IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 24, 2012 Session

ESTATE OF CLYDE DEUEL v. THE SURGICAL CLINIC, PLLC

Appeal from the Circuit Court for Davidson County

No. 07C2368 Joseph P. Binkley, Jr., Judge

No. M2011-02610-COA-R3-CV - Filed September 11, 2013

A surgeon left a sponge in the abdomen of a patient, closing the incision after receiving

assurances from two operating room nurses that all the surgicalsponges used in the operation

had been fully accounted for. A second surgery was required to remove the sponge from the

patient’s body. The patient died of unrelated causes seven months later. The patient’s

widow filed a medical malpractice complaint against the surgeon and argued that the

evidence of negligence was so plain that she could be excused from the normal requirement

of producing expert testimony to prove that medical malpractice had occurred. The

defendant surgeon presented expert testimony during trial to prove that the surgical standard

of care entitled him to rely on the accuracy of the sponge count provided by his nurses. The

jury returned a verdict for the defendant surgeon. The plaintiff argues on appeal that the trial

court committed reversible error by allowing the use of expert testimony in a case that is

based on the common knowledge exception and res ipsa loquitur. We affirm the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the Court, in which FRANK G.

CLEMENT, JR. and RICHARD H. DINKINS, JJ., joined.

H. Anthony Duncan, Nashville, Tennessee, for the appellant, Lorraine Deuel, individually

and as Adm’x of the Estate of Clyde Deuel.

Clarence James Gideon, Heather Piper, Nashville, Tennessee, for the appellee, The Surgical

Clinic, PLLC.
OPINION

I. A SURGICAL PROCEDURE AND A MALPRACTICE CLAIM

This is the second time these parties have appeared before this court. A thorough

discussion of the facts leading to the plaintiff’s claim can be found in our earlier opinion,

Deuel v. Surgical Clinic, PLLC, M2009-01551-COA-R3-CV, 2010 WL 3237297 (Tenn. Ct.

App. Aug. 16, 2010). We will briefly discuss those same facts and our first opinion dealing

with them (hereinafter Deuel 1) in order to provide a sufficient understanding of the history

of this case.

In August of 2006, Dr. Richard J. Geer performed surgery at St. Thomas Hospital to

remove a pancreatic tumor from the abdomen of Mr. Clyde Deuel. Laparotomy sponges that

were placed in Mr. Deuel’s abdomen during the surgery were supposed to be removed before

the incision was closed. Two nurses each counted the sponges twice to verify that the ones

used during the operation had all been removed. After the count, the nurses told Dr. Geer

that all the sponges were accounted for, and he closed the incision, completing the surgical

procedure.

Two weeks later, Mr. Deuel began experiencing severe pain and other alarming

symptoms. He went to the emergency room, where an X-ray and a CT scan showed a foreign

body lodged in his abdomen. The foreign body was determined to be one of the laparotomy

sponges. Dr. Geer performed another surgery to remove the retained sponge. Shortly

thereafter, Mr. Deuel was diagnosed with cancer. He died in March of 2007.

Mr. Deuel’s widow, Lorraine Deuel, filed a medical malpractice complaint on August

21, 2007, in her own name and as the administratrix of the estate of Clyde Deuel. She named

Dr. Geer, the Surgical Clinic for which he worked, and St. Thomas Hospital as defendants.

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Ms. Deuel claimed that because of the negligent retention of the sponge and the second

surgery required to remove it, Mr. Deuel sustained injuries which included pain and

suffering, mental anguish, and loss of capacity to enjoy life, and that she suffered loss of

consortium.

Her complaint invoked two overlapping and closely-related theories: the “common

knowledge” exception and the legal doctrine of res ipsa loquitur (“the thing speaks for

itself”). See Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d 86 (Tenn. 1999);

Tenn. Code Ann. § 29-26-115(c).

Ms. Deuel later settled her claim against St. Thomas. 1

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Dr. Geer filed a motion for summary judgment, accompanied by his own affidavit. He

stated that by relying on the sponge count provided by the two nurses before closing the

incision, he had complied with the applicable standard of care in his treatment of Mr. Deuel.

He admitted that leaving a sponge in the body of a patient is negligent, but asserted that the

negligence in this case could not be attributed to him either in whole or in part. Ms. Deuel

did not produce an expert affidavit to rebut Dr. Geer’s affidavit. After a hearing, the trial

court granted Dr. Geer’s motion for summary judgment.

Ms. Deuel appealed to this court. After a thorough examination of the particulars of

her claim in the light of Tennessee statutory and case law, as well as cases from other

jurisdictions, we reversed the trial court’s grant of summary judgment to the defendant, Dr.

Geer, and affirmed its denial of summary judgment to the plaintiff, Ms. Deuel, and remanded

the case for trial.

II. SUBSTANCE OF PRIOR OPINION

The outcome of this court’s prior opinion in this case was a determination that

summary judgment was not appropriate for either party and that the case should proceed to

trial. The holdings leading to those conclusions are important to resolution of the issues

raised in this appeal. Consequently, we will discuss the most relevant of those holdings in

some detail.

With regard to the common knowledge exception (to the expert proof requirement),

and, particularly Dr. Geer’s argument that it did not apply in this case, the Deuel I court

examined other cases involving the leaving of a sponge or instrument in a patient:

The common knowledge exception has been applied under similar facts by a

federal court applying Tennessee law and by at least one state court in another

jurisdiction. See Carver v. United States, Nos. 3:04-0234, 3:04-0991, 2005 WL

2230025, at *9-10 (M.D.Tenn. Aug. 30, 2005); Breaux v. Thurston, 888 So.2d

1208, 1217 (Ala.2003). In these cases, each court found that summary

judgment in favor of the defendant surgeon was not appropriate, despite expert

testimony that the standard of care permitted the surgeon to rely on the nurses’

count of sponges and surgical instruments. Carver, 2005 WL 2230025, at

*9-10; see Breaux, 888 So.2d at 1217. This is consistent with statements by our

Supreme Court, explaining that, “[i]n those cases wherein the acts ...

complained of are within the ken of the common layman, the affidavit of

medical experts may be considered along with all other proof, but are not

conclusive.” Bowman v. Henard, 547 S.W.2d 527, 531(Tenn.1977); accord

Seavers, 9 S.W.3d at 92 (citing Baldwin, 569 S.W.2d at 456); White v.

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Vanderbilt Univ., 21 S.W.3d 215, 226 n. 11 (Tenn.Ct.App.1999) (citing Ayers

v. Rutherford Hosp., Inc., 689 S.W.2d 155, 160 (Tenn.Ct.App.1984)).

Deuel, 2010 WL 3237297, at *9 (emphasis added).

With regard to the applicability of the doctrine of res ipsa loquitur to this case, the

court first noted that the doctrine is not a “substantive rule of negligence law,” but, instead,

is a “rule of circumstantial evidence,” and that it is primarily used in jury trials “to provide a

framework to determine whether the plaintiff’s evidence is sufficient to entitle him to get his

case to the jury.” Id., at *10 . The court further cited prior cases holding that the doctrine

allows an inference of negligence, but it does not relieve the plaintiff of her burden of proof.

Id.

In response to Dr. Geer’s argument that the doctrine did not apply in this case, the court

relied upon case law and, additionally, applied the statutory provision relevant to the doctrine

in medical malpractice cases, Tenn. Code Ann. § 29-26-115(c),which creates an exception to

the requirement of expert proof and which creates a rebuttable presumption that the

defendant was negligent when certain circumstances were present. The court concluded that,

under the circumstances of Ms. Deuel’s claim, she had shown that the doctrine of res ipsa

loquitur was applicable to the case. Deuel, 2010 WL 3237297, at *14.

In answering the question of whether a surgeon was entitled to rely upon expert

evidence that the surgeon was not negligent in relying upon the nurses’ sponge count in the

absence of responsive expert proof from the plaintiff, the court examined a number of cases

that held that “reliance on a sponge count does not, as a matter of law, relieve a doctor from

liability for leaving a sponge in a patient.” Deuel, 2010 WL 3237297, at *15 (citing Tutton

v. Patterson, 714 S.W.2d 268 (Tenn.1986) (wherein the court “cited nearly a dozen cases”

making that holding). The court also quoted from Coleman v. Rice, 706 So.2d 696, 699

(Miss.1997), “A surgeon leaving a sponge inside a patient is not negligent per se, but a

presumption of negligence is raised, which the surgeon may attempt to rebut or explain.”

Deuel, 2010 WL 3237297, at *16. The court discussed Breaux v. Thurston, 888 So.2d 1208

(Ala.2003), in some detail and quoted with approval that court’s reasoning. Id.

Thus, the Breaux Court, much like the Coleman Court, determined that the

retention of a foreign object in a surgical patient is prima facie evidence of the

surgeon’s negligence. If the surgeon presents expert testimony that reliance on

the nurses’ sponge and instrument count is in accordance with the standard of

care and that the surgeon complied with the standard of care, “a jury question

is presented” as to the surgeon’s negligence, and his reliance on a nurse’s count

does not, as a matter of law, absolve the surgeon from liability. Accord Burke

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v. Wash. Hosp. Ctr., 475 F.2d 364, 365 (D.C.Cir.1973) (“Appellee [surgeon]

attempted to shift responsibility for the injury [retained sponge] by asserting the

nurse’s sponge count was reported (obviously erroneously) as in order. While

this may be enough to support shared liability on the part of the nurse’s

employer, [the hospital], it does not relieve the operating and supervising

surgeon of his responsibility.”); Chi Yun Ho v. Frye, 880 N.E.2d 1192, 1200

(Ind.2008) ( “[A] surgeon may not escape his responsibility to remove sponges

used during the surgery simply by delegating responsibility for tracking surgical

sponges to attending nurses.”); Dolaway v. Urology Assocs. of Ne. N.Y., 897

N.Y. S.2d 776, 776 (N.Y.App.Div.2010) (holding that res ipsa loquitur was

applicable when guide-wire left in surgical patient and that the defendants’

proffer of expert testimony opining that there was no negligence did not

“disqualify [the] case from consideration under res ipsa loquitur” but would

“merely raise alternative inferences to be evaluated by the jury in determining

liability.” (quoting Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 497

(N.Y.1997)).

Deuel, 2010 WL 3237297, at *17. (emphasis added).

Thus, this court determined, based upon the many authorities discussed therein, that

Ms. Deuel was not required to submit expert testimony on Dr. Geer’s negligence, in response

to the expert evidence presented by the surgeon, in order to defeat the grant of summary

judgment to Dr. Geer, but was entitled to a jury determination on the issue. Id., at *18.

In considering Ms. Deuel’s argument that she was entitled to summary judgment, the

court noted that the fact that a defendant is not entitled to summary judgment “does not ergo

mean that the Plaintiff is entitled to summary judgment.” Id., at *19. The court quoted with

approval several authorities to the effect that while the doctrine of res ipsa loquitur may

create an inference or rebuttable presumption of negligence, it is up to the jury to weigh all

the evidence and decide whether the defendant has successfully rebutted the presumption.

Id. The court concluded that Dr. Geer had indeed submitted sufficient evidence to rebut any

presumption of negligence on his part and, therefore, Ms. Deuel was not entitled to summary

judgment.

III. JURY TRIAL AND VERDICT

Prior to trial, Dr. Geer identified three doctors and a nurse that he intended to call as

expert witnesses at trial. See Tenn. R. Civ. P. 26.02(4). Ms. Deuel filed a pre-trial motion

to strike all of the Rule 26 experts “because they will not substantially assist the jury in this

common knowledge case.” On September 17, 2011, the trial court conducted a lengthy

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hearing on a number of pre-trial motions, which included vigorous argument about the

propriety of the use of expert witnesses herein. The trial court denied Ms. Deuel’s motion.

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The jury heard the testimony of Dr. Geer and Ms. Deuel, as well as the testimony of

two of Dr. Geer’s experts. One of them, Eric Lederman, M.D., a Missouri colorectal

surgeon, testified that he had examined Mr. Deuel’s medical record, and he described in

detail some of the complexities involved in the type of abdominal operation performed by

Dr. Geer, including the difficulty of being able to see and to work around all the delicate

structures that are exposed when the abdomen is opened, without damaging structures that

are not the target of the surgery.

Dr. Lederman also explained the functions of all the members of the operating room

team, including the circulating nurse and the scrub nurse. He testified that it is the

responsibility of the scrub nurse to lay out all the instruments and sponges that may be

needed during the course of surgery within the sterile field, and to perform, with the

circulating nurse, an initial count of those items prior to the beginning of the procedure. He

also testified that at the conclusion of the procedure, the nurses count all the items that have

been used and all those that remain unused to make sure that there is a match between the

numbers of instruments, needles, and sponges in the initial count and the numbers of those

items in the final count.

The witness testified that the professional standard of care applicable to surgeons

requires the surgeon to make sure that the count has been performed and to close the

patient’s abdomen only after receiving confirmation from the nurses that every item has

been accounted for.

Dr. Lederman was asked, “why wouldn’t a surgeon perform a methodical search of

the abdominal cavity even with this count to make sure that all the sponges have been

removed?” He explained that a surgical sponge that has been soaked with blood or other

fluids might be difficult to detect in the abdominal cavity and that it could be dangerous to

probe the cavity in search of a sponge that might or might not be there. In response to other

questions, Dr. Lederman stated that Dr. Geer complied with the standard of care by relying

on the sponge count performed by both the scrub nurse and the circulating nurse, and that

the sponge was left in Mr. Deuel’s abdomen because of nursing error.

She then filed a Rule 9 motion for interlocutory appeal of the trial court’s ruling, which the trial

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court likewise denied. 

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The defendant also called Patricia Purdom as an expert witness. Ms. Purdom is a

registered nurse who had worked as both a circulating nurse and scrub nurse during more

than ten years of service at St. Thomas hospital. Like Dr. Lederman, she testified about the

duties of those nurses to provide, collect, and count the items used during a surgical

procedure. She confirmed that the surgeon relies on the accuracy of their count prior to the

closure of the surgical incision. She also testified that a surgeon has to focus his undivided

attention on the surgical wound and, thus, has to rely on and trust the other members of the

operating room staff in order to perform effectively. When he was called to the stand, Dr.

Geer testified in detail about his treatment of Mr. Deuel and also about his understanding

of the applicable standard of care.

Ms. Deuel renewed her objections to the testimony of the expert witnesses during

trial, but the trial court overruled those objections. After about an hour of deliberation, the

jury announced that it had reached a unanimous verdict for the defendant, Dr. Geer. The

trial court entered a judgment on the verdict and dismissed Ms. Deuel’s case with prejudice.

Ms. Deuel then filed a motion for new trial, which the trial court denied. This appeal

followed.

IV. THE USE OF EXPERT TESTIMONY

The sole issue Ms. Deuel has presented for appeal in this case is “whether the trial

court erred in allowing ‘expert’ testimony to be presented to the jury on matters of common

knowledge?” The decision to admit or exclude the testimony of an expert witness normally

lies within the discretion of the trial court. Shipley v. Williams, 350 S.W.3d 527, 552 (Tenn.

2011); Roberts v. Bicknell, 73 S.W.3d 106, 113 (Tenn. Ct. App. 2001) (citing McDaniel v.

CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997)). Such a decision will not be reversed

on appeal unless a clear abuse of discretion is demonstrated. Lewis ex rel. Lewis v. Brooks,

66 S.W.3d 883, 886 (Tenn. Ct. App. 2001).

Ms. Deuel does not challenge the admissibility of a particular expert’s testimony, but

argues instead that the trial court (1) was not entitled to admit the testimony of any nonparty expert witnesses in this case because her claim was based on a theory of common

knowledge or res ipsa loquitur, and (2) this court had ruled that she herself was not

obligated to present expert testimony to support her claim. The question then is, if she is

not required to use expert testimony to assert her claim, does that bar the defendant from

using such testimony to defend against it? Ms. Deuel has thus raised a question of law,

which we must review de novo, with no presumption of correctness and without according

any deference to the decision of the trial court. Creech v. Addington, 281 S.W.3d 363, 372

(Tenn. 2009); Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008); S.

Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

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Ms. Deuel relies on Tennessee Rule of Evidence 702, which governs the use of

expert witnesses in the courts of this state. Rule 702 states that such witnesses may testify

“[i]f scientific, technical, or other specialized knowledge will substantially assist the trier

of fact to understand the evidence or to determine a fact in issue . . . .” Ms. Deuel argues

that, conversely, expert witnesses should not be allowed to testify if their specialized

knowledge would not substantially assist the trier of fact. She insists that this case involves

matters that lie within the common knowledge of jurors and, thus, that expert testimony

should not have been admitted, “because such testimony, almost by definition, can be of no

assistance to them.”

We disagree. While it may be common knowledge that leaving a sponge in a patient

is negligent, that is not the end of the inquiry. The question here is whether that negligence

is necessarily attributed to the surgeon. As discussed above, the prior opinion in this case

made it clear that Dr. Geer was entitled to present evidence that he did not breach any

standard of care. Such evidence must, under Tennessee law, be presented by experts.

The post-surgical discovery of the sponge raises an inference or a presumption of

negligence, which relieves the plaintiff of the need for expert testimony to prove that such

negligence has occurred. However, Dr. Geer does not deny that negligence occurred in this

case. He insists, rather, that he himself was not negligent, because he conducted the

abdominal surgery at issue in full compliance with the professional standard of care for

surgeons. Specifically, he provided expert testimony that in accordance with that standard

of care, he relied on the scrub nurse and the circulating nurse for an accurate count of the

instruments and sponges used in the operation and that he closed the abdominal incision

only after they assured him that all those instruments and sponges were accounted for.

3

Dr. Geer’s expert, Dr. Lederman, gave extensive testimony about the standard of care

for abdominal surgery and the reasons for that standard, matters that are not within the

common knowledge of laypeople. Nor are non-experts competent to testify as to the

standard of care. The practice of two nurses counting sponges before and after surgery to

prevent the type of incident that occurred here is not commonly known to those outside the

medical field. Ms. Deuel’s attorney also questioned Dr. Lederman closely about whether

Ms. Deuel has offered as supplemental authority the case of Tutton v. Patterson, 714 S.W.2d 268 3

(Tenn. 1986), in which our Supreme Court observed, “Numerous cases have held that reliance on a sponge

count does not, as a matter of law, relieve a doctor from liability for leaving a sponge in a patient.” Tutton

v. Patterson, 714 S.W.2d. at 270. The case before us does not involve relief of liability as a matter of law. 

However, neither does it involve assignment of liability as a matter of law. The jury heard evidence

regarding Dr. Geer’s negligence. He was relieved of liability in this case by the verdict of the jury. There

was evidence in the Tutton case that the defendant deviated from the standard of care, and the jury in that

case returned a verdict for the plaintiff, which was upheld by the Supreme Court.

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Dr. Geer could have used other procedures to guarantee that no foreign object would be left

behind in the patient’s body, such as manually probing the surgical area or ordering an x-ray

before closing the abdominal incision. Dr. Lederman explained that because of the size of

the surgical area that is opened during abdominal surgery, the number of structures and

organs that are exposed, and the need to maintain a sterile field at all times, such procedures

would likely increase the patient’s risks rather than reducing them. Again, those matters are

not within the common knowledge of most people.

In our earlier opinion, we held that the presence of a retained object after surgery

constituted prima facie evidence of negligence by the surgeon, but that it did not

conclusively establish such negligence. Rather, it shifted the burden of proof to the surgeon

to prove that he was not negligent because he complied with the relevant standard of care.

Thus, Dr. Geer was entitled to use the testimony of an expert witness. Such expert

testimony, even though unrebutted by expert testimony from Ms. Deuel, did not entitle the

surgeon to summary judgment as a matter of law, but, instead, presented an issue of fact to

be decided by the jury.

Several Tennessee cases have stated that expert testimony is not necessarily

incompatible with the common knowledge exception or res ipsa loquitur. In Bowman v.

Henard, 547 S.W.2d 527, 531 (Tenn. 1977) our Supreme Court explained that “[i]n those

cases wherein the acts complained of are within the ken of the common layman, the affidavit

of medical experts may be considered along with other proof, but are not conclusive.” In

a more recent case, the court declared that “. . . we believe the better rule is to allow expert

testimony in medical malpractice cases, where otherwise admissible, to assist the parties

both in establishing or rebutting the inference of negligence under a theory of res ipsa

loquitur.” Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d at 94.

Ms. Deuel notes that as both a party and as a licensed physician, Dr. Geer was

himself entitled to testify about the applicable standard of care and that he did so. She

contends that the testimony of the two non-party expert witnesses as to that same matter was

merely cumulative and, thus, was unnecessary. We disagree, in part because Dr. Geer was

the defendant, which could make his testimony less convincing to a jury. Additionally, it

lies within the discretion of the trial court to exclude testimony that it finds to be cumulative

or repetitive of other testimony. Tennessee Rule of Evidence 403; Kirksey v. Overton Pub,

Inc., 804 S.W.2d 68, 74 (Tenn. Ct. App. 1990); Miglin v. Miglin, 01-A-01-9707-CH00362,

1998 WL 440724 (Tenn. Ct. App. Aug. 5, 1998).

Having closely read the testimony of Dr. Lederman and Nurse Purdom, we conclude

that their specialized knowledge of operating room procedures, including the reasons for

those procedures, “substantially assisted” the jury to understand critical information

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necessary for the resolution of this case. Thus, the trial court’s decision to admit that

testimony was consistent with the requirements of Tennessee Rule of Evidence 702, and the

trial court did not abuse its discretion by allowing the jury to hear it.

V. THE LAW OF THE CASE

Ms. Deuel also argues that the proceedings in the trial court were not conducted in

accordance with the law of the case because the defendant was allowed to rely on the

nurse’s erroneous sponge count in the face of a contrary determination in Deuel 1. Her

argument hinges on a single sentence from that opinion: “We cannot accept Dr. Geer’s

argument that, in essence, the ‘instrumentality’ that caused the injury was the sponge count

rather than the sponge.” Deuel v. Surgical Clinic, PLLC, 2010 WL 3237297 at *14.

However, this argument ignores the significant holdings that are discussed in detail

earlier in this opinion. The quoted language upon which she relies was used in the context

of Dr. Geer’s argument that Ms. Deuel was not entitled to proceed to trial under a theory of

res ipsa loquitur because the instrumentality that caused the patient’s injury was not under

his exclusive control. We concluded that this circumstance did not prevent Ms. Deuel from

relying on res ipsa loquitur.

However, we in no way implied that Dr. Geer would not be entitled to present

evidence about the role of the nurses in causing the patient’s injury. To the contrary, we

held that he was entitled to establish that his conduct did not violate the applicable standard

of care, which must be proved by expert evidence. We stated rather that “[t]he plaintiff is

entitled to present to the jury the issue of whether Dr. Geer was in fact negligent, no more,

no less.” Deuel v. Surgical Clinic, PLLC, 2010 WL 3237297 at *20. Dr. Geer was entitled

to present evidence to rebut the presumption of negligence on his part. Thus, Ms. Deuel’s

argument is without merit.

VI. CONCLUSION

The judgment of the trial court is affirmed. We remand this case to the Circuit Court

of Davidson County for any further proceedings necessary. Tax the costs on appeal to the

appellant, Lorraine Deuel.

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PATRICIA J.COTTRELL,JUDGE

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