DONALD EUGENE HARRIS, )
)
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9801-CV-00041
v. )
) Davidson Circuit
GLENN S. BUCKSPAN, M.D., ) No. 95C-1489
individually and )
GLENN S. BUCKSPAN, M.D.,P.C. )
)
Defendant/Appellee. )
)
FILED
August 19, 1998
COURT OF APPEALS OF TENNESSEE
Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE BARBARA N. HAYNES, JUDGE
LARRY D. ASHWORTH
227 Second Avenue, North
Nashville, Tennessee 37201
PETER D. HEIL
P. O. Box 40651
Nashville, Tennessee 37204
ATTORNEYS FOR PLAINTIFF/APPELLANT
C. J. GIDEON, JR.
JOE W. ELLIS, II
NationsBank Plaza, Suite 1900
414 Union Street
Nashville, Tennessee 37219-1782
ATTORNEYS FOR DEFENDANT/APPELLEE
AFFIRMED
WILLIAM B. CAIN, JUDGE
OPINION
I. FACTS
This is a medical malpractice action in which the plaintiff appeals from
a directed verdict in favor of the defendant.
Plaintiff, Donald Gene Harris, is a professional wrestler and presented
himself on January 25, 1993 to the defendant, Dr. Glenn S. Buckspan, for an
evaluation of bilateral gynecomastia or breast enlargement. After discussing
various surgical options, Dr. Buckspan referred Plaintiff to Dr. Craig Sussman
for endocrinology study and possible non-surgical management of Plaintiff's
enlarged breast condition.
Dr. Buckspan's clinical note for this January 25, 1993 visit was
admitted in evidence and reveals the following:
Is seen in consultation with bilateral gynecomastia. [Mr.
Harris] does have a past history of having used anabolic
steroids in the past. The left side is larger than the right. He
has a moderate amount of excess skin.
I explained to him in detail the ramifications of operative
management in the form of suction assisted and direct
excision through an inferior periareola incision. I also
discussed the fact that he did have excess skin and that this
could be corrected more completely with a crescent shaped
excision in a superior areola excision but that would require
a radial incision medially and laterally. I discussed with him
the anticip[a]ted results and the difficulty in obtaining
adequate reduction without excess concavity or excess skin
for which would be fairly loose. I explained to him the fact
that we could do this in a staged procedure and that we could
try to maintain contour but it would be very likely there
could be need for secondary procedures or even further
reduction if this were unsatisfactory to him. I discussed
with him th
epossible [sic] complications of bleeding and infection and
the need for reoperation. The automobile example is cited.
The placement of the incision and the anticipated healing
process is described including the need to limit his body
activity. The need for postoperative compression is
discussed. Potential for hypertrophy of the scars is
discussed. The patient is referred to Dr. Craig Sussman for
his evaluation to see if there is any nonsurgical management
that can be carried out.
-2-
No such non-surgical treatment was determined to be of any value and
on April 26, 1993, plaintiff returned to Dr. Buckspan. Following this
consultation, Dr. Buckspan entered a clinical note as follows:
Is seen in follow up consultation today. He has been
evaluated by Dr. Craig Sussman and has no endocrinologic
abnormalities. I discussed with him the methods of
reconstructing his gynecomastia and at this time he elects to
proceed with a transverse excision and free nipple grafting.
He is aware of the potential loss of skin as well as the nipple
areola grafts and the need for potential reconstruction. I also
discussed and pointed out to him on his chest the extent of
the incision and the fact that there could be widening,
hypertrophy of the scars. He elects to proceed in the near
future.
On this same day, April 26, 1993, following consultation with Dr.
Buckspan, plaintiff signed what is designated as an "operative permit"
containing, in pertinent part, the following:
PLEASE READ THIS CAREFULLY AND FEEL FREE TO
ASK ANY QUESTIONS YOU MAY HAVE ABOUT
YOUR SURGERY OR THIS PERMIT.
PATIENT Don Harris
DATE OF SURGERY
1. I hereby request and authorize Dr. Glenn S.
Buckspan and his associates to perform a surgical
operation known as Bilateral subcutaneous
mastectomies with suction assistance and skin
excision and free nipple grafting .
2. I further state that I have requested this surgery for
the purpose of improving my function or
appearance, or both.
3. The procedure listed above has been explained to
me by Dr. Buckspan and his staff and I completely
understand the nature of the procedure. The
following points have been particularly stressed to
me: bleeding, swelling, infection, permanent scar,
change in sensation, partial or complete loss of
graft .
4. I recognize that during the course of the operation,
unforeseen conditions may necessitate additional or
different procedures than those set forth above. I
therefore further authorize and request that Dr.
Buckspan, his associates, or other physician whom
Dr. Buckspan may request, perform such
procedures as are, in Dr. Buckspan's professional
-3-
judgement, necessary and desir[e]able, including,
but not limited to, procedures involving pathology
and radiology. The authority granted under this
paragraph four (4) shall extend to remedying
conditions that are not known to Dr. Buckspan at
the time the operation is commenced.
...
6. I am aware that the practice of medicine and
surgery is not an exact science, and that I
acknowledge that no guarantees have been made to
me as to the results of the operation or procedure.
7. I acknowledge that you have warned me that my
body or my skin, or my physical system could have
a bad or disagreeable reaction to this procedure or
anesthesia, including the following specific possible
reactions, results, or side effects:
bleeding, swelling, infection, unfavorable scar
8. I understand that the results obtained from this
surgery depends in part on my following post
operative instructions. I agree to cooperate with Dr.
Buckspan and his staff in my follow up care until I
have been completely discharged.
...
10. I have read this permit completely and fully
understand it and I have had an opportunity to have
answered any questions I may have about the
permit and my surgery.
DO NOT SIGN THIS PERMIT UNTIL
YOU HAVE READ IT AND
COMPLETELY UNDERSTAND THE
CONTENTS.
PATIENT SIGNATURE x Dona ld G. Ha rris WITNESS D Adamson DATE 4-26
Surgery by Dr. Buckspan was scheduled at St. Thomas Hospital in
Nashville on May 11, 1993. Prior to the administration of anesthesia on that
date, plaintiff signed a document entitled "consent for surgical or invasive
medical procedures" providing, in pertinent part, as follows:
PATIENT: Donald Harris
DATE: 11 May 1993 TIME: 8:40
A.M.
I, Donald Harris , do hereby authorize
Doctor Buckspan
or one of his associates as follows:
and such hospital personnel as he may designate
and authorize to assist and to perform upon me the following procedure
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and such post care and treatment as may be required for my best care.
Bilateral subcutaneous mastectomies with suction assistance and
skin excision and free nipple grafts .
The said operative procedure (or invasive medical procedure), its
nature, complications and risks, and alternatives have been explained to
me by my attending physician. My physician has not guaranteed any
specific results from such contemplated procedure or surgery.
I recognize that during the course of the operation (or invasive medical
procedure) unforeseen conditions may necessitate additional or different
procedures than those set forth above. I therefore authorize the above
physician, or persons he may designate, to perform such procedures as
are, in his professional judgment, necessary and desirable. This
authority is extended to remedying conditions that are not known by my
physician at the time the operation (or invasive medical procedure) is
commenced.
II. Medical Battery
This case was argued before this court on July 6, 1998, one week
before the Supreme Court released its opinion in Blanchard v. Kellum, No. 02-
S-01-9709-CV-00083 (Tenn. 1998). In Blanchard, the Supreme Court
recognized a distinction between an unauthorized procedure and a procedure
authorized on less than adequate information to the patient.
Said the Supreme Court:
We believe that there is a distinction between : (1)
cases in which a doctor performs an unauthorized procedure;
and (2) cases in which the procedure is authorized but the
patient claims that the doctor failed to inform the patient of
any or all the risks inherent in the procedure. Performance
of an unauthorized procedure constitutes a medical battery.
A simple inquiry can be used to determine whether a case
constitutes a medical battery: (1) was the patient aware that
the doctor was going to perform the procedure (i.e., did the
patient know that the dentist was going to perform a root
canal on a specified tooth or that the doctor was going to
perform surgery on the specified knee?); and, if so (2) did the
patient authorize performance of the procedure? A plaintiff's
cause of action may be classified as a medical battery only
when answers to either of the above questions are in the
negative. If, however, answers to the above questions are
affirmative and if the plaintiff is alleging that the doctor
failed to inform of any or all risks or aspects associated with
a procedure, the patient's cause of action rests on an informed
consent theory.
Informed consent cases require, by statute, expert
-5-
evidence to establish whether the information provided to the
patient deviated from the usual and customary information
given to patients to procure consent in similar situations. See
generally German v. Nichopoulos, 577 S.W.2d 197 (Tenn.
Ct. App. 1978) (holding expert evidence required to establish
informed consent when patient knew of procedure to be
performed but alleged that no risks associated with procedure
were disclosed); see also Tenn. Code Ann. § 29-26-115, -
118. The inquiry focuses on whether the doctor provided
any or adequate information to allow a patient to formulate
an intelligent and informed decision when authorizing or
consenting to a procedure. Shadrick v. Coker, M.D., 963
S.W.2d 726 (Tenn. 1998). To determine the adequacy of
information provided in an informed consent case, a court
must consider the nature of the medical treatment, extent of
the risks involved and the applicable standard of care. Id.;
Tenn. Code Ann. § 29-26-118. These determinations require
expert testimony and are outside the common knowledge of
a lay witness.
Blanchard v. Kellum, No. 02-S-01-9709-CV-00083, slip op. at 4-5 (Tenn. July
13, 1998). Footnotes omitted.
While the plaintiff at bar argues that the procedure by Dr. Buckspan
was unauthorized, such argument does not withstand the "simple inquiry" of
Blanchard. Plaintiff understood that Dr. Buckspan was going to operate on his
chest in treatment of bilateral gynecomastia and Harris authorized the
performance of the procedure. Thus, we are not dealing with "medical battery"
under Blanchard, but with alleged lack of informed consent under Tennessee
Code Annotated section 29-16-118.
Plaintiff admits that he knowingly executed both the "operative permit"
dated April 26, 1993 and the "consent for surgical or invasive medical
procedures" of May 11, 1993. He insists, however, that in his various
consultations with Dr. Buckspan he was told that surgery could be performed
that would reduce the size of his breasts and that such surgery would consist of
two small incisions, one in the area of each breast and that tissue would be
removed through these incisions. He claims he was further told that only a small
hairline scar would remain; he was neither informed that an incision would be
made across the entire breadth of his chest, nor told that he would undergo a
"mastectomy" and "free nipple graft" where his nipples would be surgically
-6-
removed and then reimplanted. He further says he was never advised that the
surgery would result in raised, red, rope-like hypertrophic scars or mispositioned
and malformed nipples.
Plaintiff was not satisfied with the results of the procedure performed
by Dr. Buckspan and sued alleging lack of informed consent and professional
negligence.
III. Informed Consent
The Supreme Court of Tennessee has held:
"the plaintiff shall prove by evidence as required
by § 29-26-115(b) that the defendant did not
supply appropriate information to the patient in
obtaining his informed consent (to the procedure
out of which plaintiffs claim allegedly arose) in
accordance with the recognized standard of
acceptable professional practice in the profession
and in the specialty, if any, that the defendant
practices in the community in which he practices
and in similar communities."
Incorporating the common law controlling the effectiveness
of consent, the statute explicitly requires as part of the
plaintiff's burden of proof that the standard of care for
obtaining informed consent must be shown by expert
evidence in the same manner as provided in T.C.A. § 29-26-
115(b). As stated in Baldwin v. Knight, 569 S.W.2d 450,
453 (Tenn. 1978), T.C.A. § 29-26-115(b) "adds . . . to the
present case law requirements relating to expert testimony,
(1) the necessity that a medical expert be licensed in this
state or a contiguous bordering state; (2) the relevant
specialty requirement; and (3) judicial discretion to waive
those requirements upon a showing of the unavailability of
such witnesses." Where a person has the capacity to consent,
consent may not be effective because the person was not
sufficiently aware of the extent of the risks or the nature of
the treatment involved.
"Counsel insists that simply because plaintiff
testified that no one told her of any possible risks
prior to receiving the injection, a prima facie case
based on lack of informed consent was made out.
. . . [I]n matters of informed consent the plaintiff
has the burden of proving by expert medical
evidence, (a) what a reasonable medical
-7-
practitioner of the same or similar communities
under the same or similar circumstances would
have disclosed to the patient about attendant risks
incident to a proposed diagnosis or treatment and
(b) that the defendant departed from the norm."
German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn. App.
1978), cert. denied (Tenn. 1979).
Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987).
Plaintiff insists that he is entitled to rely on oral assurances allegedly
given him by Dr. Buckspan and that such right of reliance is not subsumed into
the consent forms that he admittedly signed. This assertion is not disputed by the
defendant but there is no expert testimony in the record establishing that breach
of such alleged oral representations violated the applicable standard of care.
Plaintiff's expert witness, Dr. Joseph Bussey, testified that the standard of care
for informed consent " requires that the patient fully understand the procedure
that's recommended and the various procedures that could satisfy the needs of
that patient and the risks and complications related to those procedures and that
the patient is accepting of those conditions before he would agree to have the
procedure performed."
The expert testimony offered does not establish "(a) what a reasonable
medical practitioner of the same or similar communities under the same or
similar circumstances would have disclosed to the patient about attendant risks
incident to a diagnosis or treatment and (b) that the defendant departed from the
norm." German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn. App. 1978).
The lay assertions of Plaintiff as to oral representations and assurances
made to him by Dr. Buckspan taken as being true can not make a jury question
without the expert testimony required by Tennessee Code Annotated section 29-
26-118.
The trial court correctly directed a verdict for the defendant on
informed consent.
-8-
IV. Professional Negligence
Just as Tennessee Code Annotated section 29-26-118 mandates expert
testimony to establish the recognized standard of acceptable professional practice
and the breach of such standard by the physician in order to make a prima facie
case of inadequacy of consent, so section 29-26-115 requires such expert
testimony in a malpractice action.
This statute requires:
(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 standard; and
(3) As a proximate result of the defendant's negligent
act or omission, the plaintiff suffered injuries which would
not otherwise have occurred.
Tenn. Code Ann. § 29-26-115(a)(1980).
Plaintiff recognized this statutory requirement inasmuch as he procured
the testimony of Dr. Joseph Bussey. However, while Dr. Bussey opines that Dr.
Buckspan violated the applicable standard of care in the performance of the
procedure he used in surgically treating Plaintiff's gynecomastia, it is clear when
considering Dr. Bussey's testimony as a whole that this opinion is insufficient to
establish a prima facie case for submission to the jury. Dr. Bussey testifies as
follows:
Q. Doctor, are you familiar in this case with the
type of procedure that was performed on Donald Harris? Are
you familiar with the recognized standard of acceptable
professional practice in plastic and reconstructive surgery as
it applies to the treatment of gynecomastia?
A. Yes, sir.
Q. Doctor, have you formed an opinion as to
whether the defendant complied with the recognized standard
of acceptable professional practice in the field of plastic and
reconstructive surgery in his treatment of Don Harris for
-9-
gynecomastia?
A. Yes, I have.
Q. What is that opinion?
A. That it was not complied with. The standard of
care wasn't met, because there are so many procedures that
could be used that would be less disfiguring than the one
actually recommended and performed on Mr. Harris.
Q. Doctor, if you would, explain to the jury what
the standard of care -- you've heard that term. Explain to the
jury what standard of care means as applies in this case to
plastic and reconstructive surgeries.
A. Standard of care applies to the standard that
reasonable physicians under like and similar circumstances
would apply when selecting a procedure that they knew
technically how to perform and that applied to the particular
situation at hand and being certain the patient understood
that procedure as well as the alternative procedures and then
perform the procedure again within the standard of care,
meaning in the fashion similarly trained and experienced
physicians would take care of their patient.
...
Q. Now, tell me a little bit about your opinion in
this case. You mentioned that you thought the standard of
care -- you told us what you thought the standard of care was
in this case. Tell us in specifics how the defendant fell below
the recognized standard of care in his treatment of Mr.
Harris.
A. It's my opinion that the deficiency in meeting
the standard of care in this case were primarily related to the
type of procedure that was selected for treatment, and that's
based on looking at the pictures pre and post-op and having
the opportunity to examine the patient and his twin brother
and the pathology report, which clearly indicates that almost
all of the tissue that was removed was fatty tissue, as
opposed to glandular tissue, and the fact that there are and
were in 1993 procedures available, which would be equally
easy to perform, perhaps a lot easier to perform, and would
not be so disfiguring for Mr. Harris.
Specifically that would be either liposuction
alone or liposuction with, if necessary, the type of nipple
incision that I was diagramming [sic] and the surgical
removal of the glandular tissue beneath the nipple areolar
complex, as opposed to what, at least in my opinion, was
essentially a cancer operation, where you remove the entire
breast and have to remove the excess skin and create flaps
and do the free nipple transfer grafting.
Q. Doctor, let me ask you again within a
reasonable degree of medical certainty, as a result of the
treatment that Don Harris received at the hands of Dr.
Buckspan, did he suffer damages and injuries that he would
not have otherwise suffered but for Dr. Buckspan's actions?
A. He certainly suffered some very extensive
-10-
scarring and some appearance that the nipple areolar
complex differs in size and location from where it was
originally. Essentially that's the damages to him personally
that instead of improving his appearance it is much worse
than it was before he had the surgery.
Thus, it appears from the testimony of Dr. Bussey that it is Dr.
Buckspan's choice of procedure in preference to other available procedures that
apparently violated the applicable standard of care.
On cross examination, however, Dr. Bussey testifies:
Q. Using as what you define as the standard of
acceptable professional practice in this community, did Dr.
Buckspan's decision to send this man to see Dr. Craig
Sussman comply with the standard of care?
A. Yes, he referred him for endocrinological
evaluation for possible medical treatment.
Q. Wasn't that a good thing to do that complied
with the standards of care?
A. Yes.
Q. Isn't it also your testimony -- perhaps the jury
should know you gave the deposition in this case, you will
recall, on August 13th, 1996 at your office in Austell, didn't
you?
A. Yes, I did.
Q. Isn't it also your testimony in your opinion that
assuming the patient listened you have no criticisms of the
operative consent form at all, isn't that right?
A. I don't remember the exact phrase I used, but I
don't see how listen comports with the written consent form.
Q. It's your use of the language. I can ask it this
way and we can refer back to the deposition if we want to.
Isn't it true, Doctor, that this consent form itself is the kind of
consent form that passes without criticism among surgeons
complying with accepted standards of professional practice?
A. The written consent form is indeed that.
Q. Did you look at the written consent form to see
what kind of information was disclosed on the form itself?
A. Yes.
Q. So if the patient looked at the consent form, he
would know that the surgery he was going to have -- carried
with it the risk of bleeding, correct?
A. Yes.
Q. Swelling?
A. Yes.
Q. Infection?
A. I am assuming those are correct. It's been a
while since I read the document. I have no reason to dispute
-11-
that.
Q. Unfavorable scar?
A. I am assuming that's correct.
Q. Isn't that on there?
A. I think it is.
Q. Doesn't this gentleman have an unfavorable
scar?
A. Yes.
Q. A permanent scar?
A. In my opinion they are more than likely
permanent.
Q. Change in sensation?
A. Yes.
Q. Partial or complete loss of grafts?
A. Yes.
Q. All of those potential risks and complications
were listed on the consent form signed by Mr. Harris two to
three weeks before surgery, correct?
A. Yes.
Q. In addition, the same consent form describes a
procedure as a bilateral subcutaneous mastectomy with
suction assistance, skin excision and free nipple graft. That
describes the procedure he underwent on May 11th, 1993,
doesn't it?
A. Yes.
Q. Isn't it true, Dr. Bussey, that in terms of looking
at the operative note, the procedure that Dr. Buckspan
performed was an acceptable procedure for a correction of
this patient's problem?
A. In looking at the operative note, it's a procedure
that has been accepted as something that's reasonable for
correction of gynecomastia depending on the volume and
degree of tosis and the appropriate understanding of other
procedures that could be performed with less disfigurement.
Q. Do you have to today qualify your answer just
as you did, or can you answer it yes or no?
A. I don't have to qualify it. It has been accepted
as a procedure that is appropriate for this diagnosis.
In summary on cross examination Dr. Bussey further testified:
Q. Isn't it true that the surgical procedure itself as
described, the technical aspect of the surgical procedure, was
properly carried out in accordance with accepted standards
of care?
A. The surgical procedure itself it appeared from
the operative record was carried out within the acceptable
standards of care. That's correct.
Q. Let's see if we can recap then. We've got a
surgeon, a plastic surgeon, who is board certified whose had
enough experience in this community to know the standard
-12-
of care, correct?
A. Yes.
Q. Who complies with the standard of care in
sending the patient on to see an endocrinologist, right?
A. That's correct.
Q. Who performs a procedure that is one of the
accepted methods of addressing gynecomastia but not the
one you would choose, right?
A. Not for this patient. That's correct.
Q. And technically performs the procedure in a
fashion that complies with accepted standards of care,
correct?
A. Yes.
It is not a departure from the applicable standard of care for a physician
to use a procedure that is but one of several procedures recognized in the
profession as adequate in the treatment of the plaintiff's condition. In
Blankenship v. Baptist Memorial Hospital, this court observed:
In Snyder v. St. Louis Southwestern R. Co., 228 Mo.
App. 626, 72 S.W.2d 504, 512, the court said on this
question:
"We have found no better statement of the rule of care
required of a physician than in the case of Bailey v. [St.
Louis-San Francisco] R. Co., Mo. App., 296 S.W. 477, cited
by plaintiff, where this court, speaking through Judge Cox,
said:
" 'Physicians and surgeons must be allowed a wide
range in the exercise of their judgment and discretion. The
science of medicine is not an exact science. In many
instances there can be no fixed rule by which to determine
duty of a physician, but he must often use his own best
judgment and act accordingly. By reason of that fact the law
will not hold a physician guilty of negligence * * *, even
though his judgment may prove erroneous in a given case,
unless it be shown that the course pursued was clearly
against the course recognized as correct by the profession
generally. As long as there is room for an honest difference
of opinion among competent physicians, a physician who
uses his own best judgment cannot be convicted of
negligence, even though it may afterward develop that he
was mistaken. [Citing cases].'"
[6] And where there is a difference of opinion among
physicians or surgeons with reference to the treatment to be
given in a particular case, a physician will not be held liable
for malpractice if he follows the course of treatment
advocated by a considerable number of physicians of good
standing in his community. It would not be competent for a
court or jury in such a case to say that a physician who
-13-
followed either of said different methods of treatment was
negligent.
Blankenship v. Baptist Mem'l Hosp., 26 Tenn. App. 131, 143-44, 168 S.W.2d
491, 496 (1942); see also McPeak v. Vanderbilt Univ. Hosp., 33 Tenn. App. 76,
229 S.W.2d 150 (1950).
This rule is reiterated in Tennessee Pattern Instructions (civil) 3rd at
section 6.14. (The pattern jury instruction presupposes a dispute in expert
witness testimony which does not exist in this case.)
Dr. Buckspan, along with his two experts, Doctors DeLozier and
Barton, testified that the procedure used by Dr. Buckspan complied with the
applicable standard of care and that neither in choosing the particular procedure,
nor in the execution of the same, did the conduct of Dr. Buckspan fall below the
standard of care.
Taking the testimony of Dr. Bussey as a whole, he simply disagrees
with the procedure used by Dr. Buckspan, while at the same time acknowledging
that such procedure is a recognized method of treating gynecomastia and that the
procedure was performed in a professionally acceptable manner. Thus it is that
no expert testimony in the record establishes a prima facie case that Dr.
Buckspan deviated from the applicable standard of care in his treatment of
Plaintiff. The trial court correctly directed a verdict in favor of the defendant on
the medical malpractice issue.
V. Res ipsa Loquitur
Plaintiff relying on Underwood v. H. C. A. Health Servs. of Tennessee,
892 S.W.2d 423 (Tenn. Ct. App. 1994), asserts the application of res ipsa
loquitur.
Tennessee Code Annotated section 29-26-115(c) provides:
In a malpractice action as described in subsection (a) of this
section there shall be no presumption of negligence on the
part of the defendant. Provided, however, there shall be a
rebuttable presumption that the defendant was negligent
where it is shown by the proof that the instrumentality
-14-
causing injury was in the defendant's (or defendants')
exclusive control and that the accident or injury was one
which ordinarily doesn't occur in the absence of negligence.
Tenn. Code Ann. § 29-16-115(c)(1980).
Underwood involved an action by a hospital visitor for injuries
sustained when the cover of a self-service ice dispenser in the hospital cafeteria
fell on her. The trial court directed a verdict for the defendant which was
affirmed by the court of appeals. The case had nothing to do with res ipsa
loquitur in the context of a medical malpractice claim.
In this case there is no medical expert testimony establishing the
negligence of Dr. Buckspan and no evidence of accident or injury caused by an
instrumentality under the exclusive control of the defendant. This action is not
one where a jury based upon their own common knowledge and observation can
infer negligence.
"Since there are only some instances where a pleading of res ipsa
loquitur is applicable in medical malpractice cases, the doctrine is not applicable
and recovery cannot be had without medical proof that the negligence actually
occurred; . . . " 61 Am.Jur. 2d Physicians, Surgeons, etc., § 338, (1981). As
observed by the Court of Civil Appeals of Texas:
There are only very, very few instances where a
pleading of res ipsa loquitur is applicable in medical
malpractice cases. Where negligence is alleged against a
doctor, it must be proved by expert medical testimony before
the case can be developed. The doctrine of res ipsa loquitur
is not applicable and recovery cannot be had without medical
proof that the negligence actually occurred."
Goodnight v. Phillips, 418 S.W.2d 862, 868 (Tex. Civ. App. 1967).
The trial court correctly directed a verdict on res ipsa loquitur.
VI. Other Issues
The remaining issues asserted by Plaintiff relate to damages and to the
-15-
admissibility of certain evidence. Having determined that the trial court was
correct in directing a verdict for Defendant on all liability issues, it is not
necessary to discuss damage issues although it might be well to point out that
evidence offered by Defendant of prior use by Plaintiff of anabolic steroids was
irrelevant to any issue before the court. It may have been a cause for the
development of the condition for which Plaintiff sought medical assistance in the
first place. It is neither cause in fact or proximate cause of any injury or loss
suffered by Plaintiff. See McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.
1991).
Finally, Plaintiff claims that his constitutional right to a trial by jury
was violated when the trial court acting under Rule 50.02 of the Tennessee Rules
of Civil Procedure directed a verdict for the defendant after declaring a mistrial
because the jury was unable to agree. Plaintiff relies primarily on a statement by
the court of appeals from Keith v. Norris, 57 Tenn. App. 423, 419 S.W.2d 189
(1967), which has not been cited in any reported decision in the ensuing thirty-
one years. Said the Keith court:
[2] We take up next, on its merits, the question of
whether the trial judge ruled correctly, when on defendant's
motion for a new trial, he undertook to correct what he
concluded had been an error, and granted defendant's motion
for a directed verdict. The fact that the trial judge was
enough doubtful about the matter to overrule the motion for
directed verdict indicates to some extent, at least, that
reasonable minds might differ as to whether or not such
motion should be granted, and the subsequent fact that the
jury to whom the case was submitted did in fact disagree,
clearly indicates that reasonable minds did disagree.
Id. at 429, 192.
To attribute to this ill-advised statement from Keith the meaning
asserted by the Plaintiff would effectively destroy Rule 50.02 in any case where
a jury was unable to agree and a mis-trial thus made necessary. The pertinent
portion of Rule 50.02 provides: "Whenever a motion for a directed verdict made
at the close of all the evidence is denied or for any reason is not granted, the
court is deemed to have submitted the action to the jury subject to a later
determination of the legal questions raised by the motion."
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Such is precisely what happened at bar when the trial judge reserved
action on the motions for a directed verdict filed by the defendant and submitted
the case to the jury. At a separate hearing held after the mis-trial was declared
the trial judge determined that the motion for a directed verdict was sound in law
and granted same. This action was in conformity with correct procedure.
Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977).
The judgment of the trial court is in all respects affirmed with costs
assessed against appellant.
________________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
_______________________________________
HENRY F. TODD, PRESIDING JUDGE, M.S.
_______________________________________
BEN H. CANTRELL, JUDGE
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