1 Plain tiff also s ued Johnson Cit

y Eye and Ear Hospit al, I nc., d/b/a John son City Speciali ty Hospit al and Medical Cen ter O bstetric s and Gyne colo gy, P.C ., but too k a vo luntary d ismissal a s to these entities pr ior to tria l.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Februar y 3, 20 04 Session

DONNA S. YOUNG v. FRED C. HARTLEY, M.D., ET AL 

### . Appeal from the Law Court for Washington County No. 20477 Thomas J. Seeley, Jr., Judge

FILED MAY 10, 2004

No. E2002-02925-COA-R3-CV

Donna S. Young (“Plaintiff”) sued Fred C. Har tley, M.D. (“De fenda

n t”) 1 claiming that during a tubal ligation, Defendant negligently performed additional surgeries upon Plaintiff’s vaginal area without her consent and that those extra surgeries caused Plaintiff to suffer physica l and emotional damage. After trial, the jury returne d a verdict in Defendant’s favor. Plaintiff appe als raising, among other things, several questions regarding the admission of evidence at trial. We affirm.

Tenn. R. App. P. 3 Appe al as of Right ; Judgme nt of the Law Co urt Affirm ed; Case Remanded

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , P.J., E.S, and C HARLES D. S USANO , J R ., J., joined.

Donna Sue

Young, Johnson City

, Tennes see, pro

se Appel lant.

James E. Brad

ing; Cha rles T. Herndon, IV; and Bradle y E. Griffith; Johnson City , Tennessee, for the Appellee, Fred. C. Hartley , M.D.-2- OPINION
Background

Numerous lay and expert witnesses testified a t the trial in

this matter. Because of the number and type of issues

raised in this appeal, it is necessary that we discuss in detail the evidence present ed at tria l.

Inlate Apr

il or ear ly M ay of 1999, Pl aintiff w ent to Def endant s ee king a tubal ligation. Defend

ant perf ormed a pregna

ncy test a nd de termined Plaintiff was pregnant. Plaintiff claims she did not know she was pregnant when she went to Defe ndant’s office. Defendant refe rred Plaintiff to the Knoxville Center for Reproductive Health where Plaintiff had an abortion. Plaintiff claims she had no complications from the abortion. Plaintiff has three c hildren an d gave birth vagina lly each time. She admitted she had tears during the birth of her first two children, but does notrecall having st

itches wi th the last

. Another

doctor, Dr. Gantt, removed an inclusion cy st from the left side of Plaintiff’s labia minora in 1992.

OnMay 27, 1999, approximately one month after the abortion, Defendant performed
a tubal lig ation on Pla

intiff. D efenda

nt claims t

hat just pr

ior to the s

urger y, Pl aintiff a sked him

if he would remove a skin tag in her vagina l area. During the surge

ry, Def endant removed

a skin tag fromPlaintiff’s right labia minora and placed two stitches i n that ar ea. Plain tiff, how ever, c laims she never had a skin tag and never asked Defendant to remove one. P laintiff sued D efendant clai ming he ha d done two unnecessary surgeries in her vaginal a rea, removing a skin tag and removing an inclusion cy st, and that these extra surgeries caused dama ge to Plaintiff’s clitoris.

Plaintiff remembe rs very little of her experienc e in

the hospital pre-surgery . She does notrecall speaking with Defendant pr ior to the surgery

. Plaintiff stated she remembers being taken to a room and given a gown to cha nge into. She stated “I

just put on the gown a

nd laid in the bed. The next thing

I re member is

a whole lot of people standing around me, a nd the n . . . T hen t he ne xt thing I remember wa s being in another room and every

thing was white. The walls were white, the carpe t. I m ean every

thing was just white . . . .” Plaintiff does remember a woman in a flowe red dr es s t el li ng he r p ri or to su rg er y th at he r i ns ur an ce wo ul d n ot co ve r t he su rg er y.

Plaintiff stated that when she awoke from surge ry she wa s “screaming in pain.” She claims she experienced severe pain while at the hospital. Plaintiff also clai ms that a lthough she wasn’t bleedi ng bad before she left the hospital, she began ble eding from her vaginal ar ea in the middle of the night, but not from her clitoris. Plaintiff claims that although she had minimal blood loss at the hospital, the bleeding that started in the middle of the night was considera ble.

Pamela Joh nson, a registered nurse who ca red for Plaintiff in the recovery room knownas the pos t-anesthesia ca re unit (“PACU”), t

estified that Plaint

iff was i n PACU for approxima

tely forty-five minutes. Ms. Johnson explained that when a patient who has had a vaginal-3-

entry or surgery

arrives in PACU, Ms. J ohnson cleans the patient’s peri area and c arefully c hecks for any bleeding . The records show Plaintiff h ad no v aginal bleeding on admission to PACU, halfway th ro ug h P la in ti ff ’s PA CU st ay, and upon discharge from PACU. Ms. Johnson charted that when Plaintiff left PACU, she was breathing well, wa s comfor

table, r eported that her pain had eased and had no vaginal bleeding. The re cords show Plaintiff received what Ms. Johnson described as
a smaller t han norma

l dose of p ain

medication in PACU. Although Plaintiff’s blood pressure was elevated when she arrive d in

PACU, it was normal when she left. Ms. Johnson testified that she has
never in her entire career seen a patient, including Plaintiff , with ten t

o twenty stitches in the clitoral
area.
When questioned regarding her stay in PACU and the rec ords, Plaintiff stat ed s he does not recall being in PACU post-surgery and stated “I’ve disa

greed with a lot of the records.”

PatBishop, a licensed practical nurse who also ca red for Plaintiff post-s urge ry, testified she never heard Pla intiff screaming

or cry ing in pa in. Ms. Bishop charted that Plaintiff was experiencing no pain and did not receive any thing for pain post-op. Ms. Bishop noted that Plaintiff had scant bleeding

on her abdominal band-ai d. Ms. Bis hop char ted that Pla

intiff re ceived a

meal, ate twenty-five pe

rcent of it and tolerated it well. The chart shows Ms. Bishop took Plaintiff’s blood pressure and

it was 110/70. Plaintiff, however, claims her blood pressure was not taken. Ms. Bishop testified that a patient has to meet certain criteria befor e they can be discharged, i.e., “the ir pain has to be controlled, their nausea controlled, and they have to be

accompanied by

someone. They’ re not allowed to drive themselves home.” Ms . Bishop t estified she actu ally had to see Plain

tiff lea ve with
someone upon discharge, not just rely on what Plaintiff said. Prior to discharg e, Ms. Bishop made Plaintiff a follow-

up appoin

tment with D efenda

nt for June

3rd. Ms. B ish op te stified that in her thirty-five

years as a licensed practical nurse, she has ne ver see n a patie nt, includ ing Plain tiff, with twelve to eighteen stitches in their frenulum or clitoris.

Plaintiff claims that after

the surgery , Defendant came to her room and told he

r he did “two extra little

surgeries” but that he would not charge her for them. She say s Defendant told her he had remo ved an inc lusion cy st and a sk

intag and assured her she did not have ca nc er . S he sa ys Defendant

guaranteed her there

was no cancer and told her there was no need to se

nd the tissu

es to pathology.

Plaintiff

claims that a couple of minutes after Defendant left her room, “a lady

came inand told me it was time for me to leave.” Plaintiff claims she told this woman she had not called her sister yet, but the woman

just told her it was time to leave and that this woman walked her to the door. Plaintiff claims she drov e hers elf home, but does not remember how. The discharg e notes made by Pat Bishop, however, show that Plaintiff was given discharge instructions, was a mbulatory and in stable condition, and was accompanied by a friend when she left the hospital.

Plaintiff claims when she got home the pain was getting worse, she was “a ll swollen inthe clitoris area and down the side” and there were stitches every

where. She claim s she took s ome Tylenol and went to bed. Plaintiff

claims she

spoke to he

r sister, her boy

friend, and a fe

w female-4-

friends on the phone either th at day or over t he next cou

ple of da ys. Plaintiff

also allowed some friends to see the area over the course of the next couple of weeks. Plaintiff had one friend take pictures of Plaintiff’s vaginal area, a nd those picture were introduced at trial.

Plaintiff claims that when she went to Defendant’s office on June 3rd to ha ve the stitches removed, she told Defendant she thought she was “ going to bleed to dea th.” She claims Defendant explained the surgeries to her using pictures and again guarante ed her she did not have
cancer. Plaintiff, however, thought Defendant was not be ing hone st with her so Plaintif

f got some money from a f

riend to buy

a tape r ecorde r so she c ould secr

etly tape De fendant . Plaintiff claims she knew she did not have a skin tag or an inclusion cy st and that she thought Defendant was ly ing to her.

A co up le of da ys after the stitche s were r emoved, P laintiff

and her s ister we

nt to Defendant’s office

to speak to D efenda

nt, and the

y se cretly tape recorded the conversation. The ta pe and a transcription of it were introduced at trial. Plaintiff claims she told Defendant they were there because her siste r wanted to make sure Plaintiff did not have cancer. After this visit, Pl aintiff d

id not return to Defendant.

Plaintiff claims Defendant either removed or damag ed all or a portion of her clitoris. She claim s she has n

ot had sexua

l interco urse with any man since the surgery

and that she has not experienced

any sexual stimulation that was pleasurable although she has tried masturbation and a vibrator. Plaintiff claims she had no problem with sexual arousal prior to the surgery , butthat she is no longer capable of having se xual intercourse.

At the time of the surgery , Plaintiff was dating David Cross. Mr. Cross testified he
saw Plaintiff about two days afte r the surgery

when she stopped by

his house. Mr. Cross testified Plaintiff looked okay

but was c omplaining

that it hur

t her to walk. He

stated the ir relat

ionship fe ll apart after th e surge

ry because Plai ntiff was al ways hurt ing and compl ainin g. He also testified they never had sex after the surgery

.

Shortly after the surger

y, i n June or July

of 2001, Plaintiff met Alan Gates and the two began dating. Plaintiff

claims she never had sex with Alan Gates. Plaintiff claims she and Mr. Gates went away to the be ach and stayed in a motel together and slept in the same bed naked one time, but that they never

had sex. She claims she stimulated him sexually one time on the trip to the beach and over the course of their relationship approximately four times.

AlanGates testified he had sex with Plaintiff after they had da ted for acouple of weeks. He says Plaintiff neve r complained of any

pain or lack of fe eling

when they had s ex. Mr. Gates claims he and

Plaintiff had sex at his apartment, at a trailer, on a pontoon boat, on an island during a ca

mping trip, and d

uring trips toge ther out-o f-to wn. H e sta

tes “ [u ]s ually when we

slept together we had sex. I mean, y

ou kn ow, that’ s n ormal, I think.” Mr. Gates believe s Plaintiff had orgasm s and states “[i]f she didn’t she was putting on a lot.” Mr. Gates say s their relationship lasted-5-

until March or April and during that time he e sti mated he and Plaint

iff had s ex a hundre d times, maybe more.

Mr. Gates also testified he had ridden with Plaintiff on a Sea Doo one or two times and that his son had ridden

with Plaintiff on it quite a few times. In addition, Mr. Gates stated he had seen his son, Du stin, giv e Plaintif f rides o n an ATV on trails in the woods and through fields. Fiftee n-year-ol d

Dustin Gates testified he had given Plaintiff a ride on the Sea Doo three or f our times and had also ridden her o n the ATV on pretty r ough terrain in the woods and that he never heard her complain about pain from the rides.

Plaintiff claims she has ridden on an ATV on ly one time and that was prior to the
su rg er y. She claim s she rode a Sea Doo

one time w

ith Alan Gat

es for a bout four minutes an

d claims it hurt so bad that she yelled and sca red Alan and they

both fell off. She claims she has never ridden a Sea Doo any

other time. Plaintiff claims she never rode on an ATV with Dustin.

Plaintiff claims tha

t approxim ate ly six weeks after they met, Mr. Gates bought her
a Mercedes worth approximately $50,000 for her birthda y. M r. Gates, however, testified that Plaintiff borrowed appro ximat ely $50,000 from him ear ly on in their relationship to buy the Merced es. Mr. Gates claims he and Plaintiff had sex a couple of times before she borrowed the
mo ne y. Mr. Gates states Plaintiff told him “sh e was g oing to be the rich est bitch i

n Johnson City

in December . . . .” December was when the trial of this matter originally was scheduled to begin. Plaintiff claims she broke up with Alan Gates when she discovered he and a friend “had thousands

of pills an

d bagg ies, trash ba

gs full of Marijuana.” She claims Mr. Gates threatene d to testify that he

had sex with her if she refused to marry him so she would be pre cluded, as his wife, from testifying

against him regarding the drugs.

Plaintiff claims she

has bee n unable t

o work since the su

rgery and that she would have to lock the

door of he

r shop “two or thre e times a day and ha

ve to go home and pick up clothing because I would bleed so bad I’d bleed on my clothing.” Plaintiff claims she changed pads f or bleeding during the eight weeks after surgery “as many as 30 times a day”

and that she had even “put towels down there instead of pads.” She also claims she couldn’t liftor walk much so she just closed up her shop. Plaintiff

opened h er busine ss, Sea Scape, in September of 1998, and

closed it i n August of 2000. Plaintiff claims her shop was doing well until the surgery , but that after the surger

y sh e “just couldn’t walk because of the pain”an d h ad to clos e the shop . She did, however , admit to writing bad

checks when she first opened her business. Plaintiff also claims she c anno longer ride a bicycle or jog and that she “can’t wear je ans or anything like that . . .” because of constant pain.

The next doctor

Pl aintiff saw after the surgery was Dr. Link, a plastic surg eon. Plaintiff went to Dr. Link seeking liposuction surge ry or what Plaintiff calls a “tummy tuck.” Dr. Link’s records show Plaintiff never mentione d to Dr. L

ink that sh e was ha

ving an y pr oblems from the surger y a t issue in this case, or even that she recently had surgery . Plaintiff scheduled surgery-6-

with Dr. Link for July

6, 1999, less than two months after the surgery at issue in this cas e . Plaintiff called and cancelled that surge ry on the day

of surgery

. Plaintiff did not see a doctor for the problems she claims Defenda ntca used for approxima

tely a yea r and a half. She claims she called f our or five different doctors and made appointme

nts, but then wouldn’t go “[b]ecause I wa s afraid t hey wer e going to tell me that I had cancer or I

truly didn’t have my

clitoris anymore, and I

just didn’t want to hear it.”

After P la in ti ff fi le d t hi s l aw su it , h er at to rn eys se nt he r t o b e e xa mi ne d b y D r

. Christine Neal. Dr . Neal sp eci alizes in obstetrics and gy necology . Dr. Neal testified as one of Plaintiff’s expert witnesses during trial. Dr. Neal testified that during her examination of Plaintiff, Dr. Neal saw a segment of Plaintiff’s labium minora was missing and that around Pla

intiff’s clitoris
w as a white a

rea with some sca

rring. Dr. Nea

l testifie d her initi al examina tion of Pla

inti ff wa s limited because Plaintiff was in pain and could not tolerate having the foreski

n of the clitoris pushed back. Dr. Nea

l stated “ I did n

ot see a c litoris at a

ll. There was somet

hing in th ere tha

t I couldn’t see well. I fe lt like I

needed to get a better exam, but I simply couldn’t do it because of the discomfort there.” Dr. N eal know s of no treatment to fix the problem she believes Plaintiff has. Dr. Neal believes Plaintiff

’s compla ints are consistent with Dr. Neal’s physical findings. Dr. Neal admitted that Plaintiff’s having had an abortion several wee ks before her surgery

could have caused bleed ing, butshe stated the bleeding should have stopped within about two weeks af ter the procedur e. Dr. Neal also admitted that during her care er she had never

done or seen a clitoral circumcision, other than this case.

Dr. Neal referred Plaintiff to L auree R a msden, a licensed clinical social worker, whom Plaintiff

saw four or five ti mes. Ms. Ramsden contacted Dr. Neal recommending medication and Dr. Neal prescribed Z oloft.

Plaintiff’s at to rn eys al so se nt he r t o b e e xa mi ne d b y D r. Will iam Saye, who specializes in gyne cology . Dr. Saye a lso testified at trial as an expert for Plaintiff. Dr. Sa ye examined Plaintiff and explained at trial that he found “looking at the perineal area, t he little r abbit
ears that I describ ed to you were

asymmetrical. One side didn’t look like the other side. . . . And that was the right side.” Healso noted Plaintiff’s clitoris did not look symmetrical. Dr. Saye testified that when he pulled back

the hood to visualize the clitoris, this caused Pl ai nt if f d is co mf or t. Dr . S aye stated “that the right side of the clitoris was no longer present . And at th e base of the clitor is, this side, was an area that I

described

in my note as something that looked like a crater.” Dr. Say

e also stated he saw “[o]n the right side of the vagina there was a scar that was abo ut a ce ntimeter and a half that still had the evidence of two big sutures that had be en placed in this area.” Dr. Say

e opined after examining Plaintiff that “the right side of the clitoris was no longer present” and that there was a crater and something was missing. His finding was “an abnor mal right labia minora, an abnormal clitorisand a scar on the right inside of the vagina.” Dr. Saye opined Plaintiff’ s condition could have bee n caused by a

n injury or an ele ctrical burn rather than a total excision of the clitoris. Dr. Say e opined the injury may

have bee n caused

by e lectroc autery

used duri ng the su rgery at issue in

this
case.-7- Inaddit ion to thei r s ep ar at e e xa mi na ti on s o f P la in ti ff , D r. Ne al an d D r. Sa ye conducted

a joint examination of Plaintiff on July 8. Pictures were taken during this examination and were introduced at trial. Dr. Neal stated that a t this examination Plaintiff was not experiencing as much tenderness and Dr. Neal explained:
[I] was able to pull the foreskin over the clitoris back a little better. The little thing that I had seen that I

wasn’t sure what it was I was now pre tty certain wa s part of the clitorisr em aining. Dr. Say e and I did look at

that tog ether, a

nd we both

felt comfo rtabl e that that’ s what we were s eeing.

Dr. Neal explained the difference betwee n her findings and Dr. Say e’s findings is that

Dr. Say e is certain the little tiny something they saw was clitoral tissue and Dr. Nea l is not sure , but belie

ves it may be clitoral tissue.

Defendant te stified regarding the surg ery he pe rformed on Plaintiff. Defendant claim s h e saw Plaintiff on the morning of the surgery and spoke to her prior to the s urger y. H e went t o discuss the insurance situation with Plaintiff after he was informed Plaintiff’s insurance would not pa y. He stated Plaintiff requested he proceed with the surg ery anyway

. Defend

ant testif ied he al so spoke to Plaintif

f while she was in the holding area prior to surgery and that this is where Plaintiff requested removal of a skin t

ag. De fendant

claims Pla

intiff ca ll ed him over and “indica ted to me that she had a bu mp or a ski n t ag . . . [ o] n t he r igh t s id e of her vag in a an d wo ul d I remove i t? ” Defendant

told her that if he cou ld identif y it a nd it was ver y min or he wou ld go ah ead and

do that. Defendant claims Plaintiff was lucid and “[s]he knew who I was. Sh e kn ew w her e sh e wa s. . . . It
was my assessment

that she was absolutely a ware and alert.” There w ere no other w itnesses t o this conversation

and Defendant did not ask Plaintiff to sign a consent form for the remo val of the

skin tag. Defendant stated this conversation occ urred before Plaintiff received Versed and was moved into the operating room, but after Plaintiff had rec eived Valium. Defendant explained that the anesthe siologis tis with the patient fr om the time the Versed is administered through the I V line throughout the surgery . Defendant admitted Versed causes amne sia.

Defendant

explained he began the surgery by removing

the skin tag by “lifting it up with pick-ups , which is l ike a twe ezers an d taking a small sc issors and, and cu tting it at its base and thenputting two stitches across that edge to keep those e dges together at that time.” Def endant estimated the skin tag was at approximately the eleven o’clock position. Defendant explained that the skin tag

he remov ed was on

Pla int iff’s right labia minora and the inclusion cy st that Dr. Gant removed ye ars ear lier was on the lef

t labia minora. De fendant testifie d he did

not remove a

cyst.
Defendant

believe s it

was within the standard of care to remove the skin tag stating “[w]e do things our patients ask us to do if they’re minor and they don’t ca

use them any har

m and they know what they’r

e asking about.” Defendant stated he did nothing to Plaintiff except perform
a tubal lig ation and

remove a skin tag . Defen

dant expla

ined ther e was no r eason to p reserv e this skin-8-

tag and send it to the lab for testing. Defendant, howeve r, stated that

he w ould have sent an inclusion cyst to the laboratory if he had removed one.

Defendant

explained that Plaintiff had two stitches from the removal of the skin tag and stitches i n the nava

l from the tubal lig ation and

no other s ti tches. There w ere two s uture sets used in th e s ur ge ry, one for the vaginal part of the procedure and one for the abdominal part. They could n ot u se the same suture set for both areas beca use the areas have two differe nt levels of st er il it y. Plaintif

f’s expert, Dr. Neal, when questioned stated if y ou had 15 to 20 stitches in the vaginal area y

ou would use at least three suture sets in that area and if you had

5 to 10 stitches you would use at least two suture sets. Plaintiff filed an affida vit claimin

g she ha d 10 to 12 sti

tches in the vaginal area and told Dr. Ne al that she had 15 to 20 stitches.

The surger

y to ok appro ximately

twenty-three

minutes and Defendant stated if there had been the number of stitches Plaintiff claims, it would have taken considerably longer. Defendant stated “This procedure, to be done b y me in thi s amount of time, means that it went very well. I didn’thave any , we didn’t have an y g litches. E

very thing we nt smoothly

to do the skin tag and tubal ligation in, i n twenty-thre e minutes. We’re not trying to break records or speed rec ords, but that
means there weren’t any

problems.” In their pre- surgery conversation, Defendant

told Plaintiff she might have a stitch from the skin tag and “that’s rea lly all I told her because that, there really ar en’t any complications from taking off skin tags. They ’re very minor.”

Defendant

stated the scar Plaintiff has is compatible with the laceration noted in the records fromthe birth of Plaintiff’s child in 1978. Defendant testified there was no electroc autery used during the surgery

that could have caused any of the co mplaints Plai ntiff has. Defendant testified “[ t] he re wa s n o c au te ry used in the vagina l area w hatsoeve r.” He e xplained th at if something is cauterized it is burned. Defendant stated that it was not even a possibility the bipolar electrocautery

came into contact with the clitoris as Dr. Say e opined.

Dr. Christopher Mitchell, the resident who as sisted De fendant with Plaint

i ff’s surgery, also testified at trial. Dr. Mitchell testified that as he and Defendant scrubbed for

Pl ai nt if f’ s s ur ge ry, Defendant

told him Plaintiff hadreq uested th e remova l of a skin tag fr om her la bia. Dr. Mitchell testified that durin

g the sur gery , Defen dant gr asped the skin tag with forceps and

snipped it

off with
a pair of scissors and used a couple of interrupted sutures to stop the bleeding. He stated it was “very straightforward. A simple task.” Dr. Mitchell estimated the skin tag was roughly between the nine and ten o’clock

position three or

four ce ntimeter s from the

clitoris. He testif

ied that a fter the skin tag was removed, they

proceeded to perform the tubal ligation. Dr. Mitche ll testifi ed no electrocautery

was used in the vaginal area.

Catherine Hooten, the surgical tech who assisted in the ope rating room, also testified at trial. Ms. Hootentestified the bipolar electrocautery device is approximately eig hteen inches long inits assembled state. Ms. Hooten testified she has seen skin tags remov edthat weren’t listed on the consent form and stated that usually the patient has requested removal after the consent was signed. Ms. Hooten stated that very often the skin tag is simply thrown a way after r emoval a nd is-9-

notsen t to the lab. Ms. Hooten testified she had a total view of both areas of the surg ical site, Plaintiff’s vaginal area and her a bdominal area , and state d neither Plaintiff’s clitoris nor her frenulum
were removed in whole or in part. Ms. Hooten testified it usually takes approximately thirty minutes for Defendant to perform an uncomplicate d bilateral tubal ligation.

Emma Rastell is a now-retired licensed practical nurse w ho worked for Defendant during the rele

vant ti me period . Ms. Rastell testified that she observed one stitch in Plaintiff’s vaginal area during Plaintiff’s post-sur gery visit to Defendant’s office.

Dr. Charles Hillman, Defendant’s expert witness, t

estified Valium, which Plaintiff received prior to her pr e-surger

y conversa

tion with Defendant, is an anti-anxiety medica tion. Dr. Hillman stated “[i]t’s not consid ered a s edative

or an ane sthetic, b

ut it’s use d usually

preoper atively just to calm pa

tients, an d make the

m better a

ble to com

prehend what’s h appen ing t o them and prepare them for surgery .” Dr. Hillman stated it is a judgment call on the part of the phy sician as to whether a

patient is conscious and aware and capable of making decisions. Dr. Hillman opined that Defendant met the standard of care regarding removal of

the skin tag. Further, Dr. Hillma n stated skin tags usually a

re not sent to pathology . That decision is left up to the physician.

Dr. John Rock, Defendant’s other expert witness, is a reco nstruc tive surgeon who does special ized surg ery . Dr. Rock ’s area s of inter est include conge

nital abnormalitie s of the pe lvis, uterus, vagina , externa

l genita lia, clitoris, labia

minora, a

nd majora . He also

sees pat i ents w ith structural abnormalities and has treated women and recreated their clitoris after the clitoris has been circumc ised. Dr. Rock opined that “[Defendant] did not remove any part of the clitoris, o r th e prepuce, or the frenulum. He d id have a remova l of a skin tag, bu t that is the

only thing, in my opinion, that was removed.” Dr. Rock does not believe the surgery

caused any

injury to Plaintiff.

Dr. Rock examined Plaintiff in January of 2001. Dr. Rock l ocated Pl aintiff’ s clitoris and testifie d “I

actually picked up, p alpated the clitoris, the clitoris was there, pulled back the prepuce, and visua

lized the glans. The

glans w as there . The fre

nulum wer

e intact . . . .” Dr. Rock used the photographs taken during Dr. Neal and Dr. Sa

ye ’s joint exa

mination to

illustrate his points stating “if

they knew how to e

xamine external genitalia they’ d have the answer . [Dr. Nea

l’s] almost grasping the clitoris. . . . So there’s a base knowl edge defect in terms of understanding clitoral anomaly on the part of the examiner.” Dr. Rock saw no evidence of a crater. Dr . Rock stated that if t he rig ht side of Plaintiff’s clitoris were missing it would had to have been resec ted and he explained that in order for this to happen

y oudo a circumferential incision in the top of the, of the dorsal are a of the ski n , mobil ize the skin down to expose the, the entire shaft of the clitoris, and then you would actually make

anincision in the corpora on that sid

e and tak e out a se gment,
or wedge, and, and then y

ou use electro-cautery

or suture if you get y our hemos tasis.

The case was tried on Plaintiff’s Second Amended Complaint. I n her Second Amen ded Complaint, Plaintiff alleged Defendant was liable to her bec ause of his “intentiona l-10-

conduct and/or negligence” a

nd for “medical battery .” The jury found for Defendant and a judgme nt
was entere d dismissing

Pla inti ff’s ca se aga

inst Defe ndant. Pla

intiff fil ed a motio n for new trial, which the Trial Cour

t denied. Plaintiff

appeals to this Cour

t.

Discussion

Alth ough Plaintiff raises eleven issues on appeal, resolution of several of these issues would require this Court to consider what Plaintiff describ es as new

ly d iscover ed evide nce or po stjudgment facts. We entered an order on September 19, 2003, de nying Plaintiff’ s reques t t o supplement

the record by

newly discover

ed evidence and an order on De cember 5, 2003, deny ing Plaintiff’s motion to consider post-judgment facts. A s such, we

will not consider Plaintiff’s issues relating to what Plaintiff describes as newly discovered evidence or post-judgment fa cts.

We restate the issues properly before us on appeal

as: 1) whether the Trial Court erred inallowing

Plaintiff ’s abort ion conse nt form to be admitted into evidence; 2) whether the Trial Court erred in allowin

g the ad mi ssion of evidence regarding Plaintiff’s personal finances, the status of Plaintiff’s company, and

Plaintiff ’s failur e to file i ncome ta xes; 3) wheth er the Tr

ial Court e

rred in allowing the admiss ion of evi dence r egard ing the b irth of Pla

intif f’s second child; 4) whether the Trial Court err

ed in exclu

ding as e vidence the last pa

ge of a hospital b ill; 5) whether the Trial Court erred in allowing Dustin Gates to testify; a nd 6) whether there was material evidenc e to support the jury ’s verdi ct. Defe

ndant als o raises

an issue r

egard ing whe ther this i s a frivo lous appe al.

Issues regarding admission of evidence i n Tennessee are reviewed f or abuse of discreti o n. Dickey v. M

cCord , 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001). “[T]rial courts are accorded a wide degree of

latitude in their determination of whether to admit or exclude evidence,
even if such evidence would be relevant.” Id

. Our Supre me Court discussed the abuse of discretion standard in Eldridge v. Eldridge , stat ing:

Under the abuse of discr etion stan dard, a t rial cou rt’s ruli ng “wil l be uphel d
so long as reasonable minds can disa gree a s to [the] pro

priety of the decision made.” A trial court abuses its discretion only whe n it “applie[s] an incorrect legal standard,
or reache [s] a decisi on which i s again st logic or reas oning tha

t cause[s] an injustice to the par ty complai ning.” The abuse of discretion standard doe s not permit the appella te court to substitut

e its judg ment for t hat of the trial cou rt. Eldridge v. Eldridge , 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

Appellat e courts or

dinarily permit discretionary

decisions to stand when

reasona ble judicial minds can differ

concerning their soundness. Overstreet v. Shon ey’s, Inc. , 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999 ). A tria l court’s discreti onary

decision must take i

nto acco unt applic able law and be consistent

with the facts before the court. Id . When reviewing a discretionary decision by the trial court, the “appell ate cour ts should be gin

with the presumption that the decision is correct and should review the evidence in the light most favorable to the decision.” Id

.-11- We b egin by considering whether the Trial Court erred in allowing Plaintiff’s abortion consent form to be admitted

into evidence. Plaintiff filed a motion in limine seeking, among other things, to have excluded all evidence pertaining to her abortions. The Trial Court entered an order
on August 20, 2002, holding that evidence of the a borti on Plaintiff had one month prior to the surgery at issue was relevant and admissible. The order excluded evidence rega rding all previous abortion s. At trial, the only evidence introduced

regarding Plaintiff’s abortions was the consent form fromthe abortion that Plaintiff received one month prior to the surger y at issue. This consent form listedpossible c omp li cations of the procedure, including bleeding . At trial, Dr. Neal, Plaintiff’s expertwitness, testified bleedingwas a possible complication of an abortion. As one of Plaintiff’s complain ts in this suit regards heavy bleeding, evidences howing t hat blee ding is a

possible complicationof a surgical procedure Plaintiff had only one month prior

to the surgery

at issue was relevant and admissible.

Further, we note that at the b eginnin g of the voir dire , the Tria

l Court t old th e potential jury members that Plaintiff had obtaine d an abortion one month prior to the surgery at issue and asked the potential jurors if this information would affect their verdict. Several potential jurors did state that knowledg e of Plain tiff’s a bortion c ould aff

ect their verdict and in ea

ch of the se situations , the Tria

l Court excu sed the po tential ju ror. The memb ers o f the final jury pa nel each indicated they either w e re not opposed to abortion, or that their personal feelings r egarding the subject would not affect their verdict in any way.
We believe

reasona ble minds could disagree as to the propriety of the decision made by the Trial Court to admit the abortion consent form, the very essence of a discretionary decision. We believe this to be especially so given Dr. Ne a l’s testimony t hat blee ding is a

possible complicationof

an abortion, and the Trial Court’s pre-emptive measures ta kenin voir dire. Given thesepre-emptive measures taken by the Trial Court, even if it were error by the Trial Court

to admit the abortion consent form, we hold that such error did not more probably than not affect the judgment or result in prejudice to the judicial process. See Tenn. R. App. P. 36(b). Given this, we will not substitute our judgment for that of the Trial Court, and we find no abuse of discretion or reversible error reg arding the admission of the abortion consent form.

We n ext conside

r whethe r the Tri al Court e

rred in a llowing t he admiss ion of evi d enc e regarding Plaintiff’s personal finances, the status of Plaintiff’s compa ny, and Pl aintiff’ s failure to file income taxes. Plaintiff filed a motion in limine request ing, among othe

r things , the exclusion of evide nce per

taining to Plaintif

f’s fina ncial sta tus and bus iness pra

ctices. The Tria

l Court’s A

ugust 20, 2002, ord

er held the Defendant could offer evidenc e rega

rding Pla intiff’s financi al proble

ms “if the plaintiff

makes or has made

statemen ts that wou

ld be cont radicte d by

such evid

ence” o r “as it relates to motivation or credibility.”

During cross-examination, Plaintiff was asked if her business was in dire financial straits. She denie d it was. A lette r from an oth er attorney who had represented Plaintiff then was introduced. This letter, written to Plaintiff’s creditors, suggested that Plaintiff qualified to file for bankruptcy

and aske d the cre ditors to a gree t o al low Plaintiff to make small payments instead.-12-

Plaintiff then was asked if her business at the

time the le

tter was written w as in esse

nce insol vent. Plaintiff de nied this a sse rtion. Plaintiff, however, admitted to writing bad checks. As far as the evidence regar

ding pa yme nt of inco me taxes, Plaintiff swore during her depositio n that she

did file income tax forms every y

ear and that she could provide copies for the past few y ears. Plaintiff later claimed someone broke into her house and stole only a box from her

closet where she kept important records such as the tax returns. When ordered by the Trial Cour

t to obtain co pies from the gover nment, Plaintiff finally admitted she had not filed her i n come taxes for the requested y ears de sp it e h er sw or n d ep os it io n t es ti mo ny t o t he co nt ra ry.

The Trial Court allowed Defendant to offer evidence regarding

Plaintiff’s financial problems “if the plaintiff makes or has made statements that would be contradicted by such evidence” or “as it relates t o motivation or credibility.” Plaintiff made seve ral inconsistent statemen ts under oa

th rega rding he r financ ial status

and the st

atus of he r busines s. At a mini

mum, we believe reasonable minds could disagree a s to the pr opriety of the de cision made by the Tria l Courtto admit the evidence of Plaintiff’s financial condition to impeach h er credibility, the very
essence of a discretiona

ry decision . Given th

is, we will

not substitute our judgment for that of the Trial Court, and we find no abuse of discretion regarding the admission of the evidenc e of Plaintiff’s financial condition.

We next consid

er whether the Trial Court erred in allowing the admission of evidence regarding the birth of Plaintiff’s second child. This evidence s howedPlaintiff had some vaginal scarring and was relevant because the sca rring appear s in the ar

ea wher e Plaintif f claimsDefendant performed

unwanted

surger y. Tennessee

Rule of Evidence 401 defines relevant evidenc e as “evidence ha ving any

tendency to make

the existence of any f

act that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Evidence of prior scarring in the same area where Plaintiff claims Defe ndant performed unwante d surge ry is releva nt to a det erminati on of whe

ther Def endant c aused the

dama ge s about which Plai ntiff co mplains. A s the evid ence unquestiona

bly was rele vant, and reasona ble minds at least

could disagree as to the propriety of the decision made by

the Trial Court to admit the evidence regarding the birth of Plai ntiff’s seco nd child, once again the very essence of a discretionary

decision, we will not substitute our judgment for that of the Trial Court. We find no abuseof discretion in the Trial Court’s decision to admit the e vidence regarding the birth of Plaintiff’s second child.

We next consi der whe ther t he Tri al Cou rt erre d in ex cludi ng as ev idenc e the l ast pa ge of a hospita l bill. The

Trial Cour

t admitted into evidence the pages of the bill in question that listed supplies and a corresponding charg e for each item or items. The Trial Court, however, refuse d to admit the last page of the bill that contained only a de scription of miscellaneous and a corresponding charge. Plaintiff had no testimony or other evidenc e to explain to the jury any thing about

the ch arge listedon the las t page o f the bill. The Tria l Court sta

ted such a descrip tion would

force the jury

to specula te regar ding wha t supplies were encom

passed within the charge for these misce llaneous items. A jury may

not engage in speculation. Stringer v. Cooper , 486 S.W.2d 751, 756 ( Tenn. Ct. App. 1972) (stating “we understand the holding in those c ases and many more like them to be that-13-

a jury may not speculate as to cause when one is not shown . . . .”); Moon v. Johnston , 337 S.W.2d 464, 469 (Ten

n. Ct. App. 1959) (ho lding a j ury is not per mitted to sp eculate

or gue ss as to pr

oximate cause). Without any testimony or other evidence to explain to the jury what these char ges were for, this evidenc e simply

was not re levant a

nd, there fore, no t admissibl e. Tenn. R. Evid. 401 and 402. As such, the Trial Court

properly e

xcluded the last page of the hospital bill. We note, once again, that the Tria l Court’s d

ecision to exclude th

is evidence is one about

which re asonable

minds coul d disagree as to the propriety of that decision, and we find no abuse of discretion in the Trial Court’s decision to exclude this unexplained and speculative evidence.

Next, we co ns id er wh et he r t he Tr ia l C ou rt er re d i n a ll ow in g D us ti n G at es to te st if y. Plai ntiff ar gues that Dustin Gates’ identity and testimony never w ere properly disclosed during discovery and, ther efore, Dustin Ga

tes should have been precluded

from test ify ing. Plai ntiff adm its that Dustin Gates was listed on Defendant’s timely filed witness and

exhibit list. Plaintiff, however, claims she submitt

ed inter rogatories to Defendant that requested Defenda nt“to ident

ify all possibl e witnesses in the case.” Plaintiff claims Defendant did not list Dustin Gates as a possi ble witne ss in his answers to these inter rogator ies. As such, Plaintiff claims Defendant did not comply with the Rules of Civil Procedure regarding discove ry and Dustin Gate s should have been prevented from testi fying. Unfortunately, ne ither a copy of the

interrogatories nor Defenda nt’s answers to them are inthe rec ord before us on a ppeal. B ecause

Plaintiff has admitt

ed that De fendant

time ly filed h is witness and exhibit

list which named Dustin Gates as a witness and as we do not have be fore us i

n this record

Defendant’s interrogatory answers upon which Plaintiff bases her arg ument, we find that no error occurred when the Tr ial Court allowed Dustin Gates to testify.

Finall y, we consider whether there was materia l evidenc e to suppor

t the jury ’s verdi ct. “Find ings of fact

by a jury incivil act

ions shall be set as ide only

if there is no mater

ial evide nce to support the verdict.” Tenn. R. App. P. 13(d). As our Supreme Court has explained:

It is the time

honored rule in thi s State tha

t in revie wing a j udgmen

t b ase d upon a jury

verdi ct the appel late c ourts are not at li berty to w eigh the evide nce or to decide where the preponderance lies, but a re limited to deter mining whether th ere is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is requir ed to take the stron gest legitima te view of all the evidence in favor of the ve rdict, to assume

the truth o f all that tends to support

it, allowing all reasonable inference s to sustain the verdict, and to discard all to the contr

ary. Ha ving thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury. Crabtree Masonry Co., Inc. v. C & R Constr., Inc. , 575 S.W.2d 4, 5 (Tenn. 1978).

Defendant

testified he did nothing to Plainti ff except perform a tubal ligation and
remove a skin tag and that he did not fall below the standard

of care in doing so. Defendant testified Plaintiff call ed hi m over and

“ind icated tome tha

t she had a b

ump or a skin tag . . . [o ]n the r ight-14-

side of her

vagina and would I

remove it?” Defendant claims Plaintiff was lucid and “[s]he knew who I was. She knew

where she was. . . . I

t was my assessment that she wa s absolutely awar e and alert.” Defend

ant also te stified th at for him to perfo rm the re

moval of the skin tag and a tubal ligation in twenty-thre e minutes meant there were no complications.

Dr. Mitchell, the resident

who assisted with Plaintiff’s surgery , and Ms. Hooten, the surgical tech, al so both tes tified re gardin g the sur gery and both ma

intained that D efenda

nt only removed a skin tag and performed a tubal lig ation and that nothing was done to

Plaintiff ’s clitor is. Dr. Mitchell d

escribe d the removal of th e skin tag as “ver y st raight forwar d. A si mpl e task.”

Ms. Hootentestified

it usu ally takes appr

oximately thirty

minutes for Defendant to perform an uncomplicated bilateral tubal ligation.

Ms. Johnson, the

regist ered nur se who ca

red for Pl a intiff in PACU, testified Plaintiff’s stay

inthat unit was uneventful and that Plaintiff did not have ten to twenty stitches in the
c litoral area, as Plaintiff claims. Ms. Johnson charted that when Plaintiff left PACU, she was breathingwell, was comfortable, reported that her pa in had eased and had no vaginal

bleeding. The records show Plaintiff

received what Ms. John son descr

ibed as a smaller t han norma

l dose of p ain medicationin PACU . Ms. Bishop, a lice nsed pra ctical nu rse who a

lso care d for Plai

ntiff post

su rg er y, testified she never heard Plaintiff screaming or crying in pain. Ms. Bishop charted that Plaintiff was given discharge instructions, wa s ambulatory and in stable c ondi tion, a nd was accompanied

by a frie nd upon discharge. Ms. Bishop also testified that Plaintiff did not have twelve to eighteen stitches in the clitoral area. Ms. Rastell, a licensed practical nurse who worked for Defend ant, saw Plaintiff during her post-s urgery vi sit to Defendant’s office and testified Plaintiff had only one stitch in the vag inal area.

Dr. Hillman, Defendant’s expert witness, testified it is a judgment call on the part of the physician as to whethe r a patient is conscious and aware and capable of making decisions. Dr. Hillman opined that Defendant met the standard of care reg arding removal of the skin tag and state d skin tags are usually

not sent to pathology, but that dec ision is left up to the physician.

Defend ant’ s ex pert witness, Dr. Rock, examined Plaintiff and opined that “[Defendant] did not

remove any

part of the clitoris, or the prepuce, or the frenulum. He did have
a removal of a skin tag, but that is the only thing, in my opinion, th at was re

moved.” Dr. Rock a

lso testified he does not believe the surgery caused any

injury to Plaintiff. Dr. Rock located Plaintiff’s cl itoris and testified “I actua lly picked up, palpated the clitoris, the clitoris was there, pulled back the prepuce , and visua

li zed t he gl ans. The glans was there. The fr enulum were intact . . . .” Dr. Rock used the photographs taken during Dr. Ne al and Dr. Sa ye ’s joint exa

mination to

illustrate his points and stated “i f they knew how to examine external genitalia they ’d have the answer. [Dr. Neal’s] almost gra spin g the clitoris. . . . So there’s a base knowledg e defect in terms of understanding clitoral anomaly on the part of the examiner.”

AlanGates t est ified he met Plaintiff after the surgery and that during the course of their relationship he had sex with Plaintiff a hundred times, maybe more, at various places including-15-

at his apar tment, at a trailer, on a

pontoon boat, on an island during a camping trip, and during trips together out-of-town. He testified Plai ntiff nev er complained of any pain or lack of feeling when they had sex. Mr. Gates testified he believes Plaintiff had orgasms and states “ [i]f she didn’t she was putting on a lot.” In addition, both Alan Gates and Dustin Gate s testified Plaintiff rode on a Sea Doo and an ATV and never complained of pain.

The jury was entitled to fi nd the evidence presented in favor of De fendant more credibl e than the evidence presented by Plaintiff, and clearly

they did so. Taking

t he strong est legitima te view of a

ll the evid

ence in fa vor of the

verdict , assuming

the truth o f all that

tends to support it, allowin

g all re asonable

infere nces to su stain the v erdict, and disca rding a ll evidence to the contrary , as we must, we find there was mater ial evidence to support the jury ’s verdict. We, theref ore, must and do af firm the j ury

verdict in favor of Defe ndant.

Inthe exercise of our discretion, we decline to hold that this is a frivolous appeal and further decline to award Defend ant attor ney ’s fees

. Conclusion

The judgment

of the Tr ial Court is

affirme d, and this

cause is remande d to the Trial Courtfor collection of the costs below. Th e costs on appeal a re asse ssed ag ainst the A ppellant , Donna S. Young, and her surety

.

___________________________________ D. MICHAEL

SWINEY, JUDGE