1 No longer in the case. 

# FILED
September 9, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT KNOXVILLE

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HERMAN D AVIS and wi fe, ) DARNELL DAVI S, ) KNOX CIR CUIT ) Plaintiffs/Appella nts ) ) No. 03A01-9601- CV-00016 v. ) ) PAUL A. HATCH ER, SR., M. D., ) REVERSED AN D REMAND ED ) Defendant/Appellee )

Laurence R. Dry, Oak Ridge, For the Appellants T. W arren Butler, Knoxville, For the Appellees

O P I N I O N INMAN, Se nior Jud ge

This malpracti ce action was dismissed on motion for summary judgment. It arose from a routine prosta te resection which went awry, resulting in adverse consequences t o the plaintiff. A dev ice referred t o as a resectos cope manufactured by the Circo n ACMI Ohio Manu fac turin g Comp any, 1 malfunctioned w hile being used by and under t he control of the defendant , Dr. Paul H atcher [hereafter , the “defendant”]. It i s not disputed t hat a portion of the penis of the plaint iff, Herman Davis [h ereafter, “plai ntiff”], was ei ther chemicall y, thermall y or elec trically burned away, w ith disastr

ous results unnecessary here to be rec ounted. The defen dant was allegedly negligent in the care and treatment of his contractual patient, the plaintiff, in these p articulars: 1. Failing to test and ins pect the resect oscope;-2- 2. Failing to properly

utiliz e the resectoscope; 3. Failing t o discover that th e resect oscope was improp erly func tioning; 4. Fa iling to di scove r the injur y time ly. The defen dant admitted tha t “Herman Davis sustained some type [of] injury at or about the time of the procedure, but how it occurred is unknown to Dr. Hatcher.” He denied that theinjury was the pr

oximate res ult of any neg ligent act or omission on his

part and speci fically deni ed that he failed to t est or inspec t the resectoscope or

that he negli gently fai led to discover a malfunction. The defen dant demande d “strict proof that said injuries and disab ilities did not preexis t the procedure complained of.” He averred that he did nothi ng in contr avention of acce ptable professional prac tice in th e Kno xville c omm unit y and a ltern ative ly “reli es on the c omp arat ive negligenc e of the manufacturer of the resectoscope eq uipment.” On December 9, 1993, th e defendant moved for summary judgment, which he supported by the aff idavit of Dr. David F. Paulson, a professor of u rology at Duke Unive rsity, who te stif ied t hat a “[c]a ref ul revi ew of the o pera tive re cord does not gi ve any indication that the procedure was conducted outside the stand ards of practice.” He further opined that “the careand treatment . . . was pro per and wel l withi n the standard of care required. Th e complications that occurred were not proximate ly caused by any

neglige nt act, omissi on or departurefrom the applicabl e standards of care on the part of Dr. Hatcher . . . . No abno rmality in the conduct of the proce dure occurred thr

ough the actio n of Dr. Hatcher .” Significantl y, Dr. Paulson did not a ddress the caus e of the plaintiff’s i njury. He testified, q uite briefly ,“that “a tr ansurethral i ncision of the pr ostate was conducted. Fol lowing this a midli ne portion of resi dual prostati c tissue was resected with the el ectrocautery loop.” Also supporti ve of the motion w as the affidavit o f the defendant, who tes tified that “[t]w o days after th e surgery , the plaintiff was found to have an unexpected-3-

condition of the cen tral glan s and meatus w hich appeared as a redness and induration . . . . [whi ch] gave the appearance of being caused by a burn in the area where the resect

oscope was in cont

act with the penis

during the sur

gical procedure .” (Emphasis added.) He testified that “more likely than not [the burn was] cause d by a defective condition of the r esectoscope w hich was unknown and unforeseeable by me” and that he was not negli gent in any respect. While the motion was pending , the defendant amended his answer by alleging that the manufa cturer of the resectoscope was negligent in failing to warn him that (1) cutting loops and knives should be use d only one time; (2) caustic chemicals shoul d be thoroughl y remove d from the resectos cope; (3) cut ting loops and knives were not of uni form length, w hich could result in “el ectricall y charg ed uninsulated parts of same to electrically charge parts of the equipmen t coming in contact wi th patients.” The amended answer accused the manufacturer of negligent ly failing to warn t he Univer sity of TennesseeMemorial H ospital [w here the procedure was performed] of the impor tance of uniform leng ths of cutting loops and knives and the necessity for proper cl eaning of the res ectoscope. The defendant also charg ed the hospital with neg ligence i n (1) failing to furnish him pr oper equipment, properly maintained ; (2) failing to advise him of the manu facturer’s warnings re: the safe use and care of the resectoscope; (3) furnishin g him with “a cutting kni fe of improper leng th which r esulted in ele ctricall y charg ing porti ons of the resectoscope coming in cont act with the patient.” The plaintiff responded t o the motion for summar y judgment by memorandum filed March 7, 1995, exhibiting the af fidavits of Dr. W illiam Campbell, Dr. Dennis Doblar and Dr . Cecil M organ, Jr. , all of whom h ad previous ly testi fied by deposit ion. Dr. Campbell , a biomedical engineer, des igns biomedi cal equipment and teaches the use of powered biomedical equipment. H e testified that he review ed photographs of the burn suffered by t he plaintiff, all medical data, v arious depositions, including that of the defendan t, and expressed his opinion that the burn-4-

injury to the plaintiff was caused by electrical power from the resectoscope which “would not otherwise have occurred had the instrument b een used in accordance with recognized bi omedical engi neering pr inciples, an d in accordanc e with manufacturer’s recommendations.” Dr. Doblar

is a professor

of anesthesiolog y and biomedic al engineer ing at the University of Alabama. He testified that he had reviewed photographs of the bu rn suffered by the plaint iff, all medical data , hospital records and various depositions, including the deposition of the defendan t. He agreed with the testimony of Dr. Campbell respe cting the c ause of the injury to the plainti ff and opined that the “current es caped the instr ument through a r eused knife or lo op or throug h operator error - t hrough the appl ication of pow er whil e the resectoscope was on i ts way out of or into the patient . . . . under the co ntrol of Dr. Hatcher.” He opined that the injury was below

the acceptable pr

ofessional pract ice in Knox ville an d that the defendant “acted with less than or failed to act with ordinary and reasonab le care in accordance w ith such standar d.” Dr. Morg an, a urologi st practici ng in Alabama, testified that he ha d reviewed all pertinent

data appertaini ng to the inj ury suffered by the plaintiff and that he was familiar w ith the appropr iate standard of ca re. He further testified, “M ore likely

than not, Dr. Hat cher caused the burn injury . . . by us ing the res ectoscope w hile it was improperly

or defective ly config ured, in w hich case he s hould have been aware of that fact; or Dr . Hatcher use d the instrument inappropriatel y.” On the same date that the plaintiff filed hi s response to t he motion for summary judgment [March 7, 1995] , the defenda nt filed a “supplemen t” to his motion, to wh ich he exhi bited, or made reference to, his affidav it and excer pted portions of the dep ositions of six witnesses to “illustrate that no one knows how this injury occurred . . . . that it c ould have been c aused by neg ligence on t he part of the . . . [h]ospit al, negligent use of the equipment by Dr. Hat

cher , or negli gence on the part of the manu facturer of the equipm ent.” (Emphasis added.) One of these-5-

depositions was that of Dr. C ampbell, whos e affidavit has pr eviously been referenced; he test ified, on discovery, that the injury was a thermal burn and that “I do not know how it happened,” and tha t he did not know the standard of care preva iling in Kn ox Cou nty. Parentheticall y, at this

juncture, we note that the defendant’ s argument that the affidavit of Dr. Campbell is at odds with his depositional testimon y and therefore cannot be rationa lly cons idered as a rebuttal testimony . We will address th is issue later. Much complaint

is given over by

the plaintiff to the filing, on M arch 7, 1995, by the defendant, of a hos t of materials ex hibited to the s upplement to the motio n for summary ju dgment whi ch was hear d on March 8, 1995. Whether such late filing is permitted b y Rule 56, T ENN . R. C IV . P,. is a question we pretermit because it is unnecessary

to a resoluti on of the issue before t his Court, that being the propriety of the dismissal of this case. The affidavits in o pposition to themotion squarely posed th e issue of the defendant’s negli gence, w hich ordinar ily would requir e that the motion s hould be denied since i ssues of material fact are readil y apparent. At argument, counsel agreed, but i nsists that t he affidavit testi mony is in “absolute confli ct” wi th the depositional t estimony and i s on that account nonprobative since a factual i ssue cann ot be crea ted b y fili ng an aff idavi t con trad ictin g earl ier de posi tion al te stim ony, citing Reid v. Sear

s, Roebuck and C

o. , 790 F.2d 453 (6th Cir. 1988). We agree that the affidavit of Dr . Campbell is not probative because he disavow ed knowledg e or opinion of the standard of care pr acticed in Knox

ville, a prerequis ite to the consi deration of his t estimony. T.C .A. § 29-26-115( a)(1); Keith v. Witt, 919 S.W .2d 613, 614 (Tenn . Ct. App. 1995). W e do not agree that the af fidavit of Dr. Doblar is in fatal conf lict with his deposition. In the former, he testi fied that the resec toscope was

under the contr

ol of the defenda nt, that the injury to the plaintiff was unacceptable practice in Knoxville-6-

and that the defendant failed to act wi th ordinary care. In the latter, he tes tified that “I do not know

” what sp ecifically

caused the burn. Dr. Dobl ar’s affidavi t may rationally be considered as exposit ory to hi s deposition r ather than destr uctive of it

. At the very least, a reconciliation of his testimony requires a weighing of it, which is impermissibl e in a summary judgment proc edure. Taylor v. Nashville Banner Publishing C

o. , 573 S.W .2d 476 (Tenn. Ct. App . 1978). Neither do we agree that the aff idavit of Dr. Morgan fatally conflicts with his prior deposi tional testi mony. In the former , he testified that more likely

than not the defendant caused the burn injury by using the resectoscope when it was defectively configured, i n which c ase he should have been aware of the fact. In the lat ter, he testified “ . . . and just as now, I cannot tell you what exactly happened.” W e think a definitive r

eading of his ent ire depositi on can logically lea d a dispassion ate enquirer to the conclusi on that Dr. M organ w as careful to di fferentiate between an observed truth and a formula ted opinion. In any event, any reconciliation of his testimony, if such is neces sary, requires a weighing of it, whic h is impermis sible. Taylor, supra

. Whether summary judgment was properly granted is

a question of l aw, wi th no presumption of cor rectness. Gonzal es v. Alman Coal Co. , 857 S.W.2d 42 (Tenn. Ct. App. 1993). Our evaluation of the motion requires a determinat ion of whether a material, factual issue exi sts and whet her the disputed fact creates a g enuine issue for trial. Byrd v. Hall

, 847 S.W .2d 208 (Tenn. 199 3). Against thes e standards, we conclude the moti on was impr ovidently granted because there are contested iss ues of material facts which c annot be resolved on the basis of affidavi ts. Doubtles s a contribut ing factor was the inordi nate delay - - 15 months -- of the pl aintiff in respondi ng to the motion; superimposed i s the stress ed argum ent t hat t he ca use o f th e pla inti ff s’ inj ury was “ unkn own,” with whi ch we disagree. There is abundant ev idence in the record that (1) the plaintiff’s i njury was caused by the device oper ated and controll ed by the defendant; ( 2) the injur y thus inflicted w as the burning of tissue; (3) the particul ar devicefunctioned properl y in a-7-

subsequent pr

ocedure; (4) the treatment w hich result ed in the burn i njury was below acceptable standar

ds. Whether the burn was of the rmal or chemical or electr ical origin i s, in our j udgment, of minimal l egal sig nificance, notw ithstanding the herculean efforts to prove the nat ure of the burn. The defendant argues that the plaintiff’s experts i nconsistently testified, thereby neg ating any

probative value of their testimony. To an extent, th is argument is meritori ous, but not entir ely so. F or instance, Dr. Morg an testified by affidavit that, more likely than not, “Dr. Hatcher caused the burn injur

y to Herman Davis by

using the resectosc ope while it was i mproperly or defectivel y configured, in whi ch case he should have been aw are of the fact . . . . t he in stru men tali ty . . . wa s in th e excl usive control of Paul H atcher, M.D

. . . . the injury ordinarily does not occur in the abse nce of negligence.”

(Emphasis added .) He had previously testified on dis covery

that he did not know

-- had no way of knowi ng -- w hether the burn w as of thermal or radioactive or electri cal orig in and when as ked if he had any basis for assumi ng the injury was caused by “some human er ror,” he replied that he di d not. This qu estion and response impl ied personal k nowledge, because the thru st of the preceding questions, w hile purport ing to seek an opinion only , was seemi ngly di rected to personal know ledge as cont rasted to the el icitation of an op inion.
Q. . . . did you search Dr . Hatcher’s records to try to find s omething that might have caused it? A. Well, I read everyt hing to try to understand w hat happened and just as now I cannot tell you what exactly happened

. Q. You assume this injury was caused by some human error but you don’t have any fact ual basis for t hat assumption do y ou? A. That’s correc

t. (Emphasis added.)
We do not believe that the affidav it of Dr. Mor gan contradi cts his pri or testimony to the extent urged by the defe ndant, keeping in mind that in summary judgment proceedings the evidence m ay not ordinarily be weighed and the summary judgment proceedings may not substitu te for a merit trial. T.C.A. § 29-26-115 is relied on by the plaint iff. This statute provides:-8- In a malpracti ce action . . . there shall be no presumption of negligenc e on the part of the def endant. Provided, however, there shall be a rebutta ble presumption that t he defendant was neg ligent w here it is shown by the proof that the instr umentality c ausing inj ury w as in the defendant’s exclusi ve control and that the acci dent or injur y was one which or

dinarily does not occur

in the absence of negli gence.
It was hel d in Ward v. United Sta tes , 838 F.2d 182 (6t h Cir. 1988) that the pres umpt ion cre ated by this sta tuteis t he do ctr ine of res ipsa lo quitur , which should not be applied w here the plaint iff offers evidence of spec ific acts of neg ligence. But
we see no reason why

the plaintiff may not, consistent ly w ith Rule 8, T ENN . R. C IV . P., plead the application of the statute as an a lternate ground for relief. T here is evidence i n the record t hat the instrument ality ca using the i njury was under the exclusiv e control of the defendant and that the injur y was one that does not ordinarily occur in the absence of negligence, thu s creating a rebuttable presumption of negl igence for resolution upon a mer it trial and not upon a motion for summary judg ment. The judgment is reversed at the cost of the appellee and the case is remanded for trial.

W illiam H. I nman, Senior Ju dge
Concur:

W . Frank Cra wford, P residing Ju dge

David R. Farm er, Judge