### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON APRIL 20, 2001 Se ssion

BILLY WAYNE WALK ER, individually and on behalf of his deceased wife, MAYREAN WA LKER v. STATE OF TENNESSEE
Appeal from the Claims Commission for the State of Tennessee, Wester n Division No. 97002365 Randy Camp, Commissioner

No. W2000-03079-COA-R3-CV - Filed February 5, 2002

This is a medical malpractice action be fore the Tenness ee Claims Commission. The Commission found that the evidence presented by the plaintiff was insufficient to establish that the defendant’s employees failed to meet the require d standard of care. The plaintiff appea led the decision of the Claims Commission, asserting that the Commission improperly reviewed medical sources no t presented at trial. We affirm, finding that the Commission did not base its decision on information outside the record and that any such review wa s harmless error.
Tenn R. App. P . 3 Appeal as of Right; Judgment of the Com mission Af

firmed

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.
Al H. Thomas and Regina Guy, Memphis, TN for the appellant, Billy Wayne Walker

. Thomas McAlexander, Memphis, TN for the appellee, State of Tennessee.

OPINION

This is a medical malpractice action, arisingfrom the p atient’stragicdeath. Mayrean Walker (“Mrs. Walker

”) suff ered se rious injuries a s a result of a car accident on September 13, 1995. Shortlyafter the ac cident, she was transferred to the intensive care unit at the Regional Medical Center in Memphis and placed on a mechanical ventilator. A breathing tube was inserted into the her airway. On September 26, 1995, Mrs. Walker was taken off the mechanical ventilator. The next day, she was tr

ansfer red fro m the inten sive car

e unit to a regular

hospital room. Her condition began to improve a

nd she wa s b eing cons i dered for discharge. On October 10, 1995, however, she had developed

hoarseness. She was examined by Seth Linker, M.D., an otolaryngology (ear, nose a nd throat or “ENT” ) reside

nt employe d by the Un

iversity o f Tenne ssee. Af te r another exam by Dr. Linker, Mrs. Walker’s hoarseness bega n to improve.1 Dr. Li nker s tat ed tha t the reas on he was gi ven for paral yzing the pa ti ent was that she had r ecent ly ea ten a nd the an esthes iologis t thought t hat she might vomit and as pirat e the content s during t he operati on if she w ere no t para lyzed

. -2- On October 15, the patient’s hoarseness worsened and she began to suffer from respiratory distress. Because of his previous examinations, Dr. Linker believed that a ny obstruction must have been below the previously examined area. Dr. Linker contacted Chi Nguyen, M.D., the chief resident over ENT residents, and Joseph Allegretti, M.D., who served a s a fellow in ENT; both were also employed by the University of Tennessee. Dr. Li n ker consulted with Dr. Nguyen and Dr Allegreti about Mrs. Walker’s situation because he believed her condition had become critical.

After consultin g with Drs

. Nguyen and Allegretti, Dr. Linker prepared for an endoscope a nd possible tracheotomy and

laser removal of

granula tion tissue . Dr. Link

er told the nurse anesthetist th at the patient was to be slightly sedated using an IV rather than being completely par alyzed , t o allow her to continue breathing on her own. Despite this, for re asons unc le ar in the record, an anesthe tic was administered

which paralyzed the patient, leavingher incapable of breathing without the aid of a breathing tube. 1 The nurse anesthetist attempted to intubate the patient b y orall y inserting an endotracheal tube. The endotrac heal tube was met with resistance, so a smaller tube was inserted. Howeve

r, the sma ller tube tended to back out of the airway once the balloon or cuff at the end of the tube was inflated. This made it impossible to secure the tube in place with tape, as was the standard procedure. Consequently, the nurse ane sthetist was forced to hold the tube in place. Dr. Nguyen arrived shortly after the patient had be en paralyzed and intubated.

When Dr. Allegretti arrived, he was concer ned t hat the endotracheal tube held in place by the nurse might shift or be dislodged from the airwa y. After the three ENT doctors discussed the problem, Dr. Allegretti decided that a tracheotomy was nee ded to secure a more stable airway. Dr. Linker made an i ncision th

rough the patient’ s n eck and

into the trachea and then inserted a trac heotomy

tube down into the trachea. However, Dr. Linke r could not get the t ube to go an y further than approximatelyone-and -a-hal f inches . Differ ent size d tubes we

re used i n an atte

mpt to establish an airwa y, but all were unsuccessful. The patient went sever al minutes without oxygen before the doctors were finally able to force a tube down and oxygenate the left lung. Mrs. Walker

was eventua

lly stabilize d, but the s ix-to-ei ght minute period with no oxygen left her brain dead. She died six months later.

Mrs. Walker ’s husband, Billy Walker, filed a claim against the State of Tennessee under the Tennessee Board of Claims Act, Tennessee Code Annotate d § 9-8-101, et seq, alleging that the employee physicians “did not exercise the degree of care , skill and

diligenc e used by

hospitals and their staff generally in this community.” In Se ptember 2000, the Tennessee Claims Commission conducted

a four day hearing. The Commission reviewed the depositions of the three members of the ENT team , Dr. Alle gretti, D r. Nguye n, and Dr . Linker, as well a s t hat of the EN T department head, Kevin Robbins, M.D., and the anesthesiologist, Jeffery Jernigan, M.D. The Commiss ion also reviewed the depositions of three medical experts, a radiologist, Thomas Sweeney, M.D., a nd two otolaryngologists, Perry Harris, M.D. and Neal Beckford, M.D.-3-

The Plaintiff’s otolaryngology expert, Dr. Harris, asserted that the ENT doctors did not act within the applicable standard of care in perfor ming the tr

acheoto my. He fe

lt that the ENT doctors

were unable to immediatel y find the airw ay and then panicked, and as a result the patient we nt several minutes without oxygen. Dr. Harris’s opinion was based on the assumption that the patient

was being prope rly ventil a ted throu gh the end otrache al tube be

ing held in

place by the nurse anesthe thist and, therefore, the ENT doctors had ade quate time to establish an airway. The Defendant’s otolaryn gology ex pert, Dr. Beckford, stated

in his deposition that the tracheotomy was done under em

ergenc y circum stances , becau se the or iginal tube

was i m properly seated. Dr. Beckford maintained that the ENT doctors acted within the applicable standard of care in attempting to alleviate the patient’s condition.

After the hearing, the Commission entered written findings. The Commiss ion did not c redit the testimony of Dr. Harri s, finding tha t his opinion s were b ased on f acts not in

evidenc e or facts regarding which Dr . Harrishad no exp erience or expertise. The Commission noted Dr. Harris’s assumption that the patient was properly intubated before the ENT doctors began the tracheotomy. The Commission stated:

The Commission isfamiliar withand has read

and reviewed several medical tre atises and articles on this subject, many of w hich were referre d to dur ing the taking of testimonyin this case. These material s are clea r - a critical point in handling an endotrachealtube is maintaining its position after successful insertion. Careful and firm taping is imperative after trachea l intubation is confirmed.

This Commission, however , cannot b e its’ [sic] o wn expert. This Commission cannot ta

ke into ac count a f

act which it simply

believes to be true. This Commission cannot make assumptions. The decision of this Commi ssion must be based upon the evidence presented.

The Commission then reviewedthe testimony of Dr. Alleg retti, noting his opinion that the airway established, with the endotracheal tube held in place by the nurse, was unstable and placed M rs. Walker in danger. D r. Alleg

retti ass erted th at this fa

ct cause d him to “c ompletely reasse ss his operative plan.” The Commission found that there was “no other evidence in the record to contra dict Dr. Allegr

etti’s sta tement.”After r

eviewing the assum

ptions unde

rly ing Dr. Harris’ s opinions i n light of the evidence, the Commission concluded:

There is no evidence in the record to affirma

tively support D r. Harr

is’ assump tions. The Commission finds that Dr. Harris rendered his opinion concern ing the Defendant’s deviation from the s tandard of care based up on facts which ar e not in evidence. He further ga

ve his opinion on a fact situation . . . withwhich he had no experience or expertise. In the opinion of

this Commission, he is unable to provide adequa te testimony concerning

the standard of

care on the fact situation encountered by the ENT tea

m during the procedure on Mrs. Walker.-4-

Since the Commission discredited the testimony of the plai ntiff’s expert, Dr. Harris, it concluded that there was insufficient

evidenc e to find that the ENT physicians did not meet the a pplicable standard. Conseque ntly , the Commis sion dismiss ed Walker ’s claim. From this order, Wa lker now appeals

.
On appeal, Walker

argues t hat the Com

mission er

red in reviewing and relying upon outside medical sourcesin reac hing its co nclusion t hat the endotrac heal tube, as placed by the anesthesiology team, was a danger to Mrs. Walker. Walker a sserts that the Commission improperly relied o n evidence outside the record.

A court must render its dec ision base d on competent evidence introduced at trial. Sutherland

v. Sutherland , 831 S.W.2d 283, 285 (Ten n. Ct. App. 1991). Asthe Supre me Court he

ld in Vaughn

v. Shelby Willi

ams of Tennessee, Inc. , “a judge is not permitted to make an investigation of a case,

even an inadvertent one, off of the recor d, and th en base a holding on the information obtained incident thereto.” Vaughn , 813 S.W.2d 132, 133 (Tenn. 1991). A c ourt may take judicial notice of facts wh ich are genera lly under stood as c ommon know ledge, in cluding e ntries in d

icti onar ies, encyclo pedias, and ot her publications. Standard Lif e Ins. Co. of

the South v. St

rong , 89 S.W.2d 367, 379 (Tenn. Ct. App. 1935). However, medical treatises ar e inadmissible hearsay under Tennessee law and, thus, cannot be judicially noticed. Id.

The Commission’s written findings indicat e that it reviewed medical sources outside the record in this cas e. However, the Commission’ s finding s also state that the Commission “cannot be its own exper

t” and “c annot tak

e into ac count a f

act which i t simply believes to be true.” I t notes that its decision “must be basedon the evidence present ed.” The refore , the Commis sion make s it clear that, while it reviewed outside medical sources , it did not re ly u pon them. U

nder the se circumst ances, we must conclude that any review of outside medical sources by the Commission would constitute harmless error. The decision of the Commission, dismissing Walker’sclaim, is supported by the evide

nce in the record.

The decision

of the Comm

is sion is affirmed. Costs are taxed to appellant, Billy Wayne Walker, and his surety, for which execution may issue if necessary.

___________________________________ HOLLY K. LILLARD, JUDGE