Opinion

Juanita W. Keylon v. Robert A. Hill

Court
Court of Appeals of Tennessee
Filed
Oct 16, 2003
Status
Published
On the bench
Sr. Judge William H. Inman
Cited by
0 cases
Authority
More cited than 29.8%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 16, 2003 Session

JUANITA W. KEYLON v. ROBERT A. HILL

Appeal from the Circuit Court for Roane County

No. 12413 Russell E. Simmons, Jr, Judge

FILED DECEMBER 11, 2003

No. E2003-01054-COA-R3-CV

The plaintiff’s motion for partial summary judgment, based upon the asserted failure

of the defendant to countervail the motion, was denied by the trial judge. The plaintiff argues that

the established rule that the denial of a motion for summary judgment, followed by a jury trial and

verdict, is not reviewable, has no application in this case because there was no verdict. The rule is

that the denial of a motion for summary judgment is not reviewable when the case proceeds to

judgment, as distinguished from verdict. The motion of the defendant in this medical malpractice

case for a directed verdict made at the close of all the evidence was granted upon a determination

that all of the expert testimony established that the three-hour window to administer a blood clot

dissolver had expired before the defendant treated the plaintiff. Whether the particular anticoagulant

should have been administered in a timely manner was at the core of the claimed negligence. We

find the question of negligence to be within the peculiar province of the jury, and remand the case

for a new trial.

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

Reversed in Part and Remanded

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and

CHARLES D. SUSANO, JR., JJ., joined.

Elizabeth K. Johnson and Donald K. Vowell, attorneys for appellant, Juanita W. Keylon.

Heidi A. Barcus and James Harry London, Knoxville, Tennessee, attorneys for appellee, Robert A.

Hill.

OPINION

I.

This is a medical malpractice case. The motion of the Plaintiff for partial summary judgment

was denied, and the case was thereupon scheduled for trial, on January 8, 2003. At the conclusion

of all the proof, Dr. Hill moved for a directed verdict which was granted. The motion of the Plaintiff

for a new trial was denied. She appeals and presents for review two issues: (1) whether her motion

for partial summary judgment should have been granted, and (2) whether the motion of the

Defendant for a directed verdict was properly granted.

II.

The Plaintiff alleged that: on December 26, 2001, she was taken to the Roane Medical Center

emergency room for medical treatment, where her condition was diagnosed as acute; Dr. Robert A.

Hill was the emergency room physician on duty; she complained of symptoms “that are plain and

obvious signs of a stroke,” which appeared suddenly and immediately preceding her arrival at the

emergency room; she was in fact having a stroke, which Dr. Hill failed to diagnose and treat

accordingly; Dr. Hill diagnosed her as having Pain OS [oculus sinister] and then discharged her with

instructions to seek further treatment “later today at Roane Eye Center”; she went to Roane Eye

Center and was seen by an optometrist who thought she was suffering from a stroke “right now”; she

immediately was taken to Parkwest Medical Center where she was diagnosed with an “occipital lobe

stroke” and treated accordingly; a stroke requires immediate care, and Dr. Hill was negligent and

violated the applicable standard of care because:

He failed to conduct an appropriate medical examination of Mrs. Keylon.

He failed to use diagnostic tools and information available to determine Mrs.

Keylon’s condition.

He failed to promptly and properly diagnose Mrs. Keylon’s medical problem.

He failed to promptly recognize and properly respond to signs and symptoms of Mrs.

Keylon’s condition.

He failed to properly document the course of Mrs. Keylon’s condition and treatment.

He failed to realize that Mrs. Keylon was experiencing a stroke.

He failed to treat Mrs. Keylon for stroke.

He failed to stabilize Mrs. Keylon’s condition before releasing her.

He failed to consult with a physician or other qualified health care provider

possessing the training, experience and skill necessary to promptly and properly

diagnose and treat Mrs. Keylon’s condition.

He failed to consult a neurologist.

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He failed to transfer Mrs. Keylon to another medical facility equipped to provide care

and treatment for a stroke patient.

The plaintiff further alleged that as the proximate result of Dr. Hill’s negligence and

deviations from the applicable standard of care, considerable time elapsed between the onset of

symptoms and treatment, causing Mrs. Keylon to suffer injuries that would not otherwise have

occurred, including but not limited to the following: loss of vision, loss of coordination, loss of

strength, loss of limb movement, loss of balance, loss of reaction time, loss of concentration, loss

of speed of thought, loss of memory, loss of awareness of space (where objects are in relation to each

other), general depression, costs of medical care, costs of rehabilitation services, costs of long-term

and custodial care, loss of services and loss of enjoyment of life, and as the proximate result of Dr.

Hill’s negligence and deviations from the applicable standard of care, Mrs. Keylon can no longer do

certain activities that she would have been able to do otherwise, including but not limited to the

following: place a telephone call, read a book or newspaper, take a walk, drive a car, wash dishes,

cook, watch TV, play cards, write a letter, do laundry, and vacuum.

III.

Dr. Hill answered the complaint in seriatim denying all allegations of negligence, and

“demanding strict proof thereof.”1 He averred further and averred without admitting liability that

the matters complained of resulted from one or more independent causes or phenomena, and did not

result from any act or omission that constituted any negligence or malpractice, and that he is not

liable for any injury or damage for which the Plaintiff seeks recovery because any injury or damage

was caused by unavoidable accident.

Dr. Hill further averred that in examining and otherwise caring for Mrs. Keylon, he acted in

accordance with that degree of skill, learning and experience ordinarily used, possessed and practiced

by physicians in similar circumstances in Roane County and similar communities; that accepted and

proper methods were used in examining and otherwise caring for Mrs. Keylon; and that in examining

and otherwise caring for Mrs. Keylon, he acted in accordance with the reasonable requirements of

good medical care and practice and in accordance with the applicable standard of care.

IV.

The Motion for Partial Summary Judgment

The Plaintiff filed a motion for partial summary judgment as to liability - and supported it

with evidentiary materials. Dr. Hill responded with his affidavit, deposing that he was familiar with

the applicable standard of care and that he did not violate such standard because he concluded that

the plaintiff’s symptoms were more consistent with an ocular problem than a stroke. The motion

1

W e find nothing in the Rules of Civil Procedure which, even by inference, provides that an allegation may

be denied while conc urrently demanding “strict proof thereof.” Presumably this anomaly is a remnant of equity practice

no longer viable.

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was denied, and the case proceeded to trial resulting in a directed verdict for the Defendant, as

aforesaid.

The denial of her motion is an issue presented for review by the Plaintiff, who argues that

Dr. Hill’s response, as supported, created no issues of material fact and that she was entitled to

judgment as a matter of law.

The well-known rule that the denial of a motion for summary judgment predicated upon the

existence of a genuine issue of material fact is not reviewable on appeal when a judgment is

subsequently rendered after a trial on the merits, has no application to the case at Bar, according to

the Plaintiff, who argues that the rule is applicable only when the denial is followed by a jury verdict.

[Emphasis added]. The rule attached when a judgment is subsequently rendered - not necessarily

a verdict - the words are not interchangable. A judgment was rendered against Mrs. Keylon, and the

denial of her motion for summary judgment cannot be reviewed. See, Purkey v. Purkey, 1998 WL

334406, 2 (Tenn. Ct. App.)

Standard of Review

When reviewing a trial court’s disposition of a motion for directed verdict,

appellate courts do not resolve disputes in the evidence, weigh the evidence, or

evaluate the credibility of the witnesses. Instead, we review the evidence most

favorably to the party against whom the motion is made, give that party the benefit

of all reasonable inferences from the evidence, and disregard all evidence contrary

to that party’s position.

Directed verdicts are appropriate only when reasonable minds can reach but

one conclusion. A case should go to the jury, even if the facts are undisputed, when

reasonable persons could draw conflicting conclusions from the facts.

Richardson v. Miller, 44 S.W.3d 1, 30 (Tenn. Ct. App. 2000).

VI.

The Directed Verdict

The trial judge, in directing a verdict for Dr. Hill at the conclusion of all the proof, stated:

The one fact all of the witnesses agreed on was that the drug could

not be administered three hours after onset of stroke symptoms. . . .

From the evidence presented by the parties, the only conclusion a

reasonable mind could draw is that the timing for the onset of stroke

symptoms begins at the last time the persons can reasonably say the

stroke patient was all right. The only evidence of this was that the

patient was all right when she went to bed at 11:00. The window of

time to administer the drug would have been over at 2:00 a.m.

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Based on this conclusion, the only conclusion reasonable minds could

draw would be that the defendant did not breach the standard of care

of administering the drug when the administering of the drug could

only have been within a three-hour period that ended at 2:00 and the

plaintiff was not a candidate for the use of the drug TPA [sic]. Based

on this, the Court must direct a verdict for the defendant.

Substantial proof was presented by the Plaintiff that, while in the emergency room at Roane

Medical Center, she complained of blurred vision, inability to focus, double vision, significant pain,

and pain on the left side of head. She related her medical history, old age (79), high blood pressure,

smoking, and heart disease. Her condition was classified as acute. Following some tests including

a CT scan, Dr. Hill made the diagnosis of Pain OS (left eye), discharged her at 6:45 a.m. with

instructions to go to the Roane Eye Center, where an Optometrist quickly diagnosed her as having

a stroke “right now,” and referred her to Parkwest Hospital Emergency Room, ten miles distant,

where she saw Dr. Van Helms, an ER physician. Her complaints were “problems walking, visual

disturbance, disturbance to thought process, onset 3:30. No change since onset.” His diagnosis was

“left occipital CVA,” [cardiovascular accident, or stroke]. His treatment consisted of prescribing

Heparin, (an anticoagulant), other tests, including a CT scan which revealed a left occipital infarct,

or stroke. Mrs. Keylon was referred to a neurologist, Dr. Jack Scariano, who admitted her to the

hospital for treatment of an occipital lobe stroke.

The Issue of Negligence

Dr. Jack Scariano is a board-certified neurologist who practices at Parkwest Hospital in

Knoxville. He testified that Mrs. Keylon arrived at the Roane Medical Center Emergency Room at

4:35 a.m.; that someone [at Roane Medical Center] wrote “on there” that she “can’t see out of her

eyes,” which was a symptom of a stroke; that she arrived in a wheelchair; that she had a past medical

history of cardiovascular illness, a risk factor for a stroke; that she was complaining of pain on the

left side of her head, also a symptom of a stroke; that she was unable to focus, another stroke

symptom; that she was hypertensive, also a risk fact; that the CAT scan taken at the Roane Medical

Center generally does not show stroke within the first eight to twelve hours (following a stroke) and

the CAT scan was normal, which did not rule out the occurrence of a stroke, but “it does rule out that

you’ve had a bleed,” but “there were no signs of her having an actual bleed.”

He testified further that with a normal CAT scan it was proper to use anticoagulation

treatment; that “the only anticoagulation treatment approved now to actually treat stroke would be

TPA “which is a drug that breaks up blood clots”and restores blood flow to the affected area

resulting in significant neurological improvement in most instances.

When asked to explain the timing of administering the drug, he testified that it must be given

within three hours of when the patient notices the symptoms, and because of a mistaken diagnosis

Mrs. Keylon was not given the drug, and she was discharged from the ER at 6:45 a.m. She arrived

at Parkwest Hospital at 12:40 [p.m.] too late “to give TPA.”

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She was seen and treated by Dr. Helms at the Parkwest Hospital, who ordered a CAT scan

which confirmed that she had suffered a stroke. The medical record at Parkwest established the

onset of symptoms at 3:30 a.m.

Dr. Scariano testified that within a reasonable degree of medical certainty he had an opinion

that Dr. Hill deviated from the standard of care in his treatment of Mrs. Keylon. Specifically, he

testified:

A. I do feel that he – that he didn’t recognize that a sudden visual

loss is a sign of an acute stroke, he also diagnosed visual loss

due to acute glaucoma even though the intraocular pressures

were normal.

Q. What about the treatment that Dr. Hill gave to Ms. Keylon?

Did – in your opinion did he violate the standard of care in the

treatment?

A. Without making that actual proper diagnosis, he couldn’t

consider the actual treatment. There was a treatment

available, with reasonable medical probability, could have

improved her outcome.

Q. And what was that treatment?

A. TPA.

Q. And did – do you find that Dr. Hill violated the standard of

care with regard to whether he referred Ms. Keylon to a

specialist or to any other institution?

A. I know that actually Roane County sends us patients here at

Parkwest all the time. So we were certainly available to get

the actual patient, you know, sent to us. And we eventually

got her anyway, so – and I’m sure he knows that that’s an

option, because I see it all of the time. So, if he wasn’t sure,

he certainly could have called us.

Q. All right. And would you have been the doctor on call had he

called?

A. Probably, yes.

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Q. Now, if Dr. Hill had followed the standard of care, Dr.

Scariano, do you have an opinion, within a reasonable degree

of medical certainty, as to whether it would have made a

difference for Ms. Keylon?

A. Well, with reasonable medical probability, we know that

giving TPA can improve stroke outcomes. That’s why it’s

been approved by the FDA to actually give to people who

have strokes.

So, yes, if she would have gotten TPA within the appropriate

time frame for this type of actual stroke, with reasonable

medical probability, she could have had a better outcome.

Q. All right. Dr. Scariano, you said could have and that she can

improve, and I want to ask you to talk about that some more

specifically with regard to the probability that she would

improve.

A. I’ve already testified that at the institution here we see that

approximately 70 percent of the patients who have strokes

and get TPA and who are candidates to get TPA and get it do

significantly or totally improve.

Q. And would that hold true for Mrs. Keylon? Would it have

held true for Mrs. Keylon in this case?

A. Yes. If she – would have gotten here within the appropriate

time frame, we could have actually given her that and she

would have that probability of having actually a better

outcome.

As ground for the motion for a directed verdict, Dr. Hill alleged that

(1) the Plaintiff has failed to prove by expert testimony the recognized

standard of acceptable professional practice applicable to emergency

physicians practicing in Roane County or in a similar community; (2)

the Plaintiff has failed to prove by expert testimony that the

Defendant Dr. Hill failed to meet that recognized standard; (3) the

Plaintiff has failed to prove by expert testimony that as a proximate

result of Dr. Hill’s negligence, the Plaintiff suffered injuries that

would not otherwise have occurred; and (4) the Plaintiff has failed to

produce any evidence of damages.

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As heretofore stated the motion for a directed verdict was granted because

. . . The only conclusion a reasonable mind could draw is that the

timing for the onset of symptoms begins at the last time the person

can conclusively say the stroke patient was all right. The only

evidence of this was that the patient was all right when she went to

bed at 11:00. The window of time to administer the drug would have

been over at 2:00 a.m.. . . . the defendant did not breach the standard

of care of administering the drug when the administering of the drug

could only have been within a three-hour period that ended at 2:00

and the plaintiff was not a candidate for the use of the drug TPA . . .

Tennessee Code Annotated § 29-26-115(a)(1) provides:

– (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 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 of

omission, the plaintiff suffered injuries which would not otherwise

have occurred.

(b) No person in a health care profession requiring licensure

under the laws of this state shall be competent to testify in any court

of law to establish the facts required to be established by subsection

(a), unless the person was licensed to practice in the state or a

contiguous bordering state a profession or specialty which would

make the person’s expert testimony relevant to the issues in the case

and had practiced this profession or specialty in one (1) of these states

during the year preceding the date that the alleged injury or wrongful

act occurred. This rule shall apply to expert witnesses testifying for

the defendant as rebuttal witnesses. The court may waive this

subsection when it determines that the appropriate witnesses

otherwise would not be available.

A directed verdict is appropriate where “the evidence is susceptible to but one conclusion.”

Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000). In considering a motion for directed

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verdict, the Court must take the strongest legitimate view of the evidence presented by the plaintiff

and must draw all reasonable inferences in favor of that party. Eaton v. McLain, 891 S.W.2d 587,

590 (Tenn. 1994); Long v. Mattingly, 797 S.W.2d 889, 892 (Tenn. Ct. App. 1990). A grant of a

directed verdict is warranted where the Court concludes that reasonable minds could not differ as

to the conclusions drawn from the evidence presented. See Alexander, 24 S.W.3d at 271.

With respect, we have determined that the trial judge misapprehended the testimony of Dr.

Scariano, which we have reproduced. The ruling of the trial judge was that “. . . the patient was all

right when she went to bed at 11:00. The window of time to administer the drug would have been

over at 2:00 a.m.” This time period – 11:00 a.m. to 2:00 a.m. – is irrelevant under the proof. Mrs.

Keylon had apparently not yet suffered a stroke. There is abundant evidence that she was under the

care of the defendant during most of the so-called window of time to administer the clot-dissolving

drug. Whether he was negligent in his treatment of the Plaintiff was a question for the jury to

determine, and the motion for a directed verdict was inappropriately granted.

Qualification of Expert Witness

The defendant presents for review the issue of whether a directed verdict is appropriate

“where the [Plaintiff] failed to establish any of the elements required to support a claim under the

Tennessee Medical Malpractice Act.”

In a general way, much of the foregoing opinion addresses this issue; what is not addressed

is the issue not specifically asserted, but intended: whether Dr. Scariano, on whose testimony we

have focused, was qualified to testify as an expert witness. The trial judge held that he was qualified,

and we agree.

At the outset, we note that the Appellee’s brief takes undue liberties with the art of advocacy

by the mischaracterization of testimony and the non-contextual recital of selected segments. The

difficulties attendant upon such practices are self-evident and the practice is never productive.

The defendant argues that Dr. Scariano testified that his opinion as to the applicable standard

of care was based on a national standard, not recognized in this jurisdiction. Dr. Scariano practiced

in Roane County for a few years, and then relocated ten (10) miles away, in Knox County.

We reproduce his qualifying testimony:

. . . I commonly treat patients for stroke. I commonly receive referrals

of stroke patients from primary care doctors, hospitals and emergency

rooms located throughout the East Tennessee community, including

Knox County, Roane County, Cocke Count Cumberland County,

Hamblen County, Loudon County, McMinn County, Monroe County

and Sevier County. Stroke is a common medical condition that is

treated by primary care doctors, hospitals and emergency rooms in

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East Tennessee on a regular basis. Roane, Cocke, Cumberland,

Hamblen, Loudon, McMinn, Monroe, and Sevier counties are all

geographically close to Knox County, all lying within 25 miles of

Knox County. Roane County is contiguous to Knox County and is

approximately ten miles away from the Fort Sanders Parkwest

Medical Center. These counties generally have only one hospital and

one emergency room, although there are two hospitals in Hamblen

County and McMinn County. Populations in these counties are less

than Knox County, and the hospitals are smaller and there are fewer

specialists. Most hospitals in these counties, including Roane

Medical Center, have MRI and CT scanning equipment. ER doctors

in these hospitals commonly treat stroke patients with thrombolytics.

None of these hospitals are teaching hospitals; none have medical

schools. I commonly examine treatment records of stroke patients

referred from these counties, and I commonly have contact with

primary care doctors, hospitals and emergency rooms from these

counties, including discussions of the patient’s medical history and

treatment received in those counties. I commonly send

recommendations for treatment back to the referring physicians in the

patient’s home area. My contact with primary care doctors, hospitals

and emergency rooms in these counties has made me familiar with the

standard of care for recognizing stroke in each of these counties,

including Roane County. The standard of care for recognizing stroke

in each of the counties is the same. All doctors in these counties who

see patients on an initial basis, including primary care doctors and

emergency room doctors, must be able to recognize stroke, and are

governed by this standard of care.2

We affirm the judgment denying the plaintiff’s motion for a partial summary judgment: we

reverse the judgment granting the defendant’s motion for a directed verdict, and remand the case to

the trial court for a new trial. Costs are assessed to the Appellee.

___________________________________

WILLIAM H. INMAN, SENIOR JUDGE

2

It is of interest, perhaps of significance, that the optom etrist at Roane Eye Center, who was not a medical

doctor, immediately recognized that Mrs. Keylon had a stroke “righ t now .”

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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