IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE
FILED
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March 5, 1996
TINA HARVEY et ux, )
Cecil Crowson, Jr.
) HAMILTON CIRCUIT C ourt Clerk
Appellate
Plaintiffs/Appellants )
) No. 03A01-9512-CV-00452
v. )
)
GENETH WOLFER, D.O., )
) REVERSED AND REMANDED
Defendant/Appellee )
Selma Cash Paty, Chattanooga, For the Appellant
David E. Harrison and Tonya Kennedy McIntosh, Chattanooga, For the Appellee
OPINION
INMAN, Senior Judge
I
Initially, this action was one for damages for the alleged medical malpractice
of the defendant in dropping the plaintiff Tina Harvey or preventing her from falling
and fracturing her ankle after an injection which may have caused numbness in her
legs.
The defendant filed her answer insisting that she exercised a degree of care
commensurate with that exercised by other osteopathic physicians in Chattanooga
and thus was entitled to the defenses provided by T ENN. CODE ANN . § 29-26-101 et
seq., the Medical Malpractice Review Board and Claims Act.
Whereupon, the plaintiffs were allowed to amend their complaint to allege
that the defendant was negligent in the manner in which Tina Harvey was moved
from the examination table which resulted in her being dropped.
The defendant moved for summary judgment, supported by her affidavit that
"all actions taken by me to Mrs. Harvey were appropriate and proper and in full
conformity with the applicable standard of care for my profession." The plaintiffs
filed no countervailing affidavit by an expert medical witness, relying instead on the
testimony of the defendant that, following an injection, Mrs. Harvey became
nauseous and experienced numbness in her legs while sitting on an examination
table. A wheelchair was provided for Mrs. Harvey because a gurney was too large
for the room. But Mrs. Harvey never made it to the wheelchair. She began to fall
forward and the defendant, with an assistant, "sat her on the floor." During this time
interval, Mrs. Harvey's legs were numb, and the defendant testified "when she did a
twisting motion her foot got twisted under her," resulting in a fractured ankle.
The plaintiff Tina Harvey testified that "they either let go or dropped me."
Because the plaintiff filed no affidavit which countervailed that of the
defendant, the trial judge was of the opinion that the motion of the defendant for
summary judgment was well taken. The complaint was thereupon dismissed, the
propriety of which is presented for review.
II
If this case was simply one for damages for medical malpractice, we would
readily agree with the trial judge and affirm the judgment at this juncture. But in our
opinion, the facts sound more in common law negligence than medical malpractice,
and the case of Graniger v. Methodist Hospital Healthcare System, Inc., No. 02A01-
9309-CV-00201 (filed at Jackson, September 9, 1994), relied upon by the
defendant, is inapposite. Mrs. Graniger made no complaint of weakness in her legs,
which were swollen. She was left unattended in the examination room and, when
she attempted to alight from the table, she fell and suffered fractures. She charged
the defendants with malpractice and common law negligence, but submitted no
countervailing affidavit on the issue of malpractice. Her insistence upon appeal
centered upon the issue of common-law negligence. The Graniger court held that
the distinction between ordinary negligence and malpractice turns on whether the
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acts or omissions complained of involve a matter of medical science or require
specialized skills not ordinarily possessed by lay persons or whether the conduct
complained of can instead be assessed on the basis of the common everyday
experience of the trier of fact. The Court continued that expert medical testimony
was necessary as to whether the plaintiff's condition necessitated assistance.
In the case at bar, the defendant admits that Mrs. Harvey needed assistance
and was actively assisting her when the fracture occurred. From the perspective of
the defendant, Mrs. Harvey's fractured ankle occurred when her numb leg "got
twisted under her" notwithstanding that she was under the complete control of the
defendant at the time. From the perspective of the plaintiff, her ankle was fractured
when the plaintiff and his assistant "dropped her." The plaintiff is of short stature
and normal weight; the defendant is a large person. Her assistant's dimensions are
not in the record.
III
A Rule 56 motion requires a court to determine whether there exists any
genuine issue of a disputed material fact. To do this, we look to all the evidence,
take the strongest legitimate view of it favorably to the opponent of the motion,
discard all countervailing evidence and recognize that summary proceedings are not
substitutes for trials. Robinson v. Tenn. Farmers Mut. Ins. Co., 857 S.W.2d 559,
566 (Tenn. App. 1993). We cannot weigh the evidence and must proceed in the
light most favorable to the non-moving party. Byrd v. Hall, 847 S.W.2d 208, 210-11
(Tenn. 1993). If there is a genuine doubt as to the conclusions to be drawn from the
facts, the case should be tried on its merits.
Against these settled principles, there can be no doubt that summary
judgment was inappropriate. The plaintiff testified that the defendant dropped her,
an act not implicative of medical science and, one that may be assessed on the
basis of common experience.
Whether Mrs. Harvey's injury was sustained as a result of the ordinary
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negligence of the defendant is a disputed issue of fact, see Brooks v. Memphis and
Shelby County Hospital Authority, 717 S.W.2d 292 (Tenn. 1986), for resolution by a
trier of fact pursuant to McIntyre principles.
The judgment is reversed and the case is remanded for trial, with costs
assessed to the appellee.
William H. Inman, Senior Judge
Concur:
Herschel P. Franks, Judge
Charles D. Susano, Jr., Judge
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Tina Harvey, et ux. v. Geneth Wolfer, D.O.
Combined Opinion