Kennedy v. Holder , 1999 Tenn. App. LEXIS 234 ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
April 16, 1999
TINA KENNEDY, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Plaintiff/Appellee, )
) Appeal No.
) 01-A-01-9805-CV-00242
VS. )
) Franklin Circuit
) No. 9783-CIV
DR. T. SCOTT HOLDER and )
STONES RIVER HOSPITAL, INC., )
d/b/a SOUTHERN TENNESSEE )
MEDICAL CENTER, )
)
Defendants/Appellants. )
APPEALED FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
AT WINCHESTER, TENNESSEE
THE HONORABLE BUDDY D. PERRY, JUDGE
THOMAS C. FARIS
101 S. College Street
Winchester, Tennessee 37398
Attorney for Plaintiff/Appellee
WILLIAM C. RIEDER
214 North Atlantic Street
Tullahoma, Tennessee 37388
Attorney for Defendant/Appellant Dr. T. Scott Holder
C. J. GIDEON, JR.
EDWARD A. HADLEY
Suite 1900, NationsBank Plaza
414 Union Street
Nashville, Tennessee 37219-1782
Attorneys for Defendant/Appellant Stones River Hospital, Inc.
d/b/a Southern Tennessee Medical Center
REVERSED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
COTTRELL, J.
OPINION
In this medical malpractice case, the trial court overruled the defendants’
motions for summary judgment. The court was of the opinion that the lay testimony
of the plaintiff created a disputed question of fact on the defendants’ negligence. We
reverse and dismiss the plaintiff’s claims.
I.
Tina Kennedy, in active labor, was admitted to Southern Middle
Tennessee Medical Center under the care of Dr. T. Scott Holder. A normal birth
occurred after approximately nine hours of labor. Ms. Kennedy had an episiotomy to
avoid tearing during the delivery, but the floor of her vagina tore further. In repairing
the third degree laceration, Dr. Holder placed gauze-like sponges in Mrs. Kennedy’s
vagina to stop the bleeding around the laceration site. Three days after entering the
hospital Mrs. Kennedy went home with her new baby.
Six days later, Mrs. Kennedy discovered the gauze sponges still in her
vagina. Alarmed, she went back to the hospital emergency room, where the physician
on duty extracted the foreign material without anesthetic. Mrs. Kennedy suffered pain
and discomfort during the seven day period and the removal procedure caused severe
pain.
Mrs. Kennedy sued Dr. Holder and the hospital, claiming that Dr. Holder
was negligent, and that the hospital staff and nurses were also negligent because they
did not follow a procedure that would have ensured that the foreign objects were
removed from her body. Mrs. Kennedy also alleged that Dr. Holder’s conduct was
reckless and in wilful disregard of her safety. She asked for compensatory and
punitive damages.
Dr. Holder and the hospital answered the complaint and moved for
summary judgment. They filed Dr. Holder’s affidavit and the affidavits of three other
Board certified physicians, all saying that Dr. Holder’s conduct did not deviate from the
standard of care for physicians practicing in the area of Winchester and Franklin
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County, Tennessee. The affidavits state that gauze-like material can be left in a
patient’s vagina during a vaginal delivery in the absence of negligence on the part of
the physician. They also state that, unlike a surgical procedure involving an incision
in a patient’s body where sponges are placed in the incision, in a vaginal delivery
neither the doctor nor the nurses are required to account for all the sponges used in
the procedure. The key difference in the two procedures is that the sponge-like
objects may be easily removed from the vagina without further surgery.
Mrs. Kennedy relied on her affidavit to resist the motion for summary
judgment. Her affidavit restates the facts alleged in her complaint and takes issue
with the doctors’ statements that the gauze-like material was essentially a tampon.
She states that there were three separate masses of the material, each one
individually larger than a tampon, and that they were tightly packed in place. The
plaintiff also filed Dr. Holder’s deposition in which he stated that leaving sponges in
a patient’s vagina was not normal procedure and that he did not intend for it to happen
in this case.
The trial judge overruled the motions for summary judgment but granted
the defendants permission to appeal under Rule 9, Tenn. R. App. Proc.
II.
A. HAS THE PLAINTIFF SATISFIED THE COMMON
KNOWLEDGE EXCEPTION TO THE STATUTORY REQUIREMENT
THAT MEDICAL MALPRACTICE BE PROVED BY EXPERT
TESTIMONY?
By statute a plaintiff suing a medical provider for malpractice must show
by expert proof:
(a) In a malpractice action, the claimant shall have the
burden of proving by evidence as provided by subsection
(b):
(1) The recognized standard of acceptable
professional practice in the profession and the specialty
thereof, if any, that the defendant practices in the
community in which he practices or in a similar community
at the time the alleged injury or wrongful action occurred;
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(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.
Tenn. Code Ann. § 29-26-115.
This statute requires expert proof of all the elements of the tort. Baldwin
v. Knight, 569 S.W.2d 450 (Tenn. 1978). Summary judgment in favor of the
defendants in a medical malpractice action may be appropriate where the defendants
produce expert proof that completely refutes the plaintiff’s allegations of negligence
and the plaintiff does not produce rebuttal proof by expert testimony. Dolan v.
Cunningham, 648 S.W.2d 652 (Tenn. App. 1982). An exception to this high standard
has been recognized where the alleged acts of negligence are so obvious that they
come within the common knowledge of laymen. Ayers v. Rutherford Hosp., Inc., 689
S.W.2d 155 (Tenn. App. 1984). For instance, sewing up a surgical sponge in a
patient’s body clearly qualifies as negligence even without an expert to tell us so.
Rural Educational Association v. Bush, 298 S.W.2d 761 (Tenn. App. 1956). On the
other hand, leaving a medicated sponge pack similar in nature and purpose to a
tampon in a patient’s vagina after a hysterectomy is not so obvious that a lay person
could identify the conduct as negligence. St. Martin v. Doty, 493 S.W.2d 95 (Tenn.
App. 1972). The difference lies in the fact that the medicated sponge pack is “in the
nature of a bandage and . . . is removable without surgery.” Id. at 98.
The plaintiff’s attempt to distinguish St. Martin from this case is on the
ground that in St. Martin the sponge pack was intentionally left in the plaintiff’s vagina.
But that distinction is refuted by the opinion in St. Martin itself. The opinion points out
that the doctor “intended to remove the pack, but was unable to locate it and thought
that it had fallen out.” We see no distinction between the two cases.
The plaintiff also contends that developments in medical knowledge
subsequent to 1972, when the St. Martin case was decided, especially the emergence
of toxic shock syndrome as a possible result of tampon retention, renders that case
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outdated and its holdings questionable. However, we do not have the authority (or the
competence) to take judicial notice that the medical standard of care has changed or
that it needs to be changed. Under Tenn. Code Ann. § 29-26-115(c) expert testimony
is required to establish the applicable standard of care.
So, we conclude that this is not a case where the plaintiff can establish
the elements of a medical malpractice case through lay testimony.
B. IS THIS A CASE OF RES IPSA LOQUITUR?
The plaintiff also contends that the case may proceed without expert
proof because of the doctrine of res ipsa loquitur. Under this rule, “the facts of the
occurrence evidence negligence and . . . the circumstances, unexplained, justify an
inference of negligence.” Shivers v. Ramsey, 937 S.W.2d 945, 949 (Tenn. App.
1996). A revised version of this rule is incorporated into the Medical Malpractice Act
at Tenn. Code Ann. § 29-26-115(c):
In a malpractice action as described in subsection
(a) of this section there shall be no presumption of
negligence on the part of the defendant. Provided,
however, there shall be a rebuttable presumption that the
defendant was negligent where it is shown by the proof
that the instrumentality causing injury was in the
defendant’s (or defendants’) exclusive control and that the
accident or injury was one which ordinarily doesn’t occur
in the absence of negligence.
The application of res ipsa to a medical malpractice case has been
addressed in Murphy v. Schwartz, 739 S.W.2d 777 (Tenn. App. 1986). The court
compared res ipsa and the “common knowledge exception” and concluded (1) that
they were essentially the same and (2) that expert opinion evidence could not be
refuted by lay opinions.
We think the analysis in Murphy v. Schwartz leads to the obvious
conclusion that in medical malpractice cases you cannot infer negligence in a case
where there is expert testimony that no negligence occurred.
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C. IS THERE A DISPUTED QUESTION OF FACT
ON TH E HOS PITAL ’S NEGLIGENCE?
Finally, Mrs. Kennedy alleges that her affidavit makes a disputed
question of fact on the hospital’s negligence. She states that after the gauze was
removed in the emergency room an unidentified nurse said that the nurses had a duty
to do a sponge count both before and after the surgery. This proof, however, fails to
meet the test of admissibility required by Tenn. Code Ann. § 29-26-115(b) and Rule
56.06, Tenn. R. Civ. Proc. We have no way of knowing whether the declarant was
qualified to give that opinion and Rule 56.06 requires that affidavits be made on
personal knowledge. Therefore, the unknown declarant’s statement does not make
a disputed question of fact.
The judgment entered below is reversed and judgment will be entered
here granting summary judgment of dismissal to both defendants. The cause is
remanded to the Circuit Court of Franklin County for any further action that may be
necessary. Tax the costs on appeal to the appellee.
_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
PATRICIA J. COTTRELL, JUDGE
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