1

 The portion of Donaldson’s malpractice action premised on operative negligence refersto Dr. Beavers’ alleged

negligence in severing Donaldson’s bile duct and liver artery during a laparoscopic cholecystectomy procedure.

Donaldson’s assertion of post-operative negligence is based on Dr. Beavers’ perceived failure to timely detect or treat

(continued...)

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 7, 2002 Session

SHERITA L. DONALDSON v. LANA BEAVERS, M.D.

A Direct Appeal from the Circuit Court for Bedford County

No. 7982 The Honorable Franklin L. Russell, Judge

No. M2002-00197-COA-R9-CV - Filed January 7, 2003

Patientfiledmedical malpractice action against physician alleging negligence in performance

of operation procedure and negligence in physician’s post-operative care. Jury returned verdict for

physician on the issue of negligent post-operative care but deadlocked on the issue of negligence in

performance of surgery. Trial court declared a mistrial and entered an order denying physician’s

motion for entry of final judgment on the issue of post-operative care and ordering a new trial on all

of patient’s claims. Physician was granted interlocutory appeal. The only issue for review is

whether, under the circumstances of this case, a new trial should be confined only to the issues of

the physician’s negligence in performing the surgery. We affirm and remand. 

Tenn. R. App. P. 9; Interlocutory Appeal; Judgment of the Circuit Court Affirmed and

Remanded

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER,

J. and PATRICIA J. COTTRELL, J., joined.

Thomas Pinckney, Nashville, For Appellant, Lana Beavers, M.D.

William Kennerly Burger, Murfreesboro, For Appellee, Sherita L. Donaldson

OPINION

This dispute arises from a medical malpractice action in which appellee-patient Sherita

Donaldson (“Donaldson”) seeks damages for injuries allegedly caused by the negligent operative and

post-operative treatment provided by appellant-physician Dr. Lana Beavers (“Dr. Beavers”).1
1

(...continued)

problems allegedly suffered by Donaldson immediately following the surgery.

2

 A laparoscopic cholecystectomy can be defined as follows:

A cholecystectomy is the surgical removal of the gallbladder.... The technique is

performed as follows. The patient receives general anesthesia. Then a small incision

is made at the navel ... and a thin tube carrying the video camera is inserted. The

surgeon inflates the abdomen with carbon dioxide, a harmless gas, for easier

viewing and to provide room for the surgery to be performed. Next, two needle-like

instruments are inserted.... These instruments serve as tiny hands within the

abdomen. They can pick up the gallbladder, move intestines around, and generally

assist the surgeon. Finally, several different instruments are inserted ... to clip the

gallbladder artery and bile duct, and to safely dissect and remove the gallbladder

and stones. When the gallbladder is freed, it is then teased out of the tiny navel

incision. The entire procedure normally takes 30 to 60 minutes. The three puncture

wounds require no stitches and may leave very slight blemishes. The navel incision

is barely visible.

Jackson Gastroenterology, Laparoscopic Cholecystectomy, <http://www.gicare.com/pated/epdlv01.htm>, visited Dec.

13, 2002.

-2-

On October 22, 1997, Dr. Beavers performed a laparoscopic cholecystectomy2

 on Donaldson

for the purpose of “alleviat[ing] a problem with gallstones.” In a complaint filed October 6, 1998,

Donaldson presents a single claim for medical malpractice against Dr. Beavers, framing the factual

basis for her action as follows:

Plaintiff, SHERITA L. DONALDSON alleges that she was a patient

of the Defendant, DR. LANA BEAVERS in October, 1997, and that

she underwent a surgical procedure designed to alleviate a problem

with gallstones. During the performance of the surgical procedure by

the Defendant, DR. BEAVERS, Plaintiff alleges and avers that the

Defendant accidentally severed both a bile duct and a liver artery,

which remained undetected for several days following the surgical

procedure, and resulted in serious, life-threatening complications.

Plaintiff asserts that the severed, common bile duct and artery

resulted in the development of a condition known as bile peritonitis

and right hepatic arteria thrombosis, resulting in severe infection.

Plaintiff developed necrosis to affected tissue; and intense abdominal

pain; bile ascites, and the development of hepatic arterial thrombosis

due to clotting, with infection affecting the liver, lower intestine,

stomach, and kidneys. Plaintiff asserts that, notwithstanding the

development of immediate, acute and abnormal symptoms following

the accidental transection of the duct by the Defendant, the Defendant

disregarded the Plaintiff’s immediate complaints of nausea and

intense pain, and failed to respond immediately by performing an
-3-

exploratory procedure. In the days immediately following the

surgery, Defendant referred the Plaintiff’s complaints to a physicians

assistant. On Monday (following surgery the previous Thursday) bile

was observed literally seeping through the Plaintiff’s incision site.

Following a period ofrepeatedhospitalizations and acutely worsening

symptoms, Plaintiff was hospitalized with life-threatening vital signs,

upon reference to a Columbia physician,who immediately recognized

the severity of the Plaintiff’s condition, and caused the Plaintiff to be

transported to Vanderbilt University Medical Center for emergency

surgery. Plaintiff, following the performance of appropriate repairs

to the transected bile duct, and related procedures necessitated by the

arterial thrombosis and bile peritonitis, remained hospitalized in the

intensive care unit at Vanderbilt for several days, and subsequently

underwent a period of several months of convalescence, necessitated

by her weakened condition, and the trauma to the organs in the areas

affected by the abdominal peritonitis.

Plaintiff asserts that the Defendant, as a licensed surgical physician,

owed a duty of care to perform the surgical procedure, and the followup care, in a manner consistent with the prevailing standard of care

for the community. Plaintiff asserts that the conduct described above,

in accidentally severing the bile duct, and failing to respond

immediately to the acute symptoms, constitutes a substantial and

gross deviation from the prevailing standard of medical care in the

community, which directly and proximately resulted in the injuries

complained of herein.

Dr. Beavers filed an Answer in response to Donaldson’s Complaint. In her Answer, Dr.

Beavers admits that “[s]ubsequent events have led Dr. Beavers to believe that she did accidentally

lacerate the bile duct and right hepatic artery, complications which may occur during this type of

surgery even with the utmost care having been exercised.” Dr. Beavers denied that she failed to meet

the applicable standard of care and disclaimed liability for Donaldson’s alleged injuries, and further

noted:

When Ms. Donaldson developed post-discharge complications, she

was properly treated by Dr. Beavers and referred to another local

physician. She was then transferred to Vanderbilt University Medical

Center for treatment. Surgery was performed at Vanderbilt on

November 10, 1997 after a November 5, 1997 admission. Upon

information and belief, Dr. Beavers asserts that Ms. Donaldson has

made an appropriate and full recovery.
-4-

The case was tried before a jury from July 16, 2001 through July 19, 2001, and

interrogatories were submitted to the jury on the separate issues of operative and post-operative

negligence. According to Dr. Beavers’ Statement of the Case, outlined in her brief to this court and

adopted by Donaldson, “[t]he verdict form presented to the jury requested the jury to make separate

findings as to negligence during the operative care and negligence during the post-operative care.”

On July 19, 2001, the jury returned a verdict for Dr. Beavers on the issue of post-operative

negligence, finding that appellant did not breach the standard of care in her post-operative treatment

of Donaldson. As to the issue of operative negligence, the jury announced that it was unable to reach

a unanimous verdict on the question of whether Dr. Beavers breached the standard of care in

performing the October 1997 laparoscopic cholecystectomy on Donaldson.

On July 23, 2001, the circuit court entered an “Order From Jury Trial,” stating that the jury

had reached a unanimous verdict for Dr. Beavers on the issue of post-operative negligence, but was

deadlocked on the question of operative negligence. On this basis, the court declared a mistrial as

to the issue of whether Dr. Beavers breached the standard of care in performing the surgery

(operative conduct), “and on the issue of what amount of damages were legally caused by such

breach.” The court reserved judgment on the significance of the jury’s finding that Dr. Beavers did

not violate the standard of care as to her post-operative treatment of Donaldson. We quote from the

Order of the Court:

IT IS ORDERED that a mistrial is declared as to the issue of

whether Defendant Lana Beavers violated the standard of care in her

performing of surgery on Plaintiff Sherita L. Donaldson and on the

issue of what amount of damages were legally caused by such breach,

but the issue is reserved as to the significance of the jury’s finding

that Defendant Lana Beavers had not breached the standard of care in

her post-operative treatment of Plaintiff Sherita L. Donaldson. Any

claim of medical malpractice based upon the cutting of a second bile

duct (other than the common bile duct) is dismissed.

Although not a part of the record before us, it appears that Dr. Beavers filed a motion for a

final judgment on the issue of post-operative negligence and to limit the new trial to the issue of

operative negligence. By Order entered January 24, 2002, the motion was denied, and the court ruled

that “the retrial of this matter should not be limited and the jury should consider all claims against

defendant in a new trial.”

Also, on January 24, 2002, the trial court entered an order granting Dr. Beavers’ motion for

a Rule 9 interlocutory appeal. This court subsequently granted Dr. Beavers’ interlocutory appeal.

The only issue for review is whether, under the facts of this case, the new trial should include

all issues or be limited to the issue of appellant’s negligence in the performance of the surgery.
-5-

The circuit court’s order that all issues should be considered in a new trial, despite the jury’s

verdict for Dr. Beavers on the post-operative negligence issue, is a question of law. As such, our

review of the circuit court’s order is de novo upon the record with no presumption of correctness

accompanying the trial court’s conclusions of law. See Tenn. R. App. P. 13(d); Waldron v. Delffs,

988 S.W.2d 182, 184 (Tenn. Ct. App. 1998); Sims v. Stewart, 973 S.W.2d 597, 599-600 (Tenn. Ct.

App. 1998).

A litigant has a constitutional right to have material controverted issues tried by the jury, but

there is no requirement that the issues must be submitted to the jury at the same time. Ennix v. Clay,

703 S.W.2d 137 (Tenn. 1986). In Ennix, the Court said:

In fact, the practice in Tennessee has long allowed the divisibility of

verdicts. For example, it is common practice for a civil case to be

remanded and retried on only the issue of damages. See Perkins v.

Brown, 132 Tenn. 294, 177 S.W. 1158 (1915);Fuller v. Speight, 571

S.W.2d 840 (Tenn. App. 1978). This also has been common practice

in North Carolina. See Nathan v. Charlotte St. Ry. Co., 118 N.C.

1066, 24 S.E. 511 (1896); Bowen v. Constructors Equip. Rental Co.,

283 N.C. 395, 196 S.E.2d 789 (1973). Furthermore, a criminal case

may be remanded solely for a new determination of punishment. See

Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956). We also

note that our habitual criminal and first degree murder statutes, both

of which provide for bifurcated trials, have been held constitutional

under both state and federal constitutions. See Tenn. Code Ann. §§

39-1-801 and 39-2-203. 

While we hold that a litigant has no constitutional right to

have all controverted issues submitted to the jury at the same time, we

also hold that a litigant has no right to a bifurcation of issues. The

decision whether or not to sever the issues for the jury must be left to

the sound discretion of the trial judge, and the interests of justice will

warrant a bifurcation of the issues in only the most exceptional cases

and upon a strong showing of necessity. In making its decision the

trial court should consider the possibility of juror confusion, the risk

of prejudice to either party, and the needs of judicial efficiency.

Above all, the issues at trial must not be bifurcated unless the issue

to be tried is so distinct and separable from the others that a trial of it

alone may be had without injustice. Gasoline Products Co., Inc. v.

Champlin Refining Co., 283 U.S. 494, 500, 51 S. Ct. 513, 75 L. Ed.

1188 (1931). 

Id. at 139.
-6-

As previously noted, the instant case involves one claim for medical malpractice because of

the actions of the appellant-physician in two areas. It is first alleged that she was negligent in

performing the operation and subsequently was negligent in her failure to recognize the problems

incurred by appellee post-operatively. If, on retrial, the appellant-physician is found negligent in the

performance of the operation, then the question would be presented as to what damages should flow

from that negligence. This presents a situation analogous to the case of a defendant tortfeasor’s

liability for damages resulting from plaintiff’s negligent treatment for the injuries inflicted by the

initial tortfeasor. In Transports, Inc. v. Perry, 414 S.W.2d 1 (Tenn. 1967), our Supreme Court said:

This Court, like most others, recognizes that if one is injured by the

negligence of another, and these injuries are aggravated by medical

treatment (either prudent or negligent), the negligence of the

wrongdoer causing the original injury is regarded as the proximate

cause of the damage subsequently flowing from the medical

treatment. See Revell v. McCaughan, 162 Tenn. 532, 538, 39 S.W.2d

269 (1931); Shipley v. Wellwood Silk Throwing Mills, 164 Tenn.

281, 47 S.W.2d 561 (1932); Mallette v. Mercury Outboard Supply

Co., 204 Tenn. 438, 450, 321 S.W.2d 816 (1959).

Id. at 4-5.

Of necessity, appellee on retrial would present evidence concerning all of the post-operative

occurrences for which damages are sought. The issue of the physician’s negligence for the postoperative treatment is so interwoven with the question of damages incurred because of such

treatment, we believe that the circuit court correctly determined that there should be a trial on all

issues. This Court, as our Supreme Court in Ennix, supra, has determined that “we find no

indication that bifurcation of the issues was necessary to avoid juror confusion, protect a party from

prejudice, or promote judicial efficiency.” 703 S.W.2d at 140. Therefore, we find no abuse of

discretion on the part of the trial court and order a retrial on all of the issues.

Accordingly, the order of the circuit court is affirmed, and the case is remanded to the circuit

court for such further proceedings as may be necessary. Costs of the appeal are assessed to appellant,

Lana Beavers, M.D., and her surety.

__________________________________________

W.FRANKCRAWFORD,PRESIDINGJUDGE,W.S.