Josephine Brown, Whitfield Brown, and Earline Culp v. Dr. Kenneth Kudsk and UT Medical Group, Inc.

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON

JOSEPHINE BROWN, WHITFIELD )
BROWN, and EARLINE CULP,

Plaintiffs/Appellants,
)
)
) Shelby Law No. 56341 T.D.
FILED
) January 2, 1998
VS. ) Appeal No. 02A01-9611-CV-00291
) Cecil Crowson, Jr.
DR. KENNETH KUDSK and ) Appellate C ourt Clerk
UT MEDICAL GROUP, INC., )
)
Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
AT MEMPHIS, TENNESSEE
THE HONORABLE ROBERT L. CHILDERS, JUDGE

CURTIS D. JOHNSON, JR.
JOHNSON & SETTLE
Memphis, Tennessee
Attorney for Appellant

J. KIMBROUGH JOHNSON
THOMASON, HENDRIX, HARVEY,
JOHNSON & MITCHELL
Memphis, Tennessee
Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
This is an appeal from a summary judgment in a medical malpractice case. The trial
court entered an order of summary judgment on behalf of Defendant, Dr. Kenneth Kudsk

(“Dr. Kudsk”). Plaintiffs, Josephine Brown ( “Brown”), Whitfield Brown, and Earline Culp,

appeal the judgment citing, inter alia, errors in the trial court’s granting of summary

judgment when the Plaintiffs’ expert affidavits and deposition testimony were proper

responsive proof to the Defendant’s motion for summary judgment. For reasons stated

herein, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On September 14, 1992, Brown was admitted to the Regional Medical Center for

subtotal thyroidectomy operation. Based on hospital procedure, Brown was admitted to

the service of a staff physician. In this case, Brown was admitted and assigned to the

service of Dr. Kudsk, a faculty member of the University of Tennessee in the Department

of Surgery. Brown was not Dr. Kudsk’s private patient.

Dr. Kudsk was the attending physician whereby he trained physicians in their

residency programs. Dr. Kudsk was a staff surgeon for the surgery rotation and resident

physicians Drs. Allen Butts, Mark McQuaid and Timothy McKneib were in rotation in his

surgery service.

On that same day, Dr. Butts, the chief resident who was in his fifth and final year of

surgical residency, performed a subtotal thyroidectomy on Brown. Dr. Kudsk was present

for the procedure, observed it, and assisted to a certain limited extent. There were no

problems or complications noted during the surgery. Thereafter, Brown was taken to the

recovery room whereby her progress was to be followed by the hospital personnel and the

resident physicians.

When Dr. Kudsk left the hospital on the afternoon of September 14, 1992, he was

advised that Brown was in satisfactory condition. His next contact with Brown’s condition

was when he received a call from Dr. Butts at approximately 10:10 p.m., at which time Dr.

Butts advised Dr. Kudsk of the airway obstruction which had been experienced by Brown.

2
A short time later, Dr. Butts called Dr. Kudsk back to inform him that Brown was being

taken to surgery for the evacuation of a hematoma. The proof presented in this case by

the Plaintiffs’ experts indicated that the Plaintiff experienced a slow bleed from the blood

vessels which had been cut and ligated during Brown’s surgery. This bleeding resulted in

the formation of a hematoma. This hematoma impaired Brown’s ability to breathe thereby

cutting off the supply of oxygen to her brain. An anoxic brain injury resulted which

rendered Brown into a present vegetative condition.

Plaintiffs originally filed suit against four resident physicians, Dr. Kudsk, UT Medical

Group, Shelby County Health Care corporation, d/b/a the Regional Medical Center at

Memphis, and two nurses, Bertha Banks and Rob Halt, and alleged medical malpractice

in regard to the health care Brown received from all of the Defendants.

A consent order was entered in this cause, allowing the resident physicians to be

dismissed from this lawsuit, and their claims heard before the Tennessee Claims

Commission.

Defendant Shelby County Health Care has been dismissed as these parties have

resolved all claims between them.

Dr. Kudsk and UT Medical Group filed a motion for summary judgment and asked

that they be dismissed from this action. In opposition to this motion, Plaintiffs presented

the affidavit and deposition of Dr. Choon Shin (“Dr. Shin”), general surgery expert, and the

affidavit and partial deposition of Dr. Bonnie Sorensen (“Dr. Sorensen”), endocrinologist.

A hearing was held before the trial court, who granted the Defendants’ motion for

summary judgment.

The Plaintiffs appeal the judgment of the trial court and, essentially, present one

issue for review: Whether, according to the summary judgment standard enumerated in

the decision of Bowman v. Henard, 547 S.W.2d 527 (Tenn. 1977), the countervailing

3
affidavits and deposition testimony of the resident physicians and plaintiffs’ experts are

proper responsive proof in opposition to the motion and affidavit of Dr. Kudsk for summary

judgment, and a basis upon which to deny that motion for summary judgment.

LAW AND DISCUSSION

The sole issue on this appeal is whether the trial court erred in granting the

Defendants’ motion for summary judgment. Tenn. R. Civ. P. 56.03 contains two

requirements for granting a summary judgment. First, there must be no genuine issues

with regard to the material facts relevant to the claims or defenses embodied in the motion.

Pacific E. Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 (Tenn. Ct. App. 1995).

Second, the moving party must be entitled to a judgment as a matter of law based on the

undisputed facts. Id.

In determining whether or not a genuine issue of material fact exists for purposes

of summary judgment, courts in this state have indicated that the question should be

considered in the same manner as a motion for directed verdict made at the close of the

plaintiff’s proof, i.e., the trial court must take the strongest legitimate view of the evidence

in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and

discard all countervailing evidence. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). Then

if there is a dispute as to any material fact, or any doubt as to the conclusions to be drawn

from that fact, the motion must be denied. Id. The court is not to “weigh” the evidence

when evaluating a motion for summary judgment. Id. This Court must use the same

standard in reviewing a trial court’s judgment granting summary judgment.

In Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn. 1977), the Supreme Court of

Tennessee set forth the principles to be followed in considering summary judgment

motions in malpractice cases:

In summary we hold that, in those malpractice actions wherein
expert medical testimony is required to establish negligence
and proximate cause, affidavits by medical doctors which
clearly and completely refute plaintiff’s contention afford a
proper basis for dismissal of the action on summary judgment,
in the absence of proper responsive proof by affidavit or

4
 otherwise. In those cases wherein the acts are complained of
are within the ken of common layman, the affidavit of medical
experts may be considered along with all the other proof, but
are not conclusive.

In the final analysis, the rule requires that plaintiffs in malpractice actions come

forward within thirty days after the summary judgment motion is served, or within such a

reasonable period as the trial court in the exercise of sound discretion will allow, with expert

opinion on the issues of negligence and proximate cause to make out a genuine issue of

material fact, or face the likelihood of summary judgment in favor of defendants. The

exception to the general rule arises in those cases where the acts of alleged negligence

are within the knowledge of the ordinary laymen. Bowman v. Henard, supra; Baldwin v.

Knight, 569 S.W.2d 450 (Tenn. 1978).

The operation of the rule in malpractice cases may at first appear to be harsh, but

upon examination it clearly falls within the overall purpose of summary judgments. In Evco

Corporation v. Ross, 528 S.W.2d 20 (Tenn. 1975), Justice Harbison stated in part:

The summary judgment procedure was designed to provide a
quick, inexpensive means of concluding cases, in whole or in
part, upon issues as to which there is no dispute regarding the
material facts. Where there does exist dispute as to facts
which are deemed material by the trial court, however, or
where there is uncertainty as to whether there may be such a
dispute, the duty of the trial court is clear. He is to overrule any
motion for summary judgment in such cases, because
summary judgment proceedings are not in any sense to be
viewed as a substitute for a trial of disputed factual issues.

Summary judgments are not ordinarily appropriate in negligence actions, but where

the question to be determined is one which requires expert proof, and no countervailing

affidavits are filed to challenge the expert evidence offered by the moving party, summary

judgment may be proper. In short, if the issue is one upon which expert proof is necessary,

and the non-moving party cannot produce an expert affidavit to create a factual dispute,

summary judgment may be appropriate to preclude the time, expense, and delay involved

in the protracted litigation.

T.C.A § 29-26-115 (1980) provides in part:

5
 29-26-115. Claimant’s burden in malpractice action--
Expert testimony--Presumption of negligence--Jury
instructions.--(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 specialty thereof, if any, that the
defendant practices in the community in which he 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.

Plaintiffs assert that they have carried the burden of proof placed upon them by the

statute and that the depositions and affidavits of Drs. Shin and Sorensen establish a

genuine issue of material fact. We disagree.

In the instant case, it is undisputed that the surgery on Brown was performed

without deviating from the surgical standard of care. It is also undisputed that Brown was

in satisfactory condition when Dr. Kudsk left the hospital on the afternoon of September

14, 1992. Dr Shin testified in his deposition that he takes full responsibility for everything

the residents do on his patient care. Dr. Shin also testified that the complication which

arose could have been prevented if there had been no delay in recognizing post-operative

bleeding and airway compression and in taking corrective action. Dr. Shin, however, did

not testify that Dr. Kudsk had deviated from the standard of care either as a surgeon or as

an attending physician. In fact, when Dr. Shin was asked:

Question (Defendants’ counsel): Okay. And as far as the
attending physician is concerned, you are not saying that he
deviated from the standard of care; are you?

Answer (Dr. Shin): No, not saying that.

As a result, Plaintiffs failed in carrying their burden of proving that Dr. Kudsk acted with less

than or failed to act with ordinary and reasonable care in accordance with the standard of

care for surgeons and attending physicians in teaching hospitals.

Plaintiffs also tendered the deposition and affidavit of Dr. Sorensen in order to

6
overcome Defendants’ motion for summary judgment. Dr. Sorensen is not a surgeon; she

is an endocrinologist. Although there is no requirement under the statute that an expert

witness practice the same specialty as the defendant, the expert witness must be

sufficiently familiar with the standard of care of the specialist and be able to give relevant

testimony on that subject. See Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987).

At oral argument on this cause, Plaintiffs pointed this court to the case of Ledford v.

Moskowitz, 742 S.W.2d 645 (Tenn. Ct. App. 1987), citing the proposition that there is no

requirement within T.C.A. § 29-26-115 (1980) that an expert witness practice the same

specialty as the defendant. We have no quarrel with the holdings in this case relied upon

by Plaintiffs, but believe that Plaintiffs’ reliance on this case is misplaced.

Ledford was a malpractice action brought against a psychiatrist whose prescription

allegedly caused an adverse reaction in the plaintiff. Ledford, 742 S.W.2d at 646. This

Court, in reversing summary judgment granted by the trial court, held that the testimony

of the neurologist who subsequently treated plaintiff was sufficient to create an issue of

material fact as to the standard of care required in the psychiatric practice in the community

where the alleged malpractice occurred. Id. at 649. The neurologist testified that he was

Board certified in neurology and psychiatry and that part of his training in neurology was

in psychiatry. Id. at 647-48. He also testified that he kept up with the literature and that

he was familiar with the standard of care in small towns all over the state of Georgia and,

thus, was familiar with the standard of care in Ducktown and Cleveland, Tennessee, “in a

broad sense.” Id. at 648. He testified as to the familiarity with misprescribed medicine,

with the restrictions on their use and the necessity for close supervision. Id. The court

held that these facts “make his testimony ‘relevant to this issue in this case.’” Id. at 649.

In the above case, although the courts accepted the testimony of a medical expert

in another field as competent proof on the standard of care, the expert testified as to his

familiarity with the defendant’s field of practice and the standard of care required in dealing

with the specific acts involved on the part of the defendant physician. In the case at bar,

Dr. Sorensen’s testimony did not rise to this level. Dr. Sorensen stated that she was not

7
holding herself out as an expert on the standard of care in surgery or as to the standard

of care as it pertains to a surgeon in his or her capacity as an attending physician in a

teaching hospital. Dr. Sorensen’s testimony comes from the view of an endocrinologist.

As an endocrinologist, Dr. Sorensen stated in her affidavit:

Although I am not a surgeon, a patient who is less than 12
hours post-thyroid surgery and complaining of choking and
inability to breathe warrants clinical and laboratory evaluation
to rule out post-operative complications such as compression,
laryngeal spasm, hypocalcemia, aspira, pulmonary embolus,
and cardiac complication. The standard of care was definitely
inadequate since there is no documentation of physician
examination or clinical assessment. Dr. Kneib and Dr. Butts
appeared to both be directly responsible for the inadequate
care with the attending physician, Dr. Kudsk, indirectly, but
ultimately responsible.

Dr. Sorensen further stated:

Of additional note, the original thyroidectomy may not have
been indicated. Not only was a fine needle biopsy not
performed preoperatively to rule out cancer, but the TSH level
was elevated so that suppression therapy with Synthroid may
have alleviated her dysphagic symptoms to avoid surgical
intervention.1

Although Dr. Sorensen made these statements concerning the deviation from the standard

of care for medical practice in general, we find that her testimony fails to establish a basis

for expertise in the field of surgery so as to overcome Dr. Kudsk’s motion for summary

judgment. In Dr. Sorensen’s deposition, she was asked:

Q. Well, you’re not qualified to tell us what the surgical
standard of care is, are you?

A. Right.

After a careful examination of the record, we find that at all times Dr. Kudsk was

acting in his capacity as Brown’s surgical attending physician only and not as her primary

physician. His involvement in Brown’s evaluations and treatment were minimal and

tangential to that of the resident physicians.

In the case at bar, Plaintiffs simply failed to controvert Dr. Kudsk’s affidavit testimony

that the entirety of his actions in this matter complied with the recognized standard of care

1
We note that Dr. Shin, in his deposition, agreed that surgery was clearly indicated based on the
pre- ope rative ass ess me nt an d find ings of pre ssu re sym ptom s and a sca n sho wing a cold nodu le .

8
for general surgeons practicing in Memphis, Tennessee, under like or similar

circumstances. Plaintiffs’ complaint is subject to summary dismissal if Plaintiffs, after being

given a reasonable opportunity, have failed to establish an essential element of the case

in which Plaintiffs will bear the burden of proof at trial. In this case, Plaintiffs have failed

to establish that Dr. Kudsk deviated from the standard of care for a general surgeon and

an attending physician in a teaching hospital in Memphis, Tennessee.2

Accordingly, the order of the trial court granting summary judgment to the defendant

is affirmed and this case remanded for such further proceedings as may be necessary.

Costs of appeal are taxed to appellants, for which execution may issue if necessary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.

2
We also note that Plaintiffs offered the affidavits and deposition testimonies of the resident
physicians, none of which established any deviation from the standard of care by Dr. Kudsk as a general
surgeon or as an attending physician.

9