The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 21, 2001 Session
SUSAN RENEE WIECHERT WILSON, ET AL. v. RUSHTON E.
PATTERSON, JR., M.D.
A Direct Appeal from the Circuit Court for Shelby County
No. 70075-2 The Honorable James F. Russell, Judge
No. W2000-02771-COA-R3-CV - August 10, 2001
This is a medical malpractice case. Plaintiffs, husband and wife, sued defendant physician
for injuries allegedly caused to Wife by the physician’s negligence. Physician moved for summary
judgment supported by his affidavit that he conformed to the required standard of care. Plaintiffs,
in opposition to the summary judgment, filed a deposition and affidavit of a physician practicing in
Kentucky that expressed his knowledge of the standard of care in Memphis and similar communities.
Physician moved to strike the affidavit primarily on the ground that plaintiffs’ physician expert did
not show a familiarity with the standard of care in Memphis, Tennessee. The court granted the
motion to strike the affidavit and also granted summary judgment to defendant physician. Plaintiffs
appeal. We reverse and remand.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.
Lanier Fogg, Memphis, For Appellants, Susan Renee Wiechert Wilson and James Kelly Wiechert
David M. Cook, Karen S. Koplon, Greg A. Ziskind, Memphis, For Appellee, Rushton E. Patterson,
Jr., M.D.
OPINION
On May 24, 1995, plaintiffs, Susan Renee Wiechert and James Kelly Wiechert, filed a
complaint against defendant, Rushton E. Patterson, Jr. M.D.1 The complaint alleges that Susan
Renee Wiechert was a patient of the defendant, Dr. Patterson, and that on May 25, 1994, she was
admitted to the Methodist Hospital in Memphis for a diagnostic laparoscopy. The complaint avers
that during the procedure, Ms. Wiechert was caused to suffer multiple lacerations of her abdomen,
including a laceration of her left iliac artery. The complaint further avers that as a result of internal
lacerations, Ms. Wiechert sustained massive internal bleeding and was forced to undergo an
emergency exploratory laparotomy. Plaintiffs alleges that the injuries sustained by Ms. Wiechert
were the direct and proximate result of negligence on the part of Dr. Patterson, as he failed to
exercise ordinary care and diligence under the circumstances. Plaintiffs seek damages for Ms.
Wiechert’s alleged life threatening injuries, medical expenses, physical pain, mental anguish,
permanent scarring, and disability, and Mr. Wiechert’s loss of consortium.
Dr. Patterson’s answer admits that Ms. Wiechert sustained a laceration to her left common
iliac artery during diagnostic laparoscopy and that she sustained internal bleeding, and that a
laparotomy was necessitated to control the injury, however, he denies that he was guilty of any
negligent act or omission which was the proximate cause of any injury or damages to Plaintiffs. Dr.
Patterson avers that in treating Ms. Wiechert, he exercised that degree of skill and learning ordinarily
used by members of his profession in good standing and in similar practice in his community, and
that at all times he used reasonable care and diligence in the treatment of Ms. Wiechert. The answer
further avers that to the extent Ms. Wiechert sustained any injury or that either of the plaintiffs
sustained any damages arising out of the course of medical treatment administered by him, such
injury or damage was in conjunction with known and unknown bodily processes, and had nothing
to do with and was not caused by negligence or malpractice on his part. He also asserts that all
medical practices, treatments and procedures administered by him were acceptable and appropriate
for the physical condition of Ms. Wiechert.
Dr. Patterson filed a motion for summary judgment and an affidavit in support thereof. In
his affidavit, Dr. Patterson expresses his knowledge of the standard of professional practice required
and states that Ms. Wiechert was first seen by him in his office on May 12, 1994 with a chief
complaint of a persistent breast lump. Ms. Wiechert returned to Dr. Patterson’s office one week later
and continued to complain of pelvic pain and dyspareunia, and at that time he discussed various
treatment options. Ms. Wiechert wanted to proceed with a laparoscopy to diagnose possible
endometriosis and was admitted to Methodist Hospital on May 25, 1994. The affidavit states that
the laparoscopy revealed no evidence of endometriosis, but that the trocar2 used in the procedure
1
The complaint also included as a defe ndant Patterson G ynecology and Obstetrics, a partnership. On
motion, the trial court dismissed the complaint against the partnership.
2
A trocar is a sharp-pointed instrument used for piercing a cav ity wall in pa racentesis. D O R L A N D ’ S
(continu ed...)
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lacerated the left common iliac artery which is a known complication of laparoscopy and was
explained fully to Ms. Wiechert. An emergency laparotomy was performed to control the injury,
which was repaired and recovery was uneventful. Dr. Patterson stated that all medical practices,
treatments, and procedures administered by him were acceptable and appropriate for Ms. Wiechert,
and that at no time was he guilty of any negligence or malpractice.
In opposition to Dr. Patterson’s motion for summary judgment, the Wiecherts filed the
affidavit of Ms. Wiechert in which she stated as follows: On May 12, 1994, she had an appointment
with Dr. Patterson to discuss a lump in her breast, some pelvic pain and a urinary tract infection. Dr.
Patterson gave her some medication for the infection and scheduled another appointment for May
19, 1994. On that date, Dr. Patterson examined Ms. Wiechert and informed her that it was necessary
that he perform a laparoscopy to determine the cause of the pelvic pain and that no other treatment
options were provided. Dr. Patterson described the laparoscopy as “band-aid surgery,” however did
not inform her of the possible adverse consequences of the surgery. As a result of having this
surgery, Ms. Wiechert has a 8 3/4 inch keloid scar from 1 ½ inches above her navel to 1 inch into
the pubis.
Plaintiffs filed the affidavit of David S. Swan, M.D. on November 16, 1995. Dr. Swan is
licensed to practice medicine in Kentucky and is board certified in obstetrics and gynecology. Dr.
Swan stated in his affidavit that he is familiar with the recognized standards of acceptable
professional medical practice in the field of obstetrics and gynecology and more specifically, the care
of someone in the position of Ms. Wiechert in an area such as Memphis, Tennessee in 1994. In
addition, Dr. Swan stated that the standard of care in Memphis would be similar to that of the
Lexington, Kentucky area where he practices, and that he was practicing gynecology in Berea,
Kentucky during the year immediately preceding the date which Dr. Patterson performed the
laparoscopy on Ms. Wiechert. The affidavit further stated that Dr. Patterson breached the recognized
standard of acceptable professional practice in Memphis by failing to carry out a proper evaluation
of Ms. Wiechert which resulted in the performance of a laparoscopy which was unnecessary at that
time, and that the injury to Ms. Wiechert’s left iliac artery was a direct result of this unnecessary
surgery. Additionally, Dr. Swan states that Dr. Patterson breached the recognized standard of
acceptable professional practice in Memphis by inserting the trocar at an angle and depth whereby
he struck the left iliac artery, and that as a direct result of Dr. Patterson’s breach of the standard of
care, Ms. Wiechert sustained a laceration to her left iliac artery. Dr. Swan stated that in his opinion
to a reasonable degree of medical certainty, Ms. Wiechert would not have suffered the injury had
Dr. Patterson adhered to the recognized standard of acceptable medical practice.
Subsequently, Dr. Swan’s deposition was taken and filed as part of the record. Dr. Swan
testified that in the evaluation of pelvic pain and the indications of performing a laparoscopy there
is a nationwide standard. As to the procedure itself, Dr. Swan agreed that nicking the left iliac artery
2
(...continued)
I L L U S TR A T E D M E D I C A L D I C T IO N A R Y 1470 (23 rd ed. 1957).
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is a recognized risk of performing a laparoscopy, however stated that when that artery is nicked
during the procedure, it is the result of a deviation from the standard of care.
On March 6, 2000, Dr. Patterson filed a second motion for summary judgment and
memorandum in support thereof asserting that Plaintiffs had failed to satisfy their burden pursuant
to T.C.A. § 29-26-115 which requires that plaintiffs prove by expert testimony the standard of care
in the defendant’s speciality of obstetrics and gynecology, a deviation from the standard, and an
injury caused by the deviation. Dr. Patterson avers in his motion that Plaintiffs disclosed as their
only non-treating expert witness Dr. David Swan, a doctor from Berea, Kentucky. The motion
asserts that Dr. Swan had made no inquiry into the Memphis medical community, had never been
to Memphis, other than to testify in medical malpractice trials, and that Plaintiffs had not shown,
beyond a conclusory assertion of a national standard of care, that Dr. Swan is familiar with the
Memphis medical community.
Plaintiffs then filed another affidavit from Dr. Swan in opposition to Dr. Patterson’s motion
for summary judgment which states:
1. I am familiar with the recognized standard of acceptable
professional medical practice in the field of obstetrics and gynecology
for Lexington, Kentucky.
2. In my opinion, the Lexington, Kentucky area is a similar area to
Memphis, Tennessee with regard to the standard of care of acceptable
professional medical practice in the field of obstetrics and gynecology
and in regard to the medical services provided in this area. Both
Lexington, Kentucky and Memphis, Tennessee are regional medical
centers and are the locations of their state medical schools.
3. I am familiar with the recognized standard of care of acceptable
professional medical practice in the field of obstetrics and gynecology
in Lexington, Kentucky because I was an assistant professor in the
Department of Obstetrics and Gynecology at the University of
Kentucky which is located in Lexington, Kentucky for two years
from 1970 to 1972. At the time of Ms. Wiechert’s subject injury, I
was an assistant clinical professor in the Department of Obstetrics
and Gynecology at the University of Kentucky located in Lexington,
Kentucky. I also had courtesy privileges at three hospitals in
Lexington, Kentucky which I utilized from time to time.
4. Further, I have testified in at least ten medical malpractice cases
in Memphis, Tennessee. As a consequence, I have had the
opportunity to review the depositions of and hear the testimony of
numerous Memphis, Tennessee physicians on the recognized
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standard of care of acceptable professional medical practice in the
field of gynecology and obstetrics. This has confirmed my opinion
that the recognized standard of care of acceptable professional
medical practice in the field of obstetrics and gynecology in
Memphis, Tennessee is the same as that of Lexington, Kentucky in
regard to the way that patients are evaluated for diagnostic
laparoscopys and the manner in which the laparoscopic procedure is
executed.
Dr. Patterson filed a motion to strike the affidavit of Dr. Swan, arguing that statements made
in his affidavit regarding his familiarity with the standard of care in Memphis are in contradiction
with his deposition testimony that the applicable standard of care is a national standard of care. Dr.
Patterson asserts that because Dr. Swan directly contradicts himself in sworn affidavits and
depositions on the issue of his familiarity with the local standard of care, his affidavit must be
stricken as inherently untrustworthy and therefore, inadmissable. On October 5, 2000, after a
hearing, the trial court entered an order granting defendant’s motion to strike Dr. Swan’s last
affidavit and granting summary judgment to defendant. The order states in pertinent part:
[T]he plaintiff is not able to establish the requirements of Tennessee
Code Annotated § 29-26-115(a)(1) insofar as the locality rule is
concerned as has been interpreted in the case of Mabon v. Jackson-
Madison County General Hospital, 968 S.W. 2d 826 (Tenn. Ct. App.
1997). The Court specifically rejects plaintiff’s argument that the
standard of care is a national standard or that the standard of care in
Memphis, Tennessee is the same as in Lexington, Kentucky because
all gynecologist read the same journals and articles and because they
have to pass the same examination to be board certified. The Court
relies upon the case of Beaty v. Irwin, 2000 WL 66028 (Tenn. Ct.
App. 2000), in which the Court of Appeals for the Eastern Section
rejected the identical argument. The Court further finds Dr. Swan’s
conclusion that Dr. Patterson deviated from the standard of care
because he cut the iliac artery, without having any basis for the
opinion, amounts to a presumption of negligence. T.C.A. § 24-26-
115(c) strictly disallows any presumption of negligence. For all the
foregoing reasons, the Court is of the considered opinion that the
motion to strike the affidavit should be granted and the motion for
summary judgment should likewise be granted.
Plaintiffs appeal the judgment of the trial court and present three issues for review which, as
stated in their brief, are:
I. Did Plaintiffs make a prima facie showing that Dr. David Swan had
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knowledge of the recognized standard of acceptable professional
practice in Memphis, Tennessee or in a similar community as to the
treatment of pelvic pain and of the performance of a diagnostic
laparoscopy.
II. Did the Plaintiffs, in response to the Motion For Summary
Judgment filed by Defendant on October 11, 1995, make a prima
facie showing that the Defendant deviated from the appropriate
standard of acceptable medical practice in his performance of a
diagnostic laparoscopy upon Plaintiff.
III. Did the trial court err in striking the affidavit of Dr. David Swan
dated September 28, 2000 which was submitted by Plaintiffs in
opposition to the Defendant’s Motion For Summary Judgment And
Supporting Memorandum filed on April 6, 2000.
A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993),
our Supreme Court stated:
Once it is shown by the moving party that there is no genuine issue
of material fact, the nonmoving party must then demonstrate, by
affidavits or discovery materials, that there is a genuine, material fact
dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06]
provides that the nonmoving party cannot simply rely upon his
pleadings but must set forth specific facts showing that there is a
genuine issue of material fact for trial.
Id. at 211 (citations omitted) (emphasis in original).
Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the
trial court’s grant of summary judgment is de novo on the record before this Court. Warren v.
Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
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In determining whether summary judgment was proper, we first address the correctness of
the trial court’s decision to strike Dr. Swan’s affidavit, as the dispositive issue on appeal is whether
the opinion of Plaintiffs’ expert, that defendant’s treatment of Ms. Wiechert did not meet the
standard of professional care in the community, or a similar community, is admissible in evidence.
A plaintiff’s burden in a medical malpractice case is defined in T.C.A. § 29-26-115:
(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 claimant 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.
(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.
(c) In a malpractice action as described in subsection (a), there
shall be no presumption of negligence on the part of the defendant;
provided, there shall be a rebuttable presumption that the defendant
was negligent where it is shown by the proof that the instrumentality
causing injury was in the defendant's (or defendants') exclusive
control and that the accident or injury was one which ordinarily
doesn't occur in the absence of negligence.
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T.C.A. § 29-26-115 (a) - (c) (2000). In order to qualify as an expert in a medical malpractice action,
a physician is not required to be familiar with all the medical statistics of a particular community.
Ledford v. Moskowitz, 742 S.W.2d 645 (Tenn. Ct. App. 1987). An expert tendered to demonstrate
a breach of duty must be familiar with the standard of care in the community in which the defendant
practices or in a similar community in order to meet the threshold requirement regarding the standard
standard of care in the locality. Although the trial court has broad discretion in determining the
qualifications of expert witnesses and the admissibility of their testimony, Shelby County v. Barden,
527 S.W.2d 124 (Tenn. 1975), reversal of the trial court’s discretion is appropriate where the trial
court’s action is clearly erroneous or where there has been an abuse of discretion. Thomas v.
Harper, 53 Tenn. App. 549, 385 S.W.2d 130 (1964).
The trial court found that Plaintiffs were not able to establish the requirements of T.C.A. §
29-26-115(a)(1) insofar as the locality rule is concerned as interpreted in Mabon v. Jackson-
Madison County General Hospital, 968 S.W. 2d 826. However, the facts in Mabon appear to be
distinguishable from the instant case. In Mabon, this Court found that the plaintiff’s expert was not
qualified to give an opinion as to whether the plaintiff’s wife’s death was caused by a doctor’s breach
of the standard of care in treating her bowel obstruction because the expert was not familiar with the
standard of care in the area of Jackson, Tennessee, where the treatment took place. In that case,
plaintiff’s expert, Dr. Shane, stated in his affidavit that he was familiar with the recognized standard
of acceptable medical practice in areas such as Jackson, Tennessee and at a hospital the size of the
facility at which the plaintiff’s wife received treatment. The Mabon Court noted that Dr. Shane
stated that the standard of care in Jackson would be comparable to cities and facilities in which he
practiced medicine, and is the same standard used for New York and other large cities, which, in
effect, is a national standard. Id. At 830. The Court found significant Dr. Shane’s statement that
the defendant failed to meet the standard of care that “should have been available” in a city the size
of Jackson, Tennessee, finding that the statement “illustrates that his statement in his affidavit
regarding the standard of care is premised on the national standard of care and not on the standard
of care for Jackson or similar communities.” Id. In addition, the Court noted that in his deposition,
Dr. Shane “readily admits his complete lack of knowledge of Jackson’s medical community...” Id.
The Mabon Court found a complete lack of knowledge concerning a community’s medical resources
would be contrary to knowledge of the required standard of care. Id.
The trial court also relied on the case of Beaty v. Irwin, No. E1999-00014-COA-R3-CV,
2000 WL 66028 (Jan. 27, 2000), stating that in Beaty, the Eastern Section of the Tennessee Court
of Appeals rejected the same argument as presented in the instant case. The trial court presents the
argument as: “that the standard of care is a national standard or that the standard of care in Memphis,
Tennessee is the same as in Lexington, Kentucky because all gynecologist read the same journals
and articles and because they have to pass the same examination to be board certified.” However,
we distinguish the facts in Beaty from the facts before us. In Beaty the plaintiff’s expert stated that
he had not done anything to determine the standard of care in Knox County, the community where
the defendant practiced as a dentist. In addition, although plaintiff’s expert claimed that he believed
that Knox County and Augusta, Georgia, where he lived, were similar communities, he had not done
any research to determine if that was true. Id. at *1. In Beaty the plaintiff made efforts to buttress
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their expert’s opinion by filing a supplementary affidavit containing claims of having written an
article for the Tennessee Dental Association, having taken a course in Tennessee, though not in
Knox county, contact with individuals in Knox County, and a familiarity with the number of dentist
in that area. The expert claimed to be familiar with the standard of care in Knoxville based on his
belief that the standard of care was the same throughout the Southeast region and possibly the
country. On appeal, the Court found no abuse of discretion in not allowing the testimony of
plaintiff’s expert stating that although plaintiff’s expert testified that he thought Knoxville and
Augusta were similar communities, he had not produced facts to support that this was true.
Dr. Swan, in his deposition, indicates that there is a national standard of care for physicians
in this particular specialty and that therefore he is familiar with the standard of care in Memphis,
Tennessee. In his second affidavit, which was stricken by the trial court, he establishes that he is
familiar with the recognized standard of care in the field of obstetrics and gynecology in Lexington,
Kentucky, by virtue of his experience set out in his affidavit. He also opines that Lexington,
Kentucky and Memphis, Tennessee are similar areas with regard to the standard of care of acceptable
professional medical services, stating: “Both Lexington, Kentucky and Memphis, Tennessee are
regional medical centers and are the locations of their state medical schools.” The affidavit goes
somewhat further stating that because of Dr. Swan’s involvement in medical malpractice cases in
Memphis, Tennessee, he has the opinion that the recognized standard of care of acceptable
professional medical services of obstetrics and gynecology in Memphis is the same as that in
Lexington.
Dr. Patterson additionally argues that according to Tennessee law, Dr. Swan’s statements
cancel each other out as they are in direct conflict with one another.
Tennessee follows the rule that contradictory statements by
the same witness regarding a single fact cancel each other out. See
State v. Matthews, 888 S.W.2d 446, 449 (Tenn.Crim.App.1993);
Gambill v. Middle Tenn. Med. Ctr., 751 S.W.2d at 149-50. The
Tennessee Supreme Court has characterized mutually contradictory
statements by the same witness as "no evidence" of the fact sought to
be proved. See Johnston v. Cincinnati N.O. & T.P. Ry., 146 Tenn.
135, 160, 240 S.W. 429, 436 (1922). However, in order to be
disregarded under the so-called cancellation rule, the allegedly
contradictory statements must be unexplained and neither statement
can be corroborated by other competent evidence. See State v.
Matthews, 888 S.W.2d at 450; Gambill v. Middle Tenn. Med. Ctr.,
751 S.W.2d at 151. When the cancellation rule is invoked at the
summary judgment stage to challenge evidence opposing the motion,
the courts must view the challenged evidence in the light most
favorable to the opponent of the motion.
Church v. Perales, No. M1997-00227-COA-R3-CV, 2000 WL 1183074 at *17 (Tenn.Ct.App.
Aug. 22, 2000).
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Upon a review of the record in a light that is most favorable to Plaintiffs, we do not find
statements made by Dr. Swan regarding the applicable standard of care to be in conflict with one
another. In response to questions regarding the standard of care for the treatment of pelvic pain, Dr.
Swan states in his deposition that there is a nationwide standard of care. In his first affidavit, Dr.
Swan states that “the standard of care in Memphis would be similar to that of the Lexington,
Kentucky the area where I practice” and further that “I was practicing Gynecology in Berea,
Kentucky during the year immediately preceding the date which Dr. Patterson performed the
laparoscopy on Susan Wiechert.” In his second affidavit, Dr. Swan enumerates similarities between
Memphis and Lexington and gives facts to substantiate his familiarity with the standard of care in
Memphis including his involvement in other medical malpractice case in Memphis. We find no
inherent contradiction in the statements made by Dr. Swan. “Moreover, when the cancellation rule
is invoked at the summary judgment stage, the challenged evidence opposing the motion, the court
must view the challenged evidence in the light most favorable to the opponent of the motion.”
Church , 2000 WL 1183074 at *17 (Aug. 22, 2000).
The trial court also found that Dr. Swan concluded that Dr. Patterson deviated from the
standard of care because he cut the iliac artery without having any basis for the opinion, thereby
making a presumption of negligence which is strictly disallowed by T.C.A. § 29-26-115(c). When
an expert’s opinion is challenged, the court is to determine whether the opinion is based on creditable
facts or data sufficient to provide some basis for the opinion. McDaniel v. CSX Transp., Inc., 955
S.W.2d 257, 265 (Tenn. 1997). Our task is not to determine the expert’s credibility or the weight
to be giving the evidence, but rather to review the challenged opinion and determine if it has some
legally-acceptable basis from which the expert’s conclusion could be rationally drawn. Church,
2000 WL 1183074 at *13 (citing Devore v. Deloitte & Touche, No. 01A01-9602-CH-00073, 1998
WL 68985, at *9-10 (Tenn. Ct. App. Feb. 20, 1998)). Although a lack of precision by Dr. Swan
may eventually undermine the weight of his testimony, it is not the task of the appellate court to
weigh the evidence at the summary judgment s stage of the proceedings. Id, at *18.
Dr. Swan’s opinions are based on his personal review of Ms. Wiechert’s medical records
including the office records of Drs. Patterson and McDaniel3, the hospital records for Methodist
Hospital from May 25 through June 1, 1994, the deposition of Dr. Patterson taken August 24, 1995,
and Dr. Patterson’s affidavit. Dr. Swan’s affidavit states that he graduated from medical school in
1962, and is currently licensed to practice medicine in Kentucky. He is board certified in obstetrics
and gynecology. Dr. Swan testified that nicking the left iliac artery in this procedure, even though
considered to be a recognized risk and complication, is a result of deviation from the standard of
care, stating in his deposition:
A. Okay. I have already defined the standard of care, that the
trocar must be passed into the abdominal cavity parallel to the
midline in the midline. It should be passed to a depth that permits
3
Dr. McDaniel is a general surgeon wh o assisted Dr. Patterson in the laparo tomy a t Dr. Patterson’s
request when he discovered that blood was accumulating in Ms. Wiechert’s abdominal cavity.
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entry into the peritoneal cavity at the level of the anterior abdominal
wall.
Q. Right.
A. That is the standard of care.
A. Right.
A. As previously testified to, the iliac artery is far deeper, far further
from that point. One person has the control of the placement of that
trocar and that is the surgeon. If that trocar goes anywhere else but
directly in the midline and directly into the peritoneal cavity, then
who is doing it, the surgeon. He is responsible for that deviation from
standard of care.
Ms. Wiechert suffered damages resulting from a laceration to her left iliac artery which
occurred during a procedure preformed by Dr. Patterson. In his deposition, Dr. Patterson testified
that during the surgery he made two insertions of the trocar into the peritoneal cavity because the
first insertion was too small to accommodate the insertion of the laparoscope. When Dr. Patterson
was able to view the peritoneal cavity, he noticed significant bleeding in the cavity and requested the
assistance of Dr. McDaniel. According to Dr. Patterson’s deposition the distance from the point of
entry to Ms. Wiechert’s left iliac artery injury was significantly more than the entry point of the
trocar to the location where Dr. Patterson intended to place the trocar to enter the peritoneal cavity.
Dr. Patterson further testified that the risk of striking the left iliac artery was remote, and injury to
the iliac artery could be caused by the angle at which the trocar is inserted and/or the distance that
the trocar enters the cavity. He states that there were no abnormalities in Ms. Wiechert’s anatomical
structures.
Admittedly, when a plaintiff is relying on the standard of care in a similar community, there
must be proof that the community is similar to the one where the defendant physician practices. See
Mabon v. Jackson-Madison County General Hosp., 968 S.W.2d 826, 831 (Tenn. Ct. App. 1997).
Although Dr. Swan’s testimony concerning the similarity of Lexington and Memphis is somewhat
meager, we believe this testimony in conjunction with Dr. Swan’s testimony concerning his
knowledge of the standard of care of Memphis is barely sufficient to withstand attack at the
summary judgment stage of the proceeding. Therefore, the order striking Dr. Swan’s affidavit
should be reversed and his testimony in its entirety considered for summary judgment purposes.
Viewing the record as a whole and considering Dr. Swan’s testimony along with the
testimony of Dr. Patterson, there does appear to be material issues of fact in dispute concerning
deviation from the standard of care.
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Accordingly, the order of the trial court granting summary judgment to defendant is reversed.
The case is remanded to the trial court for further proceedings as may be necessary. Costs of the
appeal are assessed against the appellee, Dr. Rushton E. Patterson.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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