element of the nonmoving party’s claim
or (2) showing the nonmoving party cannot prove an essential element of its claim at trial.
Id.; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008).

If the moving party makes a properly supported motion, the nonmoving party must
produce evidence establishing that a genuine issue of material fact exists. Martin, 271
S.W.3d at 84 (citing McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.
1998)). A trial court does not weigh the evidence in deciding a motion for summary
judgment; it must accept the nonmoving party’s evidence as true and draw all reasonable
inferences in favor of the nonmoving party. Martin, 271 S.W.3d at 84; Staples v. CBL
Assoc., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

The resolution of a motion for summary judgment is a matter of law. Therefore, we
review the trial court’s judgment granting the Defendants’ motions de novo, with no
presumption of correctness. Martin, 271 S.W.3d at 84; Blair v. W. Town Mall, 130 S.W.3d
761, 763 (Tenn. 2004).

The trial court in this case refused to admit the affidavit of the Plaintiffs’ expert, Dr.
Sobel. If admission of the affidavit was correctly decided, then the Plaintiffs will have failed
to rebut the Defendants’ proof that they met the applicable standard of care so as to create

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a dispute of fact as to that element of a malpractice claim. As in prior cases, Shipley
reaffirmed that a trial court’s decision to accept or disqualify an expert medical witness is
reviewed under the abuse of discretion standard: “A trial court abuses its discretion when it
disqualifies a witness who meets the competency requirements of section 29-26-115(b) and
excludes testimony that meets the requirements of Rule 702 and 703.” Shipley, 350 S.W.3d
at 552.

IV. T HE T ENNESSEE M EDICAL M ALPRACTICE A CT

In order to prevail on a medical malpractice claim, a plaintiff must prove each of the
elements set forth in Tenn. Code Ann. § 29-26-115(a): (1) the recognized standard of
acceptable professional practice in the profession and the specialty thereof, if any, that the
defendant practices (2) that the defendant acted with less than or failed to act with ordinary
and reasonable care in accordance with such standard; and (3) as a proximate result of the
defendant’s negligent act or omission, the plaintiff suffered injuries which would not
otherwise have occurred.

Each of these elements must be established by expert testimony. Shipley, 350 S.W.3d
at 537 (citing Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 553 (Tenn. 2006), Stovall
v. Clark, 113 S.W.3d 715, 723 (Tenn. 2003), and Robinson v. LeCorps, 83 S.W.3d 718, 724
(Tenn. 2002)).

Another section of the Tennesee Medical Malpractice Act sets forth the requirements
an expert witness must satisfy in order to be competent to testify in a medical malpractice
case:

No person in a health care profession requiring licensure under the laws of this
state shall be competent to testify in any court of law to establish the facts
required to be established by subsection (a), unless the person was licensed to
practice in the state or a contiguous bordering state a profession or specialty
which would make the person’s expert testimony relevant to the issues in the
case 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 (b) when it
determines that the appropriate witnesses otherwise would not be available.

Tenn. Code Ann. § 29-26-115(b).

In Shipley the Supreme Court set out a new, or clarified, framework for analyzing

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whether an expert’s testimony is admissible in a medical malpractice case. In doing so, the
Court explained the distinction between Tenn. Code Ann. § 29-26-115 (a) (elements of
malpractice) and (b) (competency of expert):

Subsections (a) and (b) serve two distinct purposes. Subsection (a) provides
the elements that must be proven in a medical negligence action and
subsection (b) prescribes who is competent to testify to satisfy the
requirements of subsection (a). Therefore, when determining whether a
witness is competent to testify, the trial court should look to subsection
(b), not subsection (a).

Shipley, 350 S.W.3d at 550 (emphasis added).

As evidenced by its language, subsection (b) has three components: the proposed
expert must (1) be licensed to practice in Tennessee or one of its eight contiguous bordering
states; (2) practice a profession or specialty which would make the individual’s expert
testimony relevant to the issues in the case; and (3) have practiced this profession or specialty
in one of these states during the year preceding the date of the alleged injury or wrongful act.
Shipley, 350 S.W.3d at 550.

The only requirement that is at issue in this appeal is whether Dr. Sobel is competent
to testify because he is an emergency room physician and the defendants are hematologists
and an orthopedic surgeon. Defendants assert that he is not competent to testify as to the
applicable standard of care or its alleged breach because he does not “practice a profession
or specialty which would make the individual’s expert testimony relevant to the issues in the
case.” This is the same statutory requirement that was at issue in Shipley.

V. T HE S HIPLEY V. W ILLIAMS D ECISION

In Shipley the plaintiff, Ms. Shipley, alleged the defendant, Dr. Williams, who was
a general surgeon, committed medical malpractice by failing to admit her when she presented
herself to the emergency room following an operation, failing to assess and diagnose her
condition properly, and failing to provide necessary medical treatment. 350 S.W.3d at 533.
Dr. Williams filed a motion for partial summary judgment on the failure to admit claim, and
Ms. Shipley relied on an affidavit by Dr. Ronald Shaw, an emergency room physician, to
oppose the motion. Id.

Dr. Williams moved to disqualify Dr. Shaw, and the trial court ruled that Dr. Shaw
was not qualified to testify as an expert because, as an emergency room physician, he did not
practice a specialty relevant to the standard of care issues applicable to a general surgeon.

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Id. at 534. The Supreme Court, however, applying a clarified standard, disagreed.

The Supreme Court stated that it would be inclined to agree with the trial court’s
reasoning if the issues in the case pertained to surgery. Id. at 556. However, section 29-26-
115(b) requires only that the proposed expert practice a profession or specialty that would
make his or her testimony relevant to the issue(s) in the case, not that the proposed expert
practice the same profession or specialty as the defendant. Id.

Consequently, the Court examined the issues and claims in the case and found that
they pertained to whether Dr. Williams provided appropriate and timely follow-up care to
Mrs. Shipley, not to the surgery Dr. Williams performed. Dr. Shaw testified that he was
familiar with the standard of care applicable to a surgeon in the limited area of the standard
of communication between a referring doctor and an emergency room doctor, how to
apportion responsibility for deciding whether the patient should be admitted, and how, when,
and by whom a patient should receive follow-up care. Id. at 557. Thus, the Supreme Court
reversed the trial court’s disqualification of Dr. Shaw and concluded he was competent to
testify as an expert because his testimony was probative and relevant to the issues Mrs.
Shipley raised in her lawsuit. Id.

VI. I SSUE IN THE P LAINTIFFS’ C ASE

Following the analysis in Shipley, we must first determine the issues and claims in the
case before us. Then, we can determine whether Dr. Sobel practices “a profession or
specialty which would make the individual’s expert testimony relevant to the issues in the
case.” Tenn. Code Ann. § 29-26-115(b). A court’s inquiry into the competency of a
proffered witness requires an examination of the issues presented in the case to determine
whether the expert’s profession or specialty makes the expert’s testimony relevant to those
issues.

At issue herein is the administration and management of the medications Ms. Dennis
was given following her hip replacement surgery and the appropriate standard of care for Ms.
Dennis considering her pre-existing medical conditions that put her at risk for internal
bleeding following the surgical procedure.

With regard to the applicable standards of care at issue, Dr. Sobel testified through
his affidavits regarding his practice and specialty and his experience and training that would
make his profession relevant to the issues:

12. . . . [T]he expected knowledge and training of medical providers like [the
Defendants] and the resources available to them, the applicable standard of

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 care in such specialties in Nashville, Davidson County, Tennessee and Atlanta,
Georgia were similar in 2004. This is specifically true with respect to the
standard of care applicable to physicians prescribing Lovenox, after
procedures that were performed or omitted as it relates to Doris Dennis. This
would include the continuance of Lovenox, with evidence of a dropping red
blood cell count and several clear and present risk factors for continued
hemorrhage, e.g., low platelets and a concomitant prescription of Bextra.

13. Based upon my education, training, and experience, I am familiar with the
recognized standard of acceptable professional practice for physicians
prescribing Lovenox in Nashville, Tennessee, and similar communities in 2004
(and as it otherwise existed at all times relevant hereto). Specifically, I am
familiar with the recognized standard of care for treatment of adults who are
prescribed Lovenox with medical conditions identical or similar to those
exhibited by Doris Dennis in 2004. I have then personally and currently do
prescribe Lovenox routinely in my practice.

Dr. Sobel then testified about his training and experience and how it intersected with
the training and experience of each of the Defendants, both the hematologists and the
orthopedic surgeon. He testified that in his opinion each of the Defendants had breached the
applicable standard of care. He stated, inter alia:

15. . . . A hematologist, an internist and an emergency room physician are all
expected to understand the basic physiology of the blood components. In the
case of Doris Dennis, it is my opinion that the hematologist did not
demonstrate the level of competency that would be expected of any general
medical physician caring for such a patient. . . . I do have the necessary
training, clinical and peer review experience to know what the standard of care
was in the case of Ms. Dennis and how it was breached by the defendant in the
ways I will testify. . . .

.....

18. Ms. Dennis was by definition at higher risk for gastrointestinal and/or
internal bleeding after the use of Lovenox. She was at additional risk with the
prescription of Bextra, a medication that inhibits platelet function. Any
prescribing medical physician and certainly a hematologist, is expected to
know that a significantly low platelet count (thrombocytopenia) enhances the
risk of bleed in such patients. . . .

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 .....

21. I have had considerable training, clinical and teaching experience in
orthopedics. As an emergency room physician, I am called upon to evaluate,
diagnose and provide the initial management and stabilization of a wide
variety of orthopedic problems. . . . I do have the necessary training, clinical
and peer review experience to know what certain standards of care were in the
case of Ms. Dennis and how it was breached by the defendant.

22. . . . I have cared for many patients with post operative orthopedic
problems. It is my opinion that the orthopedist did not demonstrate the level
of competency in certain respects that would be expected of a medical
physician caring for Ms. Dennis.

.....

26. I have testified in Tennessee as to the standards of care for physicians
prescribing Lovenox. I have instructed physicians in many specialties
including orthopedists in training regarding the effects, adverse effects and
indications for use of these drugs and their classes. I have routinely prescribed
Lovenox in my practice for years. . . . I have coordinated the care of patients
receiving anti-coagulants (like Lovenox) and anti-inflammatory agents (like
Bextra) with physicians of many specialties, including orthopedists. I am
aware of the level of knowledge ordinarily possessed by orthopedic physicians
with respect to these classes of medication, that is, anti-inflammatory agents
and anti-coagulants. Any prescribing physician or attending physician is
required to understand the use of these medications and that their combined
use increases the risk of potential adverse effects, including internal and
gastrointestinal bleeding.

The Defendants acknowledge that an expert’s profession or specialty is not
determinative as to the expert’s competency. However, they claim Dr. Sobel’s profession
rendered his testimony not relevant to the issues in this case because he is an emergency
room physician rather than a surgeon or hematologist.1 This is essentially the same argument

1
Dr. Bacon contends, for example, that “Plaintiffs have failed to demonstrate . . . that the testimony
offered by Dr. Sobel is sufficiently within his education, training, or experience to allow him to offer relevant
standard of care testimony concerning Ms. Dennis’ hip replacement surgery . . . .”

(continued...)

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made by the defendant doctor in Shipley.

The defendant argued that the expert was not competent to testify as to the standard
of care of a general surgeon because he was not a general surgeon. However, the plaintiffs’
claim in Shipley was that the defendant surgeon was negligent, not for the surgical procedure
she performed on Mrs. Shipley, but for her post-surgical treatment of Mrs. Shipley. The
Supreme Court determined that the claims in the malpractice action did not concern the
surgery performed by the defendant, but rather the surgeon’s decision not to admit the
plaintiff when she presented herself to the emergency room following the surgery, an issue
Dr. Shaw was competent to testify about. Shipley, 350 S.W.3d at 556. The Court wrote:

As noted, the issues in this case regarding allegations of Dr. Williams’
negligence do not pertain to surgery performed by Dr. Williams or related
surgical care, but rather whether Dr. Williams provided appropriate and timely
follow-up care under the circumstances presented, including Mrs. Shipley’s
medical condition at the time she presented to the emergency room the first
time. Dr. Shaw was thus qualified to testify as an expert because his testimony
was probative and relevant to the issues and allegations presented in Mrs.
Shipley’s lawsuit.

Shipley, 350 S.W.3d at 556-57.

In the case before us, the Plaintiffs contend the Defendants were negligent in their
monitoring of Ms. Dennis and in prescribing the medications Ms. Dennis was given after her
surgery. As this Court recognized in its 2011 opinion, Dr. Sobel’s affidavits “establish that
he is familiar with a general standard of care concerning the benefits, risks and general uses
for Lovenox . . . .” Westmoreland, 2011 WL 350428, at *9.

We have reconsidered this appeal based upon the analysis in Shipley and the testimony
from Dr. Sobel’s affidavits quoted above. We conclude that our earlier opinion was in error
and that the trial court erred in ruling that Dr. Sobel’s testimony was not relevant to the issues
in the case by applying an incorrect legal standard to determine competency.

Since Dr. Sobel was competent to provide expert testimony on the claims at issue in
this case, the Plaintiffs established the existence of a genuine issue of material fact sufficient

1
(...continued)
Dr. Chinratanalab contends Dr. Sobel is not familiar with “Dr. Chin’s specialty of hematology” and
“Dr. Sobel’s supplemental affidavit shows that Dr. Sobel has never practiced hematology or had any
specialized training in hematology . . . .”

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to defeat the Defendants’ motions for summary judgment on the issue of the Defendants’
negligence.

VII. C ONCLUSION

We reverse the trial court’s judgment granting the Defendants summary judgment and
remand this case to the trial court for further proceedings. Costs of this appeal shall be taxed
in equal parts to the Appellees, William L. Bacon, Wichai Chinratanalab, and Chukwuemeka
Venatius Ikpeazu, for which execution shall issue if necessary.

____________________________
PATRICIA J. COTTRELL, JUDGE

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