John Mark Watkins, Surviving Spouse of Amy Rose Watkins v. Affiliated Internists, P.C.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 24, 2012 Session

JOHN MARK WATKINS, SURVIVING SPOUSE OF AMY ROSE

WATKINS v. AFFILIATED INTERNISTS, P.C., ET AL.

Appeal from the Circuit Court for Davidson County

No. 05C2787 Barbara N. Haynes, Judge

No. M2011-00541-COA-R3-CV - Filed September 17, 2012

Husband of a decedent filed a wrongful death medical malpractice action against the

decedent’s physician and sought to amend his complaint to add a count for negligence per

se based on the physician’s failure to review his physician assistant’s narcotics prescription.

The trial court denied Husband the opportunity to amend his complaint and dismissed the

action on summary judgment. On appeal, the Court of Appeals concluded the trial court

erred in denying Husband’s motion to amend but affirmed the trial court’s other rulings. On

remand, the trial court allowed Husband to amend his complaint to add a count for

negligence per se, but the court then granted the physician’s motion for summary judgment

on the issue of causation. Between the first Court of Appeals decision and this appeal, the

Tennessee Supreme Court decided Estate of French v. Stratford House, 333 S.W.3d 546

(Tenn. 2011), in which it held that negligence per se claims cannot be maintained when

medical malpractice is alleged. The Estate of French holding bars Husband’s negligence per

se claim against the physician. We therefore affirm the trial court’s judgment granting the

physician summary judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.

C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.

David Randolph Smith, Richard A. Demonbreun, Nashville, Tennessee, for the appellant,

John Mark Watkins, Surviving Spouse of Amy Rose Watkins.

Dixie W. Cooper, Brian D. Cummings, and James Charles Sperring, Nashville, Tennessee,

for the appellees, Affiliated Internists, P.C. and Travis K. Pardue, M.D.

OPINION

This is a medical malpractice case in which the trial court granted the defendants’

motion for summary judgment and dismissed the plaintiff’s complaint. In this appeal we

consider the application of Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn.

2011), to a medical malpractice case where negligence per se has also been plead.

I. B ACKGROUND

Amy Rose Watkins was twenty-seven years old when she died from acute drug

intoxication caused by prescription drugs. She was recovering from a surgical procedure

when she developed an infection. Travis K. Pardue, M.D., was working with a group of

internists known as Affiliated Internists, P.C., and he was Ms. Watkins’ primary care

physician at that time. On February 18, 2003, Ms. Watkins went to see Dr. Pardue at his

office in Hermitage for the treatment of pain she was suffering as a result of the infection.

Dr. Pardue’s physician assistant saw Ms. Watkins when she came in and gave her a three-

week prescription for Demerol, to be taken four times a day, along with Stadol. After about

two weeks Ms. Watkins called Dr. Pardue’s office complaining of nausea, vomiting, and

dehydration. Ms. Watkins was directed to go to the emergency room if she felt dehydrated,

but Ms. Watkins did not go to the emergency room at that time. Ms. Watkins died later that

day, and an autopsy revealed that she died of acute combined drug intoxication as a result of

the prescription drugs she was taking.

Ms. Watkins’ husband, John Mark Watkins, filed a wrongful death medical

malpractice suit against Dr. Pardue and Affiliated Internists, P.C. (collectively, “Dr.

Pardue”), in September 2005. Mr. Watkins moved to amend the complaint in July 2007 to

add a claim for negligence per se after Dr. Pardue was censured by the Tennessee

Department of Health for failing to comply with medical regulations requiring physicians to

review a physician assistant’s prescription of controlled medicines within ten days. The trial

court denied Mr. Watkins’ motion to amend, finding that the regulations did not establish a

standard of care. The trial court then scheduled the case for trial on September 17, 2007, on

the medical malpractice claim alone.

II. T RIAL C OURT P ROCEEDINGS

On September 14, 2007, the trial court heard oral argument on the parties’ motions

in limine and granted Dr. Pardue’s motion to exclude the testimony of Mr. Watkins’ expert

Dr. Jirjis with respect to both the standard of care for physician assistants and the standard

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of care for a physician supervising physician assistants. The court reserved ruling on Dr.

Pardue’s motion to exclude the testimony of another of Mr. Watkins’ experts, Dr. Mulder,

until trial.

Once the trial was underway, the trial court ruled Dr. Mulder was not competent to

testify because he could not satisfy the “locality rule” set forth in Tenn. Code Ann. § 29-26-

115(a)(1).1 In addition, the trial court did not allow Dr. Mulder to testify about the standard

of care applicable to Dr. Pardue, separate from his role as a supervising physician, because

Mr. Watkins’ Rule 26 Notice did not disclose any anticipated testimony by Dr. Mulder about

the proper standard of care for Dr. Pardue other than in his role as a physician supervising

physician assistants.

The trial court ultimately declared a mistrial because Mr. Watkins’ attorney attempted

to elicit standard of care testimony from Dr. Mulder despite the court’s earlier rulings that

Dr. Mulder was not qualified to testify with regard to the proper standard of care for Dr.

Pardue. Dr. Pardue then moved for summary judgment in March 2008, arguing that Mr.

Watkins had failed to produce competent expert testimony on the issue of causation. The

court granted Dr. Pardue’s motion and dismissed Mr. Watkins’ complaint.

III. F IRST A PPEAL TO C OURT OF A PPEALS

Mr. Watkins appealed the trial court’s grant of summary judgment, its rulings barring

the expert testimony of Drs. Jirjis and Mulder, and its denial of his motion to amend his

complaint to add a claim for negligence per se. In its decision in Watkins v. Affiliated

Internists, P.C., 2009 WL 5173716 (Tenn. Ct. App. Dec. 29, 2009), the Court of Appeals

upheld all of the trial court’s rulings except for the denial of Mr. Watkins’ motion to amend

his complaint to add a count for negligence per se.

The Court of Appeals held that Mr. Watkins should be able to pursue his negligence

per se claim against Dr. Pardue and concluded the regulation at issue did indeed contain a

standard of care to establish whether Dr. Pardue was negligent as a physician supervising his

physician assistant. Id. at *27-28. The Court of Appeals wrote:

1

The trial court made this ruling in 2007, before the Tennessee Supreme Court issued its decision

in Shipley v. Williams, 350 S.W.3d 527 (2011). In Shipley the Court clarified the expert testimony standards

in a medical malpractice case under Tenn. Code Ann. § 29-26-115. In discussing the statute, the Court

explained: “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 court should look to subsection (b), not subsection (a).” Id. at 550.

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[T]he Plaintiff must still prove that Dr. Pardue’s violation of the regulation

was the proximate cause of the Decedent’s death. This requires proof that, had

Dr. Pardue timely conducted an independent personal review of

the Decedent’s data and chart, actions would have been taken

that would have prevented the Decedent’s death. As the

negligence per se claim was not before the trial court when it

ruled on the Plaintiff’s proffered causation testimony, and the

standard of care testimony on all of the remaining claims has

been excluded, we find that it would be inappropriate at this

juncture for us to review the trial court’s causation rulings. We

hold only that, on remand, the Plaintiff may amend his

complaint to assert a claim of negligence per se based on the

violation of Tenn. Comp. R. & Regs. 0880-2-.18(7), and that he

may have the opportunity to establish the elements of this claim.

Id. at *28 (internal citations omitted).

IV. T RIAL C OURT P ROCEEDINGS ON R EMAND

The case was thus remanded to the trial court. Dr. Pardue filed a motion for summary

judgment on June 16, 2010, with regard to the one remaining claim, negligence per se. Dr.

Pardue submitted an affidavit in support of his motion stating he would not have done

anything differently even if he had reviewed Ms. Watkins’ chart within ten days of the time

his physician assistant prescribed the Demerol for Ms. Watkins. Dr. Pardue argued Mr.

Watkins could not establish the cause in fact element necessary to succeed on his negligence

per se claim because the Court of Appeals had affirmed the trial court’s rulings excluding

the standard of care testimony proffered by Mr. Watkins’ experts.

Mr. Watkins filed a motion to amend his complaint to add a count for negligence per

se in accordance with the Court of Appeals’ decision. Mr. Watkins filed a memorandum in

opposition to Dr. Pardue’s motion for summary judgment arguing, inter alia, that he could

prove causation with regard to his negligence per se claim with the use of a new affidavit by

Dr. Joseph James along with a different affidavit from Dr. Jirjis.2

2

The affidavit by Dr. James stated that prescription of Demerol as written by the P.A. caused Ms.

Watkins’ death by acute intoxication in combination with other drugs and that “had the Demerol prescription

been stopped by March 4th (14 days later) it is more likely than not that Ms. Watkins would not have died.”

He further opinined that a reasonably prudent internal medicine physician using a physician assistant was

required by the applicable standard of care and TENN. COMP. R. & REGS: 0880-2-.18(7) to review this

Demerol prescription within ten business days: “Further, had this prescription been reviewed in this case

(continued...)

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Dr. Pardue did not file a reply to Mr. Watkins’ memorandum opposing Dr. Pardue’s

motion for summary judgment, nor did Dr. Pardue file a motion to strike either Dr. James’

affidavit or Dr. Jirjis’ second affidavit. During the hearing before the trial court, however,

Dr. Pardue argued that Dr. James’ affidavit was inadmissible because the Scheduling Order

in effect from before the case was first appealed to the Court of Appeals required expert

witnesses to be disclosed by January 31, 2007. Dr. Pardue argued that because Mr. Watkins

did not move the trial court for permission to amend the disclosure deadline pursuant to

Tenn. R. Civ. P. 6.02, Dr. James’ affidavit regarding the standard of care applicable to Dr.

Pardue was inadmissible.

Consistent with the Court of Appeals’ opinion and remand, the trial court granted Mr.

Watkins’ motion to amend his complaint to add a claim for negligence per se. Then,

following a hearing on Dr. Pardue’s motion for summary judgment, the court issued an Order

granting Dr. Pardue summary judgment. The court held that Mr. Watkins failed to create a

genuine issue of material fact on the essential causation element of the negligence per se

claim. Specifically, the Court found that Mr. Watkins could not offer any admissible

evidence that Dr. Pardue was required to do anything that was not done had he reviewed Ms.

Watkins’ chart within 10 days of the relevant Demerol prescription being written by his

physician assistant.

The court found that Dr. Pardue had negated the cause in fact element of the

negligence per se claim by testifying in his affidavit that there is no action he would have

taken if he had reviewed Ms. Watkins’ chart within 10 days of the relevant prescription. The

court further found that the affidavit of Mr. Watkins’ expert was inadmissible because it was

filed after the deadline for disclosing witnesses and Mr. Watkins had not moved for leave to

disclose Dr. James and his opinion after the deadline. Consequently, according to the trial

court, Mr. Watkins did not create a genuine issue of material fact on the causation issue.

Mr. Watkins filed a motion to alter or amend the Order granting Dr. Pardue summary

2

(...continued)

within ten business days, it is my opinion that a reasonably prudent internal medicine physician using a

physician assistant and acting within the applicable standard of care would have stopped the prescription

because this large dosage of Demerol should not have been prescribed to a patient such as Amy Watkins with

a history of actual or suspected seizure disorders and should not have been prescribed simultaneously with

Stadol as was done in this case by Natasha Worthington.”

The second affidavit by Dr. Jirjis also addressed the issue of causation, stating, “Assuming that the

March 5th Demerol prescription had been reviewed within ten business days and the prescriptions had been

stopped after physician review, it is my opinion that Mrs. Watkins’ acute drug intoxication which caused her

death would, more likely than not, have been averted.”

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judgment, arguing that Dr. James’ affidavit was admissible and created material questions

of fact, precluding summary judgment. Following a hearing, the trial court denied the

motion.

V. T HE C URRENT A PPEAL

Mr. Watkins has appealed the trial court’s rulings to this Court. Of course, he

challenges the trial court’s ruling on the admissibility of Dr. James’ affidavit and,

consequently, the grant of summary judgment. However, the determinative question in this

case is the issue raised by Dr. Pardue.

Dr. Pardue argues that regardless of any other issue in this case, Mr. Watkins cannot

proceed on his negligence per se claim because the Tennessee Supreme Court declared in

Estate of French v. Stratford House, 333 S.W.3d 546, 561 (Tenn. 2011), that “a negligence

per se claim cannot co-exist with a medical malpractice claim.” The Supreme Court issued

its Estate of French opinion after the Court of Appeals ruled Mr. Watkins should be

permitted to proceed on his negligence per se claim, and regardless of any errors the trial

court may have made on remand, Dr. Pardue contends the Estate of French holding precludes

Mr. Watkins from proceeding with his negligence per se claim.

A trial court’s decision on a motion for summary judgment enjoys no presumption of

correctness on appeal. Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 84 (Tenn.

2008); Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the

summary judgment decision as a question of law. Id. Accordingly, this court must review

the record de novo and make a fresh determination of whether the requirements of Tenn. R.

Civ. P. 56 have been met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004);

Blair v. West Town Mall, 130 S.W.3d at 763. Those requirements are that the filings

supporting the motion show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Blair, 130

S.W.3d at 764.

In the case before us, the question is whether, as a matter of law, Mr. Watkins can

maintain his negligence per se claim in light of the Tennessee Supreme Court’s intervening

decision in Estate of French. Because there is no factual component to this decision, the

burden-shifting analysis regarding the creation of disputes of fact in summary judgment

proceedings does not apply.

VI. M EDICAL M ALPRACTICE AND N EGLIGENCE P ER S E

Tennessee Code Annotated § 29–26–115(a), sets forth the elements of proof in a

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medical malpractice action:

(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. Shipley

v. Williams, 350 S.W.3d 527, 550 (Tenn.2011). These three elements must be

proved by the testimony of a qualified expert.

Tenn. Code Ann. § 29–26–115; Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 553

(Tenn.2006).

In contrast, negligence per se requires a plaintiff to prove the defendant (1) violated

a statute, ordinance, or regulation that requires or prohibits a particular act for the benefit of

the plaintiff or the general public, (2) that the injured person was within the class of

individuals the legislature intended to benefit and protect by enacting the statute, ordinance,

or regulation, and (3) that the defendant’s negligence was the proximate cause of the injured

party’s injury. Smith v. Owen, 841 S.W.2d 828, 831 (Tenn. Ct. App. 1992); Holt v. City of

Memphis, 2001 WL 846081, at *5 (Tenn. Ct. App. July 20, 2001).

The standard of conduct expected of a reasonable person may be prescribed in

a statute, and, consequently, a violation of the statute may be deemed to be

negligence per se. When a statute provides that under certain circumstances

particular acts shall or shall not be done, it may be interpreted as fixing a

standard of care . . . from which it is negligence to deviate.

Estate of French, 333 S.W.3d at 560 (quoting Cook ex rel. Uithoven v. Spinnaker’s of

Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994)). The negligence per se doctrine applies not

only to violations of statutes, but also to violations of regulations and ordinances so long as

the statute/regulation/ordinance was designed to impose a duty or prohibit an act for the

benefit of a person or the public and the injured party was within the class of individuals the

statute was meant to protect. Estate of French, 333 S.W.3d at 560-61.

Thus, while both medical malpractice and negligence per se require proof of a

standard of care applicable to the defendant, they differ as to how that standard is to be

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established. It is that difference that is the basis for the Tennessee Supreme Court’s holding

in Estate of French that a medical malpractice claim cannot be based on negligence per se.

The Estate of French Court explained that declaring conduct negligent per se means

that the conduct is negligent as a matter of law, thus relieving plaintiffs from having to prove

the standard of care from which the defendant allegedly deviated. Id. at 561. The Court

reasoned that relying on federal and state regulations to prove a standard of care where

medical malpractice is alleged would be inconsistent with the TMMA’s requirement that the

plaintiff prove the defendant violated “[t]he recognized standard of acceptable professional

practice in the profession . . . 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.” Id.; Tenn. Code Ann. § 29-26-115(a)(1).

In order to prove a violation of the TMMA, a plaintiff must show that his or

her injuries resulted because the defendant failed to act with ordinary and

reasonable care when compared to the customs or practices of physicians from

a particular geographic region. In consequence, the locality rule, which the

legislature intended to apply to private causes of action for medical

malpractice, precludes plaintiffs from proceeding on a negligence per se theory

based upon alleged violations of nursing home regulations.

Estate of French, 333 S.W.3d at 562 (quoting Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn.

1986) and Conley v. Life Care Ctrs. of Am., 236 S.W.3d 713, 734 (Tenn. Ct. App. 2007)).

Accordingly, the Court held that a plaintiff cannot use a violation of federal or state

regulations to prove a deviation from the standard of care as a component of a medical

malpractice claim. Estate of French, 333. S. W.3d at 561.

In the case before us, Mr. Watkins alleges that Dr. Pardue breached the standard of

care applicable to him in his supervision of physician assistants because he violated a state

regulation governing such supervision by doctors. This is clearly an attempt to establish the

relevant standard of care in a medical malpractice claim by using the regulation. Where a

defendant is charged with negligence based on acts or omissions involving a matter of

medical art or science requiring specialized skills not ordinarily possessed by lay persons, the

negligence is properly classified as medical malpractice. In such cases, plaintiff cannot bring

a negligence per se claim.

Mr. Watkins cannot sustain his negligence per se claim where the conduct complained

of involves medical treatment decisions.

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VII. A PPLICATION OF E STATE OF F RENCH H OLDING

Mr. Watkins does not dispute that the negligence he alleges Dr. Pardue committed is

based on acts or omissions involving a matter of medical art or science requiring specialized

skills not ordinarily possessed by lay persons. In fact, Mr. Watkins acknowledges that the

Estate of French opinion “directly contradicts and effectively overruled” this Court’s

December 2009 opinion set forth in Watkins v. Affiliated Internists, P.C., 2009 WL 5173716

(Tenn. Ct. App. Dec. 29, 2009). Mr. Watkins contends, however, that he should not be

bound by the Estate of French holding because (1) the procedural posture of his case

precludes retroactive application of Estate of French; and (2) even if the holding in Estate

of French applies to his case, Mr. Watkins presented a prima facie medical malpractice case

by submitting competent expert affidavit proof as required by the TMMA’s locality rule.

As a general rule, judicial decisions are applied retroactively. Watson’s Carpet and

Floor Coverings v. McCormick, 247 S.W.3d 169, 181 (Tenn. Ct. App. 2007). As the

Tennessee Supreme Court has explained:

In civil cases, judicial decisions overruling prior cases generally are given

retrospective effect. See, e.g., Perez v. McConkey, 872 S.W.2d 897, 906

(Tenn.1994) (applying abolition of assumption of the risk doctrine

retroactively); Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 846

S.W.2d 810, 812 (Tenn.1993) (further describing proper retroactive

application of McIntyre); McIntyre v. Balentine, 833 S.W.2d 52, 58

(Tenn.1992) (applying comparative fault doctrine retroactively). Retrospective

effect will be “denied only if such an application would work a hardship upon

those who have justifiably relied upon the old precedent.” Marshall v.

Marshall, 670 S.W.2d 213, 215 (Tenn. 1984); see generally, S. R. Shapiro,

Annotation, Prospective or Retroactive Operation of Overruling Decision, 10

A.L.R.3d 1371 (1966).

Hill v. City of Germantown, 31 S.W.3d 234, 239 (Tenn. 2000). Other rules apply where the

judicial decision at issue overrules a prior judicial construction of a statute, id. at 239–40, but

the case before us does not involve a statute or its interpretation by the courts.

As the Court noted in Marshall v. Marshall, supra, “prospective only” application of

an overruling decision should be limited to a case where hardship on a party who has relied

on the old rule outweighs the hardship on the party denied the benefit of the new rule, and

Since there are few cases where such rigorous demonstrations can be made,

there should be few occasions when prospective overruling can justifiably

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replace the normal retroactive application of the overruling decision.

Marshall, 670 S.W.2d at 215 (quoting Traynor, Quo Vadis Prospective Overruling: A

Question of Judicial Responsibility, 28 Hastings L.J. 533, 561–62 (1977)).

Mr. Watkins argues he relied on the negligence per se theory in pursuing his case

upon remand to the trial court and that he would suffer an undue hardship if the holding in

Estate of French were to be applied retroactively to bar his negligence per se claim at this

point in the litigation. He relies on language in Calaway ex rel. Calaway v. Schucker, 193

S.W.3d 509 (Tenn. 2005), which is similar to that in other cases, and states:

In civil cases retrospective application of a decision overruling an earlier

decision ordinarily is denied only if such an application would work a hardship

upon those who have justifiably relied upon the old precedent.

Id. at 518. In Calaway, the Court then held that “to avoid undue hardship to potential

plaintiffs who have relied upon the Bowers rule, the new rule we announce today is to have

prospective application only.” Id. The Court made no such statement regarding the

negligence per se holdings in Estate of French.

As set out above, the Tennessee Supreme Court has stated that there are few cases

where the necessary “rigorous demonstrations” of hardship can be made, and there are few

situations that justify departure from the normal retroactive application of a decision.

Marshall, 670 S.W.2d at 215. Mr. Watkins’ situation is not one of them.

In any event, the negligence per se holding in Estate of French did not overrule prior

decisions and was not a departure from earlier holdings. In Conley v. Life Care Ctrs. of Am.,

236 S.W.3d 713 (Tenn. Ct. App. 2007), this court considered, inter alia, whether a

negligence per se cause of action based on the alleged violation of federal nursing home

regulations could be maintained against a nursing home where the plaintiff alleged a

psychotic patient with a history of unprovoked attacks on others should not have been

admitted to the nursing home. Id. at 719-22.

The nursing home argued the federal regulations were too vague and general to be

enforceable as standards of care and that the federal regulations would impermissibly

constitute a national standard of care if the plaintiff were permitted to proceed with her

negligence per se cause of action. Id. at 733. The Court of Appeals agreed with the nursing

home’s argument, writing that the federal regulations were too vague and general to

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constitute a standard of care by which the acts or omissions of health care providers and

nursing home operators could be judged effectively. Id. The court explained:

Plaintiff’s claims that are based upon alleged violations of federal regulatory

standards constitute a national standard of care that runs afoul with the

[T]MMA. . . . By statute, Tennessee courts must apply the so-called “locality

rule” in medical malpractice actions. Pursuant to that rule, a plaintiff must

show that the defendant failed to act with ordinary and reasonable care when

compared to the customs or practices of physicians from a particular

geographic region. . . . The statutory scheme does not permit a plaintiff in a

medical malpractice action to rely on a so-called national standard of care to

establish a violation of acceptable professional practices in a medical

community in Tennessee.

Id. at 733-34 (citations and quotations omitted). Thus, the Conley court held, a plaintiff

asserting a negligence per se cause of action could not rely on federal regulations setting

forth a national standard of care for a medical professional because the United States of

America fails to qualify as a particular geographic region. Id. at 734 (quoting Sutphin, 720

S.W.2d at 457); accord Smartt v. NHC Healthcare/McMinnville, LLC, 2009 WL 482475, at

*14 (Tenn. Ct. App. Feb. 24, 2009) (acknowledging TMMA does not allow plaintiff in

medical malpractice suit to rely on national standard of care to establish violation of

acceptable professional standards in Tennessee medical community)

In Latiff v. Dobbs, 2008 WL 238444 (Tenn. Ct. App. Jan. 29, 2008), this court

affirmed the trial court’s refusal to give the jury a negligence per se instruction because the

plaintiff was alleging medical malpractice and Tennessee Code Annotated section 29-26-

115(a) and (b) require the standard of care and the breach of the standard of care to be

established by expert testimony. Id. at *13. In Latiff, the appellate court relied on the

holdings in Conley (discussed above), Holt v. Memphis, 2001 WL 846081 (Tenn. Ct. App.

July 20, 2001) and Brown v. Sun Healthcare Group, 476 F. Supp.2d 848 (E.D. Tenn. 2007),

and noted that in each case the court had held that the standard of care in medical malpractice

cases must be established through expert testimony, consistent with the TMMA, rather than

by relying on federal and/or state regulations. Id. at *13-14.

In the case Brown v. Sun Healthcare Group, supra, the United States District Court

for the Eastern District of Tennessee dismissed a plaintiff’s negligence per se claims that

were based on a nurse’s alleged violation of state and federal nursing home regulations and

wrote:

The Court finds that the decisions relating to the care of Mr. Brown required

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medical knowledge, and thus fall within the purview of the TMMA. Because

the acts fall under the purview of the TMMA, the plaintiff’s negligence per se

claims must fail . . . .

Id. at 852.

Mr. Watkins next argues he should be able to pursue his negligence per se claim

regardless of the application of Estate of French to his case because the additional expert

affidavit he obtained from Dr. James sets forth the standard of care Dr. Pardue was required

to follow as a supervisor of physician assistants. However, in making this argument, Mr.

Watkins is merely attempting to relitigate the initial medical malpractice claim that has

already been dismissed, which he is precluded from doing under the law of the case doctrine.

See Memphis Pub. Co. v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d

303, 306 (Tenn. 1998) (the “law of the case” doctrine means an appellate court’s decision

on an issue of law is binding in later trials and appeals of the same case if the facts on the

second trial or appeal are substantially the same as the facts in the first trial or appeal).

We conclude the holding in Estate of French precludes Mr. Watkins from pursuing

his negligence per se claim against Dr. Pardue and that Dr. Pardue is therefore entitled to

judgment as a matter of law. We therefore affirm the trial court’s judgment granting Dr.

Pardue summary judgment.3 Because of our resolution of this appeal, Mr. Watkins’ other

arguments are pretermitted.

VIII. C ONCLUSION

For the reasons set forth above, we hold Mr. Watkins is precluded by the Tennessee

Supreme Court’s decision in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn.

2011), from pursuing his negligence per se cause of action against Dr. Pardue. Costs of this

appeal are assessed against the appellant, John Mark Watkins, for which execution may issue

if necessary.

____________________________

3

The Court of Appeals may affirm a judgment on different grounds than those relied on by the trial

court when the trial court reached the correct result. City of Brentwood v. Metro. Bd. of Zoning Appeals, 149

S.W.3d 49, 60 n.18 (Tenn. Ct. App. 2004) (citing Continental Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn.

1986); Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App.1999); Allen v. National Bank of

Newport, 839 S.W.2d 763, 765 (Tenn. Ct. App. 1992); Clark v. Metropolitan Gov't, 827 S.W.2d 312, 317

(Tenn. Ct. App. 1991)).

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PATRICIA J. COTTRELL, JUDGE

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