1 The portion of Donaldson’s malpract ice act ion premis ed on operati ve negli gence refers t o Dr. Beavers’ all eged negl igence in sev ering Donaldson’s bile duct and li ver art ery duri ng a lapar oscopic chol ecyst ectomy procedur e. Do nalds on’s asser tion of post- operati ve negl igence i s based on Dr. Beaver s’ per ceived f ailu re to timely detect

or trea t (con tinued ...) 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Novem ber 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

Patient filed medicalmalpractice action against phy sician alleging neglig ence in performanc e of operation procedure and neg ligencein physician’s post-opera tive care. Jury returned verdict for physician on the issue of negligent post-operative c are but deadlocked on the issue

of neg ligenc e in performance

of su rgery . Trial court declared a mistrial and entered an order deny ing physician’ s motion for entry

of final j udgmen

t on the issue of post- operati ve care and orde ring a new trial

on all of patie nt’s c laim s. Ph ysician w as gr anted inter locutory appeal. The only

issue for review i s whether, under the

circumst ances of this case, a new trial

should be confined only to the issues of the physician’s neg

ligence in performing the surg ery. We af firm and remand.

Tenn. R. App.P. 9; Int

erlocut ory Appea

l; Judgme

nt of the Cir

cuit Cour

t Affirme d and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and P ATRIC IA J. C OTT RELL , J., joined. Thomas Pinckney, Nashville, F or Appellant, Lana B eavers, M.D. William Kennerly Burg er, Murfreesboro, For Appellee , Sherita L. Donaldson
OPINION

This dispute a

rises fr om a medic al malpra

ctice a ction in wh

ich appe llee-pa tient Sher it a Donaldson(“Donaldson”) seeks damage s for injuries allegedly caused by the

negligent ope

rative an d post-operative treatment provided by appellant-physicia

n Dr. Lana Be avers (“Dr. Beavers”). 11 (.. .cont inu ed) pro blem s alleged ly suffered by D ona ldson imme diately fo llowing the surg ery.

2 A laparo scopic ch olecystectom y can be d efined as follows:

A cholecy stect omy is t he surg ical removal of the gallblad der.... T he tech nique is performed as foll ows. The pati ent re ceives general anesthesia. Then a smal l i ncis ion is made at t he navel

... and a thi n tube ca rrying the vid eo camera is inserted. The surg eon i nflates th e abdomen with carbon dioxi de, a harml ess gas , for easie r viewing and to provide room for the surgery to be pe rformed. Next, two needle-li ke instrum ents are insert ed.... These inst ruments serve as tiny hands wit hin the abdom en. They can pick up the gallbladder, move intestines a roun d, and gener ally assist the surgeon. Final ly, s everal diff erent instrume nts are ins erted

... to clip the gall bladder artery and bile du ct, and to sa fely dis sect a nd remove the gall bladder and stones. W hen the gallbladd er is freed, it is then tease d out of the tiny n avel incisi on. The entire procedure normally takes 30 to 60 minutes. The three puncture wounds requir e no sti tches and may leave very sl igh t bl emis hes. The nave l i ncis ion is bare ly vi sibl e.

Jacks on Ga stroen terolo gy, Laparoscopi c Cholec yst ectomy , <http: //www. gicare .com/pat ed/epdlv01.h tm>, vi sit ed Dec. 13, 2002.
-2- On October 22, 1997, Dr. Beavers per formeda laparos copic cholecy stectomy 2 on Donaldson for the pu rpose of “all eviat [ing] a pr obl em w it h ga ll st one s.” In a complaint filed October 6, 1998, Donaldson present s a singl e claim f or medic al malpra

ctice a gainst Dr. Beavers, framing the f actual basis for her act ion as follows:
Plaintiff, SHERITA L . DONALDSON alleges that she was a patient of the Defe ndant, DR. LANA

BEAVERS in October, 1997, and that she underwe

nt a surgi c al procedure designed to alleviate a problem withgallstones. During the performance of the surgicalprocedure by the Defendan t, DR. BEAVERS, Plaintiff alleges and avers that the Defendant

accidentally

severed both a bile duct and a liver ar te ry, which r em ained undetected for several day s following the surgical procedure, and resulted in ser ious, life -threa tening c omplicati ons. Plaintiff asserts that the severed, common bile duct and artery resulted in the development of a condition known as bile per

itonitis andright he

patic ar teria thr ombosis, r

esulting in sever e in fection

. Plaintiff developed necros is to affected tissue; and intense abdominal pain; bile ascites, and

the developm

ent of he patic ar terial th rombosis due to clo ttin g, with in fection affecting the liver, lower intestine, stomach, and kidneys. Plaintiff asser ts tha t, notwithstanding the development

of immediate, acute and abnormal sy mptoms following the accidental transection

of the duct by the De

fendant, the Defendant disregarded

the Plaintiff’ s imm ediate complaints of nausea and inte nse pain, and failed to respond immediately by perfor

ming an-3- exp lorat ory

procedure. In the

days immediately

following the
su rg er y, Defendant referred the Plaintiff’ s complaints to aphysicians assistant

. On Monday (following surgery the previousThursda

y) bile
was observed literally seeping through t he P laintiff’s incision site. Following a period o f repeated hospitaliza ti ons and acutely w orsening sympt oms, Plaintiff was hospitalized with life-threatening vital signs , upon reference to a Columbia physician, who imme diately rec ognized the severity of the Plaintiff’ s condition, and caused the Plaintiff to be transportedto Vanderbilt University Medic a l C enter for emergency su rg er y. Plaintiff, following the performance of appropriate r epairs to the tran sected b ile duct, and related procedures nece ssitated by the arterial thrombosisand bile p eritoniti s, remain ed hospita

lized in the intensive care un

it at Vand

erbilt fo r sever al d ay s, and sub sequentl

y underwent

a period of severalmonths of convalescence, necessitated by her wea kened c ondition, a

nd the tra uma to the organs in the areas affec ted by

the abdom

inal per itonitis.

Plaintiff asserts that

the Defe ndant, asa

licensed surgical phy sician, oweda duty of ca

re to perform the surgical procedure , andthe followup care, in a manner consistent with the prevailing sta n da rd of care for the community. Plaintiff

asserts that the conduct described above, in accide ntally severing the bil e duct, and failing to respond immediatel yt o the acute symptoms, constitutes a substantial and gross deviation from the prevailing standard of medi cal care in the
co mm un it y, which directly a nd proximatel y r esulted in the injuries complained of herein.

Dr. Beavers filed an Answer in re sponse to Donaldson’s Compl aint. In he r Answer, Dr. Beavers admits tha

t “[s]ubsequ ent even

ts have led Dr. Be avers to believe that she d

id accid entally lacera te the bile duct and right hepatic artery , complications which may occ ur during this type of surgery even with the utmost care having been exercised.” Dr. Beave rs denied that she failed to meet the applica

ble stand ard of c are and

disclaimed liability

for Dona ldson’s a lleged injuries, andfurther noted:

When Ms. Donaldson developed post-di sch arge complications, she

was properly tre ated by Dr. B eavers and refe rre d to another local physician. She was then transferred to Vanderbilt University Medical Center for treatment. Surgery was per for med at Vanderbilt on Novemb er10, 19 97 after a November 5, 1997 admission. Upon information and belief, Dr. Beav ers asserts that Ms. Donaldson has
ma de an ap pr op ri at e a nd fu ll re co ve ry.-4-

The case wa s tried before a jury from July 16, 2 001 through July 19, 2001, and interrogatories were submitted to the jury on the se par ate issues of operative and post-operative negligence. According to Dr. Beave rs’ Statement of the Case, outlined in her brief to this court and adoptedby Donaldson, “[t]he verdict form pre sented to the jury requested the jury to make sep arate findi ngs 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. Be avers on the issue of post-operative negligence, finding that appellant did not breach the standard of care in her post-opera tive treatment of Donaldson. As to the issue of operative neglige nce, the jury a

nnounced that

it was unable to reach
a unanimous verdict on the question of whether Dr. Bea vers breac hed the st

andard o f care

in performing the October 1997 laparosc opic cholecy stectomy on Donaldson.

On July 23, 2001, the circuit court entered an “Order From Jury Trial,” stating that the jury hadreached a unanimous verdict for Dr. Beavers on the issue of post-operative negligenc e, but was deadlocked

on the que stion of op erative neglig ence. O n this basis, the court declared a mistrial as to the issue of whether Dr. Beaver s brea ched the standard of care in perf orming the surgery (operative conduct), “and on the issue o f what amount of damages were legally caused by suc

h breach.” The court reserved judgment on the significance of the jury ’s finding that Dr. Beave rs did notviolate the standard of care as to her post-operative trea tment of Donaldson. We quote from the Order o f the Cour

t:

IT IS ORDERED that a mist rial is de clared

as to the is su e 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 leg ally caused by such breach, butthe issue

is reser ved as to t

he si gnificance of the jury’s finding that Defendant Lana

Beavers had not breached the stand ard of c are in her post-operativetreatme

nt of Plain

tiff Sher ita L. Donaldson. Any claim of medical malpractice based upon the cutting of a second bile duct (other than the common bile duct) is dismissed.

Alth ough not a part of the record before us, it appears that Dr. Beavers filed a motion for a fina l judgment on the issue of post-operative negligenc e 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 con sider all

claims ag ainst defendant in a new trial.”
Also, on January 24, 2002, the trial court e ntered anorder

granting Dr. Bea

vers’ motion for
a Rule 9 inte

rlocutor y a ppeal. T his court subseque ntly granted Dr. Be avers’ interlocutory appeal.

The only issue for revie

w is whether, under the

facts of this case , the new

trial should include al l i ss ue s o r b e l im it ed to th e i ss ue of ap pe ll an t’ s n eg li ge nc e i n t he pe rfor ma nc e o f t he su rg er y.-5-

The circuit court’s order that all issues should be c onsidered in a new trial, de spitethe jury’s verdict for Dr. Beavers on

the post-ope rative negligence issue, is a que stion of law. As such, our review of the ci

rcuit court’s ord

er is de novo upon the record with no pres umpt ion of cor rectne ss accompany

ing the trial court’s conclusions of law. See Tenn. R. A pp. P. 13(d

); Waldron v. Delffs , 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998); Sims v. Stewart , 973 S.W.2d 5 97, 599-6 00 (Tenn . Ct. App. 1998). A litigant has a con stitutiona

l 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 pract

ice in Te nnessee has long allowed t he divisib ility

of verdict s. For examp le, it is co mmon practic e fo r a civil case to be remanded and retried on only

the issue of damages. See Perki n s v. Brown , 132 Te

nn. 29 4, 177 S.W. 1158 (1915); Fuller v. Sp eight , 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 crimina l case may be rema nded sole ly for a new determination of punishment. See Huffman v. State , 200 Tenn. 487, 292 S.W.2d 738 (1956). We also notethat our h abitual c

riminal a nd first degree m

urder st atutes, b oth of which provide for

bifurcated trials, have been held constitutional
un derboth state and federal constitutions. See Tenn. Code Ann. §§ 39-1-801 and 39-2-203.

While we hold th at a litig ant has no constituti onal rig

ht to have all controverted issues submitted to the jury at the same time, we also hold that a

litigant has no rig

ht t o a bifurcation of issues. The decision whether

or not tosever the issues for the jury must be lef

t to the sound discretion of the trial judge, and the in terests o f justice

will warrant a bifurcationof the issues in only the most exceptional cases andupon a strong showing of necessity . In making its decision the trial court should consider the possibility of juror co nfusion, t

he risk of prejudice to either par

ty, and th e n ee ds of

ju di ci al ef

fi ci en cy. Above all, the is sues at t

rial must not be bifurcated unless the issue to be tried is so distinct and separable from the others th at a tria

l of it alon e m ay be ha

d 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 o f the app ella nt-physician in two area s. It i s first alleged t hat she w as neg ligent in performing the operation and subsequently was negligent in her failure to recognize the pr obl ems incurred by a pp el le e p os t- op er at iv el y. If, on retria l, the app ellant-p

hys ician is found negligent in the performance

of the operation, then the q uestion wo

uld be pre sented a s to what damages should flow from that negligence. This pr esents a situation analogous to the case of a def endant tortfeasor’s liability for damages resulting from plaintiff’ s negligent treat me nt for the injuries inflicted by the initial to rtf eas or. In Transports, Inc. v. Pe rry , 414 S.W.2d 1 (Tenn. 1967), our Supreme Court said: This Court, like most others, recognizes that if oneis injured by the negligence

of another, and

these injuries are aggr

avated by medical treatment (either prudent or neglige nt ), the negligence of the wrongdoer

causing the origin al injury

is rega rded as t he proxima

te cause of the damage subsequently flowing from the medical treatme nt. See Revell v. McCaughan , 162 Tenn. 532, 538, 39 S.W.2d 269 (1931); Shipley v. Wellw ood Silk Thro wing Mills , 164 Tenn. 281, 47 S.W. 2d 561 (19 32); Mallette v . Mercury Outboard Sup ply Co. , 204 Tenn. 438, 450, 321 S.W.2d 816 (1959).
Id. at 4-5.

Of necessity, appe

llee on retrial would present evidence conc erning all of the post-operative
occurrences for which damag es are s ought. T he issue o f the phy sician’sneglig ence fo r the post

operative treatme

nt is so i nterwoven with the question of damages incurred because of such treatme nt, we belie

ve that the circu

it court c orrect

ly d etermined 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 preju dice, or promote judicial efficiency .” 703 S.W.2d at 140. Therefore, we find no ab use o f discreti on on the p art of the trial cou rt and or der a re trial on a ll of the is sues.
Ac co rd in gl y, the order of the circuit court is affir med, and t

he case is remand

ed to the circuit court for such further proceeding s as may be ne ce ss ar y. Costs of the

appeal a re asse ssed to ap

pellant, Lan a B ea ve rs , M .D ., an d h er su re ty.

__________________________________________ W

. FRANK CRAWFORD, P RESIDI NG JUDGE, W.S

.