Alvin Bates v. Dr. Joseph Metcalf

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 10, 2001 Session

ALVIN BATES v. DR. JOSEPH METCALF, IV, d/b/a OAK RIDGE
SURGEONS, P.C.

Appeal from the Circuit Court for Anderson County
No. 98LA0448 James B. Scott, Jr., Judge

FILED DECEMBER 3, 2001

No. E2001-00358-COA-R3-CV

In this appeal from the Circuit Court for Anderson County, the Plaintiff/Appellant, Alvin
Bates, contends that the Trial Court erred in failing to grant him a directed verdict in his cause of
action against the Defendant/Appellee, Dr. Joseph Metcalf, IV, for medical malpractice and medical
battery. Mr. Bates further contends that the Trial Court committed other errors with respect to the
admission and exclusion of evidence and that there was no material evidence to support the jury's
verdict in favor of Dr. Metcalf. We affirm the judgment of the Trial Court and we adjudge costs of
appeal against Mr. Bates and his surety.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Cause Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court. Herschel P. Franks, J., filed a
concurring opinion. CHARLES D. SUSANO, JR., J., filed a dissenting opinion.

David Randolph Smith, Nashville, Tennessee, and James P. Smith, Crossville, Tennessee, for the
appellant, Alvin Bates.

Debra A. Thompson, Knoxville, Tennessee, for the appellee, Dr. Joseph Metcalf, IV.

OPINION

This appeal arises out of an action for medical battery and medical malpractice filed by the
Plaintiff/Appellant, Alvin Bates, against the Defendant/Appellee, Dr. Joseph Metcalf, IV d/b/a Oak
Ridge Surgeons, P.C.

In May of 1997 Mr. Bates consulted Dr. Metcalf, a medical doctor specializing in general
surgery, because he was experiencing rectal pain and bleeding. Upon Dr. Metcalf's examination and
subsequent diagnosis of "thrombosed internal hemorrhoids" Mr. Bates consented to a
hemorrhoidectomy which Dr. Metcalf performed on May 15, 1997.
 Mr. Bates returned to Dr. Metcalf's office for a post-operative check-up on May 28, 1997,
at which time Dr. Metcalf advised him to continue a daily self- treatment regimen which included
diet modification and application of Anusol, a medicated cream. The record shows that Mr. Bates
continued this program of self-treatment for the next four and one-half months.

Mr. Bates did not see Dr. Metcalf again until September 24, 1997, at which time he was once
again experiencing pain and bleeding as he had prior to the surgery of May 15. Dr. Metcalf's
examination on this visit was limited because of Mr. Bates's extreme discomfort and, although Dr.
Metcalf advised Mr. Bates that he believed his symptoms indicated a recurrence of hemorrhoids,
he further advised him that the pain and bleeding could be caused by something other than
hemorrhoids such as an anal fissure. Because his examination had been restricted as a consequence
of Mr. Bates's discomfort, Dr. Metcalf recommended that Mr. Bates allow him to conduct an anal
examination under anesthesia. In his notes from this visit Dr. Metcalf wrote, "Signs and symptoms
of continued hemorrhoidal bleeding. The patient has done well for the past four months. I feel we
need to do a formal anal evaluation, possible further hemorrhoidectomy."

The record shows that on the date of this visit Mr. Bates signed a consent form designated
REQUEST FOR SURGERY which included the following statements:

2. The procedure(s) necessary to be performed has(have) been explained to me
and I understand the nature of the procedure to be: Anal Exam and possible
Hemorrhoidectomy

3. Procedure as scheduled: Anal Exam and possible Hemorrhoidectomy

4. It has been explained to me that, during the course of the operation, unforseen
conditions may require additional surgery immediately. If I need such additional
surgery during my operation, I permit Dr. Metcalf, his assistants, or his designees
to perform such medical and surgical procedures as are necessary.

5. Dr. Metcalf has discussed and explained to me
a. The nature and purpose of the operation or procedure.
b. The possibility that complications may arise or develop.
c. Significant risks.
d. Available alternative methods of treatment.
e. Prognosis if no treatment is received.
f. Other ______________________

Dr. Metcalf testified that he also told Mr. Bates that "whatever I found under the anal
examination, that if it could be fixed at that time, we would do that. And he knew that an anal
fissure was a possibility. And, therefore, he knew that fixing an anal fissure was what he expected
me to do." Mr. Bates testified that Dr. Metcalf told him " that he would do an exam, check and see,
fix the hemorrhoids." Mr. Bates did not recall Dr. Metcalf telling him that if the cause of the

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bleeding was something that he could simply fix, he would fix it and he denies that he gave Dr.
Metcalf consent to fix the problem whatever it might be.

On the day following the office visit of September 24, 1997, Mr. Bates appeared at the
emergency room of the Methodist Medical Center because of his rectal pain and bleeding and was
again seen by Dr. Metcalf who ordered blood work and arranged for a colonscopy which was
performed by another physician the next day.

An anal exam under general anesthesia was performed by Dr. Metcalf upon Mr. Bates on
September 30,1997. Upon examining Mr. Bates's anal canal, Dr. Metcalf discovered that the cause
of Mr. Bates's pain and bleeding was not hemorrhoids, but rather a large anal fissure. Dr. Metcalf's
operative note reflects that he and his operative team "decided at this time that an internal lateral
sphincterotomy would be part of this operation". It is not disputed that a sphincterotomy, which
involves cutting the anal sphincter, is the appropriate surgical remedy for an anal fissure such as the
one exhibited by Mr. Bates. Dr. Metcalf testified that he would have emphatically recommended
that Mr. Bates have such surgery and that the fissure would probably not have healed without the
surgery. Dr. Metcalf admits, however, that he never specifically discussed the lateral internal
sphincterotomy with Mr. Bates prior to performing the operation. Mr. Bates asserts that he would
not have consented to the lateral internal sphincterotomy had it been proposed to him.

After returning home from the hospital and while he was still healing from the surgery of
September 30, Mr. Bates began to experience fecal incontinence. On December 19,1997, he met
with Dr. Metcalf to discuss this problem and was referred by him to Dr. Julio Solla, a colon and
rectal surgeon with the Universtiy of Tennessee Medical Center in Knoxville. Dr. Solla determined
that Mr. Bates's incontinence was caused by an abnormality of the pudendal nerves which, when
functioning properly, control the external sphincter muscle which, in turn, controls fecal continence.
Dr. Solla offered Mr. Bates the option of a colostomy and referred him for a second opinion to Dr.
Frank Opelka, another colon and rectal surgeon, affiliated with the Ochsner Clinic in New Orleans,
Louisiana.

In May of 1999 Dr. Opelka examined Mr. Bates and presented him with the alternative
remedies of a colostomy, construction of an artificial sphincter or an operation to repair his internal
sphincter. Mr. Bates consented to the final option and on June 3, 1999, Dr. Opelka performed
surgery to repair Mr. Bates's internal sphincter. Unfortunately, this surgery was not successful and
Mr. Bates continues to suffer from incontinence.

The present lawsuit commenced on September 30, 1998, when Mr Bates filed a pro se
complaint against Dr. Metcalf d/b/a Oak Ridge Surgeons, P.C.1 seeking damages for injuries
allegedly suffered as a result of the surgery performed by Dr. Metcalf on September 30,1997, and
asserting that Dr. Metcalf was guilty of negligence and medical malpractice in performing such
surgery.

1
Mr. Bates dism issed his claim against the Oak Ridge Surgical G roup , P.C. on July 10, 1999 .

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 On May 24, 1999, Mr. Bates, who had by this time retained his present legal counsel, filed
a motion to amend his complaint to aver that, in performing the lateral internal sphincterotomy
without his consent, Dr. Metcalf had committed medical battery. Mr. Bates further moved to amend
his complaint to aver that Dr. Metcalf had failed to obtain informed consent to perform the surgery
in deviation from the recognized standard of professional practice in violation of T.C.A. 29-26-118.
Mr. Bates motion to amend was subsequently approved by the Court at trial.

The jury trial of Mr. Bates's claims against Dr. Metcalf began on July 11, 2000. At the close
of proof the Trial Court granted Dr. Metcalf a directed verdict with respect to malpractice in
performance of the surgical procedure itself and denied Mr. Bates a directed verdict on the issue of
medical battery. Thereafter, the jury found that Mr. Bates had expressly or impliedly authorized
surgery that could include the lateral internal sphincterotomy performed by Dr. Metcalf and that a
medical battery was, therefore, not committed in this case. The jury further found that Dr. Metcalf
had obtained informed consent by disclosing to Mr.Bates the risks and alternatives for the lateral
internal sphincterotomy. On August 1, 2000, the Trial Court entered its judgment in favor of Dr.
Metcalf in accord with the jury's verdict

On July 26, 2000, Mr. Bates filed a motion for judgment notwithstanding the verdict or in
the alternative new trial. That motion was denied by the Trial Court by order entered September 26,
2000. On October 20, 2000, Mr. Bates filed his notice of appeal.

Mr. Bates presents eight issues for our review in this case which we restate as follows:

1) Whether the Trial Court erred in failing to grant Mr. Bates a directed verdict on the issue
of medical battery.

2) Whether there was material evidence to support the finding of the jury that Mr. Bates
impliedly consented to the lateral internal sphincterotomy performed upon him.

3) Whether there was material evidence to support the finding of the jury that Dr. Metcalf
obtained informed consent to perform a lateral internal sphincterotomy upon Mr. Bates.

4) Whether the Trial Court erred in allowing counsel for Dr. Metcalf to cross examine Mr.
Bates with regard to the amendment of his complaint to include claims charging Dr. Metcalf with
negligence because of his failure to obtain informed consent and charging him with battery for his
failure to obtain consent.

5) Whether the Trial Court erred in allowing cross-examination and introduction of evidence
with regard to Mr. Bates's consent to medical procedures other than the lateral internal
sphincterotomy.

6) Whether the Trial Court erred in excluding the expert testimony of Dr. Frank Opelka
because he is not licensed to practice medicine either in Tennessee or in a continuous bordering state.

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 7) Whether the Trial Court erred in allowing cross-examination of Dr. Clifford Black with
regard to a medical malpractice case pending against him.

8) Whether the Trial Court erred in instructing the jury on the issue of medical battery.

In addition to the eight issues stated above, both Dr. Metcalf and Mr. Bates devote portions
of their briefs to the issue of whether Mr. Bates's incontinence was actually caused by the surgery
performed by Dr. Metcalf on September 30, 1997. However, the ruling of the Trial Court and the
verdict of the jury with respect to the issues of medical battery and informed consent forestalled
consideration of this issue of causation. As this issue was not determined at trial, it is not appropriate
that we consider it in this appeal and we decline to do so. See T.R.A.P. 3(a).

The first issue presented by Mr. Bates calls upon us to determine the propriety of the Trial
Court's denial of his motion for a directed verdict. The standard of review with respect to a trial
court's ruling on a motion for directed verdict is well-settled. As we stated in the case of Maddux v.
Cargill, Inc., 777 S.W.2d 687 (Tenn. Ct. App. 1989) at page 691:

The rule for determining a motion for directed verdict requires the trial
judge and the appellate courts to look to all of the evidence, take the strongest
legitimate view of the evidence in favor of the opponent of the motion, and allow
all reasonable inferences from it in his favor. The court must discard all
countervailing evidence, and if there is then any dispute as to any material,
determinative evidence or any doubt as to the conclusions to be drawn from the
whole evidence, the motion must be denied.

Before we can conclude that the Trial Court erred in denying Mr. Bates's motion for a
directed verdict, we must find that the evidence submitted is susceptible to the sole conclusion that
Mr. Bates did not consent to a lateral internal sphincterotomy and that reasonable minds could not
differ as to that conclusion. See Alexander v. Armentrout, 24 S.W.3d 267 (Tenn. 2000).

Two questions must be asked in determining whether a medical battery has been committed:
(1) was the patient aware that the doctor was going to perform the procedure in question and ,if so,
(2) did the patient authorize performance of such procedure. A plaintiff's cause of action may be
classified as a medical battery only when the answer to either of these questions is in the negative.
See Blanchard v. Kellum, D.D.S., 975 S.W.2d 522 (Tenn.1998).

In the case sub judice Dr. Metcalf testified that he never specifically advised Mr. Bates that
he might perform a lateral internal sphincterotomy upon him prior to doing so and that he did not
consider performing a lateral internal sphincterotomy until he conducted the anal exam on September
30, 1997. Also, the consent form signed by Mr. Bates with respect to the procedures to be performed
on September 30, 1997, does not mention "lateral internal sphincterotomy" or any other procedures
other than "anal exam and possible hemmorhoidectomy." Accordingly, there is no question that Dr.
Metcalf failed to obtain specific consent to perform a lateral internal sphincterotomy. Nevertheless,

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Dr. Metcalf contends that Mr. Bates did consent to the lateral internal sphincterotomy as a matter
of implication.

Dr. Metcalf testified that, prior to September 30, 1997, he and Mr. Bates engaged in
conversations on more than one occasion during which he proposed that Mr. Bates's pain and
bleeding might be the result of an anal fissure. Dr. Metcalf also testified that he advised Mr. Bates
that, once he determined the cause of Mr. Bates's symptoms, he would fix the problem whatever it
might be. Although Mr. Bates agrees that the possibility of an anal fissure was raised by Dr. Metcalf
in pre-operative conversations, he denies that Dr. Metcalf advised him that he would fix the problem
whatever it might be. Mr. Bates further argues that the scope of the procedure which Dr. Metcalf
was authorized to perform on September 30, 1997, was restricted to "an anal exam and possible
hemmorhoidectomy" as stated in the signed consent form and that the parameters of consent should
not be extended based upon alleged pre-operative conversations. In support of this argument Mr.
Bates cites the case of Church v. Perales, 39 S.W.3d 149 (Tenn. Ct. App. 2000).

The plaintiff patient in Church asserted that the defendant doctor had committed medical
battery by performing unauthorized surgery to remove her ovaries, uterine tubes, and related
ligaments when she had stated that she "didn't want nothing done, as I say, except have my bladder
fixed up." The only direct evidence that the plaintiff had, in fact, made this statement to the
defendant was apparently the plaintiff's deposition testimony which, through her oversight, had not
been made part of the appellate record. Referring to the omission of this testimony from the record,
the Court stated that the plaintiff "cannot demonstrate the existence of a material factual dispute
regarding her medical battery claim." The Court noted, however, that the medical battery claim
would have failed even without the omission of the deposition testimony regarding the alleged pre-
operative conversation because the plaintiff had executed a written consent form expressly
consenting to the procedures performed.

Mr. Bates argues that the Church case and the case sub judice, in essence, involve the same
situation in that both he and the plaintiff in Church signed a consent form with respect to which fact
a reasonable person could reach but one conclusion. Mr. Bates contends that, just as the only
reasonable conclusion was that the plaintiff in Church consented to the surgery performed because
she executed a consent form specifically describing such surgery, the only reasonable conclusion in
the present case is that, since Mr. Bates signed a consent form specifying "anal exam and possible
hemorrhoidectomy", he did not consent to any other procedures. We disagree with this anaysis.

We find a critical distinction between Church and the case before us in that the plaintiff in
Church, unlike Mr. Bates, was seeking to negate her signed statement of consent. This Court's
finding in Church was specific and limited to the determination that " the existence of a signed
consent form gives rise to a presumption of consent in the absence of proof of misrepresentation,
inadequate disclosure, forgery or lack of capacity" Our holding in Church doesn't preclude the
admission of parole evidence to show that the patient verbally consented to procedures in addition
to those specified in the consent form.

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 Given Dr. Metcalf's attestation that he advised Mr. Bates before surgery that he would fix his
problem whatever it was, it is our finding that one might reasonably conclude that Mr. Bates gave
Dr. Metcalf implied consent to perform the lateral internal sphincterotomy. Accordingly, we agree
with the Trial Court's ruling denying Mr. Bates's motion for a directed verdict on the issue of medical
battery.

The second issue raised by Mr. Bates questions whether there was material evidence to
support the jury's finding that he impliedly consented to the lateral internal sphincterotomy. Our
standard of review with respect to the findings of a jury is clearly stated at T.R.A.P. 13(d) to the
effect that "Findings of fact by a jury in civil actions shall be set aside only if there is no material
evidence to support the verdict". See also Foster v. Bue, 749 S.W.2d 736 (Tenn. 1988).

As stated, Dr. Metcalf testified at trial that he advised Mr. Bates that his problem might be
an anal fissure and that he would fix the problem whatever it might be. Such testimony necessarily
enters into consideration of the issue of whether Mr. Bates gave consent to the lateral internal
sphincterotomy, is determinative of that issue and, therefore, constitutes material evidence. See
Camurati v. Sutton, 342 S.W.2d 732 (Tenn. Ct. App. 1960). Consequently we conclude that the
jury's finding that Mr. Bates consented to the lateral internal sphincterotomy is supported by material
evidence.

The third issue presented for our review questions whether material evidence was presented
in this case supporting the jury's verdict that Dr. Metcalf obtained informed consent to perform a
lateral internal sphincterotomy on Mr. Bates.

Under T.C.A. 29-26-118 a plaintiff patient asserting a cause of action based upon lack of
informed consent must prove by expert testimony that the defendant physician did not supply
appropriate information to the patient in accordance with the recognized standard of acceptable
practice.

Whether the information provided to the patient is appropriate is determined by the nature
of the treatment, the extent of risk involved and the standard of care of the treating physician. See
Cardwell v. Bechtol, 724 S.W.2d 739 (Tenn. 1987). As stated by the Court in Shadrick v. Coker,
963 S.W.2d 726 (Tenn. 1998) the advice required of the physician depends upon "the usual and
customary advice given to patients in similar situations."

The specific question propounded to the jury with respect to informed consent in this case
was as follows:

Did Dr. Metcalf, in accordance with the recognized standard of
professional practice in Oak Ridge or a similar community, disclose to Alvin
Bates the risks and alternatives for the surgery performed on September 30, 1997?

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 Mr. Bates asserts that in answering 'yes' to this question the jury did so without the support
of material evidence. We disagree.

Mr. Bates maintains that it is undisputed that Dr. Metcalf did not discuss the lateral internal
sphincterotomy or its risks and alternatives prior to surgery. We agree that the record shows that Dr.
Metcalf did not specifically relate the risks and alternatives of the surgery performed to a lateral
internal sphincterotomy. However, his testimony at trial constitutes material evidence that Dr.
Metcalf did discuss the risks and alternatives of a hemorrhoidectomy and that the risk of
incontinence was included among the risks discussed. There was also material evidence that the
risks and alternatives of a hemmoroidectomy are the same as those of a lateral internal
sphincterotomy. Dr. Anthony Haley, an expert witness testifying on behalf of Dr. Metcalf, testified
that the risks are the same for a hemorrhoidectomy and a lateral internal sphincterotomy and that if
Mr. Bates was advised of the risks of hemorrhoidectomy he would have been advised of the same
risks that are associated with a lateral internal sphincterotomy. In addition , Dr. Metcalf testified that
a lateral internal sphincterotomy is the only surgical technique for repairing an anal fissure and that
the non-surgical, or conservative treatment for hemorrhoids is the same as it is for an anal fissure and
consists of the same self-treatment program that Mr. Bates had already employed for four months
without success. Dr. Haley also attested that the conservative treatment received by Mr. Bates had
been adequate as of September 30,1997. We conclude that it is sufficient for a finding of informed
consent that Mr. Bates was informed of risks and alternatives which would have attended a lateral
internal sphincterotomy even though those risks and alternatives were presented to him in
anticipation that he would be undergoing a hemorrhoidectomy, not a sphincterotomy.

We also find in the following additional testimony of Dr. Haley material evidence that Dr.
Metcalf's disclosure of the risks and alternatives of the lateral internal sphincterotomy were in accord
with the requisite standard of practice:

Q: Dr. Haley, earlier I asked you whether or not you had formed an
opinion within a reasonable degree of medical certainty as to whether or not Dr.
Metcalf had deviated from the standard of care of a general surgeon practicing in
Oak Ridge, Tennessee, in his care and treatment of Mr. Bates. Do you remember
my earlier question?

A: Correct.

Q: Please tell the judge and jury what your opinion is.

A: I do not feel like he deviated from the standard of practice. I think he
did exactly what any competent general surgeon would have done at the time he
was there.

And elsewhere Dr. Haley testified:

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 Q: Dr. Haley, in your opinion, within a reasonable degree of medical certainty, do
you think in this case that Dr. Metcalf obtained Mr. Bates' informed consent to
perform a spincterotomy [sic]?

A: Yes, I do.

It is our determination that the jury's finding that Dr. Metcalf had informed consent to
perform a lateral internal sphincterotomy is supported by material evidence and Mr. Bates's assertion
to the contrary is without merit.

The fourth issue which we address questions whether the Trial Court erred in allowing cross-
examination of Mr. Bates as to his original pro se complaint and its amendment. Mr. Bates argues
that cross-examination should not have been allowed regarding the fact that the original complaint
did not assert claims as to medical battery or informed consent and the fact that such claims were
only raised after he retained his present attorney in the case. Mr. Bates contends that such cross-
examination was irrelevant to any issue in the case, unfairly prejudiced the case against him and
constituted an ad hominem attack upon his attorney. We are compelled to disagree with these
contentions.

Material issues before the jury in the case consisted of whether Mr. Bates consented to the
lateral internal sphincterotomy which was performed upon him by Dr. Metcalf and whether Dr.
Metcalf provided him with adequate information to obtain informed consent. In addressing these
issues it was incumbent upon the jury to consider the credibility of Mr. Bates's assertions that he had
not consented to the lateral internal sphincterotomy and had not received adequate information
regarding that operation. The original complaint filed by Mr. Bates on September 30, 1998, asserts
that Dr. Metcalf committed medical malpractice by performing the sphincterotomy in a negligent
manner, by failing to properly recognize the resulting injury and by failing to properly take all
reasonable steps available to repair the damage. There is no assertion in the original complaint that
Mr. Bates did not consent to the surgery performed or that he did not receive sufficient information
about the surgery to give informed consent.

Relevant evidence is "evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence." See T.R.E. Rule 401.

We agree with Mr. Bates's statement that the fact that he didn't know the law as to medical
battery or informed consent proves nothing. However, he need not have had knowledge of the law
to assert that he did not give Dr. Metcalf permission to perform the surgery he received. It is
reasonable to conclude that, if Dr. Metcalf performed an operation on Mr. Bates without consent
Mr. Bates would have included this assertion in his original complaint and, although not dispositive
of the issue, the fact that he did not include it is relevant on the question of whether he did give such
consent. Accordingly, we find that cross-examination of Mr. Bates regarding his original complaint
was relevant to the issues in this case.

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 Under T.R.E. Rule 403 "although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice." Although Mr. Bates contends that
cross-examination regarding the original complaint was unfairly prejudicial, he offers no specific
reason for this contention and we find nothing in the record which would lead us to that conclusion.
Similarly, although Mr. Bates asserts that the cross-examination regarding his original complaint and
arguments of Dr. Metcalf's attorney constituted an ad hominem attack upon his attorney he has not
referred us to sufficient supporting evidence in the record to substantiate this assertion.

In view of the above we find that the Trial Court did not abuse its discretion by allowing the
cross- examination of Mr. Bates with respect to his original pro se complaint. We further find that
Mr. Bates's assertion that statements made by Dr. Metcalf's attorney constituted an ad hominem
attack upon his own attorney are without merit.

The fifth issue presented for our review questions whether the Trial Court erred in allowing
cross-examination regarding Mr. Bates's consent to other surgery and treatment. Mr. Bates contends
that allowance of evidence with respect to other consent forms and other consent procedures
constitutes inadmissible propensity proof and improper character evidence.

The law is well-settled that the failure of a litigant to make a timely, specific objection to the
introduction of evidence as inadmissible at the time of trial precludes that litigant from challenging
such evidence on appeal. See T.R.E. Rule 103(a)(1)and Adams v. Manis, 859 S.W.2d 323 (Tenn.
Ct. App. 1993). Our review of the record shows that there was no objection at trial to the
impropriety of cross-examining Mr. Bates regarding his consent to other surgery and medical
procedures or to the introduction as evidence of other consent forms he had signed. Accordingly,
we find that Mr. Bates has waived his right to raise this issue on appeal.

The sixth issue presented for our review questions whether the Trial Court erred when it
excluded the causation testimony of Mr. Bates's expert witness, Dr. Frank Opelka. Mr. Bates argues
that the Trial Court erred in its exclusion of Dr. Opelka's testimony on the basis that he is not
licensed to practice medicine in Tennessee or in a contiguous bordering state. Mr. Bates argues that
the testimony of Dr. Opelka should have been admitted to prove causation so that the jury could
understand the actual risks of a lateral internal sphincterotomy by showing that what could happen
did happen.

The standard of review with respect to the admission of expert testimony was stated in the
recent case of State v. Coley, 32 S.W.3d 831, (Tenn. 2000) at page 833 as follows:

Determinations of the admissibility of expert testimony are made within the sound
discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).
The standard of review on appeal is whether the trial court abused its discretion
in excluding the expert testimony. The abuse of discretion standard contemplates
that before reversal the record must show that a judge "applies an incorrect legal
standard, or reached a decision which is against logic or reasoning that caused an

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 injustice to the party complaining." State v. Shirley, 6 S.W.3d 243, 247 (Tenn.
1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

As we stated above, the jury did not reach the issue of whether the lateral internal
sphincterotomy was the cause of Mr. Bates's incontinence. It is, therefore, not appropriate that we
address questions presented regarding the propriety of excluding testimony to the extent that such
testimony was offered to prove this matter of causation.

We agree that expert testimony like that of Dr. Opelka is unnecessary to sustain a cause of
action for medical battery because whether the patient was aware that the doctor was going to
perform the procedure in question and whether the patient consented to such procedure are within
the common knowledge of a lay witness. See Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998).
However, Mr. Bates urges that Dr. Opelka 's testimony should have been admitted so that the jury
could understand the risk involved in the surgery performed. Evidence regarding degree of risk is
not relevant to the issue of medical battery but rather to the standard of care with respect to the issue
of informed consent which requires a determination of the risks that the medical procedure entails
and whether the patient was advised of those risks. T.C.A. 29-26-115(b) mandates that an expert
witness testifying as to the standard of care in a medical malpractice action be licensed to practice
medicine in Tennessee or in a contiguous bordering state. There is nothing in the record to show that
Dr. Opelka was licensed in either Tennessee or in a state bordering Tennessee and the exclusion of
his testimony was, therefore, appropriate. Mr. Bates's assertion that the Trail Court should have
waived the contiguous state requirement is without merit. A trial judge has wide discretion in the
matter of the qualification of an expert witness. See Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.
2d 439 (Tenn. 1992). We find nothing in the record to indicate that the Trial Court abused its
discretion by refusing Mr. Bates's request for a waiver of the rule.

The seventh issue presented for our review questions whether the Trial Court erred when it
allowed cross-examination of Mr. Bates's expert witness, Dr. Clifford Black, with respect to a
medical malpractice lawsuit pending against him and with respect to whether he had ever violated
the standard of care in his treatment of a patient.

Mr. Bates argues on appeal that cross-examination of Dr. Black regarding the medical
malpractice case pending against him "injected a completely collateral, confusing and prejudicial
element into the case in violation of Rules 401, 403 and 608(b) and prompted a mini-trial." Mr.
Bates further contends that the trial judge was required to conduct a jury-out hearing under Rule
608(b) and "impermissibly allowed such hearsay." Mr. Bates also contends that the cross-
examination of Dr. Black should have been disallowed based upon the doctrine of equitable estoppel
and/or judicial estoppel.

The trial record shows that counsel for Mr. Bates objected to cross-examination regarding
the malpractice action pending against Dr. Black as follows:

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 Q: Now, Dr. Black, you are currently involved in a lawsuit in which you are a
defendant?

A: That's correct.

MR. DAVID SMITH: Your Honor, I object to this as collateral and don't see that
it has any place -- I mean, I just -- I think it's unduly time-consuming and
irrelevant, the fact that he has been sued. I don't think there has been any result
in the lawsuit and, you know, I don't think -- I think it is just prejudicial.

Nowhere in the objection at trial is it asserted that allowance of cross-examination of Dr.
Black regarding the malpractice case would result in confusion, would prompt a mini-trial or would
result in admission of hearsay evidence. As previously stated, this Court will not consider grounds
for objection raised for the first time on appeal. See T.R.E. Rule 103(a)(1) and Adams v. Manis,859
S.W.2d 323 (Tenn. Ct. App. 1993).
Similarly, the trial record shows the following objection to the cross-examination of Dr.
Black as to whether he had ever violated the standard of care with respect to a patient:

Your Honor, I object. That's -- it's not inconsistent and it's hearsay.

Counsel did not raise prejudice as a ground for this objection at trial and, therefore, we will
not consider such as a ground for objection in this appeal.

The cross-examination complained of by Mr. Bates with respect to the pending medical
malpractice action against Dr. Black elicited testimony from Dr. Black regarding his own treatment
of a patient who had presented various symptoms consisting of fever, night sweats, weight loss and
migratory thrombophlebitis, a condition involving blood clots in various areas of the body. Dr.
Black testified that he suggested to his patient that he would like to perform a diagnostic procedure
which would allow him to determine the cause of these symptoms. In the course of performing this
procedure, Dr. Black detected an abnormality which prompted him to make an incision to open the
patient's abdomen and remove what was subsequently identified to be a malformed, ectopic kidney.
Questions directed to Dr. Black on cross-examination inquired whether he had consent to remove
the kidney even though the patient had not specifically authorized him to do so. Dr. Black had
previously testified under direct examination that Dr. Metcalf had violated the standard of care
because he did not have consent to perform a lateral internal sphincterotomy. Dr. Black attested that
his opinion in this regard was based, in part, upon the fact that Dr. Metcalf had not discussed
performing the lateral internal sphincterotomy with Mr. Bates and also upon the fact that the consent
form did not specify that Dr. Metcalf would be performing a lateral internal sphincterotomy. It is
our finding that cross-examination of Dr. Black regarding the collateral matter of the medical
malpractice lawsuit pending against him was properly allowed for the purpose of impeachment by
contradiction. See State v. Mooney, an unpublished opinion of the Tennessee Court of Criminal
Appeals filed in Knoxville on April 18, 1996. Dr. Metcalf was entitled to cross- examine Dr. Black
to show that it was inconsistent and contradictory for him to maintain that Dr. Metcalf had violated

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the standard of care by performing surgery that was not specifically authorized while he, Dr. Black
had not violated the standard of care for ostensibly doing the same thing.

Mr. Bates's assertion that the Trial Court violated T.R.E. Rule 608 is inapposite. Rule 608
is not applicable to Dr. Blacks's testimony regarding the medical malpractice lawsuit because Rule
608 relates only to evidence referring to character for truthfulness or untruthfulness. Dr. Black's
testimony does not relate to Dr. Black's character for truthfulness or untruthfulness but rather to the
consistency of his definition of the standard of care.

Mr. Bates's contention that allowance of the cross-examination of Dr. Black with respect to
the medical malpractice case pending against him violated T.R.E. Rules 401 and 403 is without
merit. There is no question that the cross-examination testimony of Dr. Black was relevant under
Rule 401 because it aided the jury in assessing the credibility of his prior direct testimony regarding
consent and the standard of care to which a doctor in this community must conform. As to the
assertion that allowance of Dr. Black's testimony constituted prejudicial error, we note that under
Tennessee law a party seeking to exclude evidence on the ground of prejudice bears a significant
burden of proof that the danger of unfair prejudice substantially outweighs the probative value of
such evidence. See White v. Vanderbilt University, 21 S.W.3d 215 (Tenn. Ct. App. 1999) Mr. Bates
presents no argument as to how the probative value of Dr. Black's testimony is substantially
outweighed by the danger of prejudice.

Mr. Bates's argument that the Trial Court should have disallowed cross-examination of Dr.
Black pursuant to the doctrine of equitable estoppel and/or judicial estoppel is based upon a pleading
filed in Dawna Rae Braton and Ryan Charles Bratton v. Afam Ikejiani, M.D., an unrelated case
before the Eighth Circuit Court for Davidson County. Mr. Bates's attorney attests that State
Volunteer Mutual Insurance Company, the liability insuror insuring the defendant doctor in the
Bratton case, also insures Dr. Metcalf in the case sub judice. Mr. Bates submits a copy of a motion
in limine filed by the defendant in Bratton which moves to prohibit cross-examination of expert
witnesses for the defense about previous medical malpractice cases against those witnesses. Mr.
Bates's attorney attests by affidavit that this motion was agreed to by the parties in Bratton. Mr. Bates
argues that State Volunteer Mutual Insurance Company is the potential real party in interest in both
Bratton and the case before us and contends that the positions taken in the two cases are inconsistent
with respect to the same issue of cross-examination . Mr. Bates argues that equitable and/or judicial
estoppel is "designed to protect the courts from entertaining inconsistent positions of parties in the
courts" and, on that basis, the cross-examination of Dr. Black should have been disallowed. We
disagree.

We find that Mr. Bates's argument is without merit, if for no other reason than that the
motion in limine in Bratton was not filed until April 2, 2001, whereas Dr. Black was cross-examined
regarding the malpractice case against him on July 12, 2000. At the time of Dr. Black's cross-
examination the Bratton motion in limine was not of record and, therefore, could not have supported
an objection to allowance of Dr. Black's cross-examination.

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 The final question we must address in this appeal is whether the Trial Court erred in its
instructions to the jury on the issue of medical battery. Mr. Bates asserts that the Trial Court
instructed the jury that in order to find a medical battery it must decide whether, under the same or
similar circumstances, a reasonable person would have consented to a lateral internal
sphincterotomy. Mr. Bates correctly maintains that, while an objective standard is appropriate in
determining whether there was informed consent, it is not appropriate in determining whether there
was a medical battery. The controlling factual issues in a claim for medical battery are whether the
patient knew the surgery was going to be performed and whether the patient authorized the physician
to perform such surgery. In a claim for medical battery the focus is not on what a reasonable man
would have done but on the patient's knowledge and awareness. See Church v. Perales, 39 S.W.3d
149 (Tenn. Ct. App. 2000).

In support of his argument that the Trial Court erred in its instructions to the jury Mr. Bates
quotes two segments of the trial record. The first of these is set forth by Mr. Bates as follows:

If a medical battery is committed, then Dr. Metcalf is responsible for the damages
proven to have been suffered. These damages and issues must be proven by a
preponderance of the evidence. If the jury should find from the proof that the
Defendant performed a lateral internal sphincterotomy without the consent of the
plaintiff, then in that event Defendant is responsible for any injury caused by the
treatment of the Plaintiff. You must decide, based upon the evidence provided,
whether a reasonable person in the patient's position would have consented to the
treatment in question if adequately conformed of all significant perils, that is,
whether a reasonable person like Mr. Bates or in Mr. Bates position, would have
consented to the lateral internal sphincterotomy had the risks of information been
discussed with him. A medical battery occurs when a physician performs an
authorized2 procedure.

The second segment of the trial record pertaining to the Trial Court's instructions to the jury
is set forth by Mr. Bates as follows:

Issues of implied consent. Members of the jury, the standard to be applied in the
consent malpractice case is an objective standard. An objective standard is based
upon the facts presented to you, the jury and known to the Plaintiff, Mr. Bates, at
the time that the consent form was signed. You may consider all of the facts,
including the Plaintiff's education, state of health, both mental and physical, age,
and experience at the time of signing the consent form. A Plaintiff's hindsight is
not the test. Mr. Bates is held to a standard of a reasonable prudent person and
what that person would have done under the same or similar circumstances as

2
The Trial Court record rev eals that this word should be 'unauthorized' not 'authorized' In addition, comparison
of the transc ript po rtions, as set forth by Mr. Bates, with the actual Trial Court record quoted hereinafter, reveals various
typographical erro rs and word omissions.

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 developed at this trial. The plaintiff's testimony at trial is not controlling. You
may consider the consent form, the language used in the form, conversation, and
all other facts presented to the plaintiff at the time of signing the consent form"

Our review of the trial record reveals that Mr. Bates has reformatted the foregoing segments,
by eliminating the paragraph indentations as they appear in the trial transcript. The first of the above
quoted segments is actually set forth in the trial transcript as follows:

If a medical battery is committed, then Dr. Metcalf is responsible for the
damages proven to have been suffered. These damages issues must be proven by
a preponderance of the evidence.

If the jury should find from the proof that the defendant performed the
lateral internal anal sphincterotomy without the consent of the plaintiff, then in
that event the defendant is responsible for any injury caused by the treatment of
the plaintiff.

You must decide, based upon the evidence provided, whether a reasonable
person in a patient's position would have consented to the treatment in question
if adequately informed of all significant perils, that is, whether a reasonable
person like Mr. Bates or in Mr. Bates' position would have consented to have the
lateral sphincterotomy had the risks of information been discussed with him.

A medical battery occurs when a physician performs an unauthorized
procedure. A medical battery may occur when a physician performs a procedure
that the patient was unaware that the doctor was going to perform.

The second segment from the Trial Court's instructions to the jury referenced by Mr. Bates
actually appeared in the trial transcript as follows:

Issues of implied consent.
Members of the jury, the standard to be applied in the consent malpractice case
is an objective standard. An objective standard is based upon the facts presented
to you the jury and known to the plaintiff, Mr. Bates, at the time that consent form
was signed.

You may consider all of the facts, including the plaintiff's education, state
of health, both mental and physical, age, and experience at the time of signing the
consent form.
A plaintiff's hindsight is not the test. Mr. Bates is held to a standard of a
reasonable prudent person and what that person would have done under the same
or similar circumstances as developed at this trial.

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 The plaintiff's testimony at trial may be considered but the testimony is not
controlling. You the jury may consider the consent form, the language used in the
form, conversation, and all other facts presented to the plaintiff at the time of
signing the consent form.

Mr. Bates maintains that it was appropriate to omit the paragraph format in setting forth these
segments of the trial transcript because "the jury was read the charge and the clear flow of the
language unmistakably applied an objective standard to the medical battery issue." We disagree and
find that such reformatting introduces an element of confusion into the Trial Court's instructions that
is not justified by the record. Mr. Bates has presented no proof that the trial transcript is not a true
account of the trial proceedings and the paragraph format is part of that account. We assume that
the division of the Trial Court's instructions into paragraphs was prompted by the pauses and
inflections which ordinarily evince the presence of paragraphs in oral communication. Each of the
paragraphs quoted expresses a separate thought and we find that the expression of several paragraphs
as one paragraph implies an apparent confusion in the instructions which is not supported by the
record.

We recognize that, although the second of the above quoted segments begins with the topic
statement 'Issues of implied consent', the first paragraph thereafter describes an objective standard
which is properly applied in determining whether there was informed consent and not implied
consent. However, elsewhere in its instructions the Trial Court clearly instructs the jury that the
reasonable person/objective standard is the applicable standard with regard to the issue of informed
consent:

In an informed consent case, the issues to be determined are, one, what is
the appropriate information which should be supplied to a patient concerning
whether to consent to the procedure and, two, was the information supplied to the
patient and, three, if the information had been supplied, would a reasonable person
in plaintiff's position have made a different treatment decision?

We find that the Trial Court adequately clarified the ambiguity of its instructions as to the
applicable standard for determining whether there was informed consent in this case and we further
find that any error in the instructions in that regard was, thereby, rendered harmless.

For the foregoing reasons the judgment of the Trial Court is affirmed and the cause is
remanded for collection of costs below. Costs of appeal are adjudged against Mr. Bates and his
surety.

_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE

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