# FILED July 16, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ EARNESTINE COLE, Plaintiff-Appella

nt, Claims Commission No. 97487 Vs. C.A. No. 02A01-9801-BC-00004 STATE OF TENNESSEE, Defendant-Appellee.

__________________________________________________ __________________________ 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 medic a l malpractice case tried by the Tennessee Claims Commission. Claimant/AppellantEarnestine Cole ( Co le) appeals from the judgment of the Clai

ms Commission for Defendant/ Appellee State

of Tennessee. Cole filed this complaint alleging that2

she had a tubal ligatio

n and st erilizatio n 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 War e, a medical resident employee of the State of Tennessee at the University of Te nnesse e School of Medicine, who was under the supervision of Dr. Bertram Buxton, a professor at the university. Cole essentially a lleges t hat th e defendant, Sta

te of Tennessee

, through its employees, breached the recognized standard of acceptable p

rofessional pra

ctice in its

medical treatment, thus resulting in her becoming pregnant after the operation was performed. After an evidentiary hearing, Com mis sioner Martha Brasfield filed a thorough and comprehensible order which we adopt as a part of this Opinion:

The claimant, Ms. Ernestine C o le, filed a claim for da mages against the defe ndant, the State of

Tennessee, alle

gin g that professional malp

ractice was co

mmi tte d 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 stipulate

d that t h e physicians name

d 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 3 5 -year-old single mother of three children, had a t ubal ligation and sterilization performed

a t the Regional Medic al Center in Memphi

s, Tennessee. Prior to the surger y, the claima

nt sign ed 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. Bertra m Buxton, a professor at the3 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 gras pe d witha surgical instrument and doub led (or “knuckled”), and a tiny silicone (silastic

) ring is slipped ove

r the “knuckle”

to achieve occlusion of the tube.

Dr. Ware had performed approximately 50 tubal ligations prior to the claimant’s surgical liga tion . Her operative report, dictated less than an hour

after she performed the claimant’s tubal ligation, stated that she pla ced a silastic rin

g o n each fallopian tube and then injected methylene blue dye through the uterus and into the tubes to verify occlusion. No spillag e of dye was observed fr om either fallopia

n tube. Dr. Ware ’s notes indicate that Dr. Buxton was in

attendance during the surgery. Dr. Buxton testified that he was “quite dilige nt” in his role as an attending

sur geon, and that it was his pr actice 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 t hat 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 op e rative report (which was dictated by Dr. Ware app

roximately twenty

to thirty minutes after the surgery) as w

ell as the progre

ss notes.

In October of

1988, the claimant discovered that she was pregnant with twins , who w ere delivered at Baptist Memorial Hospital by Dr. Marva

Souder in February of 1989. Immediate ly after the delivery of the twins, a second tubal ligation procedure

was performed

by Dr. Souder. Dr. Souder’s operative notes state:4 FINDINGS: Bilaterally norma l appearin

g 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 a ppear to be occluded.

TECHNIQUE: . . . The right fa ll opian tube was grasped . . . and brought

to the surface in its entire length with the findings as noted above. The tube

was grasped in an ava scular area to f

orm a knuckle of tube. A free-tie of . . . plain catgut was placed at the base of the knuckle. A secondfreetie was place d a djacent 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 abdom en . The same procedure

was performed on the left tube with findings as noted above . . . .

The excisedportions of the tubes were sent to a pathology laboratory for routine analysis. A cco rding to Dr. Thomas Che sney, the pathologist who examined the specimens, th e purpose of the analysis was to det ermine whether the fallopian tubes had been en tirel y transected by the second tubal ligation procedure. Following his examination o f the s pecimen, Dr. Chesney issued the

following report:

A. PORT ION OF LEFT FALLOPIAN TUBE: Received is a 2.4 cm long x 0.4 x 0.5 cm, whitetan, t ubula

r structure enveloped in a thin, pink-tan,5 fib rous membrane. The tis sue is consistent wi t h

a portion of

fallopian tube. Th

e 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 por ti on of tissue enveloped in a thin , purple-tan, fib

rou s membrane. The tissue is consistent with a portion of fallopian tube an

d the fimbria

ted [s ic] end is identified . . . .

The report conclu

ded that the specimen

s were two “compl

etely transected negative segment[s] of oviduct.[”]

In approximately Ma

y of 1990, at the cl

aimant’s reques

t, Dr. Chesney re-examined the fallopian tube specimens (which had been preserve

d in paraffin af

te r the initial laboratory analysis). The purpose of thi s examinati on was to determine whether the segment removed by Dr. Souder showed evidence of tubal occlusion. Dr. Chesney re-sectione d and re-examined the fallopian tube spe

cimens and issued t

he following repo

rt:

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

irec ted to ascertainment of the6 c ompleteness

of the tubal interruption procedur e of February 25, 1989. The po r tions 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 p reviously ligated area. The latter may ind eed still remain in th e patie nt. These recut slides . . . first as the original slides . . . reflect po rtion s of the tubes

a pparently

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 mi

croscopic mater

ial.

The claimant maintains that the tubal ligation performed by Dr. Ware in March of 1988 was neglige ntly done. The claimant further avers t

hat Dr. Buxton fail

ed to p roperly supervis

e the procedure performed by Dr. Ware. As a result of this alleged malpractice, the claimant maint ains that s he has suffered ph ysical, mental and monetary dama ges. She sues th

e defend ant for the recovery of

the costs associa

ted 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 malpract ice in the tubal ligation procedure, and maintains that the claimant has failed to prove that Dr. Ware violated th

e recognized sta

ndard of accep

table professi on al practice in the medical profession. The defendant holds that tubal ligations sometimes fail because the fall opian tubes “recanalize,” or because occluding devices (in this case,7 silastic rings) can “migr ate,” break, o r slip post-operatively, either of which circ umstances could arise absent a physician’s malpractice. The defendant points out that the claimant signed a

consen t for operation form which specifically stated that tuba l ligation procedures fail at a rate of 1:300-400.

The claimant’s bu

rden of proof in th

is 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 b y evide nce as provided by su bsection (b) (1) The recognized standard of acceptable prof

essional practice in the profession and the spe cialty thereof, if any,

that the defenda

nt practices i

n th e community

in which he practices or

in a similar communit

y 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 s t andards; (3) As a proximate

result of the defendant’s negligent act or omission, the plaintiff suffered injuri es wh ich would not otherwise have

oc cu rred.” 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 St ates, 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 describ ed

. The claimant alleges that the standard procedures wer e not p erfor med by Dr. Ware a s described in her

operative notes, that Dr. Ware failed to act w ith ordinary and r easonable car

e in8 performing those procedures, and that Dr. Buxton failed to act withordinary and

reasonable ca

re in supervising and inspecting Dr. Ware’s work. I

n support of her a

lle gation s, the claimant points out the following:

(1) During the second sterilization procedure, Dr. Soude r f ound 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 plac

ement of the silast

ic 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 te st of tubal occlusion.

With regard to th e surgical procedure, itself, and the malpractice alleg edl y committed by Dr. Ware, the claimant’s expert witness, Dr. Albert Alexander, a ret ired obstetrician and gynecologist,

testifi ed that Dr. Ware inappropriately placed the9 left silastic ring on the mesosalpinx near the fimbriated end of the left fallopian tube, and had placed no r ing at all on the right fallopian tube. He based his findings on Dr. Souder’s operative notes. He opined the cl aimant’s fallopian tubes should have evi denced scarring had the silastic rings been ap propriately place d 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 sec ond sterilization procedure. Dr. Alexander

also discounted the defendant’s theory that the silastic rings may have broken , migrat ed or slipped. He s tated that a broken or defective ring should have evidenced its defect during the surgery. With regard

to the methylene dy

e test, Dr. Alexander testified that

although the spillage of dye from the fallopian tubes is a certain indica

tor t hat an attempted o cclusion was not successfu l, the test is “very unreliable” for proving successful tubal occlusion; therefore, the dye test performed by Dr. Waredid not prove conclusive

ly that the silastic r

ings had been prop

erly placed.

The defendant’s exper t witness, Dr. Dwight Pridham, a professor at the University of Louisville medical school specializing in obstetr

ics and gynecology and in reproductive endocrinology, opinedthat Dr. Souder’s findings with rega rd to the silastic

rings did not prove that th e rings had been i

mproperly placed during the first tubal ligation procedur e. Dr . Pridham testified that necrosis (death of tissue) of ten occ urs in the “knuckle s” of the tube formed by the ligation process, and that these knuckles may “drop off’ following successful occlusion of fallopian t u bes, leaving the silastic rings “attached to what was10 left after t he necrosis had occurred, which is often the mesosalpinx below the fallopian tube.” He testified that the rings may also become “epithe liz ed” (covered with tissue) and thus may not be visible to the naked eye. Dr. Chesney, the pathologist who examined the fallopian tube segments exc ise d by Dr. Souder, also testifi ed that the tiny sila stic rings sometimes

become encapsul ate d 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 h ave been a number of occasions when I have bee n looking at a uterus, often at the time of hysterectomy and occasionally

at the time o f re-an astomosis (reversal of a tubal ligation)where it’s bee n diff icult to tell where the tube has been obstructed.”

All of the physicians t

estified that tuba

l ligations can fai

l due to the “recanalization” of the fallopian tubes. According t o Dr
. Pridha m, this recanalization is not always evident to the naked eye.

Further, all physicians testified and all proof indicated tha t the methylene blue dye

test is not a perfec t indicator of tubal occlusion. Spill age 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 en d is not proof that the tube is occluded. (The proof showed that the dye may not spill from the fimbriated ends o f

a patent (non-occluded) tube for several

reaso ns : (1) The dye is not p roperly injecte

d into the uterus, which would constitute negligence on the part of a medical11 professional;

(2) T h e fallopian tube can spasm, shutting off the flow of the dye; (3) Another occ lusion or obstructio

n in the tube

can prevent the flow

of the dye. Items 2

and 3 would not constitute negligence on the p art 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 b e f

ound 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 endo crinol ogy, and as a part of his work he has personally

viewed t he fa llopian tubes of approximately 200

women who had undergone tubal ligations. (Dr. Pridham’s field of specialization in

volves reversal

s of tubal ligations. ) His credentials

e vid ence 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 fac tual re asons: (1) Dr. Alexander

had never per

formed a tubal ligation usin g silastic rings; (2) He had perso

nally seen the inte

rnal 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 misint erpretation of th

e p athology labor a tory’s findings concerning the location of the silastic ring12 found by Dr. Souder.

Dr. Pridham’s testimony

effectively

and credibly

refutes the claimant’s assertion that Dr. Souder s [sic] findings prove that

ma lpractice was committed by Dr. Ware. Dr. Pridham gav e 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 im mediat elyvisible signs of scarring and/or oc clusi on following successful ligation. Therefore, it would appear that even though Dr. Souder may not have found sila

stic rings w

here 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 com pared with Dr. Chesney’s (the pathologist’s ) findings. First, Dr. Chesney described receiving the fimbriated ends of the left and right fallopi an tu bes. Dr. Souder’s operative notes indicate that she excisedtwo “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 tha n t he operation you would do to get the specimen tha t we got.” Secondly, Dr. Souder described having observed the left silastic ring o

n the mesosalpinx, w

hil e Dr. Ch esney’s observation was tha t th e “fallope ring [was] present at the proximal end of the specimen.” Ac cord ing to Dr. Chesney, the “proximal end” was the cut end of the specimen -- the end closer to the uterus. Excep t for ce rtain testimony of D r. Alexander in13 interpreting Dr. Chesney’s pathology report, all the physicians who discussed the terms “proximal” and “distal” as it pertained to a fallopian tu

be te stified that, in medical terminology, the proximal end of the fallopi an tube was that p

art neare r to the uterus, and the distal end was that part nearer to the fimbriated end. During specific ques ti oning regarding the location of the silastic ring o n the specimen received by the pathology lab, Dr. Chesney testified that he believed that the ring “was on the tube rather than on the m es osalpinx.” Dr. Chesney studied the specimen in the laboratory and, therefore, his pathological analysis of the tissue samples woul d have been more thorough than Dr. Souder’s clinical observations. Th us, 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 incorrec

t.

In must further be noted that Dr. Souder’s claim that

the fa llopian tubes were “brought to the surface in [their] entiret y ”

was found by Dr. Pridham to be unusual or unlikely. Dr. Pridham explained t hat, w hile 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 l aparosc ope during the tubal ligation procedure. Access to the fallopian tubes

was gained through a s

mall incision (typic

ally 1⁄2” to 1", according to Dr. Pridham) made below the umbilicus. Dr. Pridham testified that “[w]ith po stp artum sterilizations the exposure and visualization that you have i s a dequate to do a sterilization, but you do n ot have a very good overall visualization of the entire pelvis . . . You can see a portion of things at a time well enough to identify the tube and to pull it up and to remove a portion, but14 not an overall visual

ization as you woul

d have in a more routine laparotomy, a larger incision . . . [Y]ou would not usually be able to easi ly bring the entire

tube through the inc

ision at one tim

e . You can pick up a

port ion and work your w ay down the tube to

see the fim

bria ted end . . . That’s

because the tube

is obviously attached to something in the pe

lvis . . . I really

can’t s ay it’s impossible

to do it, just that it would be atypi cal in this type of procedure to bring the entire tube in the incision.” Dr. Pridham’s testimony evoked additiona l doubt c once rning the accuracy of the findings as repor

ted by Dr. Souder’ s operative notes

.

Dr. Souder’s observ ati ons were the cla imant’s only evidence that Dr. Wareincorrectly placed (or failed to place) the silastic rings during the first tubal ligati on procedure, but the discrepancies a nd oddit

ies in her report

rob it of much of its credibility. Neither Dr. Pridh am nor Dr. Chesne

y could reconcile Dr. Souder’s report with the specimens received by the pathology laboratory. Dr. Souder did not testify in this claim, and thus these discrepancies remain unreconciled.

Ru le of Civil Procedure 56.05 provides in part that “[e]xpert opinion affidavits shall be governed by Tennessee Rule of Evidence 703" w

hich states as foll

ows:

The facts or

data in the particular case upon which

an expert bases an opinion or inference may be those perceived by or made known to the expert at

or before the hearing. I f of a type reaso nably relied upon by experts in the p arti cular field in forming opinions or in ferences upon t he subject,15 t he facts or data ne

ed not be admissible

in evidence. The court shall dis allow testimony in the form of an opinion or inference if the unde rlying facts or data indicate lack o f trustworthiness . [Emphasis added]

In this claim, the “underlying facts or data” on which the claimant’s expert based his opinion -- the operative report of Dr. Souder -- lacks trustworthiness. The procedure d escribed in

her operative notes (i.e., lifting the entire fallopian tube through the incision) was, according t o the defendant’ s expert wit ness, unlikely or unusual. More importantly, Dr. Souder’s description of the portions of

tube which she excised during the second tubal ligation procedure does not describe the portions of tube received by the pathological laboratory.

In Freda G. Moon v. St. Thomas Hospital , Court of Appeals, Middle Section, Apri l 25, 1997, the court stated, “[i]f opinion testimony must be disa llowed when the un

derlying facts indicate a lack of trustworthiness, it certainly must be disallowed when the underlying facts are inaccurate.” As the claimant’s expert witness, Dr. Alex and er, based his opinions on Dr. Souder’s operative report, and as this opera tive report appears to be an inaccurate

and unreliable source of information, Dr. Alexander’ t estimo ny and expert opinions, which are based upon Dr. Souder’s operative re po rt, should be disall owed pursuant to Tennessee Rule of Evidence 703.

Nothing in Dr. Chesney’s second labora t ory analysis confirms the c laimant’ s theory that the tu bal rings were mis

-16 placed by Dr. Ware. By the time of the sec ond analysis, the fallope ri ng had become separated from the remainder of the specimen, and

Dr. Chesney could not locate it. Dr. Chesney resectioned the remaining fallopian tube specimens and did not find evidence of tubal occlusion; however, as Dr. Chesney stated, the portions o f tub e removed during the second sterilization were apparently

uninvolved in the first sterilization procedure. If Dr. Ware placed the silastic rings in an appropriate ar ea ( which, according to the expert witnesses, is the middle third of the tube, slightly toward the uterus), one would not expect the fimbriated ends of the tubes to evidence occlusion: the occluded area of the tube would remain

inside the claimant’s body. Thus, the absence of occlusion in the specimens sent to the pathology laboratory does not prove that the c laimant’s fallopia

n tubes w er e never occluded by the first tubal ligation.

The claimant points out that Dr. Wa re, inher first deposition, in correctly described the proper location for the placement

of silastic bands. In that deposit ion, Dr. Ware stated that the rings should be placed roughly in about the middle of the tube, out towards the fimbriated ends rather than up close to [the] uterus. This is an incorrect location, accordi ng to the physician witnesses. In her

second deposition, Dr. Ware, herself, stated that the rings should be placed just a little past [the] first third of the tube, or closer to the uterus than to the fimbriated ends. The fact that Dr. Ware initially described an incorrec t location, coupled withthe fact that Dr. Chesney found the left fallope ring at the cut end of a sample which was 2.4 cm. long (an d testified that he believed the ring to have be en init ially placed in that location), tends to lend wei ght to the claimant’s position that Dr. Ware17 simply did not know the cor rect location fo

r placement of th

e bands and put them in the wrong place. However, there has been

no testimony concerning the over-all len gth o f the claimant’s fallopian tubes. The physici a ns te stified that the length of women’s fallopian tubes varies from six to eight centimeters. If the claimant’s fallo

pian tubes were a

t the shorter end o

f this est imate, by the time a knuckle of tube was formed and the knuckle necrosed, the r

ing might well

have been prope

rly placed

on the middle

third of the tube and still have been found 2.4 cm. from the fimbriated end.

In further support of her allegation that Dr. Ware did not p roper ly place the rings on the fallopian tubes, the claimant submitted for introduction four studies perfo rmed by senior medical students at UT. Two studies were introduced as ex

hibits: (1) “Method Failures o

f Laparosc opic Tubal Sterilization in a Residency Training Program” [Exhibi t 1a] and (2 ) “Chromopertubation at Laparoscopic Tubal Occlusion” [Exhibit 16]. The remaining two studies, (3) “A Model for Resident Surgical Training in Lapar oscopi c Sterilization” a nd (4) “Gross and Histologic Examination of T uba l Ligation Failures in a Residency Training Program,” were introduced as exhibits Y and Z for identification purposes only, wi th a ruling to be made on their admissibility in the final order.

The first of

these studies [Exhibit 1A] was conducted by G. Michael He nr y and was presented to the UT faculty and residents by Dr. Henry as his “sen io r paper” in appr oximately May of 1988. This paper indicated a greater-than-average failure rate for tubal lig

ations performe

d by UT residents.18 The second stu d y evaluated the effectiveness of the methylene blue dye test (chr omopertubation)f

ollowin g tu bal ligations to determine if the tubes were occluded.

The third study sought to identify possible ana t omical

reasons for the high failure rate of tubal ligations. This study , publishe d in September of 1990, concluded that it was the residents’ lack of expertis e and the attendin

g surgeons’ failu

re to properly supervise the procedures that were responsible for the high failure rate.

The fourth

study, published in March of 1994, suggested training techniques and for residents [sic] which were expected to lower the failur

e rate for futur

e procedures.

The defendant

objected to

the entering thes

e studies into evidence [sic].

The claimant suggests t

hat these studies indicate th at,

more li k ely than not, Dr. Ware was negligent in performing the claimant’s tubal li gation. The claima nt acknowledges t

hat she did not participate in any of

these studies. There is no proof that Dr. Ware performed any of

the ligations which were included in the studies or that she was inte rviewed in these

studies. These studies

are not r elevant to the issue as to whether or not Dr. Ware wa s negligent in performing the claimant’s tubal ligat ion . Studies 3 and 4 will not be admitted into evidence and wi ll not be considered in this opinion.

With regard to Dr. Buxton’s supervisionof the procedure19 performed

upon the claimant by Dr. Ware, t he operative notes reflect that Dr. Buxton was present in the operative suite. Dr. Buxton testified to an honest diligence to his r ole as attending physician. Dr. Buxton did not have any specific recollection about the claimant’s surgery, but testified ver y firmly that he routinely and normally checked behind the residents, and that he would have left the operating room when he “had indeed seen that the rings were placed

on what [he] agreed were the tubes, number one, and number two, waited to see whether any retrograde administration of methylen e blu e came through the cannula pl aced in the uterus and out the tubes and then [he] would hav e left . . . .” The claim

ant presente

d no evidence that Dr. Buxton

was not in the operating suite or did not inspect Dr. Ware’s work before the closing of the surgical wound. Thus, it must be found that the claimant has f

ailed to prove her

claim that Dr. Buxton

w as ne gligent in his supervision of the surgery performed upon her by Dr. Ware.

It is found that

the claimant has failed to carry her burden of proving negligence on the part of Dr. Ware and/or Dr. Buxton. Thus, this claim must be dismissed.

I T IS, THEREFORE, ORDERED, ADJUDGED AN D DECREED that this claim should be, and is hereby, dismissed.

This is a direct appeal from the Tennessee Claims Com mission and is governed by the Tennessee Rules o f Appel late Procedure and T.C.A. § 9-8-403( a)(1) (Supp. 1997). Since this is a nonjury case, it is reviewed de nov o upon the record with a presumption of correctne ss of the Commissioner’s findings of fact. T.R.A.P. 13(d), Sander s v. State , 783 S.W.2d 948, 951 (Tenn. App. 1989). The sole issue on appeal is whether the e vidence preponderate

s against the Claims Commissioner’s findin g1 At trial, Dr. Pridha m testified as follo

ws: Q. Can you in any wa

y reconcile this p

athology report w

ith Dr. Souder’s operative report and what she described in that report? A. No, that really does not make a lot of sense to me. If you’re doing a Pomeroy and you’re taking a knuckle of tube you’re not taking the fimbria. If you did a fimbriectomy, which is a different procedure, then you would have the fimbria. Those don’t make sense. 20 that the claimant failed to show that the State employees did not conform to the standard of care. The plaintiff’s burden of proof as set out in T.C.A. § 29-26-115(a) (1980) is included in the C ommiss ioner’ s ord er. Cole first contends that the Commissioner misappli ed the plaintiff’s burden of proof by requiring her to prov e the physi cians ’ negligence by more than a preponderance of evidence. Cole cites the following portion of th e Commissioner’s order in support of this contention:

Dr. Pridham’s testimony effectively and credibly refutes the claimant’s assertion that Dr. Souder s [sic] findings prove that malpractice was commit ted by Dr. Ware. Dr. Pridham gave convincing testimony that silastic bands can become displ a ced even when properly pla

ced. He also

gave convincing testimony concerning a fallopian tube’s ability to show n o imme diatelyvisible signs of scarring and/or occ lusio n following successful ligation. Therefore, it

would appear

that even though Dr. Souder may not have found silastic rings where Dr . Ware s hould have placed them, this is not absolute proof that Dr. Ware incorrectly placed the rings. (Emphasis added). This argume nt is without merit. When this finding is placed in context with the entirety of th e Commissioner’s order, it is clear that the Commissioner issued her rulin g based on a preponderance of the e videnc e standard. Cole next as

serts that even if the trial court employed the proper burden of proof, the prepo nderanc e of the evidence does not support its ruling. The t hrust of Cole’s suit is based on the testimony of her expert, Dr
. Ale xander, who, in tu

rn, based his opinion primarily on Dr. Souder’s operative report of the second sterilizatio n procedure. The preponderance of the evidence does not weigh against the Com missioner’s decision to discount Dr
. Alexander’s testimony, since it justifiably found that Dr. Souder’s report was inaccurate and unreliable. As elucidated in the Commission er’s Order, several unresolv

ed discrepancies exist between Dr. Souder’s repor t and Dr. Chesney’s pathology report. Namely, there we re discrepancies concerning the segment of the tub e that wa s excised by Dr. Souder and delivered to Dr. Chesney 1 and discrepancies conce rning the location of the silastic band i n relation to the left fall

opian tube. Based on the testimony of both Dr. Chesney and Dr. Pridham, Dr. Souder’s report i s inconsistent with the proce

dure performed. Furthermore, Dr. Pridham noted that Dr. Souder’s report may be unreliabl e due to the size of the incision, the presence of inadequate lighting, and the unl ikelihood of pulling the fa

llopian tube s2 Specifically, Cole mentions Dr. Ware ’s testimony regar ding the appropria

te location for the placement of the fallope ring, the use of methylene blue dye as a test, the absence of scarring in Dr. Souder’s report, the alleged lack of evidence of a lternative explanations for

the failure of the

sterilization, the

University studies

that Cole attempted

to introduce into evidence, and the alleged lack of evidence demonstrating that Dr. Buxton supervised the results. 21 in their entirety to t

he surface of the skin as described by Dr. Souder’s report. Although Cole’s expert, D r. Alexander

, attem pte d to reconcile the reports, the preponderance of the evidence supports the Commissioner’s finding that Dr
. Pridham is a more qualified expert for the reasons set forth in the Commissioner’s Order. See St ate v. Ballard

, 85 5 S.W.2d 557, 562 (

“In Tennessee the qualifications, admissibility, relevancy and compet ency of expert testimony ar

e matters which largely rest within the discretio n of the trial court.”) In light of the unreliability of Dr. Souder’ s report , the Commissioner was justifie d in discounting Dr. Alexander’s testimony. See Tenn. R. Evid. 703 (“Th e court shal l disallow testimony in the form of an opinion or inference if the u nderlying facts or data indicate lack o f trustworthiness.”). In her brief, Cole raises several arguments, each of which were discussed in det ail in the Commissioner’ s Order. 2 After an extensive review of the record, we find that the Commissi oner’s findings with regard to thes e arguments are s

upported by the preponderance of the evidence a nd the law. Although Cole did an exemplary job i n demonstrating the

possibility that the sterilization procedure was negligently pe rformed, we are unable to ho

ld tha t the prepondera

nce of the evide

nce indicates tha

t the Commissioner’s

findings are err

oneous. The judgment of the Commissioner is affirmed. Costs on appeal are assessed against the Appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE