IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT KNOXVILLE
FILED
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September 9, 1996
HERMAN DAVIS and wife, )
DARNELL DAVIS, ) KNOX CIRCUIT
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Plaintiffs/Appellants )
) No. 03A01-9601-CV-00016
v. )
)
PAUL A. HATCHER, SR., M.D., ) REVERSED AND REMANDED
)
Defendant/Appellee )
Laurence R. Dry, Oak Ridge, For the Appellants
T. Warren Butler, Knoxville, For the Appellees
OPINION
INMAN, Senior Judge
This malpractice action was dismissed on motion for summary judgment. It
arose from a routine prostate resection which went awry, resulting in adverse
consequences to the plaintiff. A device referred to as a resectoscope manufactured
by the Circon ACMI Ohio Manufacturing Company,1 malfunctioned while being used
by and under the control of the defendant, Dr. Paul Hatcher [hereafter, the
“defendant”]. It is not disputed that a portion of the penis of the plaintiff, Herman
Davis [hereafter, “plaintiff”], was either chemically, thermally or electrically burned
away, with disastrous results unnecessary here to be recounted.
The defendant was allegedly negligent in the care and treatment of his
contractual patient, the plaintiff, in these particulars:
1. Failing to test and inspect the resectoscope;
1
No longer in the case.
2. Failing to properly utilize the resectoscope;
3. Failing to discover that the resectoscope was improperly functioning;
4. Failing to discover the injury timely.
The defendant admitted that “Herman Davis sustained some type [of] injury
at or about the time of the procedure, but how it occurred is unknown to Dr.
Hatcher.” He denied that the injury was the proximate result of any negligent act or
omission on his part and specifically denied that he failed to test or inspect the
resectoscope or that he negligently failed to discover a malfunction.
The defendant demanded “strict proof that said injuries and disabilities did
not preexist the procedure complained of.”
He averred that he did nothing in contravention of acceptable professional
practice in the Knoxville community and alternatively “relies on the comparative
negligence of the manufacturer of the resectoscope equipment.”
On December 9, 1993, the defendant moved for summary judgment, which
he supported by the affidavit of Dr. David F. Paulson, a professor of urology at Duke
University, who testified that a “[c]areful review of the operative record does not give
any indication that the procedure was conducted outside the standards of practice.”
He further opined that “the care and treatment . . . was proper and well within the
standard of care required. The complications that occurred were not proximately
caused by any negligent act, omission or departure from the applicable standards of
care on the part of Dr. Hatcher . . . . No abnormality in the conduct of the procedure
occurred through the action of Dr. Hatcher.”
Significantly, Dr. Paulson did not address the cause of the plaintiff’s injury.
He testified, quite briefly,“that “a transurethral incision of the prostate was
conducted. Following this a midline portion of residual prostatic tissue was resected
with the electrocautery loop.”
Also supportive of the motion was the affidavit of the defendant, who testified
that “[t]wo days after the surgery, the plaintiff was found to have an unexpected
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condition of the central glans and meatus which appeared as a redness and
induration . . . . [which] gave the appearance of being caused by a burn in the area
where the resectoscope was in contact with the penis during the surgical
procedure.” (Emphasis added.) He testified that “more likely than not [the burn
was] caused by a defective condition of the resectoscope which was unknown and
unforeseeable by me” and that he was not negligent in any respect.
While the motion was pending, the defendant amended his answer by
alleging that the manufacturer of the resectoscope was negligent in failing to warn
him that (1) cutting loops and knives should be used only one time; (2) caustic
chemicals should be thoroughly removed from the resectoscope; (3) cutting loops
and knives were not of uniform length, which could result in “electrically charged
uninsulated parts of same to electrically charge parts of the equipment coming in
contact with patients.” The amended answer accused the manufacturer of
negligently failing to warn the University of Tennessee Memorial Hospital [where the
procedure was performed] of the importance of uniform lengths of cutting loops and
knives and the necessity for proper cleaning of the resectoscope. The defendant
also charged the hospital with negligence in (1) failing to furnish him proper
equipment, properly maintained; (2) failing to advise him of the manufacturer’s
warnings re: the safe use and care of the resectoscope; (3) furnishing him with “a
cutting knife of improper length which resulted in electrically charging portions of the
resectoscope coming in contact with the patient.”
The plaintiff responded to the motion for summary judgment by memorandum
filed March 7, 1995, exhibiting the affidavits of Dr. William Campbell, Dr. Dennis
Doblar and Dr. Cecil Morgan, Jr., all of whom had previously testified by deposition.
Dr. Campbell, a biomedical engineer, designs biomedical equipment and
teaches the use of powered biomedical equipment. He testified that he reviewed
photographs of the burn suffered by the plaintiff, all medical data, various
depositions, including that of the defendant, and expressed his opinion that the burn
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injury to the plaintiff was caused by electrical power from the resectoscope which
“would not otherwise have occurred had the instrument been used in accordance
with recognized biomedical engineering principles, and in accordance with
manufacturer’s recommendations.”
Dr. Doblar is a professor of anesthesiology and biomedical engineering at the
University of Alabama. He testified that he had reviewed photographs of the burn
suffered by the plaintiff, all medical data, hospital records and various depositions,
including the deposition of the defendant. He agreed with the testimony of Dr.
Campbell respecting the cause of the injury to the plaintiff and opined that the
“current escaped the instrument through a reused knife or loop or through operator
error - through the application of power while the resectoscope was on its way out of
or into the patient . . . . under the control of Dr. Hatcher.” He opined that the injury
was below the acceptable professional practice in Knoxville and that the defendant
“acted with less than or failed to act with ordinary and reasonable care in
accordance with such standard.”
Dr. Morgan, a urologist practicing in Alabama, testified that he had reviewed
all pertinent data appertaining to the injury suffered by the plaintiff and that he was
familiar with the appropriate standard of care. He further testified, “More likely than
not, Dr. Hatcher caused the burn injury . . . by using the resectoscope while it was
improperly or defectively configured, in which case he should have been aware of
that fact; or Dr. Hatcher used the instrument inappropriately.”
On the same date that the plaintiff filed his response to the motion for
summary judgment [March 7, 1995], the defendant filed a “supplement” to his
motion, to which he exhibited, or made reference to, his affidavit and excerpted
portions of the depositions of six witnesses to “illustrate that no one knows how this
injury occurred . . . . that it could have been caused by negligence on the part of the
. . . [h]ospital, negligent use of the equipment by Dr. Hatcher, or negligence on the
part of the manufacturer of the equipment.” (Emphasis added.) One of these
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depositions was that of Dr. Campbell, whose affidavit has previously been
referenced; he testified, on discovery, that the injury was a thermal burn and that “I
do not know how it happened,” and that he did not know the standard of care
prevailing in Knox County.
Parenthetically, at this juncture, we note that the defendant’s argument that
the affidavit of Dr. Campbell is at odds with his depositional testimony and therefore
cannot be rationally considered as a rebuttal testimony. We will address this issue
later.
Much complaint is given over by the plaintiff to the filing, on March 7, 1995,
by the defendant, of a host of materials exhibited to the supplement to the motion
for summary judgment which was heard on March 8, 1995. Whether such late filing
is permitted by Rule 56, TENN. R. CIV. P,. is a question we pretermit because it is
unnecessary to a resolution of the issue before this Court, that being the propriety of
the dismissal of this case.
The affidavits in opposition to the motion squarely posed the issue of the
defendant’s negligence, which ordinarily would require that the motion should be
denied since issues of material fact are readily apparent. At argument, counsel
agreed, but insists that the affidavit testimony is in “absolute conflict” with the
depositional testimony and is on that account nonprobative since a factual issue
cannot be created by filing an affidavit contradicting earlier depositional testimony,
citing Reid v. Sears, Roebuck and Co., 790 F.2d 453 (6th Cir. 1988).
We agree that the affidavit of Dr. Campbell is not probative because he
disavowed knowledge or opinion of the standard of care practiced in Knoxville, a
prerequisite to the consideration of his testimony. T.C.A. § 29-26-115(a)(1); Keith v.
Witt, 919 S.W.2d 613, 614 (Tenn. Ct. App. 1995).
We do not agree that the affidavit of Dr. Doblar is in fatal conflict with his
deposition. In the former, he testified that the resectoscope was under the control of
the defendant, that the injury to the plaintiff was unacceptable practice in Knoxville
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and that the defendant failed to act with ordinary care. In the latter, he testified that
“I do not know” what specifically caused the burn. Dr. Doblar’s affidavit may
rationally be considered as expository to his deposition rather than destructive of it.
At the very least, a reconciliation of his testimony requires a weighing of it, which is
impermissible in a summary judgment procedure. Taylor v. Nashville Banner
Publishing Co., 573 S.W.2d 476 (Tenn. Ct. App. 1978).
Neither do we agree that the affidavit of Dr. Morgan fatally conflicts with his
prior depositional testimony. In the former, he testified that more likely than not the
defendant caused the burn injury by using the resectoscope when it was defectively
configured, in which case he should have been aware of the fact. In the latter, he
testified “ . . . and just as now, I cannot tell you what exactly happened.” We think a
definitive reading of his entire deposition can logically lead a dispassionate enquirer
to the conclusion that Dr. Morgan was careful to differentiate between an observed
truth and a formulated opinion. In any event, any reconciliation of his testimony, if
such is necessary, requires a weighing of it, which is impermissible. Taylor, supra.
Whether summary judgment was properly granted is a question of law, with
no presumption of correctness. Gonzales v. Alman Coal Co., 857 S.W.2d 42 (Tenn.
Ct. App. 1993). Our evaluation of the motion requires a determination of whether a
material, factual issue exists and whether the disputed fact creates a genuine issue
for trial. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).
Against these standards, we conclude the motion was improvidently granted
because there are contested issues of material facts which cannot be resolved on
the basis of affidavits. Doubtless a contributing factor was the inordinate delay -- 15
months -- of the plaintiff in responding to the motion; superimposed is the stressed
argument that the cause of the plaintiffs’ injury was “unknown,” with which we
disagree. There is abundant evidence in the record that (1) the plaintiff’s injury was
caused by the device operated and controlled by the defendant; (2) the injury thus
inflicted was the burning of tissue; (3) the particular device functioned properly in a
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subsequent procedure; (4) the treatment which resulted in the burn injury was below
acceptable standards. Whether the burn was of thermal or chemical or electrical
origin is, in our judgment, of minimal legal significance, notwithstanding the
herculean efforts to prove the nature of the burn.
The defendant argues that the plaintiff’s experts inconsistently testified,
thereby negating any probative value of their testimony. To an extent, this argument
is meritorious, but not entirely so. For instance, Dr. Morgan testified by affidavit that,
more likely than not, “Dr. Hatcher caused the burn injury to Herman Davis by using
the resectoscope while it was improperly or defectively configured, in which case he
should have been aware of the fact . . . . the instrumentality . . . was in the exclusive
control of Paul Hatcher, M.D. . . . the injury ordinarily does not occur in the absence
of negligence.” (Emphasis added.) He had previously testified on discovery that he
did not know -- had no way of knowing -- whether the burn was of thermal or
radioactive or electrical origin and when asked if he had any basis for assuming the
injury was caused by “some human error,” he replied that he did not. This question
and response implied personal knowledge, because the thrust of the preceding
questions, while purporting to seek an opinion only, was seemingly directed to
personal knowledge as contrasted to the elicitation of an opinion.
Q. . . . did you search Dr. Hatcher’s records to try to find something that
might have caused it?
A. Well, I read everything to try to understand what happened and just as
now I cannot tell you what exactly happened.
Q. You assume this injury was caused by some human error but you don’t
have any factual basis for that assumption do you?
A. That’s correct.
(Emphasis added.)
We do not believe that the affidavit of Dr. Morgan contradicts his prior
testimony to the extent urged by the defendant, keeping in mind that in summary
judgment proceedings the evidence may not ordinarily be weighed and the summary
judgment proceedings may not substitute for a merit trial.
T.C.A. § 29-26-115 is relied on by the plaintiff. This statute provides:
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In a malpractice action . . . 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 exclusive control
and that the accident or injury was one which ordinarily does not occur in the
absence of negligence.
It was held in Ward v. United States, 838 F.2d 182 (6th Cir. 1988) that the
presumption created by this statute is the doctrine of res ipsa loquitur, which should
not be applied where the plaintiff offers evidence of specific acts of negligence. But
we see no reason why the plaintiff may not, consistently with Rule 8, TENN. R. CIV.
P., plead the application of the statute as an alternate ground for relief. There is
evidence in the record that the instrumentality causing the injury was under the
exclusive control of the defendant and that the injury was one that does not
ordinarily occur in the absence of negligence, thus creating a rebuttable
presumption of negligence for resolution upon a merit trial and not upon a motion for
summary judgment.
The judgment is reversed at the cost of the appellee and the case is
remanded for trial.
William H. Inman, Senior Judge
Concur:
W. Frank Crawford, Presiding Judge
David R. Farmer, Judge
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