FILED

July 6, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

JACQUELINE SUE ROGERS ) HAMILTON COUNTY

) 03A01-9707-CV-00249

Plaintiff-Appellee )

)

)

v . ) HON. ROBERT M. SUMMITT,

 ) JUDGE

) 

SAMUEL L. BANKS and CATHY )

J. STANCIL )

 ) REVERSED, DISMISSED

Defendants-Appellants ) and REMANDED

E. BLAKE MOORE and JOHN B. BENNETT OF CHATTANOOGA FOR APPELLANTS

KATHRYN R. LEIDERMAN OF JASPER and JOHN O. WIGGINS OF RINGGOLD,

GEORGIA FOR APPELLEE

 O P I N I O N

 Goddard, P.J. 

Samuel L. Banks, a doctor, and Cathy J. Stancil, a

nurse, appeal a jury verdict rendered against them in favor of

their former patient, Jacqueline Sue Rogers. Ms. Rogers brought

two actions of medical malpractice in the Hamilton County Circuit

Court. One action was brought against Dr. Banks, her treating

physician. The other action was brought against Nurse Stancil. 

Nurse Stancil performed the majority of the procedure in
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question. Judge Robert M. Summitt denied motions for directed

verdict after Ms. Rogers presented her case and again after Dr.

Banks and Nurse Stancil presented their case. Both actions were

submitted to the jury. The jury returned a general verdict

against both Dr. Banks and Nurse Stancil for $60,000. Dr. Banks

and Nurse Stancil both filed motions for judgments notwithstanding the verdict as well as motions for a new trial. Judge

Summitt overruled these motions and upheld the jury award. We

now reverse the judgment below and dismiss both suits with

prejudice.

Dr. Banks and Nurse Stancil present 22 issues on

appeal. However, we only need to decide two issues to dispose of

this appeal. These two issues are (1) whether the Trial Court

erred in submitting Dr. Banks’ case to the jury in the absence of

expert testimony that he violated a recognized standard of

acceptable professional practice and that any medical negligence

on his part was the proximate cause of Ms. Rogers’ injury which

would not otherwise have occurred; and (2) whether the Trial

Court erred in submitting Nurse Stancil’s case to the jury in the

absence of expert testimony that she violated a recognized

standard of acceptable professional practice and that any medical

negligence on her part was the proximate cause of Ms. Rogers’

injury which would not otherwise have occurred.

Ms. Rogers sought to have spider veins removed from her

legs. Dr. Banks agreed to perform this service employing
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a procedure known as sclerotherapy. Sclerotherapy basically

involves using a very tiny needle superficially to inject a

minuscule amount of hypertonic saline into the spider vein which

pushes the unsightly blood out of the veins and causes the veins

to deteriorate, resulting in their no longer being visible. Dr.

Banks initially examined Ms. Rogers and advised Nurse Stancil

which spider veins should be injected. Nurse Stancil performed

all of the injections administered. The removal of spider veins

is usually performed in sessions. Each session cannot be

conducted within either two to four weeks of another session. 

Ms. Rogers' first session occurred on March 30, 1994. She had

multiple injections on that day without incident. Ms. Rogers

returned to have other spider veins treated in the same manner

two weeks later, on April 13, 1994. The injury giving rise to

this suit resulted from this session.

The same method and technique of injecting the spider

veins was used in both sessions. After Nurse Stancil had

completed all the injections on April 13, 1994, she wrapped Ms.

Rogers’ legs in an Ace bandage, standard procedure for all spider

vein treatment sessions. However, Ms. Rogers soon began

complaining to Nurse Stancil that her legs were burning and that

she felt strange. Nurse Stancil unwrapped the Ace bandage and

noticed that Ms. Rogers was having an adverse reaction to the

injections. Nurse Stancil immediately requested that Dr. Banks

come to the treatment room. Dr. Banks immediately arrived at the

treatment room and examined the injection sites. He noted that
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one of the sites was grossly different from all the others. Dr.

Banks then injected ten cubic centimeters of Xylocaine, a

novocaine type solution, into the injured area. He then massaged

the area for a minute or two. Ms. Rogers remained at Dr. Banks'

office until the pain subsided. She subsequently began to

develop a deep ulcer at the site of the injection that went awry. 

Ms. Rogers suffered for several months and underwent two

surgeries in order for the ulcer to heal.

Several doctors testified as experts during the trial. 

Each of the doctors testified that the cause of the ulcer was

that a small amount of the injected hypertonic saline had gone

deeper than the superficial area of the skin, where spider veins

are located. After the solution reached the deeper arteries,

these arteries deteriorated. Due to this deterioration, the

surrounding flesh died, creating the ulcer. This process is

referred to in the medical community as a vasospasm. Only two

plausible explanations were presented at trial as to how this

solution reached the deeper arteries. The first is that Nurse

Stancil directly and negligently injected an arteriole. The

second theory is that the solution reached the underlying artery

through the occurrence of an AV fistula.

An AV fistula, arteriovenous anastomosis, is an

anatomical condition where a direct connection exists between a

very small vein, such as a spider vein, and a very small artery. 

This connection bypasses the capillary network which usually
5

separates the small veins from the small arteries. AV fistulas

are exceedingly rare physical anomalies. The existence of an AV

fistula can only be determined through use of a microscope during

an autopsy. Thus, the existence of this condition is impossible

to detect by health care providers. If an AV fistula did exist

in Ms. Rogers’ leg, no doctor could have determined that she had

the condition. Also, an ulcer will result if an AV fistula

exists even if a spider vein injection is properly performed

according to the recognized standard of acceptable professional

practice, also known as the standard of care. 

Each doctor testified that it is impossible to

determine exactly how the solution reached the arteriole. Dr.

Robert E. Clark, Ms. Rogers’ expert, testified that the ulcer

probably resulted from the direct injection of the solution into

an arteriole while providing no support for his opinion. 

However, he later testified that the ulcer could have occurred

due to an AV fistula. Dr. Clark had no criticism of Nurse

Stancil’s technique. He only criticized Nurse Stancil due to her

lack of knowledge about potential complications resulting from

the spider vein treatment.

Nurse Stancil testified as to the technique she used on

Ms. Rogers. Dr. Clark testified that the technique was within

the standard of care. Other doctors testified that if the

procedure was performed as Nurse Stancil had testified, the ulcer

could only have been caused by an AV fistula. Dr. Banks also
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testified that it is impossible to inject an arteriole just under

the skin since they are seven times smaller than the needle used

and invisible to the naked eye. Dr. Banks further testified that

the bigger arteries are below the skin surface and “much, much

deeper than we can go with our needle [used in the spider vein

treatment].”

The only issues, as previously noted, that must be

addressed are whether Dr. Banks and Nurse Stancil committed

medical malpractice. In Tennessee, plaintiffs have a heavy

burden to prove that a health care provider committed medical

malpractice. T.C.A. 29-26-115 provides the necessary elements

that plaintiffs must show in order to prevail in a medical

malpractice action. This statute provides that:

(a) In a malpractice action, the claimant shall have

the burden of proving by evidence as provided by

subsection (b)[qualified experts]:

(1) The recognized standard of acceptable professional

practice in the profession and the specialty thereof,

if any, that the defendant practices in the community

in which he practices or in a similar community 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 standard; and

(3) As a proximate result of the defendant’s negligent

act or omission, the plaintiff suffered injuries which

would not otherwise have occurred.

T.C.A. 29-26-115(a). All three elements must be shown by a

preponderance of the evidence for a plaintiff to prevail. T.C.A.

29-26-115(d). The statute also provides that there “shall be no
7

presumption of negligence on the part of the defendant” due to

the fact of injury alone. T.C.A. 29-26-115 (c) & (d).

Dr. Banks and Nurse Stancil contend that Ms. Rogers

failed to show two of the required elements. They argue that Ms.

Rogers did not show a deviation from the recognized standard of

acceptable professional practice or that any medical negligence

was the proximate cause of Ms. Rogers’ injury which would not

otherwise have occurred.

In Ward v. United States , 838 F.2d 182 (6th Cir.1988),

the 6th Circuit Court of Appeals summarized its understanding of

the Tennessee rule as to violation of standard of care. The

Tennessee Court of Appeals, in Hurst by Hurst v. Dougherty , 800

S.W.2d 183, 185 (Tenn.App.1990), subsequently adopted the Ward

summary of the law as follows: 

[A] physician’s duty is to exercise reasonable care and

diligence. He must exercise his best judgment

regarding treatment, and is not guilty of malpractice

if he chooses a course of treatment supported by other

physicians in good standing. Truan v. Smith , 578

S.W.2d 73, 75-76 (Tenn.1979). A physician is not the

insuror of the patient; he is only liable for

negligence, and negligence is not presumed from the

fact that the treatment is unsuccessful. Liability for

malpractice depends on whether or not the physician is

lacking in and fails to exercise the reasonable degree

of learning, skill, and experience that is ordinarily

possessed by others of his profession. Watkins v.

United States , 482 F.Supp. 1006, 1012 (M.D.Tenn.1980). 

In Ward , the doctor accidentally injected Teflon paste

too deeply into an artery. This accident caused the patient to
8

suffer a stroke. There was no question in the case that the

doctor’s act was the proximate cause of the injury. However, the

Court held that the doctor was not liable since he exercised due

care in making the injection.

Dr. Banks trained Nurse Stancil for an extended period

of time. He required her to use specific procedures whenever she

performed spider vein injection treatments. These procedures are

customary in the field for the removal of spider veins. Dr.

Clark testified that it was acceptable to have a nurse perform

the injections if properly trained, so long as the doctor is in

charge and available for immediate consultation. Drs. Banks,

Rodney Susong, and John Cranwell all testified that it is within

the standard of care for a nurse to perform spider vein

injections. Allowing nurses to perform these injections is

allowable so long as the nurse possesses the training and skill

to recognize when a complication has occurred and immediately

notifies the supervising doctor of any such complications. We

cannot require nursing personnel to possess all the training of

medical doctors.

Further, several doctors testified that it was within

the standard of care for hypertonic saline to be used in the

spider vein treatment. Hypertonic solution is actually the most

commonly used solution in performing this procedure. This is the

case even though the Food and Drug Administration has not

approved the use of the solution in sclerotherapy. Ms. Rogers
9

presented no proof that use of this solution violated the

standard of care.

Ms. Rogers also contended that Dr. Banks violated the

standard of care by not taking adequate counter-measures. Dr.

Clark testified that an appropriate counter-measure is vigorously

massaging the area of a vasospasm. Dr. Cranwell also testified

that vigorous massage and injecting Xylocaine were both

appropriate counter-measures and within the standard of care. 

Drs. Susong, Cranwell, and Banks further testified that no

counter-measures taken could stop the vasospasm nor the resultant

ulcer. Thus, Dr. Banks’ actions were within the recognized

standard of acceptable professional practice.

Dr. Banks’ actions, with regard to Ms. Rogers’ spider

vein treatment, did not violate the recognized standard of

acceptable professional practice. This conclusion is supported

by all the expert testimony proffered at trial. Ms. Rogers

presented no material evidence to the contrary. Therefore, we

hold that Dr. Banks did not commit medical malpractice because

Ms. Rogers did not introduce proof as to each of the three

required elements under T.C.A. 29-26-115. The Trial Court’s

decision to submit the case to the jury is overturned and the

claim is accordingly dismissed.

We now turn our attention to Ms. Rogers’ medical

malpractice claim against Nurse Stancil. Ms. Rogers initially
1 0

argued at trial that Nurse Stancil violated the recognized

standard of acceptable professional practice. Nurse Stancil

testified that she used the same procedure on Ms. Rogers as she

had on every other spider vein treatment patient. In the spider

vein treatment, Nurse Stancil and Dr. Banks use a bent needle so

the needle is parallel to the skin. Nurse Stancil testified that

one can actually see the needle in the spider vein since it is so

close to the surface of the skin. Nurse Stancil and Dr. Banks

also use a test to determine if the needle is in the vein. Nurse

Stancil testified that she injects a small amount of air into the

vein to insure the needle is in the vein. When she injects the

air, blood comes out of the injection site, insuring the

practitioner that the needle is in the vein. Immediately after

injecting the air and without removing the needle from the vein,

the hypertonic saline solution is injected into the spider vein

to complete the treatment. 

As already noted, Nurse Stancil testified that she uses

this procedure on every spider vein injection she performs and

did so with Ms. Rogers. Each of the experts, all doctors,

testified that Nurse Stancil’s technique was properly within the

standard of care and that it was also within the standard of care

for nurse practitioners to perform these injections. No expert

testimony was presented by Ms. Rogers that Nurse Stancil deviated

from the standard of care. Thus, Nurse Stancil’s actions taken

with regard to Ms. Rogers were well within the standard of care.
1 1

Ms. Rogers claimed in the alternative that not knowing

all potential complications of the spider vein treatment was a

violation of the standard of care. Two experts testified that a

practitioner performing the spider vein treatment must know all

potential complications and appropriate counter-measures. Other

doctors testified that it was within the standard of care if a

nurse did not know all potential complications or the countermeasures on one condition. This condition is that the nurse have

the requisite skill to recognize when a complication is

occurring, even if the nurse does not know the source of the

actual complication, and that the supervising doctor be nearby

and available for immediate consultation. Thus, a contradiction

in expert testimony was presented as to what the actual standard

of care was for nurse practitioners performing spider vein

treatments. While we are inclined to hold that a nurse is not

required to possess all the knowledge of a medical doctor, we do

not need to decide the issue. Even if Nurse Stancil’s actions

violated the standard of care, Ms. Rogers failed to prove that

Nurse Stancil’s actions were the proximate cause of Ms. Rogers’

injury and that it would not otherwise have occurred.

While the injury obviously resulted from the injection,

this does not satisfy the proximate cause requirement set forth

in T.C.A. 29-26-115. Ms. Rogers must produce proof that as a

proximate result of Nurse Stancil’s negligent act or omission,

Ms. Rogers suffered injuries which would not otherwise have
1

For example, in a case by a policyholder suing an insurance

company for proceeds of a fire insurance policy, expert testimony that the

fire was probably caused by spontaneous combustion is trumped by direct proof

that the policyholder lit the fire which consumed the insured property.

1 2

occurred. T.C.A. 29-26-115(a)(3). Ms. Rogers' proof must

include this element for her to prevail in her medical

malpractice action against Nurse Stancil. As set forth above,

Ms. Rogers presented no material testimony that Nurse Stancil

acted negligently in performing the injections other than an

unsupported statement by Dr. Clark, Ms. Rogers’ expert, that the

vasospasm probably resulted from an injection of hypertonic 

saline into an arteriole. However, Dr. Clark's hypothesis loses

its validity in light of Nurse Stancil's unimpeached testimony to

the contrary. 1 Moreover, Dr. Clark later conceded that Ms.

Rogers' injuries could have resulted from the existence of an AV

fistula. Other doctors confirmed that if an AV fistula did

exist, Ms. Rogers' injuries would have resulted irrespective of

any negligence on the part of Nurse Stancil. In addition, Dr.

Cranwell testified that if Nurse Stancil performed the injections

as she testified, then the only way Ms. Rogers’ injury could have

occurred is by the existence of an AV fistula. Dr. Clark also

testified that he had no criticism of Nurse Stancil’s technique. 

Since Ms. Rogers failed to prove that the injury would not

otherwise have occurred in the absence of negligence and since

she failed to prove that Nurse Stancil acted negligently, we hold

that Nurse Stancil’s action was not the proximate cause of Ms.

Rogers’ injury. 
1 3

Ms. Rogers also proffers the position that Nurse

Stancil’s failure to know the source of the vasospasm or

appropriate counter-measures was a proximate cause of Ms. Rogers’

injury. However, Drs. Banks, Susong, and Cranwell testified that

no counter-measures could have prevented Ms. Rogers’ injury. 

Further, we believe that lack of knowledge of counter-measures

could be a proximate cause of injuries in some cases. However,

since no counter-measure could have prevented Ms. Rogers’ injury,

we hold that Nurse Stancil’s lack of knowledge of countermeasures was likewise not the proximate cause of Ms. Rogers’

injury.

One final issue needs to be addressed. Dr. Banks and

Nurse Stancil insist that because they were entitled to a

reversal of the Trial Court's judgment against them and dismissal

of Ms. Rogers' complaint, the award of discretionary costs was

improper. On the other hand, Ms. Rogers insists that such an

award was proper because a verdict was rendered in her favor. In

light of our disposition of the principal issue raised in this

appeal, which results in dismissal of Ms. Rogers' complaint, the

award of discretionary costs is also reversed.

For the foregoing reasons the judgment below is

reversed and Ms. Rogers' claim dismissed. The cause is remanded

for collection of costs below, which are, as are costs of appeal,

adjudged against Ms. Rogers.

_______________________________

Houston M. Goddard, P.J. 
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CONCUR:

________________________________

Herschel P. Franks, J.

________________________________

William H. Inman, Sr.J.