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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ______________________________________________ EARNESTINE COLE, Plaintiff-Appellant, Vs. STATE OF TENNESSEE, Cecil Crowson, Jr.
Appe llate Court C lerk Defendant-Appellee. ____________________________________________________________________________

Claims Commission No. 97487 C.A. No. 02A01-9801-BC-00004 July 16, 1998

FILED

FROM THE TENNESSEE CLAIMS COMMISSION THE HONORABLE MARTHA BRASFIELD, COMMISSIONER

William B. Raiford, III; Merkel & Cocke, P.A. of Clarksdale, Mississippi For Appellant Beauchamp E. Brogan, General Counsel JoAnn C. Cutting, Assistant General Counsel For Appellee

AFFIRMED Opinion filed:

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER, JUDGE

This is a medical malpractice case tried by the Tennessee Claims Commission. Claimant/Appellant Earnestine Cole (Cole) appeals from the judgment of the Claims Commission for Defendant/Appellee State of Tennessee. Cole filed this complaint alleging that

she had a tubal ligation and sterilization performed while a patient at the Regional Medical Center in Memphis, Tennessee. She avers that she was under the care and treatment of Dr. Lynn Ware, a medical resident employee of the State of Tennessee at the University of Tennessee School of Medicine, who was under the supervision of Dr. Bertram Buxton, a professor at the university. Cole essentially alleges that the defendant, State of Tennessee, through its

employees, breached the recognized standard of acceptable professional practice in its medical treatment, thus resulting in her becoming pregnant after the operation was performed. After an evidentiary hearing, Commissioner Martha Brasfield filed a thorough and comprehensible order which we adopt as a part of this Opinion: The claimant, Ms. Ernestine Cole, filed a claim for damages against the defendant, the State of Tennessee, alleging that professional malpractice was committed upon her by employees of the University of Tennessee.

The Tennessee Claims Commission has jurisdiction over this claim pursuant to Tenn. Code Ann. section 9-8-307 (a)(1)(D).

The parties stipulated that the physicians named in this lawsuit, Dr. Lynn Ware and Dr. Bertram Buxton, were employees of the State of Tennessee at the time the alleged malpractice occurred.

On March 9, 1988, the claimant, a 35-year-old single mother of three children, had a tubal ligation and sterilization performed at the Regional Medical Center in Memphis, Tennessee. Prior to the surgery, the claimant signed a Consent for Operation which stated a failure rate of 1:300-400 for the type of sterilization to be performed. The surgery was performed by Dr. Lynn Ware, a medical resident at the University of Tennessee, under the supervision of Dr. Bertram Buxton, a professor at the 2

University of Tennessee. The type of ligation which Dr. Ware performed is known as a silastic band tubal sterilization. In this type of procedure, a segment of each fallopian tube is grasped with a surgical instrument and doubled (or "knuckled"), and a tiny silicone (silastic) ring is slipped over the "knuckle" to achieve occlusion of the tube.

Dr. Ware had performed approximately 50 tubal ligations prior to the claimant's surgical ligation. Her operative report, dictated less than an hour after she performed the claimant's tubal ligation, stated that she placed a silastic ring on each fallopian tube and then injected methylene blue dye through the uterus and into the tubes to verify occlusion. No spillage of dye was observed from either fallopian tube. Dr. Ware's notes indicate that Dr. Buxton was in attendance during the surgery. Dr. Buxton testified that he was "quite diligent" in his role as an attending surgeon, and that it was his practice to check his students' surgical work before the surgical incision was closed. Although he did not specifically recall attending the claimant's surgery, he testified that he believed that he was present during the surgery and that he inspected Dr. Ware's work prior to the closing of the surgical wound. He signed the operative report (which was dictated by Dr. Ware approximately twenty to thirty minutes after the surgery) as well as the progress notes.

In October of 1988, the claimant discovered that she was pregnant with twins, who were delivered at Baptist Memorial Hospital by Dr. Marva Souder in February of 1989. Immediately after the delivery of the twins, a second tubal ligation procedure was performed by Dr. Souder. Dr. Souder's operative notes state: 3

FINDINGS:

Bilaterally

normal

appearing

fallopian tubes. There was no ring found on the right tube. On the left tube, the Fallope ring was on the mesosalpinx, but the tube did not appear to be occluded.

TECHNIQUE: . . . The right fallopian tube was grasped . . . and brought to the surface in its entire length with the findings as noted above. The tube was grasped in an avascular area to form a knuckle of tube. A free-tie of . . . plain catgut was placed at the base of the knuckle. A second freetie was placed adjacent to the first tie. The

knuckle of tube was then excised and the resulting pedicle was inspected for hemostasis. It was then released to the abdomen. The same procedure was performed on the left tube with findings as noted above . . . .

The excised portions of the tubes were sent to a pathology laboratory for routine analysis. According to Dr. Thomas

Chesney, the pathologist who examined the specimens, the purpose of the analysis was to determine whether the fallopian tubes had been entirely transected by the second tubal ligation procedure. Following his examination of the specimen, Dr. Chesney issued the following report:

A. PORTION OF LEFT FALLOPIAN TUBE: Received is a 2.4 cm long x 0.4 x 0.5 cm, whitetan, tubular structure enveloped in a thin, pink-tan, 4

fibrous membrane. The tissue is consistent with a portion of fallopian tube. The fimbriated end is identified. A fallope ring is present at the

proximal end of the specimen . . . .

B. PORTION OF RIGHT FALLOPIAN TUBE: Received in fixative is a 2.2 cm in length x 0.8 x 0.6 cm diameter, white-tan, tubular portion of tissue enveloped in a thin, purple-tan, fibrous membrane. The tissue is consistent with a portion of fallopian tube and the fimbriated [sic] end is identified . . . .

The report concluded that the specimens were two "completely transected negative segment[s] of oviduct.["]

In approximately May of 1990, at the claimant's request, Dr. Chesney re-examined the fallopian tube specimens (which had been preserved in paraffin after the initial laboratory analysis). The purpose of this examination was to determine whether the segment removed by Dr. Souder showed evidence of tubal occlusion. Dr. Chesney re-sectioned and re-examined the fallopian tube specimens and issued the following report:

NOTE: The remaining available tissue from the fallopian tube segments . . . was submitted for sectioning on May 15, 1990 . . . The cross sections do not reveal tubal obstruction, nor would they be expected to since the pathological analysis of these tubes was directed to ascertainment of the 5

completeness of the tubal interruption procedure of February 25, 1989. The portions of left tube . . . present on the slides may not represent the part immediately adjacent to the grossly identified fallope ring, nor was it intended that the portions of the right tube . . . represent the previously ligated area. The latter may indeed still remain in the patient. These recut slides . . . first as the original slides . . . reflect portions of the tubes apparently uninvolved by the original tubal ligation procedure of 1988, thus no opinion can be rendered as to the completeness of that procedure on the basis of this microscopic material.

The claimant maintains that the tubal ligation performed by Dr. Ware in March of 1988 was negligently done. The claimant further avers that Dr. Buxton failed to properly supervise the procedure performed by Dr. Ware. As a result of this alleged malpractice, the claimant maintains that she has suffered physical, mental and monetary damages. She sues the defendant for the recovery of the costs associated with the pregnancy and birth of the twins, for the costs of the second tubal ligation, for pain and suffering, and for mental anguish.

The defendant denies malpractice in the tubal ligation procedure, and maintains that the claimant has failed to prove that Dr. Ware violated the recognized standard of acceptable professional practice in the medical profession. The defendant holds that tubal ligations sometimes fail because the fallopian tubes "recanalize," or because occluding devices (in this case, 6

silastic rings) can "migrate," break, or slip post-operatively, either of which circumstances could arise absent a physician's malpractice. The defendant points out that the claimant signed a consent for operation form which specifically stated that tubal ligation procedures fail at a rate of 1:300-400.

The claimant's burden of proof in this claim is set out in Tenn. Code Ann. Section 29-26-115(a): "In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b) (1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standards; (3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred." Negligence may not be presumed from the fact that the treatment was unsuccessful. (See, Johnson v. Lawrence, 720 S.W.2d 430 (Tenn. Ct. App. 1986) and Watkins v. United States, 482 F. Supp. 1006 (M.D. Tenn. 1980).

The parties essentially agreed that the tubal ligation procedures described by Dr. Ware in her operative report met the recognized standard of acceptable professional practice for tubal ligations if those procedures were performed as Dr. Ware described. The claimant alleges that the standard procedures were not performed by Dr. Ware as described in her operative notes, that Dr. Ware failed to act with ordinary and reasonable care in 7

performing those procedures, and that Dr. Buxton failed to act with ordinary and reasonable care in supervising and inspecting Dr. Ware's work. In support of her allegations, the claimant points out the following:

(1) During the second sterilization procedure, Dr. Souder found no silastic ring on the right fallopian tube;

(2) Dr. Souder observed no scarring on either fallopian tube;

(3) Dr. Souder observed that the left silastic ring was on the mesosalpinx instead of on the fallopian tube;

(4) In her initial deposition, Dr. Ware described an incorrect location for placement of the silastic rings;

(5) There was no evidence or opinion that the left silastic ring had "migrated" from another location;

(6) There was no evidence that the silastic rings used by Dr. Ware were defective or broken;

(7) Although the methylene dye test revealed no spillage of dye from the fallopian tubes, the test is not a reliable test of tubal occlusion.

With regard to the surgical procedure, itself, and the malpractice allegedly committed by Dr. Ware, the claimant's expert witness, Dr. Albert Alexander, a retired obstetrician and gynecologist, testified that Dr. Ware inappropriately placed the 8

left silastic ring on the mesosalpinx near the fimbriated end of the left fallopian tube, and had placed no ring at all on the right fallopian tube. He based his findings on Dr. Souder's operative notes. He opined the claimant's fallopian tubes should have evidenced scarring had the silastic rings been appropriately placed and remained in place for as little as 12-24 hours. Dr. Alexander further testified that a recanalization of the fallopian tubes should have left visible signs which Dr. Souder should have been able to have seen during the second sterilization procedure. Dr.

Alexander also discounted the defendant's theory that the silastic rings may have broken, migrated or slipped. He stated that a broken or defective ring should have evidenced its defect during the surgery. With regard to the methylene dye test, Dr. Alexander testified that although the spillage of dye from the fallopian tubes is a certain indicator that an attempted occlusion was not successful, the test is "very unreliable" for proving successful tubal occlusion; therefore, the dye test performed by Dr. Ware did not prove conclusively that the silastic rings had been properly placed.

The defendant's expert witness, Dr. Dwight Pridham, a professor at the University of Louisville medical school specializing in obstetrics and gynecology and in reproductive endocrinology, opined that Dr. Souder's findings with regard to the silastic rings did not prove that the rings had been improperly placed during the first tubal ligation procedure. Dr. Pridham testified that necrosis (death of tissue) often occurs in the "knuckles" of the tube formed by the ligation process, and that these knuckles may "drop off' following successful occlusion of fallopian tubes, leaving the silastic rings "attached to what was 9

left after the necrosis had occurred, which is often the mesosalpinx below the fallopian tube." He testified that the rings may also become "epithelized" (covered with tissue) and thus may not be visible to the naked eye. Dr. Chesney, the pathologist who examined the fallopian tube segments excised by Dr. Souder, also testified that the tiny silastic rings sometimes become encapsulated with tissue and may be invisible to the naked eye. With regard to the lack of scarring, Dr. Pridham testified that "[m]ost of the time you can identify a scarred area, an area that is absent of apparent tubal lumen, but that is not always the case . . . there have been a number of occasions when I have been looking at a uterus, often at the time of hysterectomy and occasionally at the time of re-anastomosis (reversal of a tubal ligation)where it's been difficult to tell where the tube has been obstructed."

All of the physicians testified that tubal ligations can fail due to the "recanalization" of the fallopian tubes. According to Dr. Pridham, this recanalization is not always evident to the naked eye.

Further, all physicians testified and all proof indicated that the methylene blue dye test is not a perfect indicator of tubal occlusion. Spillage of blue dye from the fimbriated end of the tube indicates that the tube is not occluded; the fact that blue dye does not spill from the fimbriated end is not proof that the tube is occluded. (The proof showed that the dye may not spill from the fimbriated ends of a patent (non-occluded) tube for several reasons: (1) The dye is not properly injected into the uterus, which would constitute negligence on the part of a medical 10

professional; (2) The fallopian tube can spasm, shutting off the flow of the dye; (3) Another occlusion or obstruction in the tube can prevent the flow of the dye. Items 2 and 3 would not constitute negligence on the part of a medical professional.) Nevertheless, the blue dye test was the only available test which could be performed after tubal ligations which gave an indication of occlusion, and administering this test was the standard of care in this operation.

It must be found that Dr. Pridham's credentials more thoroughly qualify him to opine in the field of tubal ligations and, specifically, in the area of re-anastomosis of fallopian tubes. As was previously stated, Dr. Pridham's area of specialization is in reproductive endocrinology, and as a part of his work he has personally viewed the fallopian tubes of approximately 200 women who had undergone tubal ligations. (Dr. Pridham's field of specialization involves reversals of tubal ligations.) His

credentials evidence a special knowledge in the field of sterilization by tubal ligation.

Dr. Alexander's testimony cannot be given as much credence as Dr. Pridham's for several factual reasons: (1) Dr. Alexander had never performed a tubal ligation using silastic rings; (2) He had personally seen the internal anatomy of only one patient who had previously undergone an unsuccessful tubal ligation procedure; and (3) Dr. Alexander's testimony evidenced some confusion with regard to the usage of the words "proximal" and "distal" in relation to the two ends of a fallopian tube. This confusion resulted in a misinterpretation of the pathology laboratory's findings concerning the location of the silastic ring 11

found by Dr. Souder.

Dr. Pridham's testimony effectively and credibly refutes the claimant's assertion that Dr. Souder s [sic] findings prove that malpractice was committed by Dr. Ware. Dr. Pridham gave convincing testimony that silastic bands can become displaced even when properly placed. He also gave convincing testimony concerning a fallopian tube's ability to show no immediatelyvisible signs of scarring and/or occlusion following successful ligation. Therefore, it would appear that even though Dr. Souder may not have found silastic rings where Dr. Ware should have placed them, this is not absolute proof that Dr. Ware incorrectly placed the rings.

Further, it must be noted that the accuracy of Dr. Souder's operative notes appears questionable when compared with Dr. Chesney's (the pathologist's) findings. First, Dr. Chesney

described receiving the fimbriated ends of the left and right fallopian tubes. Dr. Souder's operative notes indicate that she excised two "knuckle[s] of tube." Dr. Chesney testified, "[i]t sounds like she's taking out a segment of the mid portion of the fallopian tube, but not taking out the distal [fimbriated] end of the tube . . . I would say that this sounds like she's done a different operation than the operation you would do to get the specimen that we got." Secondly, Dr. Souder described having observed the left silastic ring on the mesosalpinx, while Dr. Chesney's observation was that the "fallope ring [was] present at the proximal end of the specimen." According to Dr. Chesney, the "proximal end" was the cut end of the specimen -- the end closer to the uterus. Except for certain testimony of Dr. Alexander in 12

interpreting Dr. Chesney's pathology report, all the physicians who discussed the terms "proximal" and "distal" as it pertained to a fallopian tube testified that, in medical terminology, the proximal end of the fallopian tube was that part nearer to the uterus, and the distal end was that part nearer to the fimbriated end. During specific questioning regarding the location of the silastic ring on the specimen received by the pathology lab, Dr. Chesney testified that he believed that the ring "was on the tube rather than on the mesosalpinx." Dr. Chesney studied the

specimen in the laboratory and, therefore, his pathological analysis of the tissue samples would have been more thorough than Dr. Souder's clinical observations. Thus, it would appear that at least two of Dr. Souder's observations -- (1) the portions of tube she excised and (2) the location of the left silastic band -were incorrect.

In must further be noted that Dr. Souder's claim that the fallopian tubes were "brought to the surface in [their] entirety" was found by Dr. Pridham to be unusual or unlikely. Dr. Pridham explained that, while the fimbriated ends of fallopian tubes (the "distal" ends) are "somewhat loose," they are held in place near the ovaries by ligaments. Dr. Souder did not use a laparoscope during the tubal ligation procedure. Access to the fallopian tubes was gained through a small incision (typically

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