Appeal from the Circuit Court for Davidson County
No. 07-C-2143 Amanda McClendon, Judge
No. M2009-01112-COA-R3-CV - Filed August 19, 2010
An inmate appeals a summary judgment dismissing his medical malpractice and 42 U.S.C.
§ 1983 claims against the correctional facility’s psychiatrist. Since the defendant’s doctornegated essential elements of both claims with her expert affidavit and plaintiff failed tocreate a genuine issue of material fact, the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
PATRICIA J. COTTRELL, delivered the opinion of the Court, in which ANDY D. BENNETT andRICHARD H. DINKINS, JJ., joined.
Joseph Howell Johnston, Nashville, Tennessee, for the appellant, Dewayne Sharkey.
E. Reynolds Davies, Jr., John T. Reese, Nashville, Tennessee, for the appellee, MollyO’Toole, M.D.
Mr. Sharkey filed suit against Corrections Corporation of America, the warden and a correctional officer making various tort and civil rights claims related to medical treatmenthe received while incarcerated at South Central Correctional Center (“SCCC”). Thecomplaint also included claims against Dr. Molly O’Toole, the facility’s psychiatrist.
Mr. Sharkey’s complaint alleged that Dr. O’Toole provided medical and psychiatric services to inmates to SCCC. According to his complaint, Dr. O’Toole prescribed Haldol to Mr. Sharkey in spite of his protests and a note in his file advising Dr. O’Toole that Mr.
Sharkey was allergic to Haldol. Mr. Sharkey alleged that he suffered severe and debilitatingside effects as a result of being treated with Haldol. His complaint alleged two causes of action against Dr. O’Toole. First, Mr. Sharkey alleges that Dr. O’Toole violated 42 U.S.C.
§ 1983 as follows: The conduct of Defendant Dr. O’Toole in prescribing antipsychoticmedications to treat Plaintiff which were known to have caused him to suffersevere and long-lasting side effects constitutes a gross departure from thestandard of care for psychiatrists treating patients such as Plaintiff andtherefore constitutes deliberate indifference to his serious medical needs [inviolation of the 8th Amendment to the United States Constitution].
Second, Mr. Sharkey alleged Dr. Toole committed medical malpractice.
Plaintiff avers that the conduct of Defendant Dr. O’Toole was negligent andconstitutes medical malpractice as provided under Tennessee Code Annotated§ 29-26-115. She negligently breached the standard of acceptable professionalpractice owed to Plaintiff which was a proximate cause of the aggravation ofhis pre-existing condition which would not have otherwise occurred.
In response, Dr. O’Toole filed a motion for summary judgment accompanied by her affidavit. According to her affidavit, she has practiced psychiatry since 1992 in Nashvilleand has been a psychiatrist at SCCC since 1994. Dr. O’Toole’s affidavit states that based onher education and experience practicing psychiatry in Clifton, Tennessee, where the SCCCis located since 1994, she is familiar with the recognized standard of professional practicefor psychiatrists during the relevant time.
According to Dr. O’Toole’s affidavit, at the time of her initial evaluation in May of 2004, Mr. Sharkey was already receiving injections of 200 mg per month of Haldol to treathis previously diagnosed schizophrenia. At that time, Mr. Sharkey reported no complaintsand indicated on his health questionnaire that he had no allergies. While Mr. Sharkeyexpressed a desire not to take Haldol, “in my judgment, it was appropriate to continuetreating him with Haldol for management of his mental health condition.” She discussed therisk and benefits of Haldol with him and reduced his monthly injection of Haldol to 50 mg. Mr. Sharkey signed a consent form for the reduced Haldol. When she saw Mr. Sharkey inJuly of 2004, Mr. Sharkey denied having any side effects and at that time “I was unable tofind any clinical evidence that Mr. Sharkey suffered from psychosis or major affectivedisorder and I began to suspect that Mr. Sharkey was not truly psychotic.” At that time, shefurther reduced his dosage of Haldol to 25 mg per month. Dr. O’Toole states in her affidavit that she saw Mr. Sharkey thereafter regularly from May of 2004 through January of 2006. According to Dr. O’Toole’s affidavit, she did not observe any clinical evidence that Mr. Sharkey was allergic to Haldol or complicationsarising from long term administration of the antipsychotic medication. Dr. O’Toole’saffidavit also states that in the event a patient suffers side effects from Haldol, that does notmean the patient is allergic to the drug. On numerous occasions, Mr. Sharkey refused to takehis dose of Haldol and, after noting that Mr. Sharkey was doing well for months withoutantipyschotic medication, she terminated the Haldol order in August of 2005.
Dr. O’Toole does not deny Mr. Sharkey’s abnormal behavior. She describes in her affidavit abnormal behavior by Mr. Sharkey and that generally she saw him after each ofthese incidents. Her affidavit provides as follows: I did not find any consistent clinical evidence of psychosis during multipleclinical evaluations of Plaintiff and it is my opinion that Plaintiff was not andis not psychotic. Plaintiff did not receive any Haldol during this time [of theabnormal behavior] and had not received Haldol since September 2005. It ismy opinion now and at the time of these occurrences that Plaintiff engaged inpurpose-driven, abnormal behavior because he wanted a cell to himself andwanted to be transferred to the special needs facility in Nashville for thisreason.
Dr. O’Toole goes on to give an expert opinion on whether her treatment of Mr.
Sharkey constituted negligence, medical malpractice or indifference to his medical needs,whether intentionally, or negligently: . . . I recommended a substantial decrease in the Haldol dosage that hadalready been ordered for Mr. Sharkey by another physician in order to decreasethe potential for side effects from long-term administration of thisantipsychotic medication.
The psychiatric evaluations and treatment that I provided to Mr. Sharkey onnumerous occasions from May 2004 through December 2005 fully compliedwith the recognized standard of acceptable professional practice forpsychiatrists in Clifton, TN for treatment of similar patients under similarcircumstances. I accurately diagnosed the Plaintiff’s condition based upon theinformation available to me at the time, and I provided appropriate psychiatricmanagement of this patient, including appropriate antipsychotic drugmanagement with Haldol, monitoring for effectiveness and side effects, andappropriate and timely follow-up psychiatric evaluations. It is my opinion thatI did not cause the Plaintiff to suffer any injury which would not otherwisehave occurred.
I was not deliberately indifferent to any serious medical or psychiatric needwhile Mr. Sharkey was under my care, and I did not deliberately orintentionally prescribe or administer Haldol to Mr. Sharkey with theknowledge that he was allergic to the medication. Instead, I made anappropriate diagnosis of Plaintiff’s condition and I provided appropriatepsychiatric treatment, antipsychotic drug therapy, monitoring, and follow-upcare. My diagnosis, evaluation, and treatment of Plaintiff did not deviate fromthe recognized standard of acceptable professional practice for psychiatrists inClifton, TN in 2004-2005, and I did not fail to take any action or prescribe anyadditional treatment required by the standard of care under the circumstancesof this case.
For these reasons, it is my opinion that I complied with the requirements ofacceptable professional practice in providing psychiatric care and treatment toPlaintiff Dewayne Sharkey. Nothing which I did, or failed to do, causedPlaintiff to suffer any injury which would not otherwise have occurred.
In response to Dr. O’Toole’s affidavit, Mr. Sharkey filed his affidavit. According to his affidavit, he disagreed with Dr. O’Toole about the cause of his abnormal behavior andstated that he should have been prescribed an alternative medication for his mental illness. Mr. Sharkey also argues that side effects from Haldol indicate it should not be prescribed. The trial court granted Dr. O’Toole’s motion for summary judgment in May of 2009. After consideration of the record before the Court, and pursuant to TRCP56.04, the Court is of the opinion that Defendants have appropriately negatedessential elements of Plaintiff’s cause of action under 42 U.S.C. § 1983(deliberate indifference to a serious medical need), that proof of causation ofinjury is not within the realm of lay understanding in this case and must beestablished through expert witness testimony, that Plaintiff has had a sufficientamount of time to obtain expert witness testimony to oppose Defendant’ssummary judgment motion, and that Plaintiff’s evidence fails to demonstratethat there are genuine issues of material fact for trial relating to the existenceof Plaintiff’s injuries and damages, including whether or not Plaintiff had anallergy to the medication Haldol.
The Court is also of the opinion that Defendants have appropriately negatedessential elements of Plaintiff’s medical malpractice action under T.C.A. § 29-26-115, that proof of causation of injury is not within the realm of lay understanding in this case and must be established through expert witnesstestimony, and that Plaintiff has had a sufficient amount of time to obtainexpert witness testimony to oppose defendant’s summary judgment motion. Plaintiff’s evidence fails to demonstrate that there are genuine issues ofmaterial fact for trial relating to the recognized standard of acceptableprofessional practice in the specialty of psychiatry, whether or not Defendantacted in accordance with such standard, and the existence of Plaintiff’s injuriesand damages. Plaintiff’s evidence has not created any issues of fact thatDefendant O’Toole injured him or that Plaintiff suffered injuries that wouldnot otherwise have occurred if treatment had been instituted by Dr. O’Tooleusing a medication other than Haldol. T.C.A. § 29-26-115(a)(3).
A trial court’s decision on a motion for summary judgment enjoys no presumption of correctness on appeal. Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 84 (Tenn.
2008); Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review thesummary judgment decision as a question of law. Id. Accordingly, this court must reviewthe record de novo and make a fresh determination of whether the requirements of Tenn. R.
Civ. P. 56 have been met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004);Blair, 130 S.W.3d at 763.
The moving party has the burden of demonstrating it is entitled to judgment as a matter of law and that there are no material facts in dispute. Martin, 271 S.W.3d at 83. Tobe entitled to summary judgment, a defendant moving party must either (1) affirmativelynegate an essential element of the non-moving party’s claim or (2) show that the nonmovingparty cannot prove an essential element of the claim at trial. Hannan v. Alltel Publishing Co.,270 S.W.3d 1, 9 (Tenn. 2008). If the party seeking summary judgment makes a properlysupported motion, the burden shifts to the nonmoving party to set forth specific factsestablishing the existence of a genuine issue of material fact. Martin, 271 S.W.3d at 84;Hannan, 270 S.W.3d at 5; Staples v. CBL & Associates, 15 S.W.3d 83, 86 (Tenn. 2000)(citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). Expert testimony is required to establish negligence and causation in medical malpractice cases, except where the act of alleged malpractice lies within the knowledge ofordinary laymen. Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn. Ct. App. 2003); Mercerv. HCA Health Services of Tennessee, 87 S.W.3d 500, 507 (Tenn. Ct. App. 2002). TennesseeCode Annotated § 29-26-115 sets out the requirements for establishing a malpractice claim, (a) In a malpractice action, the claimant shall have the burden of proving byevidence as provided by subsection (b): (1) The recognized standard of acceptable professional practicein the profession and the specialty thereof, if any, that thedefendant practices in the community in which the defendantpractices or in a similar community at the time the alleged injuryor wrongful action occurred;(2) That the defendant acted with less than or failed to act withordinary and reasonable care in accordance with such standard;and(3) As a proximate result of the defendant’s negligent act oromission, the plaintiff suffered injuries which would nototherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws ofthis state shall be competent to testify in any court of law to establish the factsrequired to be established by subsection (a), unless the person was licensed topractice in the state or a contiguous bordering state a profession or specialtywhich would make the person's expert testimony relevant to the issues in thecase and had practiced this profession or specialty in one (1) of these statesduring the year preceding the date that the alleged injury or wrongful actoccurred. This rule shall apply to expert witnesses testifying for the defendantas rebuttal witnesses. The court may waive this subsection (b) when itdetermines that the appropriate witnesses otherwise would not be available.
As discussed above, in order to be successful on summary judgment, a defendant must negate an essential element of plaintiff’s claim. Medical malpractice actions are noexception to this rule. In the malpractice actions wherein expert testimony is required to establishnegligence and probable cause, affidavits by medical doctors which clearly andcompletely refute plaintiff’s contention afford a proper basis for dismissal ofthe actions on summary judgment, in the absence of proper responsive proofby affidavit or otherwise.
Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn. 1977). The burden of establishing that an expert meets the requirements of Tenn. Code Ann.
§ 29-26-115 is on the party offering the expert, whether it be a plaintiff or defendant. Allenv. Methodist Healthcare Memphis Hospitals, 237 S.W.3d 293 (Tenn. Ct. App. 2007) (citingCarpenter v. Klepper, 205 S.W.3d 474, 483 (Tenn. Ct. App. 2006).
On appeal, Dr. O’Toole argues that her affidavit provides clear and unambiguous proof that Dr. O’Toole’s treatment of Mr. Sharkey met the recognized standard ofprofessional practice for psychiatry and that Mr. Sharkey was not injured by the treatmenthe received from Dr. O’Toole. This same proof also establishes that Dr. O’Toole was notindifferent to his medical needs, whether deliberately or negligently. Since the essentialelements of Mr. Sharkey’s claims were negated and he did not offer countervailing experttestimony, Dr. O’Toole argues the trial court should be affirmed.
Mr. Sharkey makes several arguments why the trial court erred in granting Dr.
O’Toole summary judgment which we will address in turn.
First, Mr. Sharkey argues that in Dr. O’Toole’s deposition it was shown that she was not familiar with the contents of the Tennessee Department Of Correction’s Mental HealthProcedures and Treatment Manual (“Manual”) and, as such, she is not familiar with therecognized standard of care. There is no proof, however, that the Manual embodies thestandard of care. Mr. Sharkey submits no proof that the Manual sets or describes thestandard of care and, according to Mr. Sharkey’s brief, Dr. O’Toole herself refused to testifyin her deposition that the Manual embodied the applicable standard.
Second, Mr. Sharkey argues that Dr. O’Toole allegedly violated several provisions in the Manual during her treatment of him. As discussed above, however, there is no proof thatthe Manual established or embodied the applicable standard of care.
Third, Mr. Sharkey argues that Dr. O’Toole’s treatment was the proximate cause of his injuries. In effect, Mr. Sharkey is arguing that her diagnosis and treatment were in errorbut provides no proof of such conclusions, expert or otherwise, other than his mere assertion. Furthermore, Dr. O’Toole provides expert proof in the form of her affidavit that hertreatment of Mr. Sharkey did not injure him.
Fourth, Mr. Sharkey appears to argue that Dr. O’Toole’s affidavit is lacking in substance and is merely conclusory. Dr. O’Toole’s affidavit is 8 pages in length, with mostof them devoted to describing her treatment of Mr. Sharkey in considerable detail.
Finally, with regard to his § 1983 claim, Mr. Sharkey argues Dr. O’Toole failed to establish that she was not indifferent to his serious medical needs. However, the civil rightsclaim is based on the same alleged mistreatment by Dr. O’Toole as the malpractice claim. Again, Mr. Sharkey offered no expert proof to rebut Dr. O’Toole’s affidavit. Additionally,even if the elements of the indifference claim are different from those of the malpracticeclaim, Dr. O’Toole’s affidavit sets out a course of treatment and dealings with Mr. Sharkeythat demonstrate a lack of indifference. Mr. Sharkey argues he should be given further timeto locate an expert. Mr. Sharkey filed this action in July of 2007, Dr. O’Toole filed heraffidavit in support of her motion for summary judgment in October of 2008, and the trialcourt granted the motion in May of 2009. Mr. Sharkey was represented by counselthroughout. The trial court did not err when it found that Mr. Sharkey had an adequateopportunity to locate expert testimony.
For the foregoing reasons, the trial court is affirmed. Costs of this appeal are assessed against the appellant, Dewayne Sharkey for which execution may issue if necessary.
_________________________________PATRICIA J. COTTRELL, JUDGE

Source: http://www.tba2.org/tba_files/TCA/2010/sharkeyd_082010.pdf

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