Jennings v. Case

GLENDA JENNINGS, et vir )
KEITH JENNINGS, )
)
Plaintiffs/Appellants, ) Appeal No.
) 01-A-01-9804-CV-00192
v. )
) Sumner Circuit
KENNETH CASE, M.D.; ) No. 16129-C
and CASE MEDICAL CLINIC, P.C.; )
P.C.; W. DAVID STEWART, M.D.; )
and ASSOCIATED SURGEONS,

Defendants/Appellees.
)
)
)
FILED
) August 12, 1999

Cecil Crowson, Jr.
Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE

THE HONORABLE TOM E. GRAY, JUDGE

ROBERT J. SHOCKEY
2400 Crestmoor Road, Suite 307
Nashville, Tennessee 37215

JAMES E. MOFFITT
1013 Vista Circle
Franklin, Tennessee 37067
ATTORNEYS FOR PLAINTIFFS/APPELLANTS

ROSE P. CANTRELL PHILLIP L. NORTH
GEORGE A. DEAN North, Pursell & Ramos
Parker, Lawrence, Cantrell & Dean Nations Bank Plaza
200 Fourth Avenue North Suite 1850
5th Floor, Noel Place Nashville, Tennessee 37219-1783
Nashville, Tennessee 37219
ATTORNEYS FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE
OPINION
This is a medical malpractice action in which the trial court granted
summary judgment to both defendant physicians. The plaintiff has appealed
arguing that there existed genuine issues of material fact. We agree with the
plaintiff and reverse the decision of the trial court.
 Defendant Kenneth Case, M.D. was an employee of Sanders and Case
Medical Clinic, P.C. and at all times relevant was acting within the scope of his
employment. Defendant W. David Stewart, M.D. was board certified in general
surgery. Plaintiff Linda Jennings was initially a patient of Dr. Case and
subsequently of Dr. Stewart.

On April 2, 1996, Glenda Jennings went to the hospital emergency
room complaining of left arm pain from her elbow to her hand. On April 5,
1996, she visited Dr. Case complaining of the same symptoms. Dr. Case
diagnosed repetitive use syndrome and tendinitis, thereupon prescribing Motrin
800 milligrams three times per day along with "no work" for one week. Dr. Case
again saw Plaintiff on April 10, 1996, and approved her return to work the
following Monday. Plaintiff returned to see Dr. Case on April 19, 1996. Her
complaints on that date were continuing left arm pain and blue nail beds. Dr.
Case, suspecting thoracic outlet syndrome, referred Plaintiff to Dr. David
Stewart, and Dr. Case's office immediately scheduled for her an appointment
with Dr. Stewart on April 23, 1996. In all, Dr. Case saw and evaluated Plaintiff
for her left arm symptoms three times in the two week period from April 5
through April 19, 1996, and promptly referred her to an appropriate specialist
when he first noted the blue nail beds, suggestive of a vascular abnormality.

Defendant Dr. Stewart examined Plaintiff on April 23, 1996 and
concluded that thoracic outlet syndrome remained a possibility but also that her
problem might be carpal tunnel syndrome. He ordered nerve conduction studies
which were reported to him on April 29, 1996 as being normal. Though Plaintiff
was scheduled to return to Dr. Stewart for a follow up visit, she did not see him
again after the April 23 examination.

The symptoms of Glenda Jennings continued with increased severity,
and she visited Dr. Verne Allen in early to mid-May. Diagnostic studies at
Nashville Memorial Hospital indicated embolus or thrombus in the left
subclavian artery. She underwent a series of vascular surgeries beginning on
May 13, 1996, and her left forearm with elbow was amputated on May 17, 1996
by Dr. Lawrence Pass.

On November 1, 1996, Plaintiff and her husband Keith Jennings filed
suit against Drs. Case and Stewart alleging conduct by both doctors which fell
below the applicable standard of care. Drs. Case and Stewart denied liability in
their own affidavits and presented, in support of their motion for summary
judgment, additional affidavits from Dr. James B. Atkinson, a pathologist at

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Vanderbilt University Medical Center, who had microscopically examined
specimens of the thrombus removed from Plaintiff, and Dr. Anthony B. Dallas,
Jr., a medical doctor in Hendersonville, Tennessee. The record on summary
judgment also includes the deposition of Dr. Stewart taken May 22, 1997. To
rebut the summary judgment motion, Plaintiff presented the affidavit of Dr.
Joseph W. Rubin, professor of surgery at the Medical College of Georgia in
Augusta, Georgia dated January 29, 1998 and a supplemental affidavit from Dr.
Rubin dated March 2, 1998. The trial judge granted summary judgment to all
defendants without factual comment on March 20, 1998. Plaintiffs timely
appealed.

The following familiar rules of law are not in dispute:
1. The standard of care in a medical malpractice action and the
deviation from such standard of care along with proximate cause must be
established by expert testimony in all cases not within the experience or
knowledge of a layman. Tenn. Code Ann. § 29-26-115 (1980); German v.
Nichopoulos, 577 S.W.2d 197, 202 (Tenn.App.1978); Stokes v. Leung, 651
S.W.2d 704, 706 (Tenn.App.1982).

2. The trial court must take the strongest legitimate view of the
evidence in favor of the nonmoving party on summary judgment and allow all
reasonable inferences in favor of that party, discarding all countervailing
evidence. Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993).

3. After applying this rule, if "there does exist a dispute as to facts
which are deemed material by the trial court, . . . or . . . there is uncertainty as to
whether there may be such a dispute," the summary judgment motion must be
overruled. Evco Corp. v. Ross, 528 S.W.2d 20, 25 (Tenn.1975).

4. The question to be resolved is whether or not the two affidavits
of Plaintiffs' qualified expert, Dr. Rubin, are sufficient to preclude summary
judgment.

I. THE DUTY ANALYSIS
This court has held: "Whether there is a duty owed by one person to
another is a question of law to be decided by the court. However, once a duty is
established, the scope of the duty or the standard of care is a question of fact to
be decided by the trier of fact." Dooley v. Everett, 805 S.W.2d 380, 384
(Tenn.App.1990). Like the Rule Against Perpetuities, it is easy to say but
difficult to apply. This "duty as law-scope of duty as fact" has produced a

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plethora of reported cases in every context imaginable, blurring the line of
demarcation to the point that one is compelled to wonder how long the courts can
make "soda and vinegar to dwell placidly in the same bottle." 1

This is a medical malpractice case wherein the physician-patient
relationship existed between Glenda Jennings as patient and Kenneth Case and
W. David Stewart as physicians. Osborne v. Frazor, 425 S.W.2d 768
(Tenn.App. 1968); Bass v. Barksdale, 671 S.W.2d 476 (Tenn.App.1984).
Professionals are judged according to the standard of
care required by their profession. In Delmar Vinyards v.
Timmons, 486 S.W.2d 914, 920 (Tenn.App.1972), the Court
stated: "The standard of care applicable to the conduct of
audits by public accountants is the same as that applied to
doctors, lawyers, architects, engineers, and others furnishing
skilled services for compensation and that standard requires
reasonable care and competence therein." See Cleckner v.
Dale, 719 S.W.2d 535 (Tenn.App.1986) (Attorney must
exercise the degree of care and diligence which is commonly
possessed and exercised by attorneys practicing in the same
jurisdiction.); Truan v. Smith, 578 S.W.2d 73 (Tenn.1979)
(Physicians must exercise reasonable and ordinary care
commensurate with his skill and knowledge.).

Dooley, 805 S.W.2d at 384-85 (Tenn.App.1990). In this case the duty analysis
must be made in the context of the admitted physician-patient relationship and
not on principles of duty to foreseeable third persons. See, e.g. Bradshaw v.
Daniel, 854 S.W.2d 865 (Tenn.1993); Pittman v. Upjohn Co., 890 S.W.2d 425
(Tenn. 1994).
The relationship of physician or surgeon and
patient is one arising out of a contract, express or
implied. 70 C.J.S. Physicians & Surgeons, s 37.
The relation of "physician and patient" is
created when the professional services of a
physician are accepted for a purpose of medical or
surgical treatment, the relation being a contractual
one, wherein patient knowingly seeks assistance of
a physician and physician knowingly accepts him
as a patient. Findlay v. Board of Supervisors, 72
Ariz. 58, 230 P.2d 526, 24 A.L.R.2d 841 (1951).
The Hippocratic Oath by which every doctor is
morally bound, assumes a preexisting relationship
with patient and physician, which relationship in
its inception is basically contractual and wholly
voluntary, created by agreement, express or
implied, and by its terms may be general or
limited. Agnew v. Parks, 172 Cal.App.2d 756, 343
P.2d 118 (1959).

Osborne, 425 S.W.2d at 771.

1
E. W. Carmack, Editorial, Nashville Tennessean, Nov. 9, 1908, quoted in Cooper v. State,
138 S.W. 826, 832 (Tenn.1911).

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II. KENNETH CASE, M.D. and SANDERS & CASE MEDICAL
CLINIC, P.C.
Dr. Case does not dispute his contractual physician-patient relationship
to Mrs. Jennings. He asserts, however, that his referral of her to Dr. Stewart on
April 19, 1996 ended his obligations to her. This court has held relative to the
duty of referral:
In 132 A.L.R. 392 is found the following general
statement:

"It may be stated as a general rule that, as a part
of the requirements which the law exacts of
general practitioners of medicine and surgery, or
other schools of healing, if, in the exercise of the
care and skill demanded by those requirements,
such a practitioner discovers, or should know or
discover, that the patient's ailment is beyond his
knowledge or technical skill, or ability or capacity
to treat with a likelihood of reasonable success, he
is under a duty to disclose the situation to his
patient, or advise him of the necessity of other or
different treatment."
The many cases analyzed under this annotation support
the insistence of the plaintiff, the admission of the defendant,
and the testimony of the defendant's witnesses that the
chronic, persistent condition of the patient in this case
required the defendant to recommend treatment by specialist.
Since defendant's duty to refer his patient to more
competent specialized medical authority was clearly
established, the question remains, did the defendant perform
that duty?

Osborne, 425 S.W.2d at 773.

In support of his motion for summary judgment, Dr. Case filed the
affidavit of Anthony V. Dallas, Jr., M.D., which states in part:
More specifically, Dr. Case alertly and promptly reacted on
April 19, 1996 with regard to the patient's new symptom of
blue nail beds. Suspecting a vascular or neurological
insufficiency, Dr. Case referred Glenda Jennings to a surgeon
who could appropriately evaluate, provide surgical
intervention, or make further referrals for the patient's
problem, whether it proved to be neurological or vascular.

The undisputed testimony of Dr. Stewart reveals:
BY [PLAINTIFFS' LAWYER]:

Q. . . . You first saw the plaintiff on April the 23rd; is
that correct, Glenda Jennings?
A. Yes, sir, I believe that is right.
Q. All right. Now, prior to you seeing her in your
office, did you have any information about why she was
coming to see you? Dr. Case evidently made a referral; is
that correct?

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 A. He made a referral, and the referral was made
through my personnel. And a note was made that he was
sending her to me to consider the possibility of a thoracic
outlet syndrome. That was the only information I had.
Q. Did he send you a copy of his records?
A. No, sir.
Q. Of, you know, her visits to him in the preceding
several weeks about arm pain?
A. No, sir.
Q. All right. Did you talk to him on the telephone?
A. No, sir.
Q. All right. So without belaboring this, you didn't
have any information that was contained in his records which
indicated that he or his nurse a week prior -- that's not a week
prior -- I guess four days prior in examining the left arm
noted that her nail beds were blue?
A. No, sir.

Dr. Rubin, in his affidavit in support of the plaintiff, states in part:
2. Dr. Case violated the applicable standard of care in
failing to provide Dr. Stewart with his (Dr. Case's) records,
which contained important information concerning Mrs.
Jennings condition relative to her left upper extremity. He
also violated the standard of care in failing to discuss the
case with Dr. Stewart after the nerve conduction studies
virtually ruled out carpal tunnel syndrome or thoracic outlet
syndrome involving serious nerve injury or problems, and in
failing to initiate vascular
testing. Furthermore, in her deposition Mrs. Jennings relates
that she told Dr. Case about her hand being cold, and
difficulty in finding a pulse. If this testimony is accurate, Dr.
Case's failure to inform Dr. Stewart of these reported signs
and symptoms, and the fact that her nail beds were blue, was
a violation of the standard of care.

Plaintiff’s theory is that this slip between the two doctors is a cause of
her injuries. This theory has a basis in the law of Tennessee :
When two or more physicians treat a patient, they
are required to coordinate their evidence and
communicate “in a manner that best serves their
patient’s well-being.” The “extent” of the
physician’s “involvement” decides what effort he
must take to satisfy his obligation to communicate.
This is a question of fact which depends upon the
standard of care in the community. Dr.
Shmerling’s testimony is that he was Mrs. Bass’
primary physician and that the standard of care in
the community required him to know what drugs
Mrs. Bass was taking. If the jury believed Dr.
Shmerling’s contention that he had turned the
patient over to the public health department for
treatment, it was necessary to communicate in
order to determine the type of drugs that were to
be prescribed for her treatment of tuberculosis
under what he admits is his standard of care in the
community.

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Bass v. Barksdale, 671 S.W.2d 476 (Tenn. App. 1984).

Plaintiff has the burden of proving that the specific breach of the
standard of care alleged as to Dr. Case was a cause in fact of her injury. To be
successful at trial in her claim against Dr. Case, she must prove, by a
preponderance of the evidence that as a result of Dr. Case’s omission to
communicate her symptoms to Dr. Stewart, she suffered injuries which “would
not otherwise have occurred.” Tenn. Code Ann. § 29-26-115(a)(3). In
Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993), the Supreme Court reiterated
that the standard for causation in medical malpractice cases is whether the
physician’s act or omission more likely than not was the cause in fact of the
harm. Expressed another way, the test is whether the injury would not have
occurred but for the defendant’s negligence. Volz v. Leeds, 895 S.W.2d 677, 679
(Tenn. 1995).

In Kilpatrick, the Court found it determinative that the Plaintiff’s expert
did not state that the delay in diagnosis “caused Mrs. Kilpatrick to suffer
irreparable damage. It merely states that there is a likelihood or probability that
the delay would cause irreparable damage.” Kilpatrick, 868 S.W.2d at 597.
Plaintiff’s expert evidence herein suffers from no such “probability” problem.
Dr. Rubin, in his affidavits, testified:
If Dr. Stewart or Dr. Case had made a timely and
accurate diagnosis of Mrs. Jennings’ condition, it
is more likely than not that prompt and appropriate
treatment would have prevented not only the need
for amputation but also the ARDS suffered by
Mrs. Jennings;
...

Generally speaking, most competent vascular
surgeons believe that expeditious diagnosis and
treatment is of paramount importance in cases
involving vascular occlusion of an upper
extremity. The viability of the extremity will
depend upon the speed with which the diagnosis is
made and appropriate care instituted. We know
that early detection and subsequent repair of the
underlying stenotic lesion will result in
dramatically improved patency and salvage rates.
Excellent limb salvage rates are obtainable when
delayed diagnosis and delayed treatment are
avoided;
...

Proper examination, testing and intervention
would have saved her arm.
...

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 For purposes of resolving the issue of the grant of summary judgment,
we are required to take the strongest legitimate view of Dr. Rubin’s affidavit in
favor of Mrs. Jennings, allow all reasonable inferences in her favor, and discard
all countervailing evidence. Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.
1993).2 Implicit in Dr. Rubin’s causation statements is the conclusion that proper
examination would have included review of Mrs. Jennings’ medical history
including signs and symptoms observed by Dr. Case. Regarding these records,
Dr. Rubin stated:
Dr. Case violated the applicable standard of care
in failing to provide Dr. Stewart with his (Dr.
Case’s) records, which contained important
information concerning Mrs. Jennings’ condition
relative to her left upper extremity.

...

Furthermore, in her deposition Mrs. Jennings
relates that she told Dr. Case about her hand being
cold, and difficulty in finding a pulse. If this
testimony is accurate, Dr. Case’s failure to inform
Dr. Stewart of these reported signs and symptoms,
and the fact that her nail beds were blue, was a
violation of the standard of care;

...

Thus, Plaintiff has provided expert testimony to the effect that the
failure of Dr. Case to provide information about Mrs. Jennings’s signs and
symptoms was a cause of the failure to timely and accurately diagnose and,
therefore, a cause of the injuries suffered by Plaintiff.

Dr. Stewart’s statements that Dr. Case’s records would have made no
difference in the examination procedures he adopted were in response to
questions regarding only one symptom: blue nail beds. While Plaintiff’s expert,
Dr. Rubin, discusses blue nail beds, he also specifically states that Plaintiff’s
report to Dr. Case of cold hand and pulselessness should have been conveyed to
Dr. Stewart. Nowhere in his deposition does Dr. Stewart state that knowledge
of those two signs and symptoms would have made no difference. To the
contrary, a reasonable fact finder could conclude from Dr. Stewart’s full
testimony that knowledge of those earlier symptoms would have made a
difference in the actions Dr. Stewart took.

2
Judge Koch, in dissent, asserts in effect that the majority opinion grants partial summary
judgment to Dr. Case on two out of three theories of liability asserted by plaintiffs. We
disagree. The defendant Case neither sought in the trial court nor was granted by the trial
judge, partial summary judgment on any asserted theories. The motion for summary judgment
is a general one, addressing the entire case asserted by plaintiffs, and the order granting
summary judgment is general and not issue specific. This general order granting summary
judgment is herein reversed. Appellate review of trial on the merits is for the future.

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 In his deposition, Dr. Stewart discusses the symptoms and signs of
vascular occlusion, which he did not include in his initial diagnosis as a possible
cause of Mrs. Jennings’s problems. Dr. Stewart is of the opinion that Mrs.
Jennings had two different conditions: thoracic outlet syndrome at the time he
saw her and, later, vascular occlusion. His position is that she developed
symptoms of vascular occlusion after her only appointment with him.
A. My opinion is – and this is absolute – is that she
had dramatic changes in her findings and her
symptoms after I saw her that one time, and on the
basis of that, yes, I believe that she developed her
vascular occlusion after I saw her on the morning
of that single visit.
Q. What were the dramatic changes in her
symptomatology that you’re talking about that
occurred after you saw her? List those for me.
A. They are the ones that are related in Dr. Verne
Allen’s record.
Q. What? Name them for me. Severe pain?
A. She had severe pain. She had discoloration. She
had coldness, and she had an absent radial pulse.

When asked specifically what symptoms would be present in a patient
suffering from an upper extremity arterial occlusion but would not be present in
a patient with thoracic outlet syndrome, Dr. Stewart stated that, “coldness or
coolness would be the one that would come to my mind that would be
specifically not to be looked at in the thoracic outlet syndrome.” Similarly, at
one point, Dr. Stewart was asked whether it would have made a difference if
Mrs. Jennings had presented the same symptoms when he examined her as she
had apparently presented the night before at the emergency room. “The
symptomology that was presented the night before about diminished pulse in the
left hand, about patchy blue areas . . . would you have had vascular occlusion in
your differential diagnosis?” Dr. Stewart answered yes.

Thus, Dr. Stewart provides testimony that can be interpreted to mean
that the symptoms of cold hand and pulselessness would have been relevant to
his diagnostic procedures had he known about them. Therefore, his testimony
does not provide unrefuted evidence of the lack of causation in Dr. Case’s failure
to transmit Mrs. Jennings’ signs and symptoms.

Even Dr. Stewart’s statement that the records regarding “blue nail
beds” would not have changed his approach cannot form the basis for dismissal
of Mrs. Jennings’s cause of action against Dr. Case. Dr. Stewart’s statements
that he would not have done anything differently even if he had received all Dr.
Case’s information regarding the patient’s signs and symptoms constitute

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conclusions or speculation about what Dr. Stewart would or would not have done
in a situation which never occurred.

It is well settled that testimony which amounts to mere speculation is
not evidence which can establish proximate cause. Primm v. Wickes Lumber
Co., 845 S.W.2d 768, 771 (Tenn. App. 1992). Similarly, “the mere possibility
of a causal relationship, without more, is insufficient to qualify as an admissible
expert opinion.” Lindsey v. Miami Development Corp., 689 S.W.2d 856, 862
(Tenn. 1985). Applying this principle to expert proof of proximate cause in a
medical malpractice case, this court has held that since a judgment cannot be
based on conjecture or speculation, the probable cause of an injury must be
shown to be reasonably certain, and not a mere likelihood or possibility. White
v. Methodist Hosp. South, 844 S.W.2d 642, 649 (Tenn. App. 1992). Logic
demands that the converse is true: speculation about a situation which never
occurred cannot constitute evidence sufficient to prove lack of causation.

It is well settled that the testimony of a physician as to what he would
do or his opinion of what should have been done does not prove the standard of
care.3 Roddy v. Volunteer Medical Clinic, Inc., 926 S.W.2d 572, 578 (Tenn.
App. 1996); Lewis v. Hill, 770 S.W.2d 751, 754 (Tenn. App. 1988); Crawford
v. Family Vision Center, Inc., 1990 WL 177351 (Tenn. App. 1990). In Roddy,
this principle was applied to a physician’s affidavit which failed to state that the
plaintiff had suffered injuries from the defendant’s negligence which would not
otherwise have occurred, therefore failing to prove causation. In Crawford, the
court found that the ophthalmologist-witness did not testify as to the recognized
standard of acceptable practice, but only testified as to the practice in his own
office. The court found such testimony insufficient to establish the standard of
practice. Based upon these holdings, Dr. Stewart’s statements as to the potential
effect of the lack of Mrs. Jennings’ prior history do not establish the absence of
causation.

Even discounting the portion of Dr. Rubin's affidavit relative to
discussion with Dr. Stewart about the nerve conduction studies which occurred
after the referral, it is still clear that according to Dr. Rubin's expert testimony,

3
The validity of this principle is made clear in the instant case. Because of the nature of
Dr. Stewart’s statements, no evidence exists which could be used to directly rebut those
statements. What Dr. Stewart believes he would have done in a hypothetical situation is
incapable of being disproved by anyone else. The best Plaintiff can do, and what she has
done, is present expert testimony that her prior symptoms should have made a difference under
the applicable standard of care. Thus, there is a fundamental problem with dismissing
Plaintiff’s claims against Dr. Case on the basis of Dr. Stewart’s statements that he would have
done nothing different in a situation which never occurred.

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the failure of Dr. Case to inform Dr. Stewart of the signs and symptoms he
observed on April 16, 1996, including the fact that Plaintiff's nail beds were blue,
violated the standard of care. This conclusion by Dr. Rubin is buttressed by the
affidavit of Dr. Dallas that Dr. Case "alertly and promptly reacted" to the
patient's new symptom of blue nail beds from which Dr. Case suspected "a
vascular or neurological insufficiency." Dr. Case had a duty to refer Mrs.
Jennings but whether such "referral" can be accomplished in silence or must be
accompanied by appropriate information provided to the referee in order to meet
the standard of care is a question of fact raised by expert testimony and precludes
summary judgment.

The applicable standard of care is set by Tennessee Code Annotated
section 29-26-115. "The testimony of a physician as to what he would do or his
opinion of what should have been done does not prove the statutory standard of
medical practice." Lewis v. Hill, 770 S.W.2d 751, 754 (Tenn.App. 1988).4

III. DR. W. DAVID STEWART
The physician-patient relationship was established between Glenda
Jennings and Dr. Stewart when he first examined her on the morning of April 23,
1996. The affidavit of Dr. Rubin provides in part:
3. Dr. Stewart violated the applicable standard of care in
failing to observe symptoms indicative of arterial obstruction
during the patient visit of April 23, 1996 that were there to be
seen or appreciated. These signs and symptoms included
severe pain in the left shoulder, arm and hand; patchy, blue
discoloration of the left hand; and decreased pulse in the left
upper extremity. All of these symptoms had been present in
the previous evening at the Columbia/HCA Hendersonville
Hospital Emergency Room, at 11:30 p.m. The same signs
and symptoms noted at the Hendersonville Hospital ER on
the evening prior to Dr. Stewart's examination of Mrs.
Jennings were more likely than not present when Dr. Stewart
examined Mrs. Jennings approximately 10 hours after her ER
visit. Dr. Stewart's failure to note the symptoms of left upper
extremity occlusion caused his failure to initiate appropriate
treatment.

4
Judge Koch in dissent asserts that there is no objective basis for the trier of fact to
disbelieve Dr. Stewart's testimony that the clinical notes of Dr. Case would have had no effect
on his subsequent treatment of her. The dissent further asserts that Dr. Stewart's testimony on
this point is against his own interest. These statements by the co-defendant Dr. Stewart are
doubtless helpful to Dr. Case but not necessarily against the interest of Dr. Stewart. Any
statement by Dr. Stewart attributing diagnostic value to him of clinical notes and information
not disclosed by Dr. Case would tend to detract from his own treatment of Mrs. Jennings. His
testimony is self-serving as well as serving the interest of Dr. Case. This is summary
judgment and he is a party in interest to the outcome of the case. This alone makes his
credibility a question for the jury. Poole v. First Nat'l Bank of Smyrna, 196 S.W.2d 563, 568-
69; Price v. Allstate Ins. Co., 614 S.W.2d 377, 379; and Cole v. Clifton, 833 S.W.2d 75, 77.

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Dr. Stewart, in his deposition, agreed with the "more likely than not " opinion of
Dr. Rubin. Dr. Stewart testified as follows:
Q. . . . You're saying that if a patient actually has a
thoracic outlet syndrome, the symptomatology that she
presented on the night of April 22nd and the findings of the
22nd could well be absent the next day when she saw you.
A. Yes, sir.
Q. All right. Now, let's say that it is not a thoracic
outlet syndrome that is her problem, that the pain, the
discoloration, the blue discoloration, the weaker pulse in the
left hand than the right, the patchy blue areas, was caused by
a vascular obstruction. If that was the case on April 22nd,
1996, if that was the case, would you have expected all of
these symptoms to be present the next morning when you
saw her?
A. Most likely.
Q. All right. Most likely, correct?
A. Yes, sir.

Dr. Rubin further asserted that Dr. Stewart failed to obtain an adequate family
history and failed to perform an adequate physical examination by evaluating all
pulses and blood pressure in both arms to exclude arterial stenosis or
obstructions. Dr. Stewart testified that his pulse readings and evaluations were
limited to the left extremity.

In defense Dr. Stewart presented the affidavit of Dr. James B.
Atkinson, Director of the Laboratory of Surgical Pathology for Vanderbilt
University Medical Center. Dr. Atkinson opined that the thrombi removed from
the left subclavian artery of Glenda Jennings on May 13, 1996 could not have
been present before May 1, 1996 and thus would not have existed at the time Dr.
Stewart examined Mrs. Jennings on April 23, 1996. Dr. Rubin countered in his
affidavit asserting the following:
9. Dr. Atkinson's Affidavit pertaining to the age of the
thrombi which occluded the arteries of Mrs. Jennings' left
arm makes no effort to address the question of whether or not
the condition that caused the thrombi did or did not exist on
or prior to May 1, 1996. The age of the thrombi studied by
Dr. Atkinson is in no way dispositive of the issue of Mrs.
Jennings' condition on and prior to May 1, 1996. It is further
my opinion that the occlusive condition did exist at those
times, and timely treatment would have prevented the
thrombi that ultimately caused the loss of Mrs. Jennings' arm.
Dr. Atkinson's Affidavit truly begs the question of causation.
Assuming that his findings are accurate in that the thrombi
removed from Mrs. Jennings' left subclavian artery which
occluded "these arteries of Mrs. Jennings" and ultimately
necessitated the amputation of her arm, were less than 24-48
hours in age and in some cases 10-11 days in age, one could
well conclude that these thrombi were not present prior to
May 1, 1996. However, the essential point is that these
"offending" thrombi would have been prevented but for the
negligence of Drs. Case and Stewart in failing to diagnose

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 Mrs. Jennings' subclavian occlusive problem earlier. Based
upon a reasonable degree of medical and scientific certainty,
Mrs. Jennings had signs and symptoms of upper extremity
vascular occlusion well prior to May 2, 1996, which should
have been observed by Drs. Case and Stewart, which
observation should have permitted accurate diagnosis and
treatment by competent physicians. Such diagnosis would
have required immediate medical treatment, which treatment
would more likely than not have prevented the very thrombi
and occlusions discussed by Dr. Atkinson. Drs. Case and
Stewart had the opportunity and the responsibility to stop the
disease progression which they failed to do, resulting in the
thrombi mentioned in Dr. Atkinson's Affidavit.

Thus, regardless of the age of the thrombi, a question of fact remains as to Dr.
Stewart's compliance with the applicable standard of care.

IV. CONCLUSION
The record establishes the foregoing questions of fact as to compliance
with the applicable standard of care which under Dooley v. Everett address the
scope of the duty rather than the duty itself, scope of duty and standard of care
being synonymous terms under Dooley. 805 S.W.2d 380, 384 (Tenn.App.1990).
What the trier of fact may do with this case at trial remains to be seen. What this
court must do on summary judgment is clear. As to both defendants, there exists
a dispute as to material facts or at the very least "there is uncertainty as to
whether there may be such a dispute." Evco Corp. v. Ross, 528 S.W.2d 20, 25
(Tenn. 1975). The action of the trial court in granting summary judgment for the
defendants is reversed and the case is remanded to the trial court for trial on the
merits. Costs of this appeal are assessed equally to the defendants.

___________________________________
WILLIAM B. CAIN, JUDGE

CONCUR:

___________________________________
PATRICIA J. COTTRELL, JUDGE

CONCURRING IN PART,
DISSENTING IN PART UNDER
SEPARATE OPINION
WILLIAM C. KOCH, JR., JUDGE

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