# FILED
April 16, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

TINA KENNEDY, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9805-CV-00242 VS. ) ) Franklin Circuit ) No. 9783-CIV DR. T. SCOTT HOLDER and ) STONES RIVER HOSPITAL, INC., ) d/b/a SOUTHERN TENNESSEE ) MEDICAL CENTER, ) ) Defendants/Appellants. )
APPEALED FROM THE CIRC UIT COURT OF FRANKLIN C

OUNTY AT WINCHESTER, TENNESSEE THE HONORABLE BUDDY D . PERRY, JUDGE

THOMAS C. FARIS 101 S. College Street Winchester, Tennessee 37398 Attorney for Plaintiff/Appellee WILLIAM C. RIEDER 214 North Atlantic Street Tullahoma, Tennessee 37388 Attorney for Defendant/Appellant D r. T. Scott Holder C. J. GIDEON, JR. EDWARD A. HADLEY Suite 19 00, Natio nsBank P laza 414 Union Street Nashville, Tennessee 37219- 1782 Attorneys for Defendant/Appellant Stone s River Hospital, Inc. d/b/a Southern Tennessee Medical C enter

REVERSED AND REMAND ED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. COTTRELL, J.


## O P I N I O N- 2 - In this medical malpractice case, the trial court overruled the defendants’ motions for summary judgment. The court was

of the opinion that the lay tes timony of the plaintiff created a disputed q uestion of fact on the defendants’ negligence. We reverse and dismiss the plaintiff’s claims.

I.

Tina Kennedy, in active l abor, was admitted t o Southe rn Middle Tennessee Medical Cente r under the care of Dr. T. Scott Holder. A normal birth occurred after approximately nine hours of labor. Ms. Kennedy had an episiotomy

to avoid tearing during the del ivery, but the floor of her vagina tore further. In repairing the third degree

laceration, Dr. Holder placed gauze-like sponges in Mrs. Kennedy’s vagina to stop the bleeding around th e laceration site. Three days after entering the hospita l Mrs. Kenn edy went ho me with he r new baby.

Sixdays later, Mrs. Ke nnedy discovered the gauze sponges still i n her vagina. Alarmed, she went back to the hospital emergency room, where the physi cian
on duty extracted the foreign mater ial without anesthetic. Mrs. Kennedy suffered pain and discomfort duringthe seven day period and the removal procedure caused severe pain.

Mrs. Kennedy sued Dr. Holder and the hospital, claiming that Dr. Holder
was negligent, and that the hos pital staff and nurses were al so negligent because they did not follow a procedure that would have ensured that the foreign objects were
re moved from her body. Mrs. Kennedy also alleged that Dr. Holder’s c onduct wa s reckless and in wilful disregard of her safety. She asked for co mpensatory and punitive damages.

Dr. Holder and the hospital answere d the c omplaint and moved for summary judgment. They filed Dr. Holder’s affidavit and the affidavits of three other Board certified physicians, all saying that Dr. Holder’s conduct did not deviate from the standard of care for physicians practicin g in the area of Wincheste r and Franklin- 3 -

County, Tennessee. The affidavits state that gauze-like material can be left in a patient’s vagina during a vaginal delivery in the absence of negligence on the par t of the physician. They also state that, unlike a surgical procedure i nvolving an inci sion in a patient’s body

where spo nges are placed in the incision, in a vaginal delivery neither the doctor nor the nurses are r equired toaccount for all the sponges used in the procedure. The key difference in the two procedures is that the sponge-like objects m ay be easil y removed f rom the va gina withou t furthe r surgery.

Mrs. Kennedy relied on her affidav it to res ist the motion for summary judgment. Her affidavit re states the facts alleged in her complai nt and takes issue with the doctors’ statements that th e gauze-like material was essentially a tampon. She states that there were three separa te masse s of the material, each one individuallyl arger than a tampon, and that they wer e tightly packed in pl ace. The plainti ff also filed Dr. Holder’ s depo sition in which he stated that leaving sponges in
a patient’s vagina w

as not normal procedure and that he did not intend for it to happen in this case.

The trial judge overr uled the motions for summary judgment but gr anted the defendants permission to appeal un der Rule 9, Tenn. R. App. Proc.

II. A. H AS THE PLAINTIFF SATISFI ED THE C OMMON KNOWLEDGE EXC EPTION TO T HE STATUTO RY REQUIREMENT THAT MEDICAL MALPRACTI CE BE PROVED BY EXPERT TESTIMONY ?
By statute aplaintiff suing a medical provider for malpractice must show by expert proof:

(a) In a malpractice action, the claimant shall have the burden of proving by evi dence as provided by su bsection (b): (1) The recogniz ed st andard of acceptable professional practice in the profession an d the s p ecialty thereof,if any, that the defendant practices in the community

in which he practice

s or in a similar communit y at the time the alleged injury or wrongful action occurred;- 4 - (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordanc e with such standard; and (3) As a proximate result of the defendant’s negligent act or omission, the

plainti ff suffered injuries which would not otherwise have occ urred. Tenn. Code Ann. § 29-26-115.

This statute requires ex pert proofof all the elements of the tort. Baldwin
v. Knight

, 569 S.W.2d 450 (Tenn. 1978). Summary judg ment in f avor of the defendants in a medical malpractice action may be appropriate where the defendants produce expert proof that completely refutes the plaintiff ’s allegations of negligence and the plaintiff does not produce re buttal proo f by expert testimony. Dolan v. Cunningham , 648 S.W.2d 652 (Tenn. App. 1982). An exception to this high standard has been recognized wher e the alleged acts of negli gence are so obvious that they
come within the common knowledge of laymen. Ayers v. Rutherford Hosp., Inc. , 689 S.W.2d 155 (Tenn. App. 1984). For insta nce, sewing up a surg ical sponge in a patient’s body clearly qua lifies as negligence ev en without an expert to tell us s o. Rural Educational Association v. Bush , 298 S.W.2d 761 (Tenn. App. 1956). On the other hand, leaving a medicated spong e pack similar in nature and purpose to a tampon in a patient’s vagi na after a hysterectomy i s not so obvious that a lay person could i dentify

the conduct as negligenc e. St. Martin v. Doty

, 493 S.W.2d 95 (Tenn. App. 1972). The difference lies in the fact that the medicated sponge packis “in the nature of a bandage and . . . is removable without surgery.” Id. at 98.

The plaintiff’s attempt to disting uish St. Martin from this case is on the ground that in St. Martin the sponge pack was intentionally left in the plaintiff’s vagina. But that distinction is refuted by the opinion in St. Martin itself. The opinion points out that the doctor “intendedto remove the pack, but was unable to locate it and thought that it had fallen out.” We see no distinction between the two cases.

The plaintiff also contends t hat d evelopments in medical knowledge subsequent

to 1972, when the St. Martin case was decided, especially the emergence of toxic shock syndrome as a possible result of tampon retention, renders that case- 5 -

outdated and its holdin gs questio nable. Ho wever, we do n ot have the authority (or the competence) to take judicial notice that the medical standard of care has changed or that it needs to be changed. Under Tenn. Code Ann. § 29-26-115(c) expert testimony is required to establi sh the applicable standard of car e.
So, we conclude that this is not a case where the plaintiff can establish the elem ents of a medical m alpracti ce case th rough lay te stimony.

B. I S THIS A CA

SE OF R ES I PSA L OQUITUR ?

The plainti

ff a lso con tends that the case may proceed without expert proof because of the doct rine of res ipsa loquitur. Under this rule, “th e facts of the occurrence evidence negligence and . . . the circumstances, unexplained, justify an inference of negligence.” Sh ivers v. Ramsey , 937 S.W.2d 945, 949 (Tenn. App. 1996). A revised version of this rule is incorporatedinto the Medical Malpractice Act at Tenn. Code Ann. § 29-26-115(c):

In a malpractice action as des cribed in subsection (a) of this section ther e shall be no presumption of negligence on the part of the defendant. Provide d, however, there shall be a rebuttable p resumption that the defendant was negligent where it is shown by the proo f that the instrum ental ity causing injur y was in the defendant’s (or defenda nts’) e xclusive control and that the accidentor injury

was one which ordinaril y doesn’t occur in the absence of negligence.

The applic

ation of res ipsato a medical malpractice ca se has been addressed in Murphy v

. Schwartz

, 739 S.W.2d 777 (Te nn. App. 1986). The court compared res ipsa and the “co mmon knowledge exception ” and concluded (1) that they were essentially

the same and (2) that expert op inion evide nce could not be refuted by lay opinions.

We think the analysis in Murphy v. Schw artz le ads to the obvious conclusion that in medical malpractice cases you cannot infer negligence in a case where there is exper

t testimony that no negli gence occurred.- 6 - C. I S THERE A DISPUTED QUE STION OF FA CT ON TH E HOS PITAL ’ S NEGLIGENCE ? Finally, Mrs. Kennedy alleges that her affidav it makes a disputed question of fact on the h ospital’s neg ligence. She states that after the gauze was removed in the emergency room an unidentified nurse said that the nurses had a duty to do a sponge count both before and after the surgery. This proof, however, fails to meet the test of admissibility required by Tenn. Code Ann. § 29-26-115(b) and Rule 56.06, Tenn. R. Civ. Proc. We have no w ay of knowing whether the declarant was qualified to giv e that opi nion and Rule 56.06 requir es that affidavits be made on personal knowledge. Therefore, the unk nown declarant’s statement does notmake a disputed question of fact.

The judgment entered below i s reversed and judgment w ill be entered here granting summary j udgmen t of dismissal to both defendants. The cause is remanded to the Circuit Court of F ranklin County for any further action that may be necessary. Tax the cos ts on appeal to the appellee.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ PATRICIA J. COTTRELL, JUDGE