dissenting.
I respectfully dissent from the majority opinion, particularly insofar as it holds that there was no necessity for expert testimony in the present case. While the majority find it “troubling” that the defendant doctor failed to testify, I find it much more troubling that the plaintiff did not call the defendant doctor as an adverse witness, which he could have done under the Rules of Civil Procedure without in any way making the defendant the plaintiff’s witness or vouching for his credibility. See Rule 43.02. Possibly even more puzzling and affording some basis for an inference against the plaintiff was his failure to call either Dr. Brothers or Dr. Peters, both of whom had seen the patient and one of whom had actually removed the foreign body.
I am unable to concur in the majority’s “barefoot boy” philosophy concerning foreign objects. It is a known fact that thousands of veterans of World War I and World War II have lived for years with fragments of shrapnel and other foreign objects in arms, legs, and other portions of the anatomy because of medical judgment that removal would be ill-advised or detrimental. Andrew Jackson was shot in a duel in 1806. The ball was embedded in the rib cage near the heart, and it remained there until Jackson’s death in 1845 — some thirty-nine years later. Although the wound was troubling to Jackson on frequent occasions, it was the medical judgment of surgeons of that day that removal could not be safely accomplished.
*92While that case is hardly analogous to the facts presented here, nevertheless it is my opinion that whether and when removal should have been attempted in the present case were clearly questions for expert evaluation and judgment and were not decisions for determination by lay persons. I do not consider Baldwin v. Knight, Tenn., 569 S.W.2d 450 (1978), to be controlling here, and it'seems to me, contrary to the statement in the majority opinion, that there is a vast difference between the failure of a physician to discover a foreign body for lack of a proper history on the one hand and his professional judgment as to whether or when to remove it on the other.
Even a casual glance at medical literature will demonstrate the foregoing. For example, in a discussion of injuries to the hand found in a treatise on traumatic medicine, the following statement is made:
“Complications following removal of a foreign body may well be precipitated by ill-advised attempts at removal in the first place. Small inert foreign bodies such as BB shot are frequently better left alone since the exploration for their removal may entail considerable dissection amongst vital anatomical structures. .
“The secondary removal of foreign bodies has all the problems inherent in the removal at the time of injury. It is also often made more difficult because the track of injury can no longer be located and because considerable scar tissue surrounds the foreign body. An ever-present and severe risk is that the surgery may ‘light up’ a tetanus infection from bacteria introduced at the time of the original injury. Appropriate precautions must always be taken before such surgery is undertaken.” 2 Traumatic Medicine and Surgery for the Attorney, 182-83 (P.D. Cantor ed. 1960).
While the foregoing discussion pertains to a hand injury, an examination of any medical or surgical textbook will reveal that the anatomy and structure of the foot are also extremely complex. See e. g., Legal Anatomy and Surgery, 309-19 (2d ed. B.S. Maloy 1955). Without detailed medical testimony as to the location of a foreign body, its size and relation to surrounding tissues, muscles and bones, in my opinion, it would be sheer guesswork on the part of lay persons to know whether surgical removal of a foreign object should be attempted and at what point in the course of treatment such attempt should be made. Apparently in the present case Dr. Rogers at first attempted removal but later felt that another and different course of treatment was advisable.
Statutes governing medical malpractice actions now require that expert testimony be used to establish the appropriate standard of care in the first place and its violation in the second place. The instances in which these requirements need not be met are few indeed. In my opinion the present case is not such an exception.
I would affirm the judgment of the Court of Appeals.
COOPER, J., concurs in this dissent.