Ernestine Cole v. State of TN

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
______________________________________________
EARNESTINE COLE,
Plaintiff-Appellant,
FILED
Claims Commission No. 97487
Vs. C.A. No. 02A01-9801-BC-00004
July 16, 1998
STATE OF TENNESSEE,
Cecil Crowson, Jr.
Defendant-Appellee. Appe llate Court C lerk
____________________________________________________________________________
FROM THE TENNESSEE CLAIMS COMMISSION
THE HONORABLE MARTHA BRASFIELD, COMMISSIONER
William B. Raiford, III; Merkel & Cocke, P.A.
of Clarksdale, Mississippi
For Appellant
Beauchamp E. Brogan, General Counsel
JoAnn C. Cutting, Assistant General Counsel
For Appellee
AFFIRMED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This is a medical malpractice case tried by the Tennessee Claims Commission.
Claimant/Appellant Earnestine Cole (Cole) appeals from the judgment of the Claims
Commission for Defendant/Appellee State of Tennessee. Cole filed this complaint alleging that
she had a tubal ligation and sterilization performed while a patient at the Regional Medical
Center in Memphis, Tennessee. She avers that she was under the care and treatment of Dr. Lynn
Ware, a medical resident employee of the State of Tennessee at the University of Tennessee
School of Medicine, who was under the supervision of Dr. Bertram Buxton, a professor at the
university. Cole essentially alleges that the defendant, State of Tennessee, through its
employees, breached the recognized standard of acceptable professional practice in its medical
treatment, thus resulting in her becoming pregnant after the operation was performed.
After an evidentiary hearing, Commissioner Martha Brasfield filed a thorough and
comprehensible order which we adopt as a part of this Opinion:
The claimant, Ms. Ernestine Cole, filed a claim for
damages against the defendant, the State of Tennessee, alleging
that professional malpractice was committed upon her by
employees of the University of Tennessee.
The Tennessee Claims Commission has jurisdiction over
this claim pursuant to Tenn. Code Ann. section 9-8-307 (a)(1)(D).
The parties stipulated that the physicians named in this
lawsuit, Dr. Lynn Ware and Dr. Bertram Buxton, were employees
of the State of Tennessee at the time the alleged malpractice
occurred.
On March 9, 1988, the claimant, a 35-year-old single
mother of three children, had a tubal ligation and sterilization
performed at the Regional Medical Center in Memphis,
Tennessee. Prior to the surgery, the claimant signed a Consent
for Operation which stated a failure rate of 1:300-400 for the type
of sterilization to be performed. The surgery was performed by
Dr. Lynn Ware, a medical resident at the University of Tennessee,
under the supervision of Dr. Bertram Buxton, a professor at the
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University of Tennessee. The type of ligation which Dr. Ware
performed is known as a silastic band tubal sterilization. In this
type of procedure, a segment of each fallopian tube is grasped
with a surgical instrument and doubled (or “knuckled”), and a
tiny silicone (silastic) ring is slipped over the “knuckle” to
achieve occlusion of the tube.
Dr. Ware had performed approximately 50 tubal ligations
prior to the claimant’s surgical ligation. Her operative report,
dictated less than an hour after she performed the claimant’s tubal
ligation, stated that she placed a silastic ring on each fallopian
tube and then injected methylene blue dye through the uterus and
into the tubes to verify occlusion. No spillage of dye was
observed from either fallopian tube. Dr. Ware’s notes indicate
that Dr. Buxton was in attendance during the surgery. Dr. Buxton
testified that he was “quite diligent” in his role as an attending
surgeon, and that it was his practice to check his students’
surgical work before the surgical incision was closed. Although
he did not specifically recall attending the claimant’s surgery, he
testified that he believed that he was present during the surgery
and that he inspected Dr. Ware’s work prior to the closing of the
surgical wound. He signed the operative report (which was
dictated by Dr. Ware approximately twenty to thirty minutes after
the surgery) as well as the progress notes.
In October of 1988, the claimant discovered that she was
pregnant with twins, who were delivered at Baptist Memorial
Hospital by Dr. Marva Souder in February of 1989. Immediately
after the delivery of the twins, a second tubal ligation procedure
was performed by Dr. Souder. Dr. Souder’s operative notes state:
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FINDINGS: Bilaterally normal appearing
fallopian tubes. There was no ring found on the
right tube. On the left tube, the Fallope ring was
on the mesosalpinx, but the tube did not appear to
be occluded.
TECHNIQUE: . . . The right fallopian tube was
grasped . . . and brought to the surface in its entire
length with the findings as noted above. The tube
was grasped in an avascular area to form a
knuckle of tube. A free-tie of . . . plain catgut was
placed at the base of the knuckle. A second free-
tie was placed adjacent to the first tie. The
knuckle of tube was then excised and the resulting
pedicle was inspected for hemostasis. It was then
released to the abdomen. The same procedure
was performed on the left tube with findings as
noted above . . . .
The excised portions of the tubes were sent to a pathology
laboratory for routine analysis. According to Dr. Thomas
Chesney, the pathologist who examined the specimens, the
purpose of the analysis was to determine whether the fallopian
tubes had been entirely transected by the second tubal ligation
procedure. Following his examination of the specimen, Dr.
Chesney issued the following report:
A. PORTION OF LEFT FALLOPIAN TUBE:
Received is a 2.4 cm long x 0.4 x 0.5 cm, white-
tan, tubular structure enveloped in a thin, pink-tan,
4
fibrous membrane. The tissue is consistent with
a portion of fallopian tube. The fimbriated end is
identified. A fallope ring is present at the
proximal end of the specimen . . . .
B. PORTION OF RIGHT FALLOPIAN TUBE:
Received in fixative is a 2.2 cm in length x 0.8 x
0.6 cm diameter, white-tan, tubular portion of
tissue enveloped in a thin, purple-tan, fibrous
membrane. The tissue is consistent with a portion
of fallopian tube and the fimbriated [sic] end is
identified . . . .
The report concluded that the specimens were two “completely
transected negative segment[s] of oviduct.[”]
In approximately May of 1990, at the claimant’s request,
Dr. Chesney re-examined the fallopian tube specimens (which
had been preserved in paraffin after the initial laboratory
analysis). The purpose of this examination was to determine
whether the segment removed by Dr. Souder showed evidence of
tubal occlusion. Dr. Chesney re-sectioned and re-examined the
fallopian tube specimens and issued the following report:
NOTE: The remaining available tissue from the
fallopian tube segments . . . was submitted for
sectioning on May 15, 1990 . . . The cross sections
do not reveal tubal obstruction, nor would they be
expected to since the pathological analysis of
these tubes was directed to ascertainment of the
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completeness of the tubal interruption procedure
of February 25, 1989. The portions of left tube .
. . present on the slides may not represent the part
immediately adjacent to the grossly identified
fallope ring, nor was it intended that the portions
of the right tube . . . represent the previously
ligated area. The latter may indeed still remain in
the patient. These recut slides . . . first as the
original slides . . . reflect portions of the tubes
apparently uninvolved by the original tubal
ligation procedure of 1988, thus no opinion can be
rendered as to the completeness of that procedure
on the basis of this microscopic material.
The claimant maintains that the tubal ligation performed
by Dr. Ware in March of 1988 was negligently done. The
claimant further avers that Dr. Buxton failed to properly supervise
the procedure performed by Dr. Ware. As a result of this alleged
malpractice, the claimant maintains that she has suffered physical,
mental and monetary damages. She sues the defendant for the
recovery of the costs associated with the pregnancy and birth of
the twins, for the costs of the second tubal ligation, for pain and
suffering, and for mental anguish.
The defendant denies malpractice in the tubal ligation
procedure, and maintains that the claimant has failed to prove that
Dr. Ware violated the recognized standard of acceptable
professional practice in the medical profession. The defendant
holds that tubal ligations sometimes fail because the fallopian
tubes “recanalize,” or because occluding devices (in this case,
6
silastic rings) can “migrate,” break, or slip post-operatively, either
of which circumstances could arise absent a physician’s
malpractice. The defendant points out that the claimant signed a
consent for operation form which specifically stated that tubal
ligation procedures fail at a rate of 1:300-400.
The claimant’s burden of proof in this claim is set out in
Tenn. Code Ann. Section 29-26-115(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; (2) That the
defendant acted with less than or failed to act with ordinary and
reasonable care in accordance with such standards; (3) As a
proximate result of the defendant’s negligent act or omission, the
plaintiff suffered injuries which would not otherwise have
occurred.” Negligence may not be presumed from the fact that
the treatment was unsuccessful. (See, Johnson v. Lawrence, 720
S.W.2d 430 (Tenn. Ct. App. 1986) and Watkins v. United States,
482 F. Supp. 1006 (M.D. Tenn. 1980).
The parties essentially agreed that the tubal ligation
procedures described by Dr. Ware in her operative report met the
recognized standard of acceptable professional practice for tubal
ligations if those procedures were performed as Dr. Ware
described. The claimant alleges that the standard procedures were
not performed by Dr. Ware as described in her operative notes,
that Dr. Ware failed to act with ordinary and reasonable care in
7
performing those procedures, and that Dr. Buxton failed to act
with ordinary and reasonable care in supervising and inspecting
Dr. Ware’s work. In support of her allegations, the claimant
points out the following:
(1) During the second sterilization procedure, Dr. Souder found
no silastic ring on the right fallopian tube;
(2) Dr. Souder observed no scarring on either fallopian tube;
(3) Dr. Souder observed that the left silastic ring was on the
mesosalpinx instead of on the fallopian tube;
(4) In her initial deposition, Dr. Ware described an incorrect
location for placement of the silastic rings;
(5) There was no evidence or opinion that the left silastic ring had
“migrated” from another location;
(6) There was no evidence that the silastic rings used by Dr. Ware
were defective or broken;
(7) Although the methylene dye test revealed no spillage of dye
from the fallopian tubes, the test is not a reliable test of tubal
occlusion.
With regard to the surgical procedure, itself, and the
malpractice allegedly committed by Dr. Ware, the claimant’s
expert witness, Dr. Albert Alexander, a retired obstetrician and
gynecologist, testified that Dr. Ware inappropriately placed the
8
left silastic ring on the mesosalpinx near the fimbriated end of the
left fallopian tube, and had placed no ring at all on the right
fallopian tube. He based his findings on Dr. Souder’s operative
notes. He opined the claimant’s fallopian tubes should have
evidenced scarring had the silastic rings been appropriately placed
and remained in place for as little as 12-24 hours. Dr. Alexander
further testified that a recanalization of the fallopian tubes should
have left visible signs which Dr. Souder should have been able to
have seen during the second sterilization procedure. Dr.
Alexander also discounted the defendant’s theory that the silastic
rings may have broken, migrated or slipped. He stated that a
broken or defective ring should have evidenced its defect during
the surgery. With regard to the methylene dye test, Dr. Alexander
testified that although the spillage of dye from the fallopian tubes
is a certain indicator that an attempted occlusion was not
successful, the test is “very unreliable” for proving successful
tubal occlusion; therefore, the dye test performed by Dr. Ware did
not prove conclusively that the silastic rings had been properly
placed.
The defendant’s expert witness, Dr. Dwight Pridham, a
professor at the University of Louisville medical school
specializing in obstetrics and gynecology and in reproductive
endocrinology, opined that Dr. Souder’s findings with regard to
the silastic rings did not prove that the rings had been improperly
placed during the first tubal ligation procedure. Dr. Pridham
testified that necrosis (death of tissue) often occurs in the
“knuckles” of the tube formed by the ligation process, and that
these knuckles may “drop off’ following successful occlusion of
fallopian tubes, leaving the silastic rings “attached to what was
9
left after the necrosis had occurred, which is often the
mesosalpinx below the fallopian tube.” He testified that the rings
may also become “epithelized” (covered with tissue) and thus
may not be visible to the naked eye. Dr. Chesney, the pathologist
who examined the fallopian tube segments excised by Dr. Souder,
also testified that the tiny silastic rings sometimes become
encapsulated with tissue and may be invisible to the naked eye.
With regard to the lack of scarring, Dr. Pridham testified that
“[m]ost of the time you can identify a scarred area, an area that is
absent of apparent tubal lumen, but that is not always the case . .
. there have been a number of occasions when I have been
looking at a uterus, often at the time of hysterectomy and
occasionally at the time of re-anastomosis (reversal of a tubal
ligation)where it’s been difficult to tell where the tube has been
obstructed.”
All of the physicians testified that tubal ligations can fail
due to the “recanalization” of the fallopian tubes. According to
Dr. Pridham, this recanalization is not always evident to the
naked eye.
Further, all physicians testified and all proof indicated that
the methylene blue dye test is not a perfect indicator of tubal
occlusion. Spillage of blue dye from the fimbriated end of the
tube indicates that the tube is not occluded; the fact that blue dye
does not spill from the fimbriated end is not proof that the tube is
occluded. (The proof showed that the dye may not spill from the
fimbriated ends of a patent (non-occluded) tube for several
reasons: (1) The dye is not properly injected into the uterus,
which would constitute negligence on the part of a medical
10
professional; (2) The fallopian tube can spasm, shutting off the
flow of the dye; (3) Another occlusion or obstruction in the tube
can prevent the flow of the dye. Items 2 and 3 would not
constitute negligence on the part of a medical professional.)
Nevertheless, the blue dye test was the only available test which
could be performed after tubal ligations which gave an indication
of occlusion, and administering this test was the standard of care
in this operation.
It must be found that Dr. Pridham’s credentials more
thoroughly qualify him to opine in the field of tubal ligations and,
specifically, in the area of re-anastomosis of fallopian tubes. As
was previously stated, Dr. Pridham’s area of specialization is in
reproductive endocrinology, and as a part of his work he has
personally viewed the fallopian tubes of approximately 200
women who had undergone tubal ligations. (Dr. Pridham’s field
of specialization involves reversals of tubal ligations.) His
credentials evidence a special knowledge in the field of
sterilization by tubal ligation.
Dr. Alexander’s testimony cannot be given as much
credence as Dr. Pridham’s for several factual reasons: (1) Dr.
Alexander had never performed a tubal ligation using silastic
rings; (2) He had personally seen the internal anatomy of only one
patient who had previously undergone an unsuccessful tubal
ligation procedure; and (3) Dr. Alexander’s testimony evidenced
some confusion with regard to the usage of the words “proximal”
and “distal” in relation to the two ends of a fallopian tube. This
confusion resulted in a misinterpretation of the pathology
laboratory’s findings concerning the location of the silastic ring
11
found by Dr. Souder.
Dr. Pridham’s testimony effectively and credibly refutes
the claimant’s assertion that Dr. Souder s [sic] findings prove that
malpractice was committed by Dr. Ware. Dr. Pridham gave
convincing testimony that silastic bands can become displaced
even when properly placed. He also gave convincing testimony
concerning a fallopian tube’s ability to show no immediately-
visible signs of scarring and/or occlusion following successful
ligation. Therefore, it would appear that even though Dr. Souder
may not have found silastic rings where Dr. Ware should have
placed them, this is not absolute proof that Dr. Ware incorrectly
placed the rings.
Further, it must be noted that the accuracy of Dr. Souder’s
operative notes appears questionable when compared with Dr.
Chesney’s (the pathologist’s) findings. First, Dr. Chesney
described receiving the fimbriated ends of the left and right
fallopian tubes. Dr. Souder’s operative notes indicate that she
excised two “knuckle[s] of tube.” Dr. Chesney testified, “[i]t
sounds like she’s taking out a segment of the mid portion of the
fallopian tube, but not taking out the distal [fimbriated] end of the
tube . . . I would say that this sounds like she’s done a different
operation than the operation you would do to get the specimen
that we got.” Secondly, Dr. Souder described having observed
the left silastic ring on the mesosalpinx, while Dr. Chesney’s
observation was that the “fallope ring [was] present at the
proximal end of the specimen.” According to Dr. Chesney, the
“proximal end” was the cut end of the specimen -- the end closer
to the uterus. Except for certain testimony of Dr. Alexander in
12
interpreting Dr. Chesney’s pathology report, all the physicians
who discussed the terms “proximal” and “distal” as it pertained
to a fallopian tube testified that, in medical terminology, the
proximal end of the fallopian tube was that part nearer to the
uterus, and the distal end was that part nearer to the fimbriated
end. During specific questioning regarding the location of the
silastic ring on the specimen received by the pathology lab, Dr.
Chesney testified that he believed that the ring “was on the tube
rather than on the mesosalpinx.” Dr. Chesney studied the
specimen in the laboratory and, therefore, his pathological
analysis of the tissue samples would have been more thorough
than Dr. Souder’s clinical observations. Thus, it would appear
that at least two of Dr. Souder’s observations -- (1) the portions
of tube she excised and (2) the location of the left silastic band --
were incorrect.
In must further be noted that Dr. Souder’s claim that the
fallopian tubes were “brought to the surface in [their] entirety”
was found by Dr. Pridham to be unusual or unlikely. Dr. Pridham
explained that, while the fimbriated ends of fallopian tubes (the
“distal” ends) are “somewhat loose,” they are held in place near
the ovaries by ligaments. Dr. Souder did not use a laparoscope
during the tubal ligation procedure. Access to the fallopian tubes
was gained through a small incision (typically ½” to 1", according
to Dr. Pridham) made below the umbilicus. Dr. Pridham testified
that “[w]ith postpartum sterilizations the exposure and
visualization that you have is adequate to do a sterilization, but
you do not have a very good overall visualization of the entire
pelvis . . . You can see a portion of things at a time well enough
to identify the tube and to pull it up and to remove a portion, but
13
not an overall visualization as you would have in a more routine
laparotomy, a larger incision . . . [Y]ou would not usually be able
to easily bring the entire tube through the incision at one time.
You can pick up a portion and work your way down the tube to
see the fimbriated end . . . That’s because the tube is obviously
attached to something in the pelvis . . . I really can’t say it’s
impossible to do it, just that it would be atypical in this type of
procedure to bring the entire tube in the incision.” Dr. Pridham’s
testimony evoked additional doubt concerning the accuracy of the
findings as reported by Dr. Souder’s operative notes.
Dr. Souder’s observations were the claimant’s only
evidence that Dr. Ware incorrectly placed (or failed to place) the
silastic rings during the first tubal ligation procedure, but the
discrepancies and oddities in her report rob it of much of its
credibility. Neither Dr. Pridham nor Dr. Chesney could reconcile
Dr. Souder’s report with the specimens received by the pathology
laboratory. Dr. Souder did not testify in this claim, and thus these
discrepancies remain unreconciled.
Rule of Civil Procedure 56.05 provides in part that
“[e]xpert opinion affidavits shall be governed by Tennessee Rule
of Evidence 703" which states as follows:
The facts or data in the particular case upon which
an expert bases an opinion or inference may be
those perceived by or made known to the expert at
or before the hearing. If of a type reasonably
relied upon by experts in the particular field in
forming opinions or inferences upon the subject,
14
the facts or data need not be admissible in
evidence. The court shall disallow testimony in
the form of an opinion or inference if the
underlying facts or data indicate lack of
trustworthiness. [Emphasis added]
In this claim, the “underlying facts or data” on which the
claimant’s expert based his opinion -- the operative report of Dr.
Souder -- lacks trustworthiness. The procedure described in her
operative notes (i.e., lifting the entire fallopian tube through the
incision) was, according to the defendant’s expert witness,
unlikely or unusual. More importantly, Dr. Souder’s description
of the portions of tube which she excised during the second tubal
ligation procedure does not describe the portions of tube received
by the pathological laboratory.
In Freda G. Moon v. St. Thomas Hospital, Court of
Appeals, Middle Section, April 25, 1997, the court stated, “[i]f
opinion testimony must be disallowed when the underlying facts
indicate a lack of trustworthiness, it certainly must be disallowed
when the underlying facts are inaccurate.” As the claimant’s
expert witness, Dr. Alexander, based his opinions on Dr. Souder’s
operative report, and as this operative report appears to be an
inaccurate and unreliable source of information, Dr. Alexander’
testimony and expert opinions, which are based upon Dr.
Souder’s operative report, should be disallowed pursuant to
Tennessee Rule of Evidence 703.
Nothing in Dr. Chesney’s second laboratory analysis
confirms the claimant’s theory that the tubal rings were mis-
15
placed by Dr. Ware. By the time of the second analysis, the
fallope ring had become separated from the remainder of the
specimen, and Dr. Chesney could not locate it. Dr. Chesney re-
sectioned the remaining fallopian tube specimens and did not find
evidence of tubal occlusion; however, as Dr. Chesney stated, the
portions of tube removed during the second sterilization were
apparently uninvolved in the first sterilization procedure. If Dr.
Ware placed the silastic rings in an appropriate area (which,
according to the expert witnesses, is the middle third of the tube,
slightly toward the uterus), one would not expect the fimbriated
ends of the tubes to evidence occlusion: the occluded area of the
tube would remain inside the claimant’s body. Thus, the absence
of occlusion in the specimens sent to the pathology laboratory
does not prove that the claimant’s fallopian tubes were never
occluded by the first tubal ligation.
The claimant points out that Dr. Ware, in her first
deposition, incorrectly described the proper location for the
placement of silastic bands. In that deposition, Dr. Ware stated
that the rings should be placed roughly in about the middle of the
tube, out towards the fimbriated ends rather than up close to [the]
uterus. This is an incorrect location, according to the physician
witnesses. In her second deposition, Dr. Ware, herself, stated that
the rings should be placed just a little past [the] first third of the
tube, or closer to the uterus than to the fimbriated ends. The fact
that Dr. Ware initially described an incorrect location, coupled
with the fact that Dr. Chesney found the left fallope ring at the cut
end of a sample which was 2.4 cm. long (and testified that he
believed the ring to have been initially placed in that location),
tends to lend weight to the claimant’s position that Dr. Ware
16
simply did not know the correct location for placement of the
bands and put them in the wrong place. However, there has been
no testimony concerning the over-all length of the claimant’s
fallopian tubes. The physicians testified that the length of
women’s fallopian tubes varies from six to eight centimeters. If
the claimant’s fallopian tubes were at the shorter end of this
estimate, by the time a knuckle of tube was formed and the
knuckle necrosed, the ring might well have been properly placed
on the middle third of the tube and still have been found 2.4 cm.
from the fimbriated end.
In further support of her allegation that Dr. Ware did not
properly place the rings on the fallopian tubes, the claimant
submitted for introduction four studies performed by senior
medical students at UT. Two studies were introduced as exhibits:
(1) “Method Failures of Laparoscopic Tubal Sterilization in a
Residency Training Program” [Exhibit 1a] and (2)
“Chromopertubation at Laparoscopic Tubal Occlusion” [Exhibit
16]. The remaining two studies, (3) “A Model for Resident
Surgical Training in Laparoscopic Sterilization” and (4) “Gross
and Histologic Examination of Tubal Ligation Failures in a
Residency Training Program,” were introduced as exhibits Y and
Z for identification purposes only, with a ruling to be made on
their admissibility in the final order.
The first of these studies [Exhibit 1A] was conducted by
G. Michael Henry and was presented to the UT faculty and
residents by Dr. Henry as his “senior paper” in approximately
May of 1988. This paper indicated a greater-than-average failure
rate for tubal ligations performed by UT residents.
17
The second study evaluated the effectiveness of the
methylene blue dye test (chromopertubation)following tubal
ligations to determine if the tubes were occluded.
The third study sought to identify possible anatomical
reasons for the high failure rate of tubal ligations. This study,
published in September of 1990, concluded that it was the
residents’ lack of expertise and the attending surgeons’ failure to
properly supervise the procedures that were responsible for the
high failure rate.
The fourth study, published in March of 1994, suggested
training techniques and for residents [sic] which were expected to
lower the failure rate for future procedures.
The defendant objected to the entering these studies into
evidence [sic].
The claimant suggests that these studies indicate that,
more likely than not, Dr. Ware was negligent in performing the
claimant’s tubal ligation. The claimant acknowledges that she did
not participate in any of these studies. There is no proof that Dr.
Ware performed any of the ligations which were included in the
studies or that she was interviewed in these studies. These studies
are not relevant to the issue as to whether or not Dr. Ware was
negligent in performing the claimant’s tubal ligation. Studies 3
and 4 will not be admitted into evidence and will not be
considered in this opinion.
With regard to Dr. Buxton’s supervision of the procedure
18
performed upon the claimant by Dr. Ware, the operative notes
reflect that Dr. Buxton was present in the operative suite. Dr.
Buxton testified to an honest diligence to his role as attending
physician. Dr. Buxton did not have any specific recollection
about the claimant’s surgery, but testified very firmly that he
routinely and normally checked behind the residents, and that he
would have left the operating room when he “had indeed seen that
the rings were placed on what [he] agreed were the tubes, number
one, and number two, waited to see whether any retrograde
administration of methylene blue came through the cannula
placed in the uterus and out the tubes and then [he] would have
left . . . .” The claimant presented no evidence that Dr. Buxton
was not in the operating suite or did not inspect Dr. Ware’s work
before the closing of the surgical wound. Thus, it must be found
that the claimant has failed to prove her claim that Dr. Buxton
was negligent in his supervision of the surgery performed upon
her by Dr. Ware.
It is found that the claimant has failed to carry her burden
of proving negligence on the part of Dr. Ware and/or Dr. Buxton.
Thus, this claim must be dismissed.
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED that this claim should be, and is hereby, dismissed.
This is a direct appeal from the Tennessee Claims Commission and is governed by the Tennessee Rules of
Appellate Procedure and T.C.A. § 9-8-403(a)(1) (Supp. 1997). Since this is a nonjury case, it is reviewed de novo
upon the record with a presumption of correctness of the Commissioner’s findings of fact. T.R.A.P. 13(d), Sanders
v. State, 783 S.W.2d 948, 951 (Tenn. App. 1989).
The sole issue on appeal is whether the evidence preponderates against the Claims Commissioner’s finding
19
that the claimant failed to show that the State employees did not conform to the standard of care.
The plaintiff’s burden of proof as set out in T.C.A. § 29-26-115(a) (1980) is included in the Commissioner’s
order. Cole first contends that the Commissioner misapplied the plaintiff’s burden of proof by requiring her to prove
the physicians’ negligence by more than a preponderance of evidence. Cole cites the following portion of the
Commissioner’s order in support of this contention:
Dr. Pridham’s testimony effectively and credibly refutes
the claimant’s assertion that Dr. Souder s [sic] findings prove that
malpractice was committed by Dr. Ware. Dr. Pridham gave
convincing testimony that silastic bands can become displaced
even when properly placed. He also gave convincing testimony
concerning a fallopian tube’s ability to show no immediately-
visible signs of scarring and/or occlusion following successful
ligation. Therefore, it would appear that even though Dr. Souder
may not have found silastic rings where Dr. Ware should have
placed them, this is not absolute proof that Dr. Ware incorrectly
placed the rings.
(Emphasis added). This argument is without merit. When this finding is placed in context with the entirety of the
Commissioner’s order, it is clear that the Commissioner issued her ruling based on a preponderance of the evidence
standard. Cole next asserts that even if the trial court employed the proper burden of proof, the preponderance
of the evidence does not support its ruling. The thrust of Cole’s suit is based on the testimony of her expert, Dr.
Alexander, who, in turn, based his opinion primarily on Dr. Souder’s operative report of the second sterilization
procedure. The preponderance of the evidence does not weigh against the Commissioner’s decision to discount Dr.
Alexander’s testimony, since it justifiably found that Dr. Souder’s report was inaccurate and unreliable.
As elucidated in the Commissioner’s Order, several unresolved discrepancies exist between Dr. Souder’s report
and Dr. Chesney’s pathology report. Namely, there were discrepancies concerning the segment of the tube that was
excised by Dr. Souder and delivered to Dr. Chesney1 and discrepancies concerning the location of the silastic band in
relation to the left fallopian tube. Based on the testimony of both Dr. Chesney and Dr. Pridham, Dr. Souder’s report is
inconsistent with the procedure performed. Furthermore, Dr. Pridham noted that Dr. Souder’s report may be unreliable
due to the size of the incision, the presence of inadequatelighting, and the unlikelihood of pulling the fallopian tubes
1
At trial, Dr. Pridham testified as follows:
Q. Can you in any way reconcile this pathology report with
Dr. Souder’s operative report and what she described in that
report?
A. No, that really does not make a lot of sense to me. If
you’re doing a Pomeroy and you’re taking a knuckle of tube
you’re not taking the fimbria. If you did a fimbriectomy,
which is a different procedure, then you would have the
fimbria. Those don’t make sense.
20
in their entirety to the surface of the skin as described by Dr. Souder’s report. Although Cole’s expert, Dr. Alexander,
attempted to reconcilethe reports, the preponderance of the evidence supports the Commissioner’s finding that Dr.
Pridham is a more qualified expert for the reasons set forth in the Commissioner’s Order. See State v. Ballard, 855
S.W.2d 557, 562 (“In Tennessee the qualifications,admissibility, relevancy and competency of expert testimony are
matters which largely rest within the discretion of the trial court.”) In light of the unreliabilityof Dr. Souder’s report,
the Commissioner was justified in discounting Dr. Alexander’s testimony. See Tenn. R. Evid. 703 (“The court shall
disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of
trustworthiness.”).
In her brief, Cole raises several arguments,each of which were discussed in detail in the Commissioner’s
Order.2 After an extensive review of the record, we find that the Commissioner’s findings with regard to these
arguments are supported by the preponderance of the evidence and the law. Although Cole did an exemplary job in
demonstrating the possibility that the sterilization procedure was negligentlyperformed, we are unable to hold that
the preponderance of the evidence indicates that the Commissioner’s findings are erroneous.
The judgment of the Commissioner is affirmed. Costs on appeal are assessed against the Appellan
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
2
Specifically, Cole mentions Dr. Ware’s testimony regarding the appropriate
location for the placement of the fallope ring, the use of methylene blue dye as a test, the
absence of scarring in Dr. Souder’s report, the alleged lack of evidence of alternative
explanations for the failure of the sterilization, the University studies that Cole attempted to
introduce into evidence, and the alleged lack of evidence demonstrating that Dr. Buxton
supervised the results.
21