author: HOLLY M. KIRBY, J.,

text:
    Kimberly BYARS v. Earl YOUNG.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    April 20, 2010 Session.
    May 20, 2010.
    Permission to Appeal Denied by Supreme Court Nov. 10, 2010.

      Plaintiff/App ellant Kimberly Byars, Lansing, Michigan, pro se.
    Defendant/Appellee Earl Young, Memphis, Tennessee, pro se.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.

This is an appeal from a juvenile court custody proceeding. The mother filed a petition for legitimation in the Juvenile Court. The Juvenile Court entered an order finding that the defendant father is the child’s natural father, designating the mother as the child’s primary residential parent and granting weekend parenting time to the father. After a protracted dispute over parenting time, the Juvenile Court entered an order designating the father to be the child’s primary residential parent, with no provision for parenting time for the mother. The mother then appealed to the Circuit Court. After several years of Circuit Court proceedings, the case was transferred to another Circuit Court judge who ultimately entered an order dismissing the appeal. The mother appealed the Circuit Court’s order. After remand, the Circuit Court transferred the appeal to the Court of Appeals. We affirm the designation of the father as the primary residential parent but find that the Juvenile Court erred in not providing for parenting time for the mother, and remand the case to the Juvenile Court for entry of an order providing for parenting time for the petitioner mother.

Facts and Proceedings Below

The child at issue in this appeal, a daughter, was born to Plaintiff/Appellant Kimberly Byars (“Mother”) in November 1999. In February 2001, Mother filed a petition in the Shelby County Juvenile Court to establish the parentage of Defen-danVAppellee Earl Young (“Father”) as to the daughter.

After a hearing on the petition, the Juvenile Court Referee entered an order finding that Father is the daughter’s natural father and legitimating the child. Mother was designated as the child’s primary residential parent, Father was awarded unsupervised weekend parenting time, and Father was ordered to pay monthly child support.

Almost immediately after that, disputes arose between the parties. At some point, Mother witnessed conduct by Father that she believed to be sexual abuse of her infant son. Mother refused to comply with the Juvenile Court order providing for unsupervised residential parenting time for Father with the parties’ daughter. After she refused to produce the child, temporary custody was awarded to Father, and Mother was found in contempt of court. After some time, temporary custody was returned to Mother, family counseling was ordered, and a guardian ad litem for the child was appointed. Mother alleged that, in December 2002, the parties’ daughter returned from spending residential parenting time with Father and told Mother that Father had fondled her. At some point, the Tennessee Department of Children’s Services investigated the allegations of sexual misconduct against Father and determined that they were unfounded. Despite this, Mother persisted in labeling Father as a sexual perpetrator and refused to allow Father parenting time with the child unless it was supervised.

Juvenile Court Referee Cary Woods held a hearing on the parties’ disputes. Both parties appeared at the hearing. ' On June. 4, 2008, Referee Woods made the following factual findings:

1. That the mother refuses to comply with the previous visitation orders and under sworn testimony and in open Court, refuses to allow visitation unless supervised.
2. That the mother refused to cooperate with the Guardian Ad Litem for home visits and to meet with the children outside of the mother’s presence.
3. That the mother has filed two separate complaints with the Tennessee Department of Children’s Services, alleging sexual misconduct and after investigation, both charges were unfounded.
4. That the mother’s conduct of persistent refusal to comply with the Court’s orders evidences an aggressively defiant attitude toward the father and that the father should be awarded permanent and exclusive custody.
5. That the mother continually labeling the father as a sexual perpetrator is a material change of circumstances and creates a substantial harm to the minor child, and that a change of custody is in the best interest of the child.

Based on these findings, Referee Woods made the following recommendations to the Juvenile Court Judge:

1. That the Petition for Contempt filed in this Court on July 24, 2001 be dismissed.
2. That the Petition to Modify Order filed in this Court on January 2, 2002 be dismissed.
3. That the Counter-Petition to Modify Order filed in this Court on June 3, 2003 should be dismissed.
4. That said child be removed from the custody of the mother, Kimberly Robinson Byars.
5. That custody of said child be awarded to the father, Earl Albert Young.

Referee Woods’ findings and recommendations did not provide for parenting time for Mother with the parties’ child. The same day, the Juvenile Court Judge adopted the findings and recommendations of Referee Woods and issued an order to that effect. On August 7, 2003, the Juvenile Court Judge dismissed Mother’s petition to rehear the matter. Immediately after that, Mother, acting pro se, filled out a form “Notice of Appeal” from the Juvenile Court. The form listed that the appeal could be to the Shelby County Circuit Court, the Shelby County Criminal Court, the Court of Appeals, or the Court of Criminal Appeals, with a box next to each option. The box was checked on the form indicating that Mother’s appeal was to the Circuit Court.

Substantial proceedings in the Circuit Court ensued. At some point, the Circuit Court granted supervised visitation to Mother and ordered that both parties undergo psychological examinations. Mother sought to be designated as the child’s primary residential parent. For a short period of time, Mother was represented by counsel, who later withdrew. Mother later sought a court-appointed attorney; this request was apparently denied. The record does not indicate that, in the course of these Circuit Court proceedings, any question was raised by the Court or any attorney as to the subject matter jurisdiction of the Circuit Court over an appeal from a custody determination by the Juvenile Court.

On April 30, 2004, Mother filed with the Circuit Court a pro se request for findings of fact and conclusions of law, pursuant to Rule 52.01 of the Tennessee Rules of Civil Procedure. On May 13, 2004, the Circuit Court Judge recused herself and the case was assigned to another Division of the Circuit Court. Mother immediately filed a pro se motion in the Circuit Court, objecting to Father’s refusal to permit the child to have residential parenting time with Mother and with Mother’s sons (the daughter’s half-siblings), and seeking to have custody changed to designate her as the child’s primary residential parent.

No action was taken on Mother’s motion. Indeed, the record reflects no activity in the case whatsoever, for a period of over four years. The record has no explanation for this.

Finally, on November 6, 2008, the Circuit Court entered an order. The order recognized that, because the matter was an appeal from Juvenile Court related only to the custody of a child, the Circuit Court was without jurisdiction and “appellate jurisdiction more appropriately rests with the Court of Appeals.” On this basis, the Circuit Court order dismissed the appeal and remanded the case to Juvenile Court.

Mother then filed a notice of appeal, appealing the order of the Circuit Court to the Court of Appeals. The Court of Appeals later determined that the Circuit Court, instead of dismissing Mother’s appeal for lack of jurisdiction, should have transferred Mother’s appeal directly to the Court of Appeals. See T.C.A. § 16-4-108(a)(2) (2009) (“Any case removed by mistake to the wrong court shall by that court be transferred to the court having jurisdiction of the case, direct.”); see also In re E.J.M., No. W2005-02520-COA-R3-CV, 2006 WL 2052713 (Tenn.Ct.App. July 25, 2006); In re Estate of White, 77 S.W.3d 765 (Tenn.Ct.App.2001). The cause was remanded to the Circuit Court for entry of an order transferring Mother’s appeal to the Court of Appeals. After the Circuit Court’s transfer of the appeal to this Court, we now consider Mother’s appeal.

Issues on Appeal and Standard of Review

On appeal, Mother raises the following issues:

1) Whether the juvenile court lacked jurisdiction for a custody hearing of the subject child, when the circuit court implied custody in previous divorce proceedings;
2) Whether the juvenile court erred when changing custody based upon a material change when one had not occurred;
3) Whether the evidence presented at trial was sufficient to warrant a finding that removing custody from Mother was in the best interests of the child;
4) Whether the evidence met the burden of proof at the clear and convincing standard, which must be supported by a preponderance of the evidence;
5) Whether the juvenile court’s decision to grant no visitation to Mother was in the best interests of the then three-year-old child;
6) Whether the juvenile court ignored the Department of Children’s Services and the reports of abuse, rendering the custody proceedings unconstitutional;
7) Whether the juvenile court used proper procedure by sending the case to the circuit court after the parent asked for an appeal from juvenile court;
8) Whether the denial of a speedy trial was unconstitutional;
9) Whether the state has the authority to file for child support for the custodial parent when there were no monies owed to the state;
10) Whether the trial court’s order to undergo a mental health evaluation or have her children removed to foster care was constitutional.

We review the trial court’s findings of fact de novo with a presumption of correctness unless the evidence preponderates to the contrary. Tenn. R.App. P. 13(d). We review the trial court’s conclusions of law de novo without a presumption of correctness. Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996).

Analysis

Among the issues raised on appeal, Mother argues that the Circuit Court did not have subject matter jurisdiction to hear her appeal from the custody determination by the Juvenile Court, and that the orders by the Circuit Court are null and void. In support, she cites Anthony v. Rodgers, No. W2002-01240-COA-R3-CV, 2003 WL 22213208 (Tenn.Ct.App. Sept. 23, 2003). Having reviewed the record and pertinent authorities, we agree with Mother.

We discussed the subject matter jurisdiction of appeals from child custody determinations by the Juvenile Court in In re E.J.M., No. W2005-02520-COA-R3-CV, 2006 WL 2052713 (Tenn.Ct.App. July 25, 2006). In E.J.M., the Shelby County Juvenile Court had designated the mother of the child at issue as the primary residential parent. Pursuant to a Local Rule of the Juvenile Court, the father in E.J.M. appealed the Juvenile Court’s decision to the Shelby County Circuit Court. The Circuit Court dismissed the appeal for lack of subject matter jurisdiction. Id. at *2. The father then appealed to the Court of Appeals. Id.

On appeal, the E.J.M. Court discussed the application of Tennessee Code Annotated §§ 37-l-159(a) and (g), as well as Anthony. Because the father’s appeal concerned primary residential parent designation and the provision of parenting time to the alternative residential parent, the appellate court agreed with the Circuit Court’s holding that it did not have subject matter jurisdiction over the appeal from Juvenile Court. “Because a court cannot exercise jurisdiction that has not been expressly, or by necessary implication, conferred upon it, it follows that” the proceedings in the Circuit Court are “void and of no effect.” S.W. Williamson County Cmty. Ass’n v. Saltsman, 66 S.W.3d 872, 882 (Tenn.Ct.App.2001) (citing Dishmon v. Shelby State Cmty. College, 15 S.W.3d 477, 480 (Tenn.Ct.App.1999)). Thus, on appeal, we will not consider the issues Mother raises with respect to the substance of the Circuit Court proceedings. We will, however, consider the issues raised by Mother with respect to the Juvenile Court proceedings.

On appeal, Mother questions whether the Juvenile Court had jurisdiction over the parties’ daughter, apparently based on statements purportedly made by an unnamed Circuit Court Judge in the course of Mother’s divorce from the father of her sons. Those proceedings did not involve Father and did not adjudicate the custody of the parties’ daughter, and our appellate record in this case does not include anything from Mother’s divorce proceedings. At any rate, jurisdiction of the Shelby County Juvenile Court arose from the filing of Mother’s petition to establish parentage as to the parties’ daughter. T.C.A. § 37 — 1—104(f) (2005). Having acquired jurisdiction over the child by virtue of the parentage petition, the Juvenile Court properly retained jurisdiction to adjudicate the parenting issues between Mother and Father, such as the designation of the primary residential parent and setting residential parenting time for both parties. See id.; In re C.M.C., No. M2008-00329-COA-R3-JV, 2008 WL 4426885, at *2 (Tenn.Ct.App. Sept. 30, 2008). Therefore, the Juvenile Court below had jurisdiction in this case.

On appeal, Mother asserts that she was denied her constitutional right to a speedy trial. We presume this issue refers to the proceedings in Circuit Court, in which the case inexplicably languished for several years. While the unexplained delay is disturbing indeed, the constitutional right to a speedy trial applies to criminal proceedings, and is not applicable here. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,.... ”); Tenn. Const. art. I, § 9 (“That in all criminal prosecutions, the accused hath the right to ... a speedy public trial.... ”); T.C.A. § 40-14-101 (2006) (“In all criminal prosecutions, the accused is entitled to a speedy trial and to be heard in person and by counsel.”).

Mother also argues that the “trial court’s” order requiring her to undergo a mental health evaluation was unconstitutional. The appellate record indicates that the Circuit Court required such an evaluation, but there is no indication that the Juvenile Court required a mental health evaluation. Because we have already held that the Circuit Court proceedings are deemed void and of no effect, we will not address this issue on appeal.

Mother also questions whether the State had authority to file for child support “when there were no monies owed to the State.” Our record does not include the information necessary to consider this issue, so we are unable to address it on appeal.

The remainder of the issues raised by Mother on appeal stem from the Juvenile Court’s decision to designate Father as the child’s primary residential parent, despite Mother’s allegations of at least two episodes of sexual abuse. She argues that the Juvenile Court’s decision was not in the best interest of the child, and that it erred in “granting no visitation to ... Mother.”

The appellate record in this case consists only of the technical record, ie., the pleadings and orders. There is no transcript or statement of the evidence. “In the absence of a transcript or statement of the evidence, a presumption arises that the parties presented sufficient evidence to support the trial court’s judgment.” Mfrs. Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 865 (Tenn.Ct.App.2000); (citing Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.Ct.App.1992); Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn.Ct.App.1988)); accord Scarbrough v. Scarbrough, 752 S.W.2d 94, 97 (Tenn.Ct.App.1988) (“When the trial court hears the evidence, but the evidence is not included in the record on appeal, it is presumed that the evidence supports the ruling of the trial court.” (citing Turner v. Turner, 739 S.W.2d 779 (Tenn.Ct.App.1986))). The presumption that the evidence supports the trial court’s findings has been termed “conclusive.” See Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.Ct.App.1992).

Mother asserts first that the Juvenile Court did not consider her allegations that Father had engaged in sexual abuse of her son and also of the parties’ daughter. To the contrary, the Juvenile Court’s order indicates that Mother’s allegations were investigated and, after investigation, were deemed “unfounded.” In the absence of a transcript or a statement of the evidence, we must presume that the evidence before the trial court showed that Mother’s allegations had been appropriately investigated and were found to be erroneous. Therefore, we must affirm the Juvenile Court’s finding that Mother’s charges of sexual abuse were unfounded.

Mother argues that the Juvenile Court erred in changing the designation of the primary residential parent from Mother to Father. The Juvenile Court’s order makes it clear that its decision stemmed from Mother’s refusal to accept the Court’s finding that her charges of sexual abuse by Father were not well-founded. The order states that Mother refused to permit Father his court-ordered visitation unless it was supervised, had an “aggressively defiant attitude” toward Father, and persisted in “labeling the father as a sexual perpetrator.” In the absence of a transcript or a statement of the evidence, we must presume that the evidence presented to the trial court supported its factual findings. Therefore, we presume that the evidence presented to the Juvenile Court, including the investigation by the Department of Children’s Services, supported the Juvenile Court’s findings that Father did not fondle or otherwise sexually abuse the parties’ daughter or Mother’s son. We also presume that the evidence supports the Juvenile Court’s finding that Mother, in essence, refused to accept the Court’s holding that the sexual abuse charges were unfounded, and continued to label Father as a sexual perpetrator and refuse visitation unless it was supervised.

This Court has seen prior cases in which one parent remains convinced that the other parent has sexually abused their child, despite thorough investigations that concluded otherwise, with disastrous results. See Keisling v. Keisling, 196 S.W.3d 703, 722 (Tenn.Ct.App.2005); see also B.M.M. v. P.R.M., No. M2002-02242-COA-R3-CV, 2004 WL 1853418 (Tenn.Ct.App. Aug. 18, 2004). In Keisling, the mother and the children’s maternal grandmother feared that the children’s father had sexually molested their daughters. The mother asked for repeated investigations by DCS, and when the daughters would return from visits with their father, they would be questioned at length about whether they had been subjected to sexual abuse and physically examined for signs of abuse, even to the point of examining the children’s genitals with a magnifying glass. Keisling, 196 S.W.3d at 707. Investigations by DCS found no abuse, so the father was permitted unsupervised visits. Id. The mother refused to accept the results of the investigations and took extraordinary measures to prevent the father from having unsupervised visits, including appealing the matter to the Tennessee Supreme Court. On remand from the Tennessee Supreme Court, the case was transferred to a different trial judge. Id. at 708-10. The consistent conclusion by both trial judges was that the mother’s accusations of sexual abuse were unfounded. Moreover, a psychologist working with the daughters became concerned about the hypervigilance by both the mother and grandmother; the psychologist advised them that their repeated questioning of the children about possible sexual abuse was counter-productive, and that “repeatedly performing genital examinations could itself constitute abuse.” Id. at 713. The mother’s behavior persisted, fueled by her sincere but misguided belief that abuse had occurred. The trial judge found that “the repeated accusations were destructive of Father’s relationship with the children, and that the relentless questioning and intrusive physical examinations of the girls in an effort to substantiate the abuse charges were harmful to them.” Id. at 717. On this basis, the trial court changed custody to the father. The mother appealed. Id.

On appeal, the Keisling Court recognized that an allegation of child sexual abuse by one parent against the other parent presents an especially difficult dilemma for a trial judge, whose first duty is to act in the best interest of the child:

Accusations of child sexual abuse by one parent against the other parent presents one of the most difficult issues faced by a trial court. Suspicion of such abuse must be taken seriously and were investigated thoroughly, for the consequences to the child of allowing any abuse to continue are grave. However, mistakenly concluding that a parent has abused his child, when in fact there has been no abuse, has serious consequences as well, including the almost-certain destruction of the parent-child relationship and disgrace to the accused parent. In addition, determining whether abuse has occurred can be enormously difficult; there is frequently a paucity of physical evidence, and the alleged child victim may be unable to accurately relate pertinent events. Finally, even investigating the accusation is delicate; the suggestibility of the alleged victim is almost invariably an issue, and heavy-handed or repetitive interrogation or physical examination can itself inflict long-lasting trauma on a child.

Id. at 722. After reviewing the record in detail, the Keisling Court observed: “The continued conduct by Mother ... was clearly harmful to the children and their relationship with Father, and left the trial court with little choice but to designate Father as primary residential parent.” Id. at 724. Therefore, we affirmed the trial court’s decision. Id. at 731.

In the instant case, the Juvenile Court clearly felt that Mother’s continued accusations and conduct toward Father were destructive and prevented the development of a normal father-daughter relationship. Based on the limited record before us, we cannot conclude that the Juvenile Court erred in its decision to designate Father as the primary residential parent.

Finally, Mother argues that the Juvenile Court erred in not including in its order a grant of residential parenting time to her. We agree.

In this case, the Juvenile Court order from which Mother appeals made factual findings that support its decision to designate Father as the child’s primary residential parent. These factual findings, however, do not justify precluding Mother from having any visitation whatsoever.

In some cases, there are reasons why it may be necessary to preclude a parent from having contact with his or her child, for example, where the parent “might harm the child, the ... parent ][has] engaged, in substance abuse, or [where] there is evidence that the visits upset the child.” In re Adoption of A.M.H., No. W2004-01225-COA-R3-PT, 2005 WL 3132353, at *105 (Tenn.Ct.App. Nov. 23, 2005) (Kirby, J., dissenting) (citing Barker v. Barker, No. W2003-01989-COA-R3-CV, 2004 WL 1908802, at *2 (Tenn.Ct.App. Aug. 23, 2004); Whiteman v. Gifford, No. 02A01-9206-CC-00172, 1993 WL 54603, at *5-6 (Tenn.Ct.App. Mar. 3, 1993)). Nothing in the appellate record in this case indicates that the Juvenile Court was presented with evidence of behavior by Mother that would justify the elimination of any parenting time for Mother with the parties’ child. Indeed, in the absence of a compelling reason to do so, an order which precludes contact between parent and child is to be studiously avoided, as the “inescapable effect” of such an order is the “untimely death” of the parent-child relationship. Id. at *106.

In this case, the Juvenile Court order from which Mother appeals does not forbid Mother from having any contact with the parties’ child; after awarding Father “permanent and exclusive custody,” it simply does not address parenting time for Mother, as the alternate residential parent. We interpret the Juvenile Court’s use of the term “exclusive” in its grant of custody to Father as meaning that he had sole custody and the exclusive authority to make decisions for the child. The order does not state that Mother is prohibited from having any contact with the child, the child’s school, medical providers, and the like. However, from the record, the parties apparently interpreted the Juvenile Court order as doing just that, precluding Mother from having any contact with the child.

At the time the Juvenile Court order was entered, in June 2003, it is unclear whether Mother was represented; she filed her request for rehearing and her notice of appeal pro se, and on September 8, 2003, her attorney filed a motion to withdraw. Whatever the reason, Mother did not ask the Juvenile Court Judge to issue an order awarding her appropriate visitation; it is unclear whether Mother did not know she could do so or simply chose to file an appeal instead.

From that point forward, the difficulties created by the Juvenile Court’s failure to award Mother visitation in its order were compounded by years of fruitless proceedings in the Circuit Court, only to later determine that the Circuit Court was without jurisdiction to hear Mother’s appeal. From the record, it appears that Mother has had little or no contact with the parties’ daughter, now ten years old, in the nearly seven years since the entry of the Juvenile Court order. This is unacceptable.

The Juvenile Court felt it necessary to designate Father as the primary residential parent, in order to protect the child’s relationship with her father; it must now act expeditiously to protect the child’s relationship with her mother. The cause must be remanded to the Juvenile Court for prompt proceedings to order and implement appropriate parenting time for Mother, as well as her parental rights as set forth in Tennessee Code Annotated § 36-6-101(a)(3).

On remand, several factors must be considered. Supervision of Mother’s visitation may be necessary if, for example, she resumes her hypervigilance and accusations regarding Father’s alleged sexual abuse in the child’s presence, for all of the reasons discussed above. However, the requirement of supervision is not automatic and should be avoided unless Mother’s conduct makes it necessary:

[Supervision of a parent’s visitation •with his or her child is a significant intrusion on the parent-child relationship. It is sometimes necessary in order to protect the child yet permit continuation of the relationship. It is not to be undertaken lightly or without a reasonable basis.

B.M.M., 2004 WL 1853418, at *18.

Conversely, just as Mother must respect the child’s relationship with her father, Father will be obliged to put aside any negative feelings toward Mother and work in good faith to repair the child’s relationship with her mother. Indeed, he must do so in order to remain the child’s primary residential parent. Tennessee statutes mandate that, in making any custody determination, including an action to modify custody, the Juvenile Court must consider the willingness of Father and his wife to facilitate the child’s ' relationship with Mother:

(a) In ... any ... proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child. The court shall consider all relevant factors, including the following, where applicable: (10) ... [T]he willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.

T.C.A. § 36-6-106(a)(10) (2009 Supp.). Therefore, we must remand the case to the Juvenile Court for consideration and implementation of appropriate measures to reestablish the relationship of the parties’ child with Mother, including family counseling if necessary, in the discretion of the Juvenile Court.

Conclusion

The decision of the Juvenile Court is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with this Opinion. Costs on appeal are taxed one-half to Plaintiff/Appellant Kimberly Byars and one-half to Defendant/Appellee Earl Young, for which execution may issue if necessary.

      . Mother has custody of her three older children, all sons.

      . Mother’s appellate brief indicates that this occurred in December 2000, but the appellate record does not state when this incident allegedly occurred.

      . The record does not indicate when the investigation by the Department of Children's Services took place, but it apparently occurred after Mother’s allegation regarding the parties' daughter.

      . The Order of Transfer by Judge Kay Robilio, Division 5, states that Judge James Russell in Division 2 had agreed to accept the case.

      . Mother also filed a motion in this Court for extraordinary appeal, pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. This motion is denied.

      . In E.J.M., the appellate court went on to hold that the Circuit Court should have transferred the appeal to the Court of Appeals. In re E.J.M., 2006 WL 2052713, at *2. In the case at bar, the Circuit Court has transferred Mother's appeal to this Court.

      . The record includes a single transcript of one short hearing before Circuit Judge Robi-lio, at which no evidence was heard.

      . Rule 24 of the Tennessee Rules of Appellate Procedure provides in pertinent part:
      (c) Statement of the Evidence When No Report, Recital, or Transcript Is Available. If no stenographic report, substantially verbatim recital or transcript of the evidence or proceedings is available, the appellant shall prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant or the appellant’s counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. Proof of service shall be filed with the clerk of the trial court with the filing of the statement. If the appellee has objections to the statement as filed, the appellee shall file objections thereto with the clerk of the trial court within fifteen days after service of the declaration and notice of the filing of the statement. Any differences regarding the statement shall be settled as set forth in subdivision (e) of this rule.
      Tenn. R.App. P. 24.

      . The attorney at that time was Mitzi H. Spell. The motion to withdraw was filed in the Circuit Court and was granted by Circuit Court Judge Robilio.

      . Tennessee Code Annotated § 36-6-101 provides in pertinent part:
      (3) Except when the court finds it not to be in the best interests of the affected child, each order pertaining to the custody or possession of a child ... shall grant to each parent the rights listed in subdivisions (a)(3)(A)-(a)(3)(F) during periods when the child is not in that parent’s possession or shall incorporate such rights by reference to a prior order. Other orders pertaining to custody or possession of a child may contain the rights listed in subdivisions (a)(3)(A)-(a)(3)(F). The referenced rights are as follows:
      (A) The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations;
      (B) The right to send mail to the child that the other parent shall not open or censor;
      (C) The right to receive notice and relevant information as soon as practicable but within twenty-four (24) hours of any event of hospitalization, major illness or death of the child;
      (D) The right to receive directly from the child’s school records, names of teachers, class schedules, standardized test scores, and any other records customarily made available to parents, upon written request that includes a current mailing address and upon payment of reasonable costs of duplicating;
      (E) Unless otherwise provided by law, the right to receive copies of the child’s medical, health or other treatment records directly from the physician or health care provider who provided such treatment or health care upon written request that contains a current mailing address and upon payment of reasonable costs of duplication; provided, that no person who receives the mailing address of a parent as a result of this requirement shall provide such address to the other parent or a third person;
      (F) The right to be free of unwarranted derogatory remarks made about such parent or such parent’s family by the other parent to or in the presence of the child;
      (G) The right to be given at least forty-eight (48) hours notice, whenever possible, of all extra-curricular activities, and the opportunity to participate or observe, including, but not limited to, the following:
      (i) School activities;
      (ii) Athletic activities;
      (iii) Church activities; and
      (iv) Other activities as to which parental participation or observation would be appropriate;
      (H) The right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than two (2) days, an itinerary including telephone numbers for use in the event of an emergency; and
      (I) The right of access and participation in education, including the right of access to the minor child or children for lunch and other activities, on the same basis that is provided to all parents, provided the participation or access is reasonable and does not interfere with day-to-day operations or with the child’s educational performance.
      T.C.A. § 36 — 6—101(a)(3) (2005).

      . This would include, if possible, Mother’s sons, the half-siblings of the parties’ daughter.


source: Caselaw Access Project

author: J. STEVEN STAFFORD, J.,

license: Public Domain

text:
    Carol E. MILLER v. Joel S. BIRDWELL, M.D., et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    May 25, 2010 Session.
    June 23, 2010.
    Application for Permission to Appeal Denied by Supreme Court Oct. 12, 2010.

      Laura Beth Rufolo and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellants, Joel S. Birdwell, M.D., and Medical Imaging Consultants, P.C.
    Stephen W. Elliott and Fetlework Bal-ite-Panelo, Nashville, Tennessee, for the appellants, Neil E. Christopher, Jr., M.D., individually and d/b/a Emergency Medicine and George P. Knox, III, M.D.
    Hugh P. Garner, Chattanooga, Tennessee, for the appellee, Mark Miller.
   OPINION

J. STEVEN STAFFORD, J.,

delivered the opinion of the Court,

in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.

This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiffs claim — causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.

Appellee, Carol E. Miller suffered from a myriad of health problems including diabetes and renal failure. On August 19, 2002, Ms. Miller “turned her left ankle” while going down the stairs at her home. That day, she went to the emergency room and her ankle was “swollen and discolored.” At the emergency room, she was seen by Appellant, Dr. Neil Christopher. Dr. Christopher ordered x-rays of Ms. Miller’s ankle, and after reviewing the x-rays he determined that Ms. Miller’s ankle was not broken, and diagnosed her with an ankle sprain. Appellant, Dr. Joel Bird-well, a radiologist, also reviewed the x-rays which were taken on August 19, 2002. It is disputed whether the x-rays were reviewed before Ms. Miller was discharged that same day from the hospital. Dr. Birdwell did not interpret the x-rays to show a fracture.

Although not addressed in her brief, it appears from the record, that Ms. Miller was hospitalized from August 28 to August 27, 2002 with an unrelated illness. On August 27, 2002, while hospitalized, Ms. Miller’s ankle was again x-rayed. At that point, a radiologist identified a possible calcaneal fracture. Ms. Miller’s treating physician then referred Ms. Miller to Dr. Mittur Ramprasad, an orthopaedic physician.

Ms. Miller returned to the emergency room on August 31, 2002 still complaining about her ankle. On that day, Ms. Miller was seen by Appellant, Dr. George P. Knox. Dr. Knox reviewed the report of the August 19, 2002 x-ray and determined that Ms. Miller’s foot was infected. Dr. Knox asserts that he was not aware of the August 27th x-ray when he treated Ms. Miller and that the x-ray would not have been available in her chart at that time.

Ms. Miller was treated by Dr. Mittur N. Ramprasad, an orthopaedic physician, from September 6, 2002 through September 24, 2002 for her fracture. He applied a short leg cast and later a soft dressing and advised her to use crutches or a walker and “tiptoe, non-weight bearing.”

Ms. Miller was later seen by Dr. James Extine, an orthopaedic surgeon in November 2002. Dr. Extine treated Ms. Miller for her fracture for several months. Eventually, Ms. Miller’s foot had to be amputated.

On August 5, 2003, Ms. Miller filed a complaint alleging medical malpractice against Appellants, Joel S. Birdwell, M.D., Medical Imaging Consultants, P.C., Neil E. Christopher, Jr., M.D., individually and d/b/a Emergency Medicine, and George P. Knox, III, M.D. (collectively the “Appellants”). Ms. Miller alleged that the Appellants deviated from the standard of care in failing to diagnose her fractured calca-neal and failing to provide her the proper care and treatment.

Dr. Birdwell and Medical Imaging Consultants, P.C. (collectively “Dr. Birdwell”), Dr. Christopher, and Dr. Knox each filed an answer denying any negligence and denying that any injuries, damages or losses incurred by Ms. Miller were caused by anything they did or did not do. Also, each of the Appellants raised the affirmative defense of comparative fault.

On July 5, 2005 Dr. Christopher and Dr. Knox both filed separate motions for summary judgment, along with a supporting memoranda of law, statements of undisputed facts and their own affidavits. In their respective motions, both Dr. Christopher and Dr. Knox argued that they had fully complied with the standard of care and that Ms. Miller had not presented an expert to testify otherwise. Both doctors provided affidavits which detailed their qualifications and the care provided to Ms. Miller. In the affidavits, both also assert that he did not deviate from the standard of care nor did any deviation from the standard of care on his part cause any harm or injury to Ms. Miller. As stated in the motions, Dr. Christopher’s and Dr. Knox’s motions only addressed the issues of whether each complied with the standard of care and whether anything they did or did not do caused Ms. Miller’s injuries.

On August 1, 2005, Ms. Miller filed a “Statement of Undisputed Facts to George P. Knox, III, M.D.” and a “Statement of Undisputed Facts to Neil E. Christopher, M.D.” Both statements assert that the doctor to which the statement is directed misread an x-ray and failed to detect the fracture. Ms. Miller also asserted in these statements that misreading the x-ray was a deviation from the standard of care. Neither of Ms. Miller’s statements address the issue of causation.

Also, on August 1, 2005, Ms. Miller filed a response to Dr. Knox and Dr. Christopher’s motion for summary judgment. To support her position, Ms. Miller also filed a response to the doctor’s statement of undisputed facts and portions of the depositions of Dr. Christopher and Dr. Birdwell. In her response to the doctors statement of undisputed facts, Ms. Miller denied that they complied with the standard of care and disputed the assertion that nothing the doctors did caused her injuries. Ms. Miller did not provide any citations to the record to support her disputed facts. In her memorandum of law, Ms. Miller argued that if an emergency room physician misread an x-ray and failed to detect a fracture, it would be a violation of the standard of care. To support this assertion, Ms. Miller cited to Dr. Christopher’s deposition testimony.

On February 22, 2007, Dr. Christopher and Dr. Knox filed a renewed motion for summary judgment. There is nothing in the record to indicate that the previous motion for summary judgment was adjudicated. However, at oral arguments, counsel conceded that the trial court had denied summary judgment prior to the renewed motion. In support of the renewed motion, Dr. Christopher and Dr. Knox relied on their new statement of undisputed facts, each of their previously filed affidavits and the deposition of Dr. James Extine. As in their previous motion, this motion only addressed the issues of whether the two doctors complied with the standard of care and whether anything they did or did not do caused Ms. Miller’s injuries. The motion was similar to the previously filed motions; the only difference being the renewed motion cited to Dr. Extine’s deposition testimony in which Dr. Extine testified that - he would not expect an emergency room physician to diagnose Ms. Miller’s fracture from the August 19th x-ray, and that in his opinion the emergency room doctors provided the appropriate care.

Ms. Miller filed a response to Dr. Christopher and Dr. Knox’s renewed motion for summary judgment on April 30, 2007. In her memorandum of law, Ms. Miller argued that the motions were previously heard and ruled on by the trial court. As stated before, there is nothing in the record to support this assertion. Ms. Miller again relies on Dr. Christopher’s testimony that it would be a deviation from the standard of care if an emergency room physician misread an x-ray, to support her opposition to the motion for summary judgment.

On March 5, 2005, Dr. Birdwell filed a motion for summary judgment. In support of his motion he also filed a statement of undisputed facts, portions of the depositions of Dr. Extine and Dr. Ramprasad, the affidavit of Dr. Ramprasad, and some of Ms. Miller’s medical records. Dr. Bird-well relied only on the argument that any breach of the standard of care on his part was not a proximate cause of Ms. Miller’s injuries. Dr. Birdwell asserted that based on Dr. Extine’s testimony, Ms. Miller received appropriate care in the emergency room. Dr. Birdwell asserted that Dr. Ex-tine had testified that Ms. Miller would have received the same care even if the fracture had been diagnosed. Dr. Bird-well also asserted that Ms. Miller’s injury was timely diagnosed and treated based upon Dr. Extine’s and Dr. Ramprasad’s testimony.

Also, on April 30, 2007, Ms. Miller filed a response to Dr. Birdwell’s motion for summary judgment. Other than a statement that Dr. Birdwell read the x-ray films as being negative for a fracture, Ms. Miller’s response does not address any deviation on the part of Dr. Birdwell. In support of this response, Ms. Miller attached her affidavit which asserted that she was treated for a sprained ankle instead of a fracture, and pictures of her foot. That same day, Ms. Miller also filed a “Statement of Undisputed Facts to Joel S. Birdwell, M.D.” wherein she asserted that Dr. Birdwell failed to detect the fracture and this failure was a violation of the standard of care. This statement does not address causation.

Dr. Birdwell filed a response to Ms. Miller’s statement of undisputed facts on May 3, 2007. In his response, Dr. Bird-well disputes her assertion that the failure to detect the fracture on August 19th was a deviation from the standard of care, and that the proper time frame for surgically treating the fracture was one to two weeks after the swelling had gone down.

According to the record, the trial court, Judge John W. Rollins, heard argument on all of the motions for summary judgment on May 3, 2007. A transcript of this hearing appears in the record. According to the transcript the trial court denied the motions for summary judgment stating, “Well, to be candid with you, I’ve got some concerns about the issue of causation. But I’m still going to give the Plaintiff a day in court, and we’ll look at it again maybe at trial.” The trial court then granted the Appellants’ oral request for an interlocutory appeal. Unfortunately, Judge Rollins passed away before an order could be entered reflecting these decisions.

Ms. Miller filed her expert disclosures on August 17, 2007, disclosing Dr. Richelle Day and Dr. Brandon Downs as experts. According to the disclosure, Dr. Day would testify about the care and treatment Ms. Miller received from her from February 2003 through December 2006. Dr. Downs would testify about the surgical removal of Ms. Miller’s foot.

Dr. Birdwell filed a motion to ascertain the status or in the alternative to enter an order regarding his motion for summary judgment on May 27, 2009. The motion asserted that Judge Rollins had denied the motion, but had granted an interlocutory appeal. The motion asserted that proposed orders had been filed but that Judge Rollins had not signed an order. On August 9, 2007, Dr. Knox and Dr. Christopher also filed a motion to ascertain the status or in the alternative to enter the previously filed proposed order.

On July 6, 2009, Ms. Miller filed a motion to amend her complaint.

On July 24, 2009, Ms. Miller filed a response to the Appellants’ motion to ascertain status. In this response, Ms. Miller again argues her opposition to the motions for summary judgment and requests that the court consider the affidavit of Dr. Bennet Greenspan. The affidavit of Dr. Greenspan was also filed on July 24, 2009, along with Ms. Miller’s expert disclosure. The disclosure states that Dr. Greenspan will testify that the fracture was “readily identifiable” from the x-rays read by Dr. Birdwell and that Dr. Birdwell deviated from the standard of care. Neither the disclosure nor Dr. Greenspan’s affidavit addresses causation. Ms. Miller also asserted in her response that she had requested to amend her complaint to add an allegation that Dr. Knox and Dr. Christopher deviated from the standard of care by not applying a Jones dressing and a posterior splint and in not referring her to an orthopedic doctor.

Dr. Birdwell filed a reply on July 28, 2009. In this reply, Dr. Birdwell asserts that it would be inappropriate for the trial court to consider Dr. Greenspan’s affidavit as it was not before the court during the original hearing. Dr. Birdwell also asserts that Ms. Miller is attempting to supplement her previous opposition to the motion for summary judgment.

On August 8, 2009, the trial court, Judge William C. Lee, heard the Appellants’ motions to ascertain status. A transcript of this hearing appears in the record. On order was entered on August 17, 2009 reflecting the trial court’s decision. As stated in the order:

It further appears that the Court on May 3, 2007 made an Order (hereinafter “the Order”) which DENIED the Motions for Summary Judgment by [the Appellants]. It further appears that immediately after the Court DENIED the Motions, [the Appellants] made oral motions to appeal the Order by permission under T.R.A.P. 9. It is clear from this Court’s review of the transcript from the May 3, 2007 hearing that the previous Court (the late Judge John W. Rollins) GRANTED the oral motions for appeal by permission under T.R.A.P. of the subject Order.

By the August 3, 2009 order, the trial court granted the Appellants permission to seek appeal the denial of their motions for summary judgment under Tenn. RApp. P. 9.

On August 18, 2009, after the order denying summary judgment and granting interlocutory appeal was entered, the trial court entered an order granting Ms. Miller permission to amend her complaint. On August 26, 2009, Ms. Miller filed an amended complaint.

This Court entered an order granting the Appellants permission to appeal pursuant to Tenn. R.App. P. 9 on September 8, 2009.

On appeal, the Appellants raise one issue for our review: Whether the trial court erred in denying their motions for summary judgment.

A trial court’s decision to grant a motion for summary judgment presents a question of law. Our review is therefore de novo with no presumption of correctness afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). “This Court must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied.” Mathews Partners, LLC v. Lemme, No. M2008-01036-COA-R3-CV, 2009 WL 3172134 at *3 (citing Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997)).

When a motion for summary judgment is made, the moving party has the burden of showing that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may accomplish this by either: (1) affirmatively negating an essential element of the non-moving party’s claim; or (2) showing that the non-moving party will not be able to prove an essential element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn.2008). However, “[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shutup’ or even to cast doubt on a party’s ability to prove an element at trial.” Id. at 8. If the moving party’s motion is properly supported, “[t]he burden of production then shifts to the non-moving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd v. Hall, 847 S.W.2d 208, 215(Tenn.1993)). The non-moving party may accomplish this by: “(1) pointing to evidence establishing material factual disputes that were overlooked or ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (3) producing additional evidence establishing the existence of a genuine issue for the trial; or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.” Martin v. Norfolk Southern Railway. Co., 271 S.W.3d 76, 84 (Tenn.2008) (citations omitted).

When reviewing the evidence, we must determine whether factual disputes exist. In evaluating the trial court’s decision, we review the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.2003). If we find a disputed fact, we must “determine whether the fact is material to the claim or defense upon which summary judgment is predicated and whether the disputed fact creates a genuine issue for trial.” Mathews Partners, 2009 WL 3172134 at *3 (citing Byrd, 847 S.W.2d at 214). “A disputed fact is material if it must be decided in order to resolve the substantive claim or defense at which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id. “Summary Judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion.” Landry v. South Cumberland Amoco, et al, No. E2009-01354-COA-R3-CV, 2010 WL 845390 (Tenn.Ct.App. March 10, 2010) (citing Carvell v. Bottoms, 900 S.W.2d 23 (Tenn.1995)).

Tenn.Code Ann. § 29-26-115(a) sets forth the prima facie case for medical malpractice against a health care provider in Tennessee. The statute provides, in relevant part:

(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 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.

If the plaintiff cannot prove one of these three required elements, the plaintiff cannot establish a claim for medical malpractice. Tenn.Code. Ann. § 29-26-115 mandates that the above requirements be established by expert proof.

Our Supreme Court has held that medical malpractice cases are particularly suited to summary judgment because expert testimony is, as a general rule, required in all such cases:

In those malpractice actions wherein expert testimony is required to establish negligence and proximate cause, affidavits by medical doctors which clearly and completely refute plaintiffs contention afford a proper basis for dismissal of an action on summary judgment in the absence of proper responsive proof by affidavit or otherwise.

Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn.1977). It is well established that the affidavits of the defendant physicians are sufficient by.themselves to support a motion for summary judgment. Kenyon v. Handed, 122 S.W.3d 743 (Tenn.Ct.App.2003). Once a defendant files an affidavit negating an essential element of the plaintiffs claim, it is incumbent upon the plaintiff to come forward with competent medical expert proof showing that there is a dispute of fact.

Emergency Room Physicians

Both Dr. Christopher and Dr. Knox filed affidavits which stated that (1) they did not deviate from the standard of care and (2) that nothing they did or did not do caused Ms. Miller’s injuries. Ms. Miller asserts on appeal that these affidavits are insufficient as they contain nothing more than conclusory assertions. We disagree. In their affidavits, Dr. Christopher and Dr. Knox both explain in detail their background and qualifications. Then, both Dr. Christopher and Dr. Knox explain the care and treatment provided to Ms. Miller. Dr. Christopher’s affidavit provides:

3.Plaintiff presented to Hartón Regional Medical Center on August 13, 2002 at approximately 12:11 p.m. secondary to left ankle pain after she had a slip and fall while at home when she missed a step. She was triaged upon presentation. Her history of allergies was noted. Her past and present medical history was noted. Her current medications were noted. Her vital signs, including blood pressure, respiration rate, pulse ox, temperature, pain scale and weight were noted. She was taken to an examination room at approximately 12:27 p.m.
4. Thereafter, I saw Plaintiff and evaluated her. I noted edema of her left ankle. I also noted that she had diabetes mellitus, high blood pressure and end-stage renal disease. I ordered an x-ray of Plaintiffs left ankle because she could not bear weight. This was a standard x-ray with three (3) different views. The x-ray films were brought directly to me for a “wet read” to interpret. I found she had some lateral soft tissue swelling of her left ankle with some osteoporosis but no fracture or dislocation. I diagnosed Plaintiff with a left ankle sprain, with secondary diagnoses of diabetes mellitus, hypertension and end-stage renal disease. Ice was applied to Plaintiffs left ankle. An air cast was applied to Plaintiffs left ankle. Plaintiff refused crutches because of shunts in her arms. I prescribed for her an analgesic, Darvocet N-100.
5. Plaintiff was discharged home in stable condition at approximately 1:44 p.m. with instructions to ice her ankle and elevate it for 24-48 hours, to follow up with an orthopaedic in three to seven days if not improving, as well as the prescription for Darvocet N-100. Plaintiff signed her name below the written instructions to indicate her understanding.

Dr. Christopher then asserted that the. standard of care was to do exactly what he had done, that he did not deviate from the standard of care, and the no deviation on his part caused any injury or harm to Ms. Miller. Dr. Knox’s affidavit provides:

3. Plaintiff presented to Hartón Regional Medical Center on August 31, 2002 at approximately 1:56 p.m. secondary to left ankle pain and some dizziness. August 31, 2002 was a Saturday. She was triaged by Nurse Beth Reeves at approximately 1:59 p.m. Nurse Reeves took the following history from Plaintiff: She injured her left ankle two weeks [ago], was seen in the emergency room and x-rayed at that time but Plaintiff complained she was not getting any better. Pain medications were making her sugar “be all out of whack.”
4. Thereafter, I saw Plaintiff and evaluated her. I noted her history of insulin dependent diabetes mellitus and renal failure. I noted that her left distal (mid-calf down) leg and foot were discolored (ecchymosis) with some redness, tenderness, and swelling. On examination, her leg appeared to be infected. She had been seen in the emergency room on August 19, 2002 by Dr. Neil Christopher at Hartón for the initial injury. The x-rays from August 19 showed no evidence of fracture. I viewed the report of the August 19 x-ray. Plaintiff denied any further injury or exacerbation since August 19. There was also bruising to the toes and Plaintiffs foot felt tight to her. I suspected cellulitis at that point and requested a blood culture and a blood count. The blood culture was positive. Thereafter, when I received the results of the blood work, I consulted with Dr. Pearson, who was the nephrologist on call at that time, and explained Plaintiffs situation to him. It was standard when dealing with a patient on dialysis such as Plaintiff to contact the renal specialist on call to get specific instructions as to medication, dosing and other treatment. The blood culture confirmed my initial suspicion of cellulitis. Celluli-tis is a potentially serious bacterial infection of the skin. It appears as a swollen, red area of skin that feels hot and tender, and it may spread rapidly. Cellulitis may also affect the tissues underlying the skin and can spread to the lymph nodes and blood stream. Left untreated, the spreading bacterial infection may rapidly turn into a life-threatening condition. I was aware of this potential seriousness when I saw Plaintiff on August 31. I also took into account Plaintiffs diabetic condition, which made her more prone for infection and made the cellulitis a potentially limb threatening condition. After consulting with Dr. Pearson, I received instruction from him to order a dose of the antibiotic Vancomycin to treat the cellulitis via IV. After she was administered the Vancomycin, Plaintiff began to complain of itching. She was given Benadryl 50 mg and the itching resolved. She was also provided a non-weight bearing posterior splint, which was applied to her left foot.
5.Plaintiff was discharged for home in stable condition at approximately 5:30 p.m. on August 31 with instructions to follow up with her private physician if worse and a prescription for Darvocet N-100. Plaintiff signed her name to the written instructions sheet, acknowledging that she had received and understood the instructions and prescriptions. As far as follow-up care, I knew that Plaintiff was going to be treated on the following Monday, September 2, by her renal care specialist, Dr. Omitowojo for her regular dialysis treatment. Her pain was improved upon discharge.

Dr. Knox also asserted that he did not know about Ms. Miller’s August 27th x-ray and that it would have taken at least ten days for the x-ray to appear in her charts. Dr. Knox then stated that the standard of care required him to do exactly what he did, that he complied with the standard of care, and that no deviation from the standard of care on his part caused any harm or injury to Ms. Miller. Neither Dr. Knox nor Dr. Christopher merely provided “con-clusory statements” of compliance with the standard of care as asserted by Ms. Miller. Both explained in sufficient detail the standard of care and what they did to comply with it. Accordingly, we find that their affidavits were sufficient.

By providing sufficient affidavits, both Dr. Christopher and Dr. Knox affirmatively negated essential elements of Ms. Miller’s claim — deviation from the standard of care and causation — and effectively shifted the burden to Ms. Miller to demonstrate that a genuine issue of material fact exists. At this point it was incumbent upon Ms. Miller to come forward with competent medical expert proof showing that there was indeed, a dispute of material fact. After reviewing the record, this Court finds that Ms. Miller did not meet this burden.

In response to Dr. Christopher’s and Dr. Knox’s motions for summary judgment, Ms. Miller cited to both Dr. Christopher’s and Dr. Extine’s deposition testimony. She argues that this testimony demonstrates a question of fact as to whether Dr. Christopher and Dr. Knox deviated from the standard of care. Assuming arguendo that these depositions create a question of fact as to whether the doctors deviated from the standard of care, Ms. Miller did not provide the trial court with any expert medical proof to rebut Dr. Christopher’s and Dr. Knox’s assertion that any deviation from the standard of care on their part, did not cause any harm or injury to Ms. Miller. Dr. Christopher and Dr. Knox both asserted that nothing they did or did not do caused harm or damage to Ms. Miller. This Court has thoroughly reviewed Dr. Extine’s deposition testimony and can find no indication whatsoever that he believes that anything Dr. Christopher or Dr. Knox did or did not do caused any harm to Ms. Miller. Dr. Extine testified that he would not expect the emergency room doctors to diagnose the fracture, but instead to splint the ankle and make a referral to an orthopaedic. In Dr. Ex-tine’s opinion the emergency room doctors did exactly what they were supposed to do. The only opinion expressed by Dr. Extine as to causation of Ms. Miller’s injuries was that if she had not walked on her foot as she had been instructed, the joint may not have collapsed. Dr. Extine testified that he also had instructed Ms. Miller not to walk on her foot. Further, Dr. Knox testified that he too instructed Ms. Miller “to stay off the foot.” Also, Dr. Christopher testified that Ms. Miller refused crutches, indicating that he too told her not to place weight on the foot. Causation is an essential element to Ms. Miller’s medical malpractice claim. Tenn.Code Ann. § 29-26-115(a). By not providing any expert medical proof, as required, from which the trial court could draw a reasonable inference that Dr. Christopher’s and/or Dr. Knox’s deviation from the standard of care caused harm or damage to her, Ms. Miller failed to demonstrate that there was a question of fact as to an essential element of her claim. Consequently, the trial court erred in not granting Dr. Knox and Dr. Christopher’s motions for summary judgment.

Radiologist

Next, we will address Dr. Bird-well’s motion for summary judgment. As stated in his brief, Dr. Birdwell relied solely upon the causation element of Ms. Miller’s claim in making his motion for summary judgment. Dr. Birdwell relied on the depositions of Dr. Extine and Dr. Ramprasad. Specifically, Dr. Birdwell argued despite any deviation from the standard of care on his part, Ms. Miller was properly and timely treated for her fracture and therefore his deviation, if any, was not a cause of her injury. Dr. Bird-well asserts that Dr. Extine testified that Ms. Miller received the appropriate care in the emergency room and that therefore his failure to diagnose did not cause her to miss any treatment in the emergency room. Further Dr. Birdwell asserts that based upon the testimony of Dr. Extine and Dr. Ramprasad, Ms. Miller’s fracture was timely diagnosed and treated.

After reviewing the record, we find that Dr. Birdwell’s motion for summary judgment was properly supported. Dr. Bird-well effectively negated an essential element of Ms. Miller’s claim — causation— and shifted the burden to her to demonstrate a material issue of fact in dispute. Dr. Birdwell only reviewed Ms. Miller’s August 19th x-ray. It is disputed whether he deviated from the standard of care when doing so. However, as pointed to by Dr. Birdwell, Dr. Extine testified that when he diagnoses a fracture, whether it be in his office or the emergency room, he treats the patient by applying a “Jones Dressing” — a soft wrap to control the swelling — and a posterior splint to stabilize it. Dr. Extine testified that the emergency room doctors did just what he would have expected them to do — splint the ankle and refer the patient to an orthopaedic doctor. This is exactly what Dr. Christopher, the emergency room doctor that saw Ms. Miller on August 19, 2002, did to treat her. Even if we assume Dr. Birdwell deviated from the standard of care, Ms. Miller received the appropriate care and treatment on August 19, 2002. Therefore, Dr. Birdwell’s alleged deviation cannot be a cause of any harm or damage to Ms. Miller. Consequently, Dr. Birdwell demonstrated that any deviation from the standard of care on his part did not cause any harm or injury to Ms. Miller as she received the expected and proper care from Dr. Christopher even if the fracture had been diagnosed.

At this point it was incumbent on Ms. Miller to come forward with expert proof to demonstrate a material issue of fact in dispute as to the issue of causation. Ms. Miller could have done this by: “(1) pointing to evidence establishing material factual disputes that were overlooked or ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (8) producing additional evidence establishing the existence of a genuine issue for the trial; or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.” Martin v. Norfolk Southern Railway. Co., 271 S.W.3d 76, 84 (Tenn.2008) (citations omitted). As with the emergency room doctors, Ms. Miller chose not to produce additional expert medical evidence to refute Dr. Extine’s testimony. Further, Ms. Miller did not point to any evidence overlooked by Dr. Birdwell to establish an issue of fact as to causation. Ms. Miller did file expert disclosures after Judge Rollins orally ruled on the motions for summary judgment and before the order was entered. However, these disclosures in no way indicate that any of her experts have an opinion on causation. Accordingly, this Court finds that the trial court erred in denying Dr. Birdwell’s motion for summary judgment.

Conclusion

Based on the foregoing reasons, the decision of the trial court denying the Appellants’ motions for summary judgment is reversed. All three doctors affirmatively negated an essential element of Ms. Miller’s claim — causation. Ms. Miller failed to demonstrate that there was a material issue of fact in dispute. Costs of this appeal are taxed against the Appellee, Mark Miller, personal representative of the Estate of Carol Elaine Miller, for which execution may issue if necessary.

      . It is unclear when Ms. Miller’s foot was amputated. From the record, it appears that it may have been up to four years later.

      . Ms. Miller also named other parties as defendants in her lawsuit. However, these claims are not subject to this appeal. Ms. Miller’s former husband, Don Miller, also joined in with her complaint alleging loss of consortium. However, all of his claims against all of the defendants were dismissed by the trial court on January 18, 2005 after Dr. Birdwell filed a motion for summary judgment as to Don Miller’s claims. Don Miller’s claims are not subject to this appeal.

      . During the pendency of this appeal, Ms. Miller passed away and a suggestion of death was filed. On May 19, 2009, this Court entered an order substituting Mark Miller, personal representative of the Estate of Carol Elaine Miller in the place of Carole Elaine Miller. For purposes of clarity we will continue to refer to Ms. Miller as the Appellee instead of her personal representative.

      . We note that Tenn. R. Civ. P. 56.03 provides in pertinent part:
      Any party opposing the motion for summary judgment must, not later than five days before the hearing, serve and file a response to each fact set forth by the mov-ant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is undisputed for the purposes of ruling on the motion for summary judgment only, or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by specific citation to the record. Such response shall be filed with the papers in opposition to the motion for summary judgment.

      . Following Judge Rollins death, Judge William C. Lee took over the case.

      . Tenn.Code. Ann. § 29-26-115(b) provides:
      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 (b) when it determines that the appropriate witnesses otherwise would not be available.

      . Ms. Miller did eventually file an affidavit of Dr. Greenspan which stated that Dr. Birdwell deviated from the standard of care. We do not need to address whether this affidavit was timely filed and therefore should be considered because the affidavit does not address causation and therefore would not affect the opinion of this Court.

      . We need not make a determination as to whether these disclosures should or should not have been considered by Judge Lee prior to entry of the order denying the motions for summary judgment. We note the Appellants' argument that they should not be considered as they were submitted after Judge Rollins orally ruled on the motions. We consider them for purposes of argument only.


author: JAMES CURWOOD WITT, JR., J.,

text:
    STATE of Tennessee v. Kenneth Ray KILPATRICK.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Assigned on Briefs Dec. 15, 2009 at Knoxville.
    Jan. 21, 2010.
    Application for Permission to Appeal Denied by Supreme Court June 18, 2010.

      Claudia S. Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant Public Defender, for the appellant, Kenneth Ray Kilpatrick.
    Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JAMES CURWOOD WITT, JR., J.,

delivered the opinion of the court,

in which JOSEPH M. TIPTON, P.J., and NORMA McGEE OGLE, J., joined.

The defendant, Kenneth Ray Kilpatrick, appeals from his Wayne County Circuit Court jury conviction of simple possession of a Schedule IV controlled substance, a Class A misdemeanor. He claims on appeal that the evidence convicting him was legally insufficient. We disagree and affirm the judgment of the trial court.

At trial, Sergeant Jason Davis with the Wayne County Sheriff’s Office testified that at approximately 7:00 p.m. on April 23, 2008, he saw the defendant driving his car without his seatbelt engaged and that, consequently, he stopped the defendant. The officer testified that, after he reported to the sheriffs department that the driver of the detained vehicle had declined to get out of the car when asked to do so, the department advised him to wait for additional officers. Apparently, although not detailed by the witness, the defendant drove away from the officer, and the resulting police chase terminated in the defendant’s wrecking his car. Subsequently, Sergeant Davis searched the car and found a bottle in the driver’s side floor that contained 22 tablets of Darvocet, a Schedule IV controlled substance. He also found approximately $300 in cash, a pouch containing plastic “baggies,” two plastic spoons, and a small butane torch. Sergeant Davis testified that he had seen plastic “baggies” of the type found in the defendant’s car used previously to package illegal drugs and that a torch of the type found was used to liquefy drugs.

Sergeant Davis testified that he also found drug paraphernalia in the purse of the defendant’s wife, a passenger in his car. The paraphernalia included spoons, a wire brush for cleaning pipes, a small metal fork-spoon combination used for measuring drugs, and a mirror with razor cuts on it.

On cross-examination, Sergeant Davis testified that the visible letters on the label of the Darvocet pill bottle were “D-e-r-e The remainder of the label was marred, but the label did reflect that the prescription for Darvocet had been filled on April 16, 2008.

The defendant testified in his own behalf that on April 23, 2008, he and his wife were test-driving a vehicle after picking it up in Hohenwald from a “guy they call Stone Cold.” He admitted that he had lied to the investigating officer when he told the officer that the car came from a man named “Lynch.” He testified he had been in the car about 80 minutes when Sergeant Davis pulled him over. The defendant testified that he was wearing his seatbelt with the shoulder strap behind him prior to the officer’s stopping him. He testified that he declined to get out of the vehicle when the officer asked him to do so because a lawyer had told him not to get out of his car if he were stopped. He testified that after he had sat on the roadside for about 25 minutes, he became anxious about what was happening, especially after several other police cars began arriving. He testified that, at this point, he “thought they was going to beat [his] ass,” prompting him to drive away. He crossed into Perry County, lost control of the car on a curve, and wrecked.

The defendant testified that the pill bottle found in the car belonged to Derek McCann, the defendant’s wife’s cousin, with whom the defendant had gone fishing earlier in the day.

On cross-examination, the defendant testified that Stone Cold’s real name is Tony Staggs. He testified that, after he drove away from the officers in Wayne County, he intended to stop when he saw Perry County police, adding that he had “heard a lot of bad things about Wayne County police.” He testified that Sergeant Davis had his driver’s license and his wife’s identification and opined that the officer “could have come to [the defendant’s] house and arrested [him].”

On re-direct examination and re-cross examination, the defendant admitted that, a “couple of weeks” prior to his arrest, he had tried smoking methamphetamine. He admitted that he had smoked some marijuana earlier in the day on April 23, 2008.

Carrie Kilpatrick, the defendant’s wife of 27 years, testified that on April 23, 2008, she was riding with the defendant while he test-drove a car. She testified that they were stopped by an officer who referred to a seatbelt violation and that the defendant gave the officer his license and the car registration papers. She testified that the officer came back to the car and asked for and obtained her own identification card. She testified that other officers began arriving and that the defendant did not understand what was happening. She stated, “[T]he longer we set [sic] there, the nervouser [sic] we got.”

Ms. Kilpatrick testified that the yellow spoon found in her purse was a “Tweety Bird” spoon and that she collected “Tweety” items. She also testified that the baggies were used to package jewelry that her mother sold at flea markets. She testified that the butane torch lighter was given to her by her friend Miranda to light lanterns at the river. She further stated that the Darvocet pill bottle belonged to Derek McCann.

On cross-examination, she testified that Stone Cold’s car had been sitting at her mother’s house for three weeks. When asked about her possession of the spoons, she testified that she not only collected “Tweety” items but that she also collected all kinds of spoons. She added that she had “a Tweety tattoo on [her] leg.”

Miranda Haggard testified that the defendant and his wife were her best friends. She testified that she bought the butane torch lighter found in the vehicle on April 23. She testified that she bought the lighter for 99 cents in Savannah on April 20. She gave it to the Kilpatricks “so they could light their torches, ‘cause I was scared that they were going to blow themselves up, the way they were lighting their lanterns underneath.”

Derek McCann testified that Carrie Kil-patrick is his cousin and that the bottle of Darvocet pills that had been introduced into evidence belonged to him. He testified that he was “down at the campground. And we was going to go fishing. I left [the pill bottle] in a camper.” The camper belonged to the Kilpatricks and sat near the river. He testified that after he returned from fishing, he left the bottle in the camper because his mother had called about 6:00 p.m. to tell him to come home to take care of an emergency. He testified that he was prescribed the Darvocet along with antibiotics for an ear infection and that he had taken seven or eight of the pills.

The jury convicted the defendant of simple possession of a Schedule IV controlled substance. On appeal, he argues that the evidence belies the jury’s conclusion that he possessed the bottle of Darvocet.

When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R.App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn.Crim.App.2003). The rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. Winters, 137 S.W.3d at 654.

In determining the sufficiency of the evidence, this court should neither reweigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id. at 655. Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Significantly, this court must afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Id.

“It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice.” T.C.A. § 39-17-418(a).

Tennessee courts recognize that possession may be either actual or constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn.2001). A person constructively possesses a controlled substance when he or she has “the power and intention at a given time to exercise dominion and control over [the contraband] either directly or through others.” Id. at 903 (quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn.Crim.App.1997)). Said differently, constructive possession is the “ability to reduce an object to actual possession.” State v. Cooper, 736 S.W.2d 125, 129 (Tenn.Crim.App.1987). However, “[t]he mere presence of a person in an area where drugs are discovered is not, alone, sufficient.” State v. Bigsby, 40 S.W.3d 87, 90 (Tenn.Crim.App.2000) (citing Cooper, 736 S.W.2d at 129). “Likewise, mere association with a person who does in fact control the drugs or property where the drugs are discovered is insufficient to support a finding that the person possessed the drugs.” Cooper, 736 S.W.2d at 129.

In the present case, the defendant presented evidence that the Schedule IV substance — Darvocet—in his possession on April 23 was the property of Derek McCann. In so doing, he invoked the “valid prescription” exception to the simple possession statute, Tennessee Code Annotated section 39-17-418(a). The “valid prescription” language of section -418(a) has indeed been deemed an “exception” as defined in Tennessee Code Annotated section 39-11-202, see State v. Timothy Wayne Grimes, No. M2001-01460-CCA-R3-CD, slip op. at 8, 2002 WL 31373472 (Tenn.Crim.App., Nashville, Oct. 16, 2002); State v. Cecil U. Cobb, Jr., No. 03C01-9811-CR-00420, slip op. at 6, 1999 WL 1080952 (Tenn.Crim.App., Knoxville, Dec. 2, 1999), and as such, “the state need not negate the existence of an exception in the charge alleging commission of the offense.” T.C.A. § 39 — 11—202(b)(1); see also id., § 39-17-427 (“It is an exception ... if the person lawfully possessed the controlled substance as otherwise authorized.”); id. § 53-11-410 (“It is not necessary for the state to negate any exemption or exception in ... title 39, chapter 17, part 4.... The burden of proof of any exemption or exception is upon the person claiming it.”). The prescription exception is applicable “when the prescription is issued by a licensed practitioner, acting in good faith and in accord with accepted medical standards and when the person obtaining the prescription is also acting in good faith and is free from fraud, deceit or misrepresentation.” State v. Sanderson, 550 S.W.2d 236, 239 (Tenn.1977).

In the present case, the defendant made no showing other than through the testimony of Mr. McCann that Mr. McCann held a valid prescription for the Darvocet. No pharmaceutical or medical testimony or records were introduced, and in our view the jury was free to reject Mr. McCann’s testimony. On this point, we note that part of the label on the pill battle had been scratched away.

Having determined that the exception contained in the proscriptive statute was not established, we hold that the evidence otherwise established the defendant’s knowing, constructive possession of a Schedule IV controlled substance. Even if Mr. McCann left the Darvocet in a camper at the river as he claimed, the presence of the Darvocet in the car the defendant was driving when he was stopped by Sergeant Davis was not explained. The bottle of Darvocet was found in the floor of the driver’s side of the vehicle that the defendant was driving. Someone had scratched off part of the prescribee’s name on the bottle label. The officers also found items in the wife’s purse in the vehicle that reasonably suggested the use of drugs. The defendant admitted to the use of illicit drugs, including the use of marijuana earlier in the day of April 23, 2008.

We hold that these facts provided a basis for inferences that the defendant unlawfully and knowingly possessed the Dar-vocet. Thus, the conviction is affirmed.

      . At this point, the prosecutor said, "I must have missed the episode where Tweety smokes a crack pipe.” The trial court sustained an objection and instructed the jury to disregard the comment.