Douglas McPherson v. Shea Ear Clinic

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

JANUARY 18, 2007 Session

DOUGLAS McPHERSON v. SHEA EAR CLINIC, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-003839-03 Jon Kerry Blackwood, Judge, by designation

No. W2006-01936-COA-R3-CV - Filed April 27, 2007

This case involves an ear clinic, a patient, and his physician. The patient did not have health

insurance, but he was enrolled in a type of discount plan that contracts with healthcare providers to

secure reduced rates on medical services for the plan’s members. The patient scheduled a treatment

with the ear clinic, and he believed that the clinic and his physician participated in the discount plan.

The patient underwent pre-surgery testing before learning that neither the clinic nor the physician

accepted the discount plan. The patient refused to pay full price for the treatment, and it was never

performed. However, the patient was billed for the pre-surgery testing. The patient filed suit against

the clinic and his physician for breach of contract, but the trial court dismissed his complaint for

failure to state a claim. The patient appealed to this Court, and we reversed. We also instructed the

trial court to address the patient’s concerns that the court had not accommodated his hearing

disability as required by the Americans with Disabilities Act. On remand, the Tennessee Supreme

Court assigned a senior judge to preside over the case, and it appears that no oral proceedings took

place thereafter. However, the patient attempted to join Shelby County, various county officials, and

officers of the court as defendants, claiming that he had been damaged by the county and court’s

failure to accommodate his disability. The patient also amended his complaint to add claims for

medical malpractice and fraud against the clinic and his physician. The trial court denied the

patient’s petition for joinder of the claims against the additional defendants. The court granted

summary judgment to the clinic and physician on the breach of contract and medical malpractice

claims, and the claim for fraud was dismissed for failure to state a cause of action. For the following

reasons, we affirm.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY

M. KIRBY , J., joined.

Douglas McPherson, Columbia, TN, pro se

Jeffrey A. Land, Kristin N. Marks, Nashville, TN, for Appellees

OPINION

I. FACTS & PROCEDURAL HISTORY

Douglas McPherson suffers from a hearing disability. In 2002, Dr. John J. Shea, Jr. of the

Shea Ear Clinic in Memphis, Tennessee, recommended that Mr. McPherson schedule an office visit

and treatment known as xylocaine perfusion. On or about December 9, 2002, Mr. McPherson

contacted the clinic and requested the earliest appointment available. He was scheduled to receive

the xylocaine perfusion on January 13, 2003.

Mr. McPherson was a member of a Private Healthcare Systems (PHCS) plan known as “Care

Entree.” Care Entree is not an insurance plan, but it enrolls members for a monthly fee and provides

them with discounts on medical services through a contracted network of healthcare “Providers.”

Mr. McPherson believed that Dr. Shea and Shea Ear Clinic were participating Providers in the Care

Entree plan. He claims that Care Entree’s website listed Dr. Shea and the clinic as participating

Providers, and that he spoke with Care Entree’s Member Services by phone to confirm that Dr. Shea

and the clinic were current Providers.

When Mr. McPherson arrived at the clinic on January 13, he signed the necessary paperwork

and presented his Care Entree card to clinic personnel. Mr. McPherson did not question the staff’s

reference to“insurance” forms, and he later explained that he had assumed the staff would be

knowledgeable about the proper paperwork and procedures to be used by a Care Entree Provider.

Mr. McPherson then underwent several hours of pre-surgery testing that was administered by Dr.

Shea and other members of the clinic’s staff. Mr. McPherson subsequently learned that neither Dr.

Shea nor the clinic were participating Providers in Care Entree. Because Care Entree was not an

insurance plan, the clinic staff informed Mr. McPherson that he would have to pay cash prior to

receiving the xylocaine perfusion treatment. In addition, the cost would be $3,031 beyond the

contracted charge fee listed by Care Entree’s plan, which Mr. McPherson had expected to pay. Mr.

McPherson refused to pay the additional charge, and the xylocaine perfusion treatment was never

rendered. Mr. McPherson was charged $860 for the pre-surgery testing and a 30% “collection fee”

for contested billing, totaling $1,118.

In May of 2003, Mr. McPherson, proceeding pro se, filed a civil warrant in Shelby County

General Sessions Court naming Dr. Shea and Shea Ear Clinic as defendants.1 Mr. McPherson

alleged that the defendants were contractually obligated under the Care Entree medical plan to

provide xylocaine perfusion treatment to him for the contracted charge fee. Judgment was entered

for the defendants, and Mr. McPherson appealed to Shelby County Circuit Court. The circuit court

then dismissed Mr. McPherson’s complaint for failure to state a claim upon which relief can be

granted. Mr. McPherson then appealed to this Court. See McPherson v. Shea Ear Clinic, P.A., No.

1

It appears that Mr. McPherson had previously filed suit in Maury County General Sessions Court, and the

case was dismissed for improper venue.

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W2004-00690-COA-R3CV, 2005 WL 1220160 (Tenn. Ct. App. W.S. May 18, 2005). On appeal,

we found that Mr. McPherson’s complaint, when liberally construed, did state a cause of action.

Therefore, we remanded the case for further proceedings.2 Mr. McPherson also complained that the

trial court had failed to grant him accommodations regarding his hearing loss as required by the

Americans with Disabilities Act. We instructed the trial court to “address this issue” upon remand.

Mr. McPherson subsequently requested a “summary recusal of Shelby County,” and the

Tennessee Supreme Court designated Senior Judge Jon Kerry Blackwood to hear the case to its

conclusion. It appears that no oral hearings or communications took place thereafter.

Mr. McPherson filed an amended complaint alleging breach of contract, fraud, and

“professional malpractice and negligence” against Dr. Shea and Shea Ear Clinic. He also filed a

Petition for Joinder of Claims and Joinder of Persons Needed for Just Adjudication pursuant to

Tennessee Rules of Civil Procedure 18 and 19. Mr. McPherson requested that Shelby County,

various Shelby County officials, and officers of the court be added as defendants because of alleged

wrongs he had suffered during the course of the litigation. It also appears that Mr. McPherson

sought a declaratory judgment regarding the Americans with Disabilities Act and Due Process issues,

although his petition is not found in the record.

The defendants filed an amended motion for summary judgment, accompanied by the

affidavits of Dr. Shea and Mr. John R. Gross, the business manager for Shea Ear Clinic. Mr.

McPherson filed various “responses” to the motion, but he did not produce additional evidence. On

July 12, 2006, Judge Blackwood entered an order with the following findings:

(A) Plaintiff alleges that the Defendant is guilty of professional

negligence. The affidavit of Dr. Shea establishes that he is

familiar with the recognized standard of acceptable

professional practice of physicians practicing his specialty and

that he complied with the recognized standard of acceptable

practices in his treatment of Plaintiff;

(B) There is no countervailing evidence, therefore the Motion for

Summary Judgment as to the claim of professional negligence

is granted;

(C) Plaintiff claims that the Defendant is guilty of breach of

contract;

(D) The affidavits of John Shea and John R. Cross [sic] are

uncontradicted and the Motion for Summary Judgment filed

2

The record presently before us contains only the technical record of proceedings taking place after we

remanded the case to the Shelby County Circuit Court. Some of the factual history mentioned in this opinion has been

taken from our prior opinion in McPherson v. Shea Ear Clinic, P.A., No. W 2004-00690-COA-R3CV, 2005 W L

1220160 (Tenn. Ct. App. W .S. May 18, 2005).

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by the Defendant regarding the claim of breach of contract is

granted; and

(E) The Complaint alleges fraud. Plaintiff’s complaint fails to

state a cause of action alleging fraud and is hereby dismissed.

As part of this Record, the Plaintiff has filed a “Petition for

Declaratory Judgment Involving Americans with Disability Act and

Due Process of Law and Affidavit of Douglas McPherson” dated June

5, 2006. The alleged Petition seeks to introduce new parties to this

cause, as well as a new cause of action not applicable to the

Defendant.

The Court dismisses the purported Petition treating same as

an attempt to amend the pleading.

Mr. McPherson timely filed his notice of appeal to this Court.

II. ISSUES PRESENTED

Mr. McPherson presents the following issues, as we perceive them, for our review:

1. Whether the trial court wrongfully granted summary dismissal of his claims.

2. Whether the trial court failed to comply with the mandates of the Tennessee Court of

Appeals because it did not provide remedy for Americans with Disabilities Act violations.

3. Whether Mr. McPherson’s due process rights were violated by various procedural actions

taken in the trial court.

For the following reasons, we affirm the decision of the circuit court.

III. STANDARD OF REVIEW

On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn

those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)

(2006); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review a trial court’s conclusions

of law under a de novo standard upon the record with no presumption of correctness. Union Carbide

Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol.

Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

IV. DISCUSSION

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A. Summary Dismissal of Claims against Dr. Shea and Shea Ear Clinic

1. Breach of Contract

Mr. McPherson originally brought suit against Dr. Shea and the clinic on a breach of contract

3

theory. His amended complaint contained the following allegations setting forth his claim:

On January 13, 2003, Plaintiff was scheduled to undergo a remedial

corrective laser injected treatment known as “xylocaine perfusion” at

the Shea Ear Clinic in Memphis, that had been arranged at a

contracted fee covered under a medical plan.

...

Pursuant to their participation in the Care Entree medical plan,

Defendant Shea was contractually obligated to provide [xylocaine

perfusion] for a “contracted charge” to members enrolled in the Care

Entree medical plan that marketed these “Provider” services,

including using internet exposure.

...

The understanding between the parties was that Defendant’s

[xylocaine perfusion] services would be paid by Plaintiff on January

13, 2003 at the “contracted charge” covered by the Care Entree

medical plan that Defendant Shea participated in as a “Provider”

medical facility and doctor under the specialty heading of

“Otolaryngology.”

3

Mr. McPherson insists that when this Court reversed the trial court’s finding that his complaint failed to state

a claim, we meant that his claim should not be summarily dismissed and that he was entitled to a full trial on remand.

He quotes the following language from our previous opinion: “Circuit courts should not dismiss cases appealed from

general sessions court because of ‘any informality whatever, but shall be tried on its merits; . . .’” McPherson v. Shea

Ear Clinic, P.A., No. W 2004-00690-COA-R3CV, 2005 W L 1220160, at *3 (Tenn. Ct. App. W .S. May 18, 2005) (citing

Tenn. Code Ann. § 16-15-729 (Supp. 2004) (emphasis added). The cited statute instructs courts not to dismiss cases

appealed from general sessions courts based upon informalities.

Contrary to Mr. McPherson’s assertions, we merely held that, despite the form of Mr. McPherson’s complaint,

when liberally construed it did state a claim upon which relief could be granted. This finding did not preclude the trial

court from subsequently granting summary judgment to the defendants. Summary judgment motions are governed by

different standards, which allow courts to consider additional materials beyond the complaint to determine whether there

is support for a plaintiff’s allegations. See Tenn. R. Civ. P. 56.04 (2006). Therefore, an appellate court’s finding that

a complaint states a valid claim does not necessarily mean that summary judgment will be improper. See, e.g., McKenzie

v. BellSouth Telecom m unications, Inc., 219 F.3d 508, 513 (C.A.6 (Tenn.) 2000) (“our holding on a motion to dismiss

does not establish the law of the case for purposes of summary judgment, when the complaint has been supplemented

by discovery”).

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...

. . . Defendant Shea as “Provider” was contractually obligated to

honor the pre-arranged fee established under the Care Entree

medical plan . . . . Defendant’s refusal to provide scheduled health

care services for a pre-arranged fee established under the medical

plan that both Plaintiff and Defendant were parties to, constitutes a

“Breach of Contract.”

(emphasis added). We interpret Mr. McPherson’s complaint as an attempt to recover as a third-party

beneficiary of a contract between Care Entree and Dr. Shea and/or the clinic. There is no indication

of an independent agreement between Mr. McPherson and Dr. Shea to have the surgery performed

at the reduced rate.4 Mr. McPherson contends that both he and the defendants were parties to the

Care Entree plan, and therefore Dr. Shea was contractually required to perform the treatment at a

certain fee.

A third party may enforce a contract if he is an “intended beneficiary” of the contract.

Owner-Operator Indep. Drivers Ass’n, Inc. v. Concord EFS, Inc., 59 S.W.3d 63, 68 (Tenn. 2001).

Although contracts are presumed to be executed for the benefit of the parties thereto, and not third

persons, there is an exception when the contracting parties express an intent that the benefits of the

contract flow to a third party. Id. Still, the “non-party who wishes to enforce a contract has the

burden of proving that he is entitled to recover as a third-party beneficiary.” Smith v. Chattanooga

Med. Investors, Inc., 62 S.W.3d 178, 185 (Tenn. Ct. App. 2001) (citing Moore Constr. Co. v.

Clarksville Dept. of Elec., 707 S.W.2d 1, 9 (Tenn. Ct. App. 1985)).

In order to maintain such an action, the third party must establish that a valid contract was

made upon sufficient consideration between the principal parties. Owner-Operator, 59 S.W.3d at

68; First Tenn. Bank Nat’l Ass’n v. Thoroughbred Motor Cars, Inc., 932 S.W.2d 928, 930 (Tenn.

Ct. App. 1996); United Am. Bank of Memphis v. Gardner, 706 S.W.2d 639, 641 (Tenn. Ct. App.

1985). The third party’s rights “depend upon and are measured by” the terms of the underlying

contract. Benton v. Vanderbilt Univ., 137 S.W.3d 614, 618 (Tenn. 2004) (quoting United States

Fid. & Guar. Co. v. Elam, 198 Tenn. 194, 278 S.W.2d 693, 702 (1955)). Accordingly, the third

party’s rights hinge upon the validity of the underlying contract and are subject to all the equitable

defenses the promisor could assert against the promisee. Linehan v. Allstate Ins. Co., No.

01A01-9308-CH-00387, 1994 WL 164113, at *3 (Tenn. Ct. App. M.S. May 4, 1994). A third party

beneficiary’s rights do not exceed the rights of a party to the contract. Rentenbach Constructors,

Inc. v. Bowen, No. E2000-1213-COA-R3-CV, slip op. at 4 (Tenn. Ct. App. E.S. Nov. 13, 2000).

4

Although the complaint does mention an “understanding between the parties” that M r. McPherson would only

be responsible for paying the contracted charge listed by the Care Entree plan, Mr. McPherson did not set forth any facts

demonstrating that this was any more than his own understanding. There is no evidence of a discussion between the

parties to this case about the reduced contracted charge or the status of Dr. Shea and the clinic as Care Entree Providers.

Instead, Mr. McPherson apparently relied upon the representations of Care Entree as to Dr. Shea’s Provider status and

the charges to be paid.

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In Mr. McPherson’s complaint, he alleged that Shea Ear Clinic and Dr. Shea participated in

the Care Entree medical plan. He stated that Dr. Shea’s services were being marketed by Care

Entree’s website at the time of his surgery, and he claimed that Care Entree’s Member Services

Department assured him by telephone that Dr. Shea was a current Provider. To support his

allegation, Mr. McPherson attached as an exhibit a printed page bearing the Private Healthcare

Systems logo that listed Dr. Shea’s name under “Providers.”

Dr. Shea submitted his own affidavit in support of the defendants’ motion for summary

judgment. He explained that he was the president of Shea Ear Clinic and familiar with its books,

records, and accounts. Dr. Shea stated that at all times relevant, Shea Ear Clinic does not participate

and has not been a participating provider with the Care Entree plan. He then stated that “at no time”

did Shea Ear Clinic ever inform Mr. McPherson that it was a participating provider in the Care

Entree plan. According to Dr. Shea, Mr. McPherson had simply presented his Care Entree card

when asked for his insurance card. When a Shea Ear Clinic employee called the telephone number

listed on the card, they learned that Care Entree was not an insurance provider. After determining

that Mr. McPherson had no health insurance, a demand was made for an advance cash payment.

Mr. McPherson submitted “responses” to the defendants’ motion for summary judgment and

accompanying memorandum of law, statement of uncontested facts, and the affidavit of Mr. Gross.

He did not, however, submit affidavits or other material setting forth specific facts to support his

contention that Shea Ear Clinic was a Provider with Care Entree. The trial court granted summary

judgment to the defendants on the claim because the affidavits of Dr. Shea and Mr. Gross were

uncontradicted. Therefore, we must determine whether the defendants’ summary judgment motion

was properly supported so that the burden shifted to Mr. McPherson to set forth specific facts

showing that a genuine issue existed for trial.

A party seeking summary judgment has the burden of demonstrating to the court that there

are no disputed, material facts creating a genuine issue for trial, and that he is entitled to judgment

as a matter of law. Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). “A conclusory assertion that

the nonmoving party has no evidence is clearly insufficient.” Id. Instead, the moving party could

make the required showing by affirmatively negating an essential element of the nonmoving party’s

claim. Id. at 216, n.5.

If the moving party does affirmatively negate an essential element of the claim, the burden

then shifts to the nonmoving party to set forth specific facts, not legal conclusions, by using

affidavits or discovery materials, establishing that there are indeed disputed, material facts creating

a genuine issue that needs to be resolved by the trier of fact, and that a trial is therefore necessary.

Byrd, 847 S.W.2d at 215. The nonmoving party “may not rest upon the mere allegations or denials

of [his or her] pleading, but his or her response, by affidavits or as otherwise provided . . . must set

forth specific facts showing that there is a genuine issue for trial.” Tenn. R. Civ. P. 56.06 (2006).

The nonmovant could satisfy his burden by (i) pointing to evidence overlooked or ignored by the

moving party that establishes a material factual dispute, (ii) rehabilitating the evidence attacked in

the moving party’s papers, (iii) producing additional evidence showing the existence of a genuine

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issue for trial, or (iv) submitting an affidavit explaining why further discovery is necessary. Byrd,

847 S.W.2d at 216, n.6. “If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Tenn. R. Civ. P. 56.06 (2006).

On the other hand, “[i]f the movant does not negate a claimed basis for the suit, the non-

movant’s burden to produce either supporting affidavits or discovery materials is not triggered and

the motion for summary judgment fails.” McCarley v. West Quality Food Serv., 960 S.W.2d 585,

588 (Tenn. 1998). The material supporting the movant’s motion for summary judgment “must do

more than ‘nip at the heels’ of an essential element of a cause of action; it must negate that element.”

Lawson v. Edgewater Hotels, Inc., 167 S.W.3d 816, 825 (quoting Madison v. Love, No. E2000-

01692-COA-RM-CV, 2000 WL 1036362, at *2 (Tenn. Ct. App. E.S. July 28, 2000)).

The following cases are particularly instructive on “the proper standard and burden shifting

analysis applicable to summary judgment dispositions . . . .” McCarley, 960 S.W.2d at 587. First,

in McCarley, which involved food poisoning, a restaurant moved for summary judgment and

attempted to demonstrate that the plaintiff could not establish causation because he had eaten other

types of possibly contaminated meat on the same day. Id. at 588. The Tennessee Supreme Court

found that the assertions may have caused doubt as to causation, but they did not negate the

restaurant’s food from the list of possible causes. Id. Accordingly, a genuine issue of material fact

still existed as to causation, and the nonmovant’s burden to respond had not been triggered. Id.

In Lawson, a plaintiff claimed to have been injured by improper ventilation levels in a hotel’s

pool area. 167 S.W.3d at 824-25. The hotel moved for summary judgment and proffered evidence

showing it was unlikely that the ventilation system would have been turned off. Id. at 824. Still,

without evidence unequivocally showing that the pool was properly ventilated when used, the hotel’s

evidence merely cast doubt on the plaintiff’s claim. Id. at 825. The hotel had not negated an

element of the cause of action. Id.

Finally, in Madison v. Love, No. E2000-01692-COA-RM-CV, 2000 WL 1036362, at *2

(Tenn. Ct. App. E.S. July 28, 2000), a nightclub had been sued for failure to render aid to a patron

who collapsed and later died. The defendant moved for summary judgment and submitted the

affidavit of a pathologist who stated that the cause of death of the patron was unknown. Id. at *1.

Still, the affidavit was held not to have negated the element of causation. Id. at *2. “An affidavit

which simply casts doubt on a plaintiff’s claim is not sufficient to require the plaintiff to engage in

a battle of facts ‘on the papers.’” Id. Rather, it must conclusively negate an essential element of the

claim. Id. In that case, the defendant would have had to present testimony that its failure to render

aid did not cause or contribute to the death. Id.

In the case before us, we conclude that the defendants met their burden of negating an

essential element of Mr. McPherson’s claim for breach of contract. Dr. Shea’s affidavit did more

than cast doubt upon Mr. McPherson’s claim. Dr. Shea’s testimony that Shea Ear Clinic does not

participate and has not participated in the Care Entree plan affirmatively negates an essential element

of Mr. McPherson’s claim. If there was no contract between Care Entree and Dr. Shea or Shea Ear

Clinic, then Mr. McPherson could not assert a third party beneficiary claim to enforce any

contractual rights.

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After the defendants submitted their properly supported motion for summary judgment

negating an essential element of Mr. McPherson’s case, the burden shifted to Mr. McPherson “to set

forth specific facts, not legal conclusions,” establishing that there were indeed disputed, material

facts creating a genuine issue for trial. Mr. McPherson failed to do so. He was unable to meet his

burden with regard to this dispositive element of his contract claim, an element on which he would

have had the burden of proof at trial. Thus, summary judgment was appropriate.

2. Medical Malpractice

Mr. McPherson alleged in his amended complaint that the defendants’ acts constituted

“Professional Malpractice and Negligence.” Specifically, his complaint reads as follows:

6. A most significant consequence and direct and proximate cause

of the acts, omissions and misconduct of Defendant Shea, is that the

relationship and confidence has been severed between

Plaintiff/patient and Defendant/medical facility/doctor, believed to be

the foremost authority and sole provider of “xylocaine perfusion”

surgery. Because the relationship and confidence has been severed,

Plaintiff remains denied a highly specialized remedial treatment as his

first choice of health care, and continues to suffer from un-treated

hearing disability, which Defendant’s highly specialized and withheld

services might have alleviated. Defendant Shea’s actions constitute

“Professional Malpractice and Negligence.”

In support of the defendants’ motion for summary judgment, Dr. Shea submitted his own affidavit

stating his familiarity with the recognized standard of acceptable professional practice applicable to

his specialty, and that he, Shea Ear Clinic, and its employees complied with that standard at all times

in the practices, treatments, and procedures involving Mr. McPherson.

Mr. McPherson later filed a response stating that he “reject[ed] Defendant’s inaccurate

characterization that: ‘This is a medical malpractice action pursuant to T.C.A. § 29-26-115.’” He

explained that the case was initially brought as a “breach of contract” case. However, he later stated

in a separate response that “the Defendant’s refused to comply with acceptable professional practice

by withholding services that were pre-arranged and contractually obligated to honor and provide to

Plaintiff.”

Nonetheless, we find that summary judgment was properly granted to the defendants on this

issue. When patients file a medical malpractice suit,5 they carry the burden of proving: (1) the

recognized standard of professional care, (2) that the defendant failed to act in accordance with the

applicable standard of care, and (3) that as a proximate result of the defendant’s negligent act or

omission, the claimant suffered an injury which otherwise would not have occurred. Tenn. Code

5

W e treat Mr. McPherson’s claim as one for medical malpractice rather than common law negligence because

the alleged negligent conduct “bears a substantial relationship to the rendition of medical treatment by a medical

professional.” See Gunter v. Lab. Corp. of Am., 121 S.W .3d 636, 640 (Tenn. 2003); Ward v. Glover, 206 S.W .3d 17,

25 (Tenn. Ct. App. 2006).

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Ann. § 29-26-115(a) (Supp. 2006). The significance of a patient’s burden has been described as

follows:

It is now commonplace for medical practitioners to use these statutory

requirements to put their patient’s claim to the test by forcing them to

reveal the identity of their testifying experts early in the litigation.

The practitioners’ chosen vehicle is a motion for summary judgment

supported by their own self-serving affidavit stating that their conduct

neither violated the applicable standard of care nor caused injury to

their patient that would not otherwise have occurred. An affidavit of

this sort effectively negates the negligence allegations in the patient’s

complaint and effectively forces the patient to demonstrate the

existence of a genuine, material factual dispute warranting a jury trial.

Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 438 (Tenn.

1998); Dunham v. Stones River Hosp., Inc., 40 S.W.3d 47, 51 (Tenn.

Ct. App. 2000).

Patients faced with their physician’s summary judgment

motion cannot rest on the allegations in their complaint. Tenn. R. Civ.

P. 56.06; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Blocker

v. Regional Med. Ctr. at Memphis, 722 S.W.2d 660, 661 (Tenn.

1987). They must demonstrate the existence of triable factual disputes

either by (1) pointing to evidence ignored or overlooked by the

physician, (2) rehabilitating evidence attacked by the physician, or (3)

producing additional evidence establishing the existence of a genuine

factual issue. See McCarley v. West Quality Food Serv., 960 S.W.2d

585, 588 (Tenn. 1998); Messer Griesheim Indus., Inc. v. Cryotech of

Kingsport, Inc., 45 S.W.3d 588, 598 (Tenn. Ct. App. 2001).

Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn. Ct. App. 2003) (footnotes omitted). Mr.

McPherson failed to allege the statutory elements of a medical malpractice claim, and he failed to

properly respond to the defendants’ motion for summary judgment by demonstrating that a triable

factual dispute existed. Therefore, summary judgment was proper.

3. Fraud

The trial court’s final order stated that Mr. McPherson’s complaint “fails to state a cause of

action alleging fraud,” and accordingly, the claim was dismissed.

Tenn. R. Civ. P. 8.01 (2006) provides that a pleading which sets forth a claim for relief shall

contain a short and plain statement of the claim showing that the pleader is entitled to relief.

Although a complaint need not contain in minute detail the facts that give rise to the claim, it either

must contain direct allegations on every material point necessary to sustain a recovery on any legal

theory (even though it may not be the theory suggested by the pleader) or contain allegations from

which an inference may fairly be drawn that evidence on these material points will be introduced at

trial. Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004); Donaldson v. Donaldson, 557 S.W.2d 60,

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61 (Tenn. 1977). A motion to dismiss for failure to state a claim only tests the sufficiency of the

complaint, seeking to determine whether the pleadings state a claim upon which relief can be

granted. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002); Smith v.

First Union Nat. Bank of Tenn., 958 S.W.2d 113, 114-115 (Tenn. Ct. App. 1997). The basis for

the motion is that the allegations in the complaint, when considered alone and taken as true, are

insufficient to state a claim as a matter of law because they do not constitute a cause of action.

Smith, 958 S.W.2d at 115 (citations omitted). In making this determination, we construe the

complaint liberally in favor of the plaintiff, taking all allegations of fact therein as true. Id. (citing

Fuerst v. Methodist Hosp. South, 566 S.W.2d 847, 848-49 (Tenn. 1978); Holloway v. Putnam

County, 534 S.W.2d 292, 296 (Tenn. 1976)). However, “[t]here is no duty on the part of the court

to create a claim that the pleader does not spell out in his complaint.” Trau-Med, 71 S.W.3d at 704

(quoting Donaldson, 557 S.W.2d at 62). Where “no claim for relief is stated by a party, a court may

properly dismiss the action, either on motion or sua sponte.” Donaldson, 557 S.W.2d at 62

(citations omitted).

Allegations of fraud must be stated with particularity. Tenn. R. Civ. P. 9.02 (2006). The

party alleging fraud bears the burden of proving every necessary and material element of fraud.

Hiller v. Hailey, 915 S.W.2d 800, 803 (Tenn. Ct. App. 1995) (quoting Williams v. Spinks, 7 Tenn.

App. 488 (1928)). “Fraud is never presumed; and where it is alleged the facts sustaining it must be

clearly made out.” Id. (quoting Bevins v. Livesay, 32 Tenn. App. 1, 221 S.W.2d 106, 109 (1949)).

Even so, it suffices if the facts alleged constitute fraud, and they need not be expressly characterized

using the term “fraud.” Maxwell v. Land Developers, Inc., 485 S.W.2d 869, 876 (Tenn. Ct. App.

1972).

A common law cause of action for fraud has been defined as follows:

When a party intentionally misrepresents a material fact or produces

a false impression in order to mislead another or to obtain an undue

advantage over him, there is a positive fraud. The representation must

have been made with knowledge of its falsity and with a fraudulent

intent. The representation must have been to an existing fact which

is material and the plaintiff must have reasonably relied upon that

misrepresentation to his injury.

Black v. Black, 166 S.W.3d 699, 705 (Tenn. 2005) (quoting Brown v. Birman Managed Care, Inc.,

42 S.W.3d 62, 66-67 (Tenn. 2001)). Thus, a plaintiff alleging fraudulent misrepresentation must

address the following elements with particularity: 1) the defendant made a representation of an

existing or past fact; 2) the representation was false when made; 3) the representation was in regard

to a material fact; 4) the false representation was made either knowingly or without belief in its truth

or recklessly; 5) plaintiff reasonably relied on the misrepresented material fact; and 6) plaintiff

suffered damage as a result of the misrepresentation. Metropolitan Gov’t of Nashville and

Davidson County v. McKinney, 852 S.W.2d 233, 237 (Tenn. Ct. App. 1992) (citing Graham v. First

Am. Nat’l Bank, 594 S.W.2d 723, 725 (Tenn. Ct. App. 1979)).

Mr. McPherson’s complaint had set forth his claim for fraud, in relevant part, as follows:

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Defendant Shea as a medical care “Provider” harmfully failed to

notify Plaintiff prior to the afternoon of January 13, 2003, that

scheduled [xylocaine perfusion] services would not be provided for

the pre-arranged, established fee, and only after Plaintiff had been

subjected to and undergone a half day of pre-surgery testing. Even

though Defendant Shea as “Provider” was contractually obligated to

honor the pre-arranged fee established under the Care Entree medical

plan, Defendant Shea refused to provide the scheduled surgery unless

Plaintiff would pay $3,031 more in addition to costs he had originally

agreed to.

...

Defendant Shea’s failure to provide advance notice of their intention

to commit a breach of contract, constitutes an anticipated “Fraudulent

Act Under False Pretenses Without Full Disclosure.” As direct and

proximate cause of the acts, omissions and misconduct of Defendant

Shea, Plaintiff has suffered being denied highly specialized remedial

“xylocaine perfusion” otolaryngology surgery as his first choice of

health care.

Thus, Mr. McPherson claimed that Shea Ear Clinic’s failure to inform him that he would have to pay

more than the contracted charge fee listed by the Care Entree plan constituted fraud.

Nondisclosure of a material fact may also give rise to a claim for fraudulent

misrepresentation when the defendant has a duty to disclose and the matters not disclosed are

material. Justice v. Anderson County, 955 S.W.2d 613, 616 (Tenn. Ct. App. 1997) (citing Dobbs

v. Guenther, 846 S.W.2d 270, 274 (Tenn. Ct. App. 1992)). For concealment or nondisclosure to

constitute fraud, the party charged with fraud must have had knowledge of an existing fact or

condition and a duty to disclose the fact or condition. Hill v. John Banks Buick, Inc., 875 S.W.2d

667, 670 (Tenn. Ct. App. 1993); Lonning v. Jim Walter Homes, Inc., 725 S.W.2d 682, 685 (Tenn.

Ct. App. 1986); Dozier v. Hawthorne Dev. Co., 37 Tenn. App. 279, 292, 262 S.W.2d 705, 711

(1953). “Obviously, a party must have knowledge of a material fact before a duty arises to disclose

it . . . .” Twitty v. Young, No. 03A01-9801-CH-00031, slip op. at 7 (Tenn. Ct. App. E.S. Aug. 6,

1998). The defendant’s knowledge of a fact is an essential element of a fraudulent concealment or

fraudulent nondisclosure claim. See Chrisman v. Hill Home Dev., Inc., 978 S.W.2d 535, 539

(Tenn. 1998) (fraudulent concealment claim failed because plaintiffs could not prove defendant had

knowledge of a fact); Dunnivant v. Evetts, Robertson Chancery, App. No. 87-170-II, 1988 WL

102782, at *5 (Tenn. Ct. App. M.S. Oct. 7, 1988) (defendants not liable for fraudulent nondisclosure

if they had no knowledge of a fact).

In this case, there is no indication that Shea Ear Clinic had knowledge of the fact that Mr.

McPherson was relying on the price listed by Care Entree as the price he would be charged for his

surgery. There are no facts presented to indicate that Mr. McPherson ever discussed the Care Entree

plan or the contracted charge fee with Dr. Shea or Shea Ear Clinic. Without knowledge of Mr.

McPherson’s expectations, Shea Ear Clinic could not correct his misunderstanding. Shea Ear Clinic

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could not inform Mr. McPherson that it did not participate in the Care Entree plan until its staff

learned the details of the plan later in the afternoon.6 In sum, Shea Ear Clinic had no duty to disclose

that Mr. McPherson would have to pay more than the contracted charge fee until it learned that he

intended to pay this amount.

Mr. McPherson’s complaint fails to identify with particularity facts sufficient to sustain a

claim of fraud, and we affirm the trial court’s dismissal of the claim.

B. Alleged Violations of the Americans with Disabilities Act

In our previous opinion remanding this case to the trial court, we instructed the court to

address the issue of alleged ADA violations occurring in the trial court. Mr. McPherson claimed that

the trial court had failed to grant him accommodations for his hearing disability. The Tennessee

Supreme Court subsequently designated Senior Judge Blackwood to hear the case to its conclusion,

and no oral hearings or communications took place thereafter. Since the trial court decided this

summary judgment motion “on the paper,” Mr. McPherson’s hearing disability was no longer an

issue. There is no indication in the record before us of any disability that would have affected his

ability to review the motion for summary judgment and prepare a response. Mr. McPherson does

not complain that the trial court failed to accommodate him on remand.

However, Mr. McPherson additionally sought a declaratory judgment regarding the ADA,

and he sought to join various claims against Shelby County and its officials for the previous

violations of the ADA. The trial judge apparently considered Mr. McPherson’s petitions together,

and his final order stated: “The alleged Petition seeks to introduce new parties to this cause, as well

as a new cause of action7 not applicable to the Defendant. The Court dismisses the purported

Petition treating same as an attempt to amend the pleading.”

6

In addition, Mr. McPherson did not allege that he was justified in relying on Shea Ear Clinic’s silence as to

whether it participated in the Care Entree plan. Justifiable reliance is a necessary element in a cause of action based upon

negligent or fraudulent misrepresentation. McNeil v. Nofal, 185 S.W.3d 402, 409 (Tenn. Ct. App. 2005). Even false

representations alone do not amount to fraud; the plaintiff must have relied upon the representations, and his reliance

must have been reasonable under the circumstances. Security Federal Sav. and Loan Ass’n of Nashville v. Riviera,

Ltd., 856 S.W .2d 709, 712 (Tenn. Ct. App. 1992). Justifiable reliance is not blind faith, McNeil, 185 S.W .3d at 408,

and there is no duty to disclose a fact if ordinary diligence would have revealed it. Lonning, 725 S.W .2d at 685.

7

Title II of the ADA, 42 U.S.C. §§ 12131-12165, provides that “no qualified individual with a disability shall,

by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by any such entity.” § 12132. The ADA also provides that

“a State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in

Federal or State court of competent jurisdiction for a violation of this chapter.” § 12202. In Tennessee v. Lane, 541

U.S. 509, 124 S.Ct. 1978 (U.S. 2004), the Supreme Court held that Title II, as applied to cases implicating the

fundamental right of access to the courts, constitutes a valid exercise of Congress’s authority to abrogate the States’

immunity in order to enforce the guarantees of the Fourteenth Amendment. Id. at 533-534; 124 S. Ct. at 1994.

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We affirm the trial court’s decision not to allow the additional claims and defendants to be

joined in the case at bar. Mr. McPherson contended that joinder of Shelby County and its officials

was necessary for just adjudication pursuant to Tenn. R. Civ. P. 19.01 (2006). The Rule provides

in part:

A person who is subject to service of process shall be joined as a

party if (1) in the person’s absence complete relief cannot be accorded

among those already parties, or (2) the person claims an interest

relating to the subject of the action and is so situated that the

disposition of the action in the person’s absence may (i) as a practical

matter impair or impede the person’s ability to protect that interest,

or (ii) leave any of the persons already parties subject to a substantial

risk of incurring double, multiple, or otherwise inconsistent

obligations by reasons of the claimed interest.

The record does not disclose that Shelby County claimed any interest relating to the original

complaint. See Tenn. R. Civ. P. 19.01(2). Thus, it appears that Mr. McPherson’s argument for

joinder is based upon section (1) of the Rule, which requires joinder if “in the person’s absence

complete relief cannot be accorded among those already parties.” However, we find nothing to

indicate that complete relief could not be accorded in this case among Mr. McPherson, Dr. Shea, and

Shea Ear Clinic. The presence or absence of Shelby County and its officials as named defendants

would have had no bearing on the claims presently before the court involving an alleged breach of

contract, medical malpractice, and fraud. Thus, joinder of those claims and the related defendants

was not essential to a just adjudication in this case.

C. Procedural Challenges

1. Consolidation with Shea Ear Clinic, P.A. v. Douglas McPherson

Mr. McPherson complains that Shelby County harmfully consolidated Shea Ear Clinic’s

countersuit with his case. He alleges that the court “adjudicated activity on the record” in the clinic’s

countersuit prior to his being served with a summons and complaint in the countersuit. He also

contends that the countersuit was dismissed for lack of prosecution, but later erroneously reinstated.

We recognize that a consolidation of two cases for trial does not make an unserved party to one case

a served party in the second case. Vanhooser v. Ling, 872 S.W.2d 913, 915 (Tenn. Ct. App. 1993).

However, there is nothing in the record for us to review in support of Mr. McPherson’s allegations.

The only indication in the record that the two cases were ever consolidated is the notation of two

different docket numbers on two of Mr. McPherson’s filings in the trial court, and on the affidavit

of Dr. Shea. Again, the record before us only contains the technical record of proceedings taking

place after we remanded the case to the Shelby County Circuit Court. The alleged procedural errors

Mr. McPherson addresses took place long before the case was initially appealed to this Court in

2005. The orders and motions Mr. McPherson references in support of his claims are not included

in the record.

A party raising issues on appeal is responsible for furnishing the appellate court with a record

that will enable that court to reach the issues raised. Word v. Word, 937 S.W.2d 931, 933 (Tenn.

Ct. App. 1996). “We decide cases and controversies on the basis of the record as presented to us for

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our consideration, and not as they might, or should, have been presented.” Dearborne v. State, 575

S.W.2d 259, 264 (Tenn. 1978); see also Tenn. R. App. P. 13(c) (2006). As such, we decline to

address these alleged procedural errors.

2. Summary Judgment Motion Hearing “Lost” from Docket

Mr. McPherson also alleges that his motion for summary judgment was set for hearing on

January 9, 2004, but when he appeared in court, his hearing was unaccountably “lost” from the

docket agenda. He claims that he was denied due process because he was not given the opportunity

to be heard in a fair and timely manner. There is no evidence of any summary judgment motion filed

by Mr. McPherson in the record before us. However, even if the facts existed as alleged by Mr.

McPherson, there is no indication that he requested that his hearing be rescheduled or that the trial

court would not allow him to do so. Parties who failed to take whatever actions were reasonably

available to them to prevent or nullify the harmful effect of an error are not entitled to relief on

appeal. See Tenn. R. App. P. 36(a) (2006). “The timely calling of an error to the attention of the

trial court, in many cases, will render an appeal unnecessary. That is the whole purpose behind Tenn.

R. App. P. 36(a).” Ford v. Ford, No. E2005-01772-COA-R3-CV, slip op. at 2 (Tenn. Ct. App. E.S.

Mar. 30, 2006). Accordingly, we find that this issue is without merit.

V. CONCLUSION

For the aforementioned reasons, we affirm the decision of the circuit court. Costs of this

appeal are taxed to Appellant, Douglas McPherson, for which execution may issue if necessary.

___________________________________

ALAN E. HIGHERS, JUDGE

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