Grisham v. McLaughlin, No. M2004-01662-COA-R3-CV (Tenn. App. 6/12/2006)

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Unpublished Opinion

LYNDA GRISHAM v. STEVEN G. McLAUGHLIN, ET AL.

No. M2004-01662-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

August 19, 2005 Session.

Filed June 12, 2006.

Appeal from the Circuit Court for Davidson County; No. 03C-2233; Barbara N. Haynes, Judge.

Judgment of the Circuit Court Reversed.

R. Stephen Doughty, Nashville, Tennessee, for the appellant, Lynda Grisham.

C.J. Gideon, Clare T. Smith, and Kenneth P. Flood, Nashville, Tennessee, for the appellees, Steven G. McLaughlin and Premier Orthopaedic & Sports Medicine, PLC.

William C. Koch, Jr., P.J., M.S., delivered the opinion of the court, in which William B. Cain and Frank G. Clement, Jr., JJ., joined.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S.

This appeal involves a medical malpractice action arising from knee replacement surgery. The patient filed suit against her surgeon in the Circuit Court for Davidson County in August 2003. Approximately four months later, the surgeon filed a motion for summary judgment supported by his own affidavit. The patient requested a continuance of the hearing on the summary judgment motion to depose the surgeon. The surgeon renewed his summary judgment motion on the day after his deposition. Prior to the hearing, the patient requested another continuance because the surgeon's deposition had not yet been signed and because the patient's expert had not yet had an opportunity to review the deposition. The trial court declined to grant the continuance. The court also granted the surgeon's summary judgment motion after concluding that there were no material factual disputes because the patient had failed to present an expert affidavit contradicting the surgeon's affidavit. The patient filed a Tenn. R. Civ. P. 59.04 motion accompanied by an affidavit opposing the summary judgment motion. After the trial court denied that motion, the patient appealed. We have determined that the summary judgment must be vacated because, under the facts of this case, the patient was not provided an adequate opportunity to respond to the surgeon's summary judgment motion.

I.

Lynda Grisham suffered from persistent pain in her left knee. After several surgical procedures on her knee failed to relieve her discomfort, she sought treatment from Dr. Steven G. McLaughlin, an orthopaedic surgeon practicing in Nashville with Premier Orthopaedic & Sports Medicine, PLC ("Premier Orthopaedic").

Ms. Grisham's first office visit with Dr. McLaughlin occurred on July 24, 2001. Dr. McLaughlin ordered an MRI and, based on the results, prescribed a brace and a regimen of physical therapy. After these treatments proved unsuccessful, Dr. McLaughlin prescribed a variety of injections and other medications. When Ms. Grisham continued to have discomfort, Dr. McLaughlin broached the subject of a total knee replacement. Ms. Grisham eventually informed Dr. McLaughlin that she desired to proceed with total knee replacement surgery.

On May 20, 2002, Dr. McLaughlin performed total knee replacement surgery on Ms. Grisham's left knee. Ms. Grisham began physical therapy following surgery, but the degree of flexion in her knee decreased rather than increased. Dr. McLaughlin attempted unsuccessfully to increase the degree of flexion in Ms. Grisham's left knee on several occasions. However, by August 2002, Ms. Grisham was experiencing pain in her left knee and lacked the desire to continue therapy to increase the flexion in her left knee. An x-ray revealed a fracture in her left knee which Dr. McLaughlin treated with a brace.

Ms. Grisham became dissatisfied with the treatment she was receiving from Dr. McLaughlin and consulted another orthopaedic surgeon, Dr. Joseph D. Chenger. Dr. Chenger determined that Ms. Grisham's femur was fractured and treated the fracture by immobilizing her left knee. The flexion in Ms. Grisham's knee decreased. On December 11, 2002, Dr. Chenger performed a second total knee replacement surgery on Ms. Grisham and inserted a new prosthesis into her left knee.

On August 5, 2003, Ms. Grisham filed a medical malpractice complaint against Dr. McLaughlin and Premier Orthopaedic in the Circuit Court for Davidson County. She alleged that Dr. McLaughlin failed to comply with the standard of care for orthopaedic surgeons and physicians in Davidson County and that Premier Orthopaedic was vicariously liable for Dr. McLaughlin's negligence. Dr. McLaughlin and Premier Orthopaedic filed their answer on October 8, 2003, after the entry of an agreed order extending the time for filing their answer.

On November 25, 2003, Dr. McLaughlin and Premier Orthopaedic filed a motion for summary judgment, along with a statement of undisputed material facts and an affidavit from Dr. McLaughlin stating that he had not departed from the recognized standard of professional practice in his treatment of Ms. Grisham. The trial court set a hearing on the summary judgment motion for January 16, 2004. On January 7, 2004, Ms. Grisham filed a Tenn. R. Civ. Proc. 56.07 motion to continue the hearing because she desired to depose Dr. McLaughlin and needed more time to respond to the summary judgment motion. Ms. Grisham also filed an affidavit by her attorney stating that he would be unable to attend a hearing on January 16, 2004 because he was scheduled to try a case in another county.

On January 9, 2004, Dr. McLaughlin and Premier Orthopaedic responded to Ms. Grisham's motion to continue the summary judgment hearing. They opposed the motion on the ground that Ms. Grisham had not served any discovery requests on them and had not responded to their written interrogatories or requests for production. On January 12, 2004, Ms. Grisham filed a memorandum in support of her motion, arguing that she had not missed any discovery deadlines and that giving her additional time to respond to the summary judgment motion would not prejudice either Dr. McLaughlin or Premier Orthopaedic. Ms. Grisham's lawyer also filed another affidavit stating that he had been forced to notice Dr. McLaughlin for a deposition on January 26, 2004 because Dr. McLaughlin had failed to respond to his requests. He also stated that Ms. Grisham's responses to Dr. McLaughlin's and Premier Orthopaedic's discovery requests would be submitted on January 12, 2004.

The trial court conducted a hearing on January 16, 2004, and took Ms. Grisham's motion for an extension of time under advisement. Later, on February 4, 2004, the trial court conducted a scheduling conference. In an agreed order filed on February 10, 2004, the parties agreed to the following deadlines: (1) written discovery would be completed by July 1, 2004; (2) all experts for Ms. Grisham and their statements would be disclosed by August 1, 2004; (3) all experts for Dr. McLaughlin and Premier Orthopaedic and their statements would be disclosed by October 15, 2004; (4) all expert discovery depositions would be completed by December 15, 2004; (5) all depositions would be completed by January 15, 2005; and (6) a trial date must be obtained on or before November 1, 2004. Contrary to the trial court's normal practice, the scheduling order did not include a date on which the summary judgment motion would be heard.

Dr. McLaughlin eventually responded to Ms. Grisham's notice for deposition by asserting that the earliest he could be available to give a deposition would be sometime in March 2004. Accordingly, both Dr. McLaughlin and Ms. Grisham were deposed on March 11, 2004. Dr. McLaughlin refused to waive signature. On March 12, 2004, Dr. McLaughlin and Premier Orthopaedic filed a motion to dispose of their pending summary judgment motion. They asserted that no material factual disputes existed because Ms. Grisham had failed to file an expert affidavit opposing Dr. McLaughlin's affidavit. Thus, a hearing on Dr. McLaughlin's and Premier Orthopaedic's summary judgment motion was set for March 26, 2004 — fifteen days after Dr. McLaughlin's deposition.

On March 22, 2004, Ms. Grisham filed a memorandum in opposition to the March 26, 2004 hearing. She pointed out that Dr. McLaughlin had not made himself available for a deposition until March 11, 2004 and that she had ordered a copy of Dr. McLaughlin's deposition but that it had not yet been received. Three days later, on March 25, 2004, Ms. Grisham's lawyer filed another affidavit stating that he had received an unsigned draft of Dr. McLaughlin's deposition and that he had forwarded a copy of the deposition to his expert for review.

The trial court held a hearing on Dr. McLaughlin's and Premier Orthopaedic's motion on March 26, 2004 despite Ms. Grisham's objections. In an order filed on April 5, 2004, the trial court granted a summary judgment for Dr. McLaughlin and Premier Orthopaedic because no genuine dispute of material fact existed due to Ms. Grisham's failure to file an expert affidavit to rebut Dr. McLaughlin's affidavit. The court noted critically that Ms. Grisham had failed to initiate discovery immediately after filing her complaint.

On May 4, 2004, Ms. Grisham filed a Tenn. R. Civ. P. 59.04 motion to alter or amend. In support of her motion, she attached an affidavit from Dr. Nancy Garber stating that Dr. McLaughlin's decision to perform total knee replacement surgery on Ms. Grisham fell below the applicable standard of professional practice in light of the x-ray findings in the record and that the fracture of Ms. Grisham's femur, the treatment of that fracture, all subsequent surgeries, and the greatly reduced range of motion in Ms. Grisham's left knee would not have occurred had Dr. McLaughlin not performed total knee replacement surgery. The trial court filed an order on June 15, 2005 denying Ms. Grisham's Tenn. R. Civ. P. 59.04 motion. The trial court stated that Dr. Garber's affidavit was based "entirely on medical records" which had been available to Ms. Grisham long before she filed suit. The trial court also chastised Ms. Grisham for failing to demonstrate that she had been...