IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 21, 2018 Session

KATHERINE E. ANDERSON v. MING WANG, ET AL

Appeal from the Circuit Court for Davidson County

No. 15C1923Thomas W. Brothers, Judge

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No. M2018-00184-COA-R3-CV

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This is a health care liability case. The trial court granted Appellees’ motion for 

summary judgment on Appellant’s res ipsa loquitur claim under Tennessee Code 

Annotated section 29-26-115(c). Appellant appeals. Because Appellant presented 

sufficient evidence at the summary judgment stage to create a dispute of fact, we reverse 

the trial court’s grant of summary judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN 

STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

F. Dulin Kelly and Clinton L. Kelly, Hendersonville, Tennessee, for the appellant, 

Katherine E. Anderson.

James E. Looper, Jr., H. Buckley Cole, and Zachary L. Gureasko, Nashville, Tennessee, 

for the appellees, Dr. Ming Wang, and Wang Vision Institute, PLLC.

OPINION

I. Background

On February 20, 2014, Appellant Katherine E. Anderson underwent femtosecond 

(“femto”) laser cataract surgery on her left eye; on February 27, 2014, Ms. Anderson 

underwent the same procedure on her right eye.1 Dr. Ming Wang (together with Wang 

 

1 Ophthalmologists began using femto lasers for cataract surgery about five years ago. Studies 

have shown that the benefit of the femto laser for cataract surgery is that the uncorrected visual acuity 

obtained with it is better than what is obtained when doing manual cataract surgery. Some studies have 

shown that endothelial cell loss is less when a femto laser is used to soften the cataract.

10/05/2018
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Vision Institute, PLLC, “Appellees”) performed both procedures.2 An ophthalmologist 

performs cataract surgery by entering the cornea and pupil via an instrument, here a 

femto laser, immediately behind the pupil. The natural lens in the eye is macerated and 

then drawn out of the eye through another instrument. Once the natural cataract lens is 

removed, the artificial cataract lens is inserted in its place.3 During this process, fluid is

introduced into the eye cavity to maintain pressure and to keep fluid from entering the 

inside wall of the cornea. The endothelium in the eye consists of endothelial cells on the 

inner surface of the cornea.4 These endothelial cells prohibit the fluid inside the eye from 

entering the cornea.5 Most adults with healthy eyes have endothelial cell counts in the 

mid-2,000s per eye.

6

The parties agree that, before the surgeries, Ms. Anderson had reasonably healthy 

corneas and that her endothelial cell counts were normal. Prior to her surgeries, Ms. 

Anderson had 2,481 endothelial cells in her left eye and 2,358 in her right eye. The

parties agree that some endothelial cell loss is common after cataract surgery. In his 

deposition and affidavit, Ms. Anderson’s expert, Dr. Alan Kozarsky, stated that the 

average endothelial cell loss in each eye during femto surgery is 5 to 15 percent. In his 

deposition, Dr. Wang admitted that cataract surgery results in a “small percent” of 

endothelial cell loss, “[p]robably anywhere between 5 to 15 percent.” However, when 

questioned further, Dr. Wang stated that he was aware of studies that showed patients can 

lose up to 90 percent of their endothelial cells from cataract surgery. In his affidavit, Dr. 

Kozarsky stated that the study Dr. Wang provided was not conducted with “normal” 

patients like Ms. Anderson; the patients in the study were people who “required a corneal 

transplant, one third had known endothelial disease, and a quarter had glaucoma or other . 

. . history of previous eye surgery.” Dr. Kozarsky’s affidavit also stated that Dr. Wang 

provided no other study demonstrating that normal patients, such as Ms. Anderson, lost 

up to 90 percent of their endothelial cells from cataract surgery. Furthermore, Dr. Wang 

testified that he was not aware of a study where a patient lost up to 80 or 90 percent of his 

or her endothelial cells after femto cataract surgery.

After surgery, the endothelial cell count in Ms. Anderson’s left eye dropped to 

739. The surgery on Ms. Anderson’s right eye resulted in a loss of all of the endothelial 

cells.

7

 Furthermore, the surgery resulted in corneal decompensation in Ms. Anderson’s 

 

2 Wang Vision Institute, PLLC is a Tennessee Professional Limited Liability Company. Its 

registered agent is Dr. Ming Wang. 

3

A Picture of the Eye, WEB MD.COM, https://www.webmd.com/eye-health/picture-of-the-eyes#2 

(last visited September 18, 2018).

4 W.M. Bourne, Biology of the Corneal Endothelium in Health and Disease, NATURE.COM (Nov. 

20, 2003), https://www.nature.com/articles/6700559.

5 Bourne, supra note 4.

6 Bourne, supra note 4.

7 Dr. Wang disputes that the cell count dropped to zero. He stated that he “expect[ed] the count 

to be low, but that accurate measurements could not be obtained due to the swelling.” 
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right eye. Corneal decompensation occurs when the cornea swells and is no longer clear. 

Corneal decompensation represents a devastating loss of almost all of the corneal 

endothelium. At the recommendation of a second ophthalmologist, Ms. Anderson 

underwent a corneal transplant on her right eye, but her vision remains impaired.

On May 15, 2015, Ms. Anderson filed her complaint in the Davidson County 

Circuit Court (“trial court”), alleging that Dr. Wang failed to act with ordinary and 

reasonable care in accordance with the recognized standard of acceptable professional 

practice. Further, Ms. Anderson alleged that, as a proximate result of Dr. Wang’s alleged 

negligence, she was injured. On July 22, 2015, Ms. Anderson filed an Amended 

Complaint, wherein she asserted an additional theory of recovery under the doctrine of 

res ipsa loquitur. On August 13, 2015, Appellees filed an Answer to the Amended 

Complaint. On November 8, 2017, Appellees filed a Motion for Summary Judgment on 

the grounds that Ms. Anderson: (1) presented no direct evidence that Dr. Wang deviated 

from the standard of care; (2) produced no evidence that Dr. Wang’s deviation from the 

standard of care caused Ms. Anderson’s injuries; and (3) has not satisfied the statutory 

requirements necessary to proceed under res ipsa loquitur as codified at Tennessee Code 

Annotated section 29-26-115(c). Ms. Anderson filed a response in opposition to the 

motion for summary judgment on December 5, 2017. 

By order of January 11, 2018, the trial court granted Appellees’ motion for 

summary judgment. The trial court found that Ms. Anderson did not meet the essential 

elements of res ipsa loquitur under Tennessee Code Annotated section 29-26-115(c), in 

that she: (1) did not provide evidentiary support for her claim that the instrumentality that

caused her injury was within Dr. Wang’s exclusive control; and (2) did not provide 

evidentiary support that her injury was one that ordinarily does not occur in the absence 

of negligence. Specifically, the trial court found that Ms. Anderson’s expert, Dr. 

Kozarsky, “never defined the applicable standard of care or how any instrumentality 

could have been improperly used contrary to the applicable standard of care . . . .” 

Furthermore, the trial court found that Ms. Anderson did not specifically state what

instrumentality was under Dr. Wang’s exclusive control. Ms. Anderson appeals. 

II. Issue

The sole issue for review is whether the trial court erred in granting Appellees’ 

motion for summary judgment. 

III. Standard of Review

Appellant appeals the grant of summary judgment on her health care liability 

claim. A trial court’s decision to grant a motion for summary judgment presents a 

question of law. Therefore, our review is de novo with no presumption of correctness 

afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 
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1997). This Court must make a fresh determination that all requirements of Tennessee 

Rule of Civil Procedure 56 have been satisfied. Abshure v. Methodist HealthcareMemphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary 

judgment is made, the moving party has the burden of showing that “there is no genuine 

issue of material fact and the moving party is entitled to judgment as a matter of law.” 

Tenn. R. Civ. P. 56.04. The Tennessee Supreme Court has explained that when the party 

moving for summary judgment does not bear the burden of proof at trial, “the moving 

party may satisfy its burden of production either (1) by affirmatively negating an 

essential element of the nonmoving party’s claim or (2) by demonstrating that the 

nonmoving party’s evidence at the summary judgment stage is insufficient to establish 

the nonmoving party’s claim or defense.” Rye v. Women’s Care Center of Memphis, 

MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015) (italics omitted). Furthermore, 

“When a motion for summary judgment is made [and] . . . supported as 

provided in [Tennessee Rule 56],” to survive summary judgment, the 

nonmoving party “may not rest upon the mere allegations or denials of [its] 

pleading,” but must respond, and by affidavits or one of the other means 

provided in Tennessee Rule 56, “set forth specific facts” at the summary 

judgment stage “showing that there is a genuine issue for trial.” Tenn. R. 

Civ. P. 56.06. The nonmoving party “must do more than simply show that 

there is some metaphysical doubt as to the material facts.” Matsushita 

Elec. Indus. Co., [Ltd. v. Zenith Radio Corp.], 475 U.S. [574,] 586, 106 S. 

Ct. 1348 [(1986)]. The nonmoving party must demonstrate the existence of 

specific facts in the record which could lead a rational trier of fact to find in 

favor of the nonmoving party.

Rye, 477 S.W.3d at 265.

IV. Analysis

The plaintiff’s burden in a health care liability action is set out in Tennessee Code 

Annotated section 29-26-115(a) and (b), to-wit:

(a) In a health care liability action, the claimant shall have the burden of 

proving by evidence as provided by subsection (b):

(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 the defendant practices or in a 

similar community at the time the alleged injury or wrongful action 

occurred;
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(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.

(b) No person in a health care profession requiring licensure under the laws 

of this state shall be competent to testify in any court of law to establish the 

facts required to be established by subsection (a), unless the person was 

licensed to practice in the state or a contiguous bordering state a profession 

or specialty which would make the person’s expert testimony relevant to 

the issues in the case and had practiced this profession or specialty in one 

(1) of these states during the year preceding the date that the alleged injury 

or wrongful act occurred. This rule shall apply to expert witnesses 

testifying for the defendant as rebuttal witnesses. The court may waive this 

subsection (b) when it determines that the appropriate witnesses otherwise 

would not be available.

Tenn. Code Ann. § 29-26-115(a), (b). 

Where a plaintiff is unable to allege a specific act of negligence, the statute 

provides that a plaintiff may rely on the doctrine of res ipsa loquitur to create a rebuttable 

presumption of a defendant’s negligence:

(c) In a health care liability action as described in subsection (a), there shall 

be no presumption of negligence on the part of the defendant; provided, 

that there shall be a rebuttable presumption that the defendant was 

negligent where it is shown by the proof that the instrumentality causing 

injury was in the defendant’s (or defendants’) exclusive control and that the 

accident or injury was one which ordinarily doesn’t occur in the absence of 

negligence.

Tenn. Code Ann. § 29-26-115(c).

In Gilreath v. Chattanooga-Hamilton Cty. Hosp. Auth., No. E2015-02058-COAR3-CV, 2016 WL 3435788, at *8 (Tenn. Ct. App. June 15, 2016), this Court explained 

the origin of res ipsa loquitur in health care liability claims as follows:

Historically, res ipsa loquitur, defined, in pertinent part, by Black’s Law 

Dictionary, 10th ed., as “the thing speaks for itself,” was reserved for cases 

where the act was so obviously negligent that a layperson’s common 

knowledge allowed an inference of negligence. German v. Nichopoulos,
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577 S.W.2d 197, 202 (Tenn. Ct. App. 1978), overruled by Seavers v. 

Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86 (Tenn. 1999). Our 

Supreme Court later expanded the reach of the doctrine to include cases 

that concern complex medical issues that are beyond the layperson’s 

general understanding and that require expert testimony to prove causation, 

the standard of care, and/or that the injury does not ordinarily occur in the 

absence of negligence. Seavers, 9 S.W.3d at 97. 

Gilreath, 2016 WL 3435788, at *8. 

In its order granting summary judgment, the trial court stated:

10. Defendants have established the insufficiency of [Ms. Anderson’s] 

evidence regarding Dr. Wang’s exclusive control over the instrumentality 

that caused the injury, an essential element of [Ms. Anderson’s] claim. 

[Ms. Anderson’s] expert, Dr. Kozarsky, never stated to any degree of 

medical certainty which instrumentation in the exclusive control of Dr. 

Wang probably caused [Ms. Anderson’s] injuries, nor did he indicate a 

probable breach of the standard of care occurred by Dr. Wang’s 

implementation of any instrumentality. Dr. Kozarsky never defined the 

applicable standard of care or how any instrumentality could have been 

improperly used contrary to the applicable standard of care, as required by 

Tenn. Code Ann. § 29-26-115(a).

Respectfully, the trial court’s ruling conflates the requirements of section 29-26-115(a) 

with the res ipsa loquitur requirements of section 29-26-115(c). Because Ms. Anderson 

was proceeding on res ipsa loquitur grounds, her expert was not required to: (1) “state[]

to any degree of medical certainty which instrumentation in the exclusive control of Dr. 

Wang probably caused [Ms. Anderson’s] injuries;” (2) “indicate a probable breach of the 

standard of care;” or (3) “define[] the applicable standard of care.” 

A plaintiff proceeding under a res ipsa loquitur claim is only required to prove the 

elements in Tennessee Code Annotated section 29-26-115(c). As explained by this 

Court:

Under the doctrine of res ipsa loquitur, a plaintiff need not prove specific 

acts of negligence by the defendant in order to get his case to the jury. 

Burton v. Warren Farmers Coop., 129 S.W.3d 513, 523 (Tenn. Ct. App.

2002) (citing Summit Hill Assocs. v. Knoxville Utils. Bd., 667 S.W.2d 91, 

96 (Tenn. Ct. App. 1983); Parker v. Warren, 503 S.W.2d 938, 942 (Tenn.

Ct. App. 1973)). The elements usually required for application of the 

doctrine are:
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(1) the event must be of a kind which ordinarily does not occur in the 

absence of someone’s negligence;

(2) it must be caused by an agency or instrumentality within the 

exclusive control of the defendant; [and]

(3) it must not have been due to any voluntary action or contribution 

on the part of the plaintiff.

W. Page Keeton, Prosser and Keeton on Torts 244 (5th ed. 1984 & Supp.

1988); see Seavers, 9 S.W.3d at 91 (“The plaintiff must demonstrate that he 

or she was injured by an instrumentality that was within the defendant’s 

exclusive control and that the injury would not ordinarily have occurred in 

the absence of negligence.”).

“[T]he doctrine of res ipsa loquitur is . . . a rule of circumstantial evidence, 

not a substantive rule of negligence law.” Keeton, supra, at 244 (Supp.

1988); accord Burton, 129 S .W.3d at 525 (“Res ipsa loquitur is a rule of 

evidence, not a rule of law.”). The doctrine is primarily used in jury trials to 

provide a framework to determine whether the plaintiff’s evidence is 

sufficient to entitle him to get his case to the jury. Burton, 129 S.W.3d at 

526 (citing N. Memphis Sav. Bank v. Union Bridge & Constr. Co., 196 

S.W. 492, 498 (Tenn. 1917); Ford v. Roddy Mfg. Co., 448 S.W.2d 433, 

437 (Tenn. Ct. App. 1969); John Bouchard & Sons, Co. v. Keaton, 9 

Tenn. App. 467, 480 (1928)). Under the common law, if the requirements 

of res ipsa loquitur are met, it “permits, but does not compel, a jury to infer 

negligence from the circumstances of an injury.” Seavers, 9 S.W.3d at 91 

(citing Poor Sisters of St. Francis v. Long, 230 S.W.2d 659, 663 (Tenn.

1950); Lewis v. Casenburg, 7 S.W.2d 808, 811 (Tenn. 1928); Armes v. 

Hulett, 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992)). Application of the 

doctrine allows an inference of negligence, but it does not “dispense with 

the plaintiff’s burden of proof.” Id. (citing Summit Hill Assocs. v. 

Knoxville Utils. Bd., 667 S.W.2d 91, 96 (Tenn. Ct. App. 1983); Oliver v. 

Union Transfer Co., 71 S.W.2d 478, 480 (Tenn. Ct. App. 1934); 57B Am.

Jur. 2d Negligence § 1920 (1989)).

Deuel v. Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV, 2010 WL 3237297, at 

*10 (Tenn. Ct. App. Aug. 16, 2010).

The elements of res ipsa loquitur are: (1) “that the instrumentality causing injury 

was in the defendant’s (or defendants’) exclusive control . . . ;” and (2) “that the accident 

or injury was one which ordinarily doesn’t occur in the absence of negligence.” To 

survive summary judgment, Ms. Anderson is required to “set forth specific facts,” for 
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each element of her res ipsa loquitur claim, “showing that there [was] a genuine issue for 

trial.” Rye, 477 S.W.3d at 265; Tenn. R. Civ. P. 56.06. On appeal, Ms. Anderson argues 

that she provided enough evidence, through deposition and affidavit testimony, to 

demonstrate a genuine issue for trial. We agree. 

Concerning the first element of a res ipsa loquitur claim, i.e., “that the 

instrumentality causing injury was in the defendant’s (or defendants’) exclusive control . . 

.,” Tenn. Code Ann. § 29-26-115(c), the trial court found: 

11. [Ms. Anderson] asserts that she has met the “exclusive control” 

element because she was under Dr. Wang’s exclusive care and control 

throughout both surgeries; however, the statute specifically speaks to the 

instrumentality causing the injury as what is within Dr. Wang’s exclusive 

control, not whether [Ms. Anderson] herself was in Dr. Wang’s exclusive 

control. To hold otherwise would allow every patient who is sedated 

during a procedure and who has an unexpected outcome to rely upon res 

ipsa loquitur.

12. Because [Ms. Anderson] has not provided any evidentiary support 

substantiating her claim that an instrumentality under the exclusive control 

of [Appellees] more likely than not caused her injury, as required by Tenn. 

Code Ann. § 29-26-115(c), [Appellees] have demonstrated the 

insufficiency of [Ms. Anderson’s] evidence regarding this prong and 

negated an essential element of [Appellant’s] res ipsa loquitur claim.

Turning to the record, during Dr. Wang’s deposition, opposing counsel asked 

whether Dr. Wang “had exclusive control of the instrumentation throughout both surgical 

procedures.” Dr. Wang answered, “That’s correct.” Appellees argued, and the trial court 

agreed, that because Ms. Anderson could not prove the exact instrumentality that caused 

her harm, she did not meet the first element of res ipsa loquitur. Respectfully, the way in 

which the trial court construes the first element of a Tennessee Code Annotated section 

29-26-115(c) res ipsa loquitur claim is contrary to the doctrine itself. “Application of the 

doctrine [of res ipsa loquitur] is precluded in cases where evidence of a specific act of 

negligence is introduced at trial.” Gilreath, 2016 WL 3435788, at *8 (citing Hughes v. 

Hastings, 469 S.W.2d 378, 397 (Tenn. 1971)). If Ms. Anderson was aware of the exact 

instrumentality that caused her harm, she would not have a res ipsa loquitur claim. The 

purpose of the doctrine is to provide patients with an avenue to the jury when they have 

been harmed during a medical procedure while either unaware or unconscious. 

“Claimants often have no knowledge of what happened during the course of medical 

treatment, aside from the fact that an injury occurred during that time.” Seavers, 9 

S.W.3d at 95. Dr. Wang’s own admission that he had exclusive control of the 

instrumentation during the procedures was sufficient evidence to create a dispute of fact 

for the jury. The trial court erred when it held otherwise. 
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Concerning the second element of res ipsa loquitur, i.e., “that the accident or 

injury was one which ordinarily doesn’t occur in the absence of negligence,” Tenn. Code 

Ann. § 29-26-115(c), the trial court found:

13. [Appellees] have also established the insufficiency of [Ms. Anderson’s] 

evidence that this injury would not ordinarily occur absent negligence. 

Thus, [Appellees] have negated an essential element of [Ms. Anderson’s] 

claim.

14. Dr. Kozarsky agreed in his deposition that endothelial cell loss can 

occur following the type of procedure that Dr. Wang performed on [Ms. 

Anderson]. Dr. Kozarsky also stated in his deposition that one of the most 

plausible scenarios is that something got inside [Ms. Anderson’s] eye that 

the endothelium just did not like. Dr. Wang and Dr. Kozarsky both 

acknowledged that endothelial cell loss can occur in cataract surgeries 

without negligence. 

Ms. Anderson’s expert, Dr. Kozarsky, is a board certified ophthalmologist who 

has performed numerous eye surgeries, including LASIK, cataract, corneal transplant, 

and femtosecond. Dr. Kozarsky’s deposition testimony demonstrated that the type of 

corneal decompensation Ms. Anderson experienced after her cataract surgery ordinarily 

does not occur absent negligence. Specifically, Dr. Kozarsky explained that “[i]n the 

absence of a known corneal abnormality, permanent swelling of the cornea is very, very, 

very uncommon.” Further, he was “totally surprise[ed] and flabbergast[ed] [to see]

corneal decompensation in what you thought was a normal cornea.” He testified that, to 

see this type of corneal decompensation in a normal cornea “is as close to never as you 

can imagine, not zero, but as close to never as you can imagine.” When asked whether

permanent, post-surgical corneal edema occurs in the absence of a deviation from the 

applicable standard of care, Dr. Kozarsky answered: “That’s not one of the things that 

generally happens without a cause.” Dr. Kozarsky listed a few possible reasons for 

corneal decompensation and concluded by stating that he could not “think of a plausible 

reason why [Ms. Anderson] ended up[] with the corneas that she has under normal 

circumstances. And with all the information we have, [he couldn’t] imagine why she is 

where she is.” Finally, in his affidavit, Dr. Kozarsky stated: “Dr. Wang testified cell loss 

could have been caused by unusually rough handling of the cornea, improperly applying 

the laser to the cornea, high fluid introduced into the eye during surgery, or putting the 

wrong fluid in the eye which would be toxic.8 In my opinion, any one of these would be 

 

8 Appellees argue that the most probable cause of Ms. Anderson’s corneal damage is the result of 

the nurses injecting the wrong solution into Ms. Anderson’s eye. Further, Appellees argue that, because 

the nurses are not Dr. Wang’s employees, he is not responsible for their actions. Appellees are free to 

make this argument to the jury to rebut the presumption of Appellees’ negligence. However, accepting 
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the product of operator negligence.” Further, he stated “that the astounding cell loss 

would not have occurred but for [Dr. Wang’s] surgery. The injury occurred at some 

point during the surgery.” Dr. Kozarsky’s testimony that the type of injury Ms. Anderson 

suffered does not occur absent negligence provides sufficient evidence to create a factual 

dispute for the jury. Having presented specific facts to support both elements of her res 

ipsa loquitur claim, Ms. Anderson has demonstrated that there are genuine issues of 

material fact to be resolved. Therefore, the trial court erred in granting summary 

judgment.

V. Conclusion

For the foregoing reasons, we reverse the trial court’s order. The case is remanded 

for such further proceedings as may be necessary and are consistent with this opinion. 

Costs of the appeal are assessed against the Appellees, Ming Wang, M.D. and Wang 

Vision Institute, PLLC, for all of which execution for costs may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

 

this argument as true is premature at the summary judgment stage, where we must give all reasonable 

inference in favor of the non-moving party. Bain, 936 S.W.2d at 622 (citing Byrd v. Hall, 847 S.W.2d 

208, 201-11) (“Courts must view the evidence in the light most favorable to the nonmoving party and 

must also draw all reasonable inferences in the nonmoving party’s favor.”).