IN THE COURT OF APPEALS OF TENNESSEE
AT MEMPHIS
January 19, 2005 Session
MATTIE P. PATTERSON, Surviving Spouse of LARRY PATTERSON,
Deceased v. MUHAMMAD ARIF
Direct Appeal from the Circuit Court for Shelby County
No. CT-001771-03 James F. Russell, Judge
No. W2004-01837-COA-R3-CV - Filed February 14, 2005
The trial court awarded summary judgment to Defendant physician and dismissed Plaintiff’s action
upon finding it was one for medical malpractice and that Plaintiff had failed to offer competent
expert proof of negligence as required by Tennessee Code Annotated § 29-26-115. Plaintiff appeals,
asserting the trial court erred in determining the action was not one for ordinary negligence and that
the alleged negligence of Defendant was not within the common knowledge exception. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.
William T. Winchester, Memphis, Tennessee, for the appellant, Mattie P. Patterson.
Jerry O. Potter and Katherine M. Anderson, Memphis, Tennessee, for the appellee, Muhammad Arif,
M.D.
OPINION
On March 28, 2003, Mattie Patterson (Ms. Patterson) filed a wrongful death cause of action
against Dr. Muhammad Arif (Dr. Arif), a licensed physician whose office is on Knight Arnold Road
in Memphis. In her complaint, Ms. Patterson alleges that on April 1, 2002, she telephoned Dr. Arif’s
office because her husband, Larry Patterson (Mr. Patterson), was experiencing shortness of breath.
She alleges that Dr. Arif’s staff instructed her to bring Mr. Patterson to his medical office and told
her that Mr. Patterson could not be admitted to the hospital from home. Ms. Patterson submits she
and her son, Larry Patterson, Jr. (“Son”), took Mr. Patterson to Dr. Arif’s office and that Son
requested that Mr. Patterson be given oxygen and be admitted to the adjoining Delta Medical Center.
According to Ms. Patterson’s complaint, Dr. Arif instructed them to take Mr. Patterson to St. Francis
Hospital, which is miles away from Dr. Arif’s office. Ms. Patterson alleges that Dr. Arif’s nurse
took Mr. Patterson’s blood pressure but administered no other care. Ms. Patterson further submits
that she and Son assisted Mr. Patterson to the car without a wheelchair or any assistance from Dr.
Arif and that, as they were exiting the parking lot, Mr. Patterson stopped breathing. Ms. Patterson
and Son immediately took Mr. Patterson to the Delta Emergency Room, where Mr. Patterson was
diagnosed to be in full cardiac arrest. He was resuscitated, but remained comatose. After five hours,
Mr. Patterson suffered another arrest and died. Ms. Patterson asserts that on the day Mr. Patterson
died, Dr. Arif stated to her that he “did not realize [Mr. Patterson] was that bad.” In her complaint,
Ms. Patterson alleges that Dr. Arif breached his duty of care to Mr. Patterson and that this breach was
the direct and proximate cause of Mr. Patterson’s cardiac arrest and death. She prayed for a trial by
jury and damages in the amount of $1,000,000.
Dr. Arif answered the complaint on April 29. In his answer, Dr. Arif denied Ms. Patterson’s
allegations of breach of the standard of care and further denied that any actions or omissions on his
part proximately caused Mr. Patterson’s death. On November 4, Dr. Arif filed a motion for summary
judgment and statement of undisputed facts. In his statement, Dr. Arif stated that, based on his
professional opinion, he complied with the applicable standard of care. Ms. Patterson responded to
Dr. Arif’s motion on January 2, 2004. In her response, she submitted the action was one for
wrongful death based on ordinary negligence and medical malpractice. She stated, “the ordinary
negligence issue does not require a medical expert to raise a disputed material issue.” Ms. Patterson
did not file an expert affidavit, but attached Son’s affidavit to her response. In March 2004, Dr. Arif
filed an expert affidavit again denying breach of the standard of care. On June 21, 2004, the trial
court granted Dr. Arif’s motion for summary judgment and dismissed Ms. Patterson’s complaint.
In its order, the trial court found Ms. Patterson’s action was one for medical malpractice and that Ms.
Patterson did not offer competent expert proof that Dr. Arif had breached the standard of care as
required in a medical malpractice action under Tennessee Code Annotated § 29-26-115.1 Ms.
1
Tennessee Code Annotated 29-26-115 provides:
(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by
subsection (b):
(1) The recognized standard of acceptable professional practice in the profession and the
specialty thereof, if any, that the defendant practices in the community in which the defendant practices
or in a similar community at the time the alleged injury or wrongful action occurred;
(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.
(b) 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 when it
determines that the appropriate witnesses otherwise would not be available.
(continued...)
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Patterson filed a timely notice of appeal to this Court on July 6, 2004.
Issues Presented
Ms. Patterson raises the following issues for our review:
(1) Whether the trial court erred in granting summary judgment for the
Defendant by finding that this case was not a case of ordinary negligence, but
was a medical malpractice case which required expert testimony.
(2) Whether the trial court erred in granting summary judgment for the
Defendant by finding that the actions and omissions of the Defendant were
not within the ordinary knowledge of a layperson.
Standard of Review
Summary judgment is appropriate only when the moving party can demonstrate that there
are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn.
R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party moving for summary
judgment must affirmatively negate an essential element of the nonmoving party's claim, or
conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d
585, 588 (Tenn. 1998).
When a party makes a properly supported motion for summary judgment, the burden shifts
to the nonmoving party to establish the existence of disputed material facts. Id. A mere assertion
that the nonmoving party has no evidence does not suffice to entitle the moving party to summary
judgment. Id. In determining whether to award summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in
that party's favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). The court should
award summary judgment only when a reasonable person could reach only one conclusion based on
the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if
there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at
1
(...continued)
(c) In a malpractice action as described in subsection (a), there shall be no presumption of
negligence on the part of the defendant; provided, there shall be a rebuttable presumption that the
defendant was negligent where it is shown by the proof that the instrumentality causing injury was in
the defendant's (or defendants') exclusive control and that the accident or injury was one which
ordinarily doesn't occur in the absence of negligence.
(d) In a malpractice action as described in subsection (a), the jury shall be instructed that the
claimant has the burden of proving, by a preponderance of the evidence, the negligence of the
defendant. The jury shall be further instructed that injury alone does not raise a presumption of the
defendant's negligence.
Tenn. Code Ann. §29-26-115(Supp. 2004).
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588. We review an award of summary judgment de novo, with no presumption of correctness
afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002).
Analysis
Ms. Patterson’s argument before this Court, as we perceive it, is two-fold. First, she asserts
that this is not a medical malpractice case, but one for ordinary negligence. Second, she asserts that,
if this is a malpractice action, expert testimony was not required to establish breach of the standard
of care because “[i]t is within the common knowledge of a layperson that a physician, or his staff,
who is called by a patient experiencing shortness of breath, should advise that patient to call an
ambulance or go to an emergency room.” We disagree with both assertions.
Medical malpractice is but one particular type of negligence. Gunter v. Lab. Corp. of
America, 121 S.W.3d 636, 639 (Tenn. 2003). Tennessee Code Annotated section 29-26-115
codifies the common law elements of negligence insofar as they are to be applied to medical
malpractice actions. Id. When a negligence claim arises from injuries which result from negligent
medical treatment, the action is one for medical malpractice. Id. at 640. In Gunter, the Tennessee
Supreme Court articulated the analysis to be used in Tennessee to distinguish claims for medical
malpractice from claims for ordinary negligence. The Gunter court held,
when a claim alleges negligent conduct which constitutes or bears a substantial
relationship to the rendition of medical treatment by a medical professional, the
medical malpractice statute is applicable.
Id. at 641.
In light of the allegations as put forth in Ms. Patterson’s complaint, this action is clearly one
for medical malpractice. The actions and omissions which Ms. Patterson’s alleges as negligence on
the part of Dr. Arif, namely, Dr. Arif’s failure to direct Mr. Patterson to go immediately to the
nearest emergency room, were undisputedly related to the rendition of the medical treatment sought
by Mr. Patterson. Dr. Arif’s actions were clearly based on medical decisions. Accordingly, the
action is governed by Tennessee Code Annotated section 29-26-115.
Ms. Patterson asserts, however, that the she was not required to offer expert proof of Dr.
Arif’s breach of the standard of care because it is “within the common knowledge of a layperson that
a person experiencing shortness of breath is experiencing a medical emergency . . . [and] should go,
or be taken to, an emergency room.” She accordingly asserts that the “common knowledge”
exception to the statutory requirement that medical negligence must be established by expert
testimony is applicable in this case.
The “common knowledge” exception to the general rule is applicable when “the medical
negligence is as blatant as a ‘fly floating in a bowl of buttermilk’ so that all mankind knows that such
things are not done absent negligence.” Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App.
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1986) (quoting German v. Nichopoulos, 577 S.W.2d 197 (Tenn. App.1978)). In Murphy v.
Schwartz, Ms. Murphy suffered a stroke while at home and was taken by ambulance to the Madison
County General Hospital. Id. She was left unattended and unrestrained on a cot in the emergency
room, fell from the cot, and suffered injuries. Id. Additionally, the defendant physicians allegedly
failed to treat her properly for the injuries which resulted from the fall. Id. Defendants in Murphy
filed a motion for summary judgment with an affidavit of one of the defendant physicians that he
“was familiar with the medical standard of care in the community and that neither the affiant or the
other doctor defendant at any time fell below the community standard of care in the examination or
treatment of Mrs. Murphy.” Id. Plaintiffs in Murhpy failed to offer expert proof of negligence, and
the trial court awarded summary judgment to the defendants. Id. Upon appeal, plaintiff asserted
the “common knowledge” exception, arguing that
it is plain and patent medical negligence to leave a stroke victim unattended or
unrestrained in an emergency room, and therefore no medical affidavits are required.
Further, the failure to treat plaintiff's dislocated shoulder for a period of four days
under the circumstances is also plain medical malpractice which requires no medical
expert proof to show.
Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App. 1986). This court affirmed summary
judgment for the defendants, holding,
we would be hard put to say that the plaintiff's fact create a "common knowledge to
the world" exception to the rule, when there is medical expert proof in the record to
the effect that under plaintiff's fact there is no medical negligence.
The real issue created by this appeal is not whether the plaintiffs, by lay
opinion, show blatant buttermilk fly floating negligence; but, whether the plaintiff
may refute admissible expert opinion evidence by lay opinion evidence. Plaintiffs
may not do so.
Id. at 779.
As in Murphy, in the case before us, there is expert proof in the record that there was no
medical negligence. Further, we cannot say that it is within the common knowledge of the layperson
that a person suffering shortness of breath, without more, and Ms. Patterson does not allege
additional symptoms, should be taken immediately to the emergency room. Indeed, this obviously
was not within the common knowledge of Ms. Patterson or Son. Ms. Patterson may not refute Dr.
Arif’s expert opinion regarding a decision made in the course of rendering medical care with lay
opinion evidence in this case.
Holding
In light of the foregoing, we affirm the trial court’s award of summary judgment to Dr. Arif.
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This cause of action sounds in medical malpractice, and Ms. Patterson failed to offer competent
expert proof, as required by section 29-26-115, to refute the expert proof offered by Dr. Arif. Costs
of this appeal are taxed to the Appellant, Mattie Patterson, and her surety, for which execution may
issue if necessary.
___________________________________
DAVID R. FARMER, JUDGE
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