Sarver et al v. Wang et al

Filing 28

MEMORANDUM AND ORDER: For the reasons stated above, the undersigned Magistrate Judge GRANTS the motion for summary judgment filed on behalf of Defendant Wang and DISMISSES the claims against him with prejudice. This is the final order in this case. The Clerk is directed to close the file. It is so ORDERED. Signed by Magistrate Judge John S. Bryant on 8/29/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
HENRY D. SARVER,
PAMELA K. SARVER,
Plaintiffs
v.
MING WANG, M.D., WANG
VISION INSTITUTE, PLLC,
Defendants

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No. 3:15-0105
Magistrate Judge Bryant
Jury Demand

MEMORANDUM AND ORDER
On December 23, 2015, the Court entered an agreed order
of dismissal with prejudice of Plaintiffs’ claim against Defendant
Wang Vision Institute, PLLC (Docket Entry No. 23). The Court
mistakenly included in this order a statement that the order was
the final order in this action. This sentence, identified as
paragraph 3 in that order, is hereby VACATED.
Defendant Ming Wang, M.D., has filed his motion for
summary judgment (Docket Entry No. 24), supported by Dr. Wang’s
affidavit, a memorandum of law, and a statement of undisputed facts
(Docket Entry Nos. 25-1, 26 and 27). Plaintiff has not responded in
opposition to this motion.
For the reasons stated below, the undersigned finds that
Defendant Wang’s motion for summary judgment should be granted and
the claims against him dismissed.
STATEMENT OF THE CASE
Plaintiffs Henry D. Sarver and wife, Pamela K. Sarver,
have

filed

this

action

premised

upon

diversity

jurisdiction

alleging a claim of medical malpractice against Defendant Wang.
Specifically, Plaintiffs allege that Defendant Wang performed
femtosecond laser cataract surgery on Plaintiff Henry Sarver’s
right eye on October 8, 2013. Plaintiffs claim that Plaintiff
Sarver was an inappropriate candidate for this surgery, that the
surgery was unnecessary, that as a result of this surgery Plaintiff
was

subjected

to

two

additional

laser

procedures,

and

that

following this surgery Plaintiff’s vision in his right eye is so
poor that he can only distinguish light from dark.
As stated above, Defendant Wang has now filed his motion
for summary judgment to which Plaintiffs have not responded.
STANDARD OF REVIEW
A party may obtain summary judgment by showing “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(a); Covington v. Knox County School Sys., 205 F.3d 912, 914
(6th Cir. 2000). The moving party bears the initial burden of
satisfying the court that the standards of Rule 56 have been met.
See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question to be addressed is whether there exists any
genuine dispute of material fact. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary
judgment is inappropriate.

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To

defeat

a

properly

supported

motion

for

summary

judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.

If the

party does not so respond, summary judgment will be entered if
appropriate. Fed. R. Civ. P. 56(e). The nonmoving party’s burden of
providing specific facts demonstrating that there remains a genuine
issue of material fact for trial is triggered once the moving party
shows an absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325. A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
ruling on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the nonmoving party,
drawing all justifiable inferences in its favor. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
ANALYSIS
In Tennessee, the plaintiff in a medical malpractice
action has the burden of proving by competent expert evidence the
following:
1.

the recognized standard of acceptable professional
practice in the profession and the specialty
thereof, if any, that the defendant practices in
the community in which the defendant practices or
in a similar community at the time the alleged
injury or wrongful action occurred;

2.

that the defendant acted with less than or failed
to act with ordinary and reasonable care in
accordance with such standard; and

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3.

as a proximate result of the defendant’s negligent
act or omission, the plaintiff suffered injuries
which would not otherwise have occurred.

Tenn. Code Ann. § 29-26-115(a).
Moreover, subsection (b) of this statute provides that in
order to be competent to testify as an expert witness in a medical
malpractice

action

in

Tennessee,

the

witness

must

have

been

licensed to practice in the State of Tennessee or a contiguous
bordering state in a profession or specialty which would make the
witness’s testimony relevant to the issues in the case and must
have practiced such profession in one of these states during the
year preceding the date of the alleged injury to the plaintiff.
Here, it appears from Defendant Wang’s affidavit (Docket
Entry No. 25-1) that he satisfies the competency requirements set
forth in the Tennessee statute. In his affidavit, Wang testifies
that

he

complied

with

the

recognized

standard

of

acceptable

professional practice in his care and treatment of Plaintiff
Sarver, and that nothing Defendant Wang did or failed to do caused
an injury or damage to Mr. Sarver that would not otherwise have
occurred. Thus, Defendant Wang by his affidavit has refuted the
essential elements of the cause of action upon which Plaintiffs
bear the burden of proof.
In

the

absence

of

any

response

by

Plaintiffs,

the

undersigned Magistrate Judge finds that there is no genuine dispute
as to any material fact and that Defendant Wang is entitled to
judgment as a matter of law.

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CONCLUSION
For the reasons stated above, the undersigned Magistrate
Judge GRANTS the motion for summary judgment filed on behalf of
Defendant Wang and DISMISSES the claims against him with prejudice.
This is the final order in this case. The Clerk is
directed to close the file.
It is so ORDERED.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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