Harris v. Buckspan

DONALD EUGENE HARRIS, )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9801-CV-00041

v. )

) Davidson Circuit

GLENN S. BUCKSPAN, M.D., ) No. 95C-1489

individually and )

GLENN S. BUCKSPAN, M.D.,P.C. )

)

Defendant/Appellee. )

)

FILED

August 19, 1998

COURT OF APPEALS OF TENNESSEE

Cecil W. Crowson

Appellate Court Clerk

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE BARBARA N. HAYNES, JUDGE

LARRY D. ASHWORTH

227 Second Avenue, North

Nashville, Tennessee 37201

PETER D. HEIL

P. O. Box 40651

Nashville, Tennessee 37204

ATTORNEYS FOR PLAINTIFF/APPELLANT

C. J. GIDEON, JR.

JOE W. ELLIS, II

NationsBank Plaza, Suite 1900

414 Union Street

Nashville, Tennessee 37219-1782

ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED

WILLIAM B. CAIN, JUDGE

OPINION

I. FACTS

This is a medical malpractice action in which the plaintiff appeals from

a directed verdict in favor of the defendant.

Plaintiff, Donald Gene Harris, is a professional wrestler and presented

himself on January 25, 1993 to the defendant, Dr. Glenn S. Buckspan, for an

evaluation of bilateral gynecomastia or breast enlargement. After discussing

various surgical options, Dr. Buckspan referred Plaintiff to Dr. Craig Sussman

for endocrinology study and possible non-surgical management of Plaintiff's

enlarged breast condition.

Dr. Buckspan's clinical note for this January 25, 1993 visit was

admitted in evidence and reveals the following:

Is seen in consultation with bilateral gynecomastia. [Mr.

Harris] does have a past history of having used anabolic

steroids in the past. The left side is larger than the right. He

has a moderate amount of excess skin.

I explained to him in detail the ramifications of operative

management in the form of suction assisted and direct

excision through an inferior periareola incision. I also

discussed the fact that he did have excess skin and that this

could be corrected more completely with a crescent shaped

excision in a superior areola excision but that would require

a radial incision medially and laterally. I discussed with him

the anticip[a]ted results and the difficulty in obtaining

adequate reduction without excess concavity or excess skin

for which would be fairly loose. I explained to him the fact

that we could do this in a staged procedure and that we could

try to maintain contour but it would be very likely there

could be need for secondary procedures or even further

reduction if this were unsatisfactory to him. I discussed

with him th

epossible [sic] complications of bleeding and infection and

the need for reoperation. The automobile example is cited.

The placement of the incision and the anticipated healing

process is described including the need to limit his body

activity. The need for postoperative compression is

discussed. Potential for hypertrophy of the scars is

discussed. The patient is referred to Dr. Craig Sussman for

his evaluation to see if there is any nonsurgical management

that can be carried out.

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No such non-surgical treatment was determined to be of any value and

on April 26, 1993, plaintiff returned to Dr. Buckspan. Following this

consultation, Dr. Buckspan entered a clinical note as follows:

Is seen in follow up consultation today. He has been

evaluated by Dr. Craig Sussman and has no endocrinologic

abnormalities. I discussed with him the methods of

reconstructing his gynecomastia and at this time he elects to

proceed with a transverse excision and free nipple grafting.

He is aware of the potential loss of skin as well as the nipple

areola grafts and the need for potential reconstruction. I also

discussed and pointed out to him on his chest the extent of

the incision and the fact that there could be widening,

hypertrophy of the scars. He elects to proceed in the near

future.

On this same day, April 26, 1993, following consultation with Dr.

Buckspan, plaintiff signed what is designated as an "operative permit"

containing, in pertinent part, the following:

PLEASE READ THIS CAREFULLY AND FEEL FREE TO

ASK ANY QUESTIONS YOU MAY HAVE ABOUT

YOUR SURGERY OR THIS PERMIT.

PATIENT Don Harris

DATE OF SURGERY

1. I hereby request and authorize Dr. Glenn S.

Buckspan and his associates to perform a surgical

operation known as Bilateral subcutaneous

mastectomies with suction assistance and skin

excision and free nipple grafting .

2. I further state that I have requested this surgery for

the purpose of improving my function or

appearance, or both.

3. The procedure listed above has been explained to

me by Dr. Buckspan and his staff and I completely

understand the nature of the procedure. The

following points have been particularly stressed to

me: bleeding, swelling, infection, permanent scar,

change in sensation, partial or complete loss of

graft .

4. I recognize that during the course of the operation,

unforeseen conditions may necessitate additional or

different procedures than those set forth above. I

therefore further authorize and request that Dr.

Buckspan, his associates, or other physician whom

Dr. Buckspan may request, perform such

procedures as are, in Dr. Buckspan's professional

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judgement, necessary and desir[e]able, including,

but not limited to, procedures involving pathology

and radiology. The authority granted under this

paragraph four (4) shall extend to remedying

conditions that are not known to Dr. Buckspan at

the time the operation is commenced.

...

6. I am aware that the practice of medicine and

surgery is not an exact science, and that I

acknowledge that no guarantees have been made to

me as to the results of the operation or procedure.

7. I acknowledge that you have warned me that my

body or my skin, or my physical system could have

a bad or disagreeable reaction to this procedure or

anesthesia, including the following specific possible

reactions, results, or side effects:

bleeding, swelling, infection, unfavorable scar

8. I understand that the results obtained from this

surgery depends in part on my following post

operative instructions. I agree to cooperate with Dr.

Buckspan and his staff in my follow up care until I

have been completely discharged.

...

10. I have read this permit completely and fully

understand it and I have had an opportunity to have

answered any questions I may have about the

permit and my surgery.

DO NOT SIGN THIS PERMIT UNTIL

YOU HAVE READ IT AND

COMPLETELY UNDERSTAND THE

CONTENTS.

PATIENT SIGNATURE x Dona ld G. Ha rris WITNESS D Adamson DATE 4-26

Surgery by Dr. Buckspan was scheduled at St. Thomas Hospital in

Nashville on May 11, 1993. Prior to the administration of anesthesia on that

date, plaintiff signed a document entitled "consent for surgical or invasive

medical procedures" providing, in pertinent part, as follows:

PATIENT: Donald Harris

DATE: 11 May 1993 TIME: 8:40

A.M.

I, Donald Harris , do hereby authorize

Doctor Buckspan

or one of his associates as follows:

and such hospital personnel as he may designate

and authorize to assist and to perform upon me the following procedure

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and such post care and treatment as may be required for my best care.

Bilateral subcutaneous mastectomies with suction assistance and

skin excision and free nipple grafts .

The said operative procedure (or invasive medical procedure), its

nature, complications and risks, and alternatives have been explained to

me by my attending physician. My physician has not guaranteed any

specific results from such contemplated procedure or surgery.

I recognize that during the course of the operation (or invasive medical

procedure) unforeseen conditions may necessitate additional or different

procedures than those set forth above. I therefore authorize the above

physician, or persons he may designate, to perform such procedures as

are, in his professional judgment, necessary and desirable. This

authority is extended to remedying conditions that are not known by my

physician at the time the operation (or invasive medical procedure) is

commenced.

II. Medical Battery

This case was argued before this court on July 6, 1998, one week

before the Supreme Court released its opinion in Blanchard v. Kellum, No. 02-

S-01-9709-CV-00083 (Tenn. 1998). In Blanchard, the Supreme Court

recognized a distinction between an unauthorized procedure and a procedure

authorized on less than adequate information to the patient.

Said the Supreme Court:

We believe that there is a distinction between : (1)

cases in which a doctor performs an unauthorized procedure;

and (2) cases in which the procedure is authorized but the

patient claims that the doctor failed to inform the patient of

any or all the risks inherent in the procedure. Performance

of an unauthorized procedure constitutes a medical battery.

A simple inquiry can be used to determine whether a case

constitutes a medical battery: (1) was the patient aware that

the doctor was going to perform the procedure (i.e., did the

patient know that the dentist was going to perform a root

canal on a specified tooth or that the doctor was going to

perform surgery on the specified knee?); and, if so (2) did the

patient authorize performance of the procedure? A plaintiff's

cause of action may be classified as a medical battery only

when answers to either of the above questions are in the

negative. If, however, answers to the above questions are

affirmative and if the plaintiff is alleging that the doctor

failed to inform of any or all risks or aspects associated with

a procedure, the patient's cause of action rests on an informed

consent theory.

Informed consent cases require, by statute, expert

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evidence to establish whether the information provided to the

patient deviated from the usual and customary information

given to patients to procure consent in similar situations. See

generally German v. Nichopoulos, 577 S.W.2d 197 (Tenn.

Ct. App. 1978) (holding expert evidence required to establish

informed consent when patient knew of procedure to be

performed but alleged that no risks associated with procedure

were disclosed); see also Tenn. Code Ann. § 29-26-115, -

118. The inquiry focuses on whether the doctor provided

any or adequate information to allow a patient to formulate

an intelligent and informed decision when authorizing or

consenting to a procedure. Shadrick v. Coker, M.D., 963

S.W.2d 726 (Tenn. 1998). To determine the adequacy of

information provided in an informed consent case, a court

must consider the nature of the medical treatment, extent of

the risks involved and the applicable standard of care. Id.;

Tenn. Code Ann. § 29-26-118. These determinations require

expert testimony and are outside the common knowledge of

a lay witness.

Blanchard v. Kellum, No. 02-S-01-9709-CV-00083, slip op. at 4-5 (Tenn. July

13, 1998). Footnotes omitted.

While the plaintiff at bar argues that the procedure by Dr. Buckspan

was unauthorized, such argument does not withstand the "simple inquiry" of

Blanchard. Plaintiff understood that Dr. Buckspan was going to operate on his

chest in treatment of bilateral gynecomastia and Harris authorized the

performance of the procedure. Thus, we are not dealing with "medical battery"

under Blanchard, but with alleged lack of informed consent under Tennessee

Code Annotated section 29-16-118.

Plaintiff admits that he knowingly executed both the "operative permit"

dated April 26, 1993 and the "consent for surgical or invasive medical

procedures" of May 11, 1993. He insists, however, that in his various

consultations with Dr. Buckspan he was told that surgery could be performed

that would reduce the size of his breasts and that such surgery would consist of

two small incisions, one in the area of each breast and that tissue would be

removed through these incisions. He claims he was further told that only a small

hairline scar would remain; he was neither informed that an incision would be

made across the entire breadth of his chest, nor told that he would undergo a

"mastectomy" and "free nipple graft" where his nipples would be surgically

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removed and then reimplanted. He further says he was never advised that the

surgery would result in raised, red, rope-like hypertrophic scars or mispositioned

and malformed nipples.

Plaintiff was not satisfied with the results of the procedure performed

by Dr. Buckspan and sued alleging lack of informed consent and professional

negligence.

III. Informed Consent

The Supreme Court of Tennessee has held:

"the plaintiff shall prove by evidence as required

by § 29-26-115(b) that the defendant did not

supply appropriate information to the patient in

obtaining his informed consent (to the procedure

out of which plaintiffs claim allegedly arose) in

accordance with the recognized standard of

acceptable professional practice in the profession

and in the specialty, if any, that the defendant

practices in the community in which he practices

and in similar communities."

Incorporating the common law controlling the effectiveness

of consent, the statute explicitly requires as part of the

plaintiff's burden of proof that the standard of care for

obtaining informed consent must be shown by expert

evidence in the same manner as provided in T.C.A. § 29-26-

115(b). As stated in Baldwin v. Knight, 569 S.W.2d 450,

453 (Tenn. 1978), T.C.A. § 29-26-115(b) "adds . . . to the

present case law requirements relating to expert testimony,

(1) the necessity that a medical expert be licensed in this

state or a contiguous bordering state; (2) the relevant

specialty requirement; and (3) judicial discretion to waive

those requirements upon a showing of the unavailability of

such witnesses." Where a person has the capacity to consent,

consent may not be effective because the person was not

sufficiently aware of the extent of the risks or the nature of

the treatment involved.

"Counsel insists that simply because plaintiff

testified that no one told her of any possible risks

prior to receiving the injection, a prima facie case

based on lack of informed consent was made out.

. . . [I]n matters of informed consent the plaintiff

has the burden of proving by expert medical

evidence, (a) what a reasonable medical

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practitioner of the same or similar communities

under the same or similar circumstances would

have disclosed to the patient about attendant risks

incident to a proposed diagnosis or treatment and

(b) that the defendant departed from the norm."

German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn. App.

1978), cert. denied (Tenn. 1979).

Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987).

Plaintiff insists that he is entitled to rely on oral assurances allegedly

given him by Dr. Buckspan and that such right of reliance is not subsumed into

the consent forms that he admittedly signed. This assertion is not disputed by the

defendant but there is no expert testimony in the record establishing that breach

of such alleged oral representations violated the applicable standard of care.

Plaintiff's expert witness, Dr. Joseph Bussey, testified that the standard of care

for informed consent " requires that the patient fully understand the procedure

that's recommended and the various procedures that could satisfy the needs of

that patient and the risks and complications related to those procedures and that

the patient is accepting of those conditions before he would agree to have the

procedure performed."

The expert testimony offered does not establish "(a) what a reasonable

medical practitioner of the same or similar communities under the same or

similar circumstances would have disclosed to the patient about attendant risks

incident to a diagnosis or treatment and (b) that the defendant departed from the

norm." German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn. App. 1978).

The lay assertions of Plaintiff as to oral representations and assurances

made to him by Dr. Buckspan taken as being true can not make a jury question

without the expert testimony required by Tennessee Code Annotated section 29-

26-118.

The trial court correctly directed a verdict for the defendant on

informed consent.

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IV. Professional Negligence

Just as Tennessee Code Annotated section 29-26-118 mandates expert

testimony to establish the recognized standard of acceptable professional practice

and the breach of such standard by the physician in order to make a prima facie

case of inadequacy of consent, so section 29-26-115 requires such expert

testimony in a malpractice action.

This statute requires:

(a) In a malpractice 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 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.

Tenn. Code Ann. § 29-26-115(a)(1980).

Plaintiff recognized this statutory requirement inasmuch as he procured

the testimony of Dr. Joseph Bussey. However, while Dr. Bussey opines that Dr.

Buckspan violated the applicable standard of care in the performance of the

procedure he used in surgically treating Plaintiff's gynecomastia, it is clear when

considering Dr. Bussey's testimony as a whole that this opinion is insufficient to

establish a prima facie case for submission to the jury. Dr. Bussey testifies as

follows:

Q. Doctor, are you familiar in this case with the

type of procedure that was performed on Donald Harris? Are

you familiar with the recognized standard of acceptable

professional practice in plastic and reconstructive surgery as

it applies to the treatment of gynecomastia?

A. Yes, sir.

Q. Doctor, have you formed an opinion as to

whether the defendant complied with the recognized standard

of acceptable professional practice in the field of plastic and

reconstructive surgery in his treatment of Don Harris for

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gynecomastia?

A. Yes, I have.

Q. What is that opinion?

A. That it was not complied with. The standard of

care wasn't met, because there are so many procedures that

could be used that would be less disfiguring than the one

actually recommended and performed on Mr. Harris.

Q. Doctor, if you would, explain to the jury what

the standard of care -- you've heard that term. Explain to the

jury what standard of care means as applies in this case to

plastic and reconstructive surgeries.

A. Standard of care applies to the standard that

reasonable physicians under like and similar circumstances

would apply when selecting a procedure that they knew

technically how to perform and that applied to the particular

situation at hand and being certain the patient understood

that procedure as well as the alternative procedures and then

perform the procedure again within the standard of care,

meaning in the fashion similarly trained and experienced

physicians would take care of their patient.

...

Q. Now, tell me a little bit about your opinion in

this case. You mentioned that you thought the standard of

care -- you told us what you thought the standard of care was

in this case. Tell us in specifics how the defendant fell below

the recognized standard of care in his treatment of Mr.

Harris.

A. It's my opinion that the deficiency in meeting

the standard of care in this case were primarily related to the

type of procedure that was selected for treatment, and that's

based on looking at the pictures pre and post-op and having

the opportunity to examine the patient and his twin brother

and the pathology report, which clearly indicates that almost

all of the tissue that was removed was fatty tissue, as

opposed to glandular tissue, and the fact that there are and

were in 1993 procedures available, which would be equally

easy to perform, perhaps a lot easier to perform, and would

not be so disfiguring for Mr. Harris.

Specifically that would be either liposuction

alone or liposuction with, if necessary, the type of nipple

incision that I was diagramming [sic] and the surgical

removal of the glandular tissue beneath the nipple areolar

complex, as opposed to what, at least in my opinion, was

essentially a cancer operation, where you remove the entire

breast and have to remove the excess skin and create flaps

and do the free nipple transfer grafting.

Q. Doctor, let me ask you again within a

reasonable degree of medical certainty, as a result of the

treatment that Don Harris received at the hands of Dr.

Buckspan, did he suffer damages and injuries that he would

not have otherwise suffered but for Dr. Buckspan's actions?

A. He certainly suffered some very extensive

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scarring and some appearance that the nipple areolar

complex differs in size and location from where it was

originally. Essentially that's the damages to him personally

that instead of improving his appearance it is much worse

than it was before he had the surgery.

Thus, it appears from the testimony of Dr. Bussey that it is Dr.

Buckspan's choice of procedure in preference to other available procedures that

apparently violated the applicable standard of care.

On cross examination, however, Dr. Bussey testifies:

Q. Using as what you define as the standard of

acceptable professional practice in this community, did Dr.

Buckspan's decision to send this man to see Dr. Craig

Sussman comply with the standard of care?

A. Yes, he referred him for endocrinological

evaluation for possible medical treatment.

Q. Wasn't that a good thing to do that complied

with the standards of care?

A. Yes.

Q. Isn't it also your testimony -- perhaps the jury

should know you gave the deposition in this case, you will

recall, on August 13th, 1996 at your office in Austell, didn't

you?

A. Yes, I did.

Q. Isn't it also your testimony in your opinion that

assuming the patient listened you have no criticisms of the

operative consent form at all, isn't that right?

A. I don't remember the exact phrase I used, but I

don't see how listen comports with the written consent form.

Q. It's your use of the language. I can ask it this

way and we can refer back to the deposition if we want to.

Isn't it true, Doctor, that this consent form itself is the kind of

consent form that passes without criticism among surgeons

complying with accepted standards of professional practice?

A. The written consent form is indeed that.

Q. Did you look at the written consent form to see

what kind of information was disclosed on the form itself?

A. Yes.

Q. So if the patient looked at the consent form, he

would know that the surgery he was going to have -- carried

with it the risk of bleeding, correct?

A. Yes.

Q. Swelling?

A. Yes.

Q. Infection?

A. I am assuming those are correct. It's been a

while since I read the document. I have no reason to dispute

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that.

Q. Unfavorable scar?

A. I am assuming that's correct.

Q. Isn't that on there?

A. I think it is.

Q. Doesn't this gentleman have an unfavorable

scar?

A. Yes.

Q. A permanent scar?

A. In my opinion they are more than likely

permanent.

Q. Change in sensation?

A. Yes.

Q. Partial or complete loss of grafts?

A. Yes.

Q. All of those potential risks and complications

were listed on the consent form signed by Mr. Harris two to

three weeks before surgery, correct?

A. Yes.

Q. In addition, the same consent form describes a

procedure as a bilateral subcutaneous mastectomy with

suction assistance, skin excision and free nipple graft. That

describes the procedure he underwent on May 11th, 1993,

doesn't it?

A. Yes.

Q. Isn't it true, Dr. Bussey, that in terms of looking

at the operative note, the procedure that Dr. Buckspan

performed was an acceptable procedure for a correction of

this patient's problem?

A. In looking at the operative note, it's a procedure

that has been accepted as something that's reasonable for

correction of gynecomastia depending on the volume and

degree of tosis and the appropriate understanding of other

procedures that could be performed with less disfigurement.

Q. Do you have to today qualify your answer just

as you did, or can you answer it yes or no?

A. I don't have to qualify it. It has been accepted

as a procedure that is appropriate for this diagnosis.

In summary on cross examination Dr. Bussey further testified:

Q. Isn't it true that the surgical procedure itself as

described, the technical aspect of the surgical procedure, was

properly carried out in accordance with accepted standards

of care?

A. The surgical procedure itself it appeared from

the operative record was carried out within the acceptable

standards of care. That's correct.

Q. Let's see if we can recap then. We've got a

surgeon, a plastic surgeon, who is board certified whose had

enough experience in this community to know the standard

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of care, correct?

A. Yes.

Q. Who complies with the standard of care in

sending the patient on to see an endocrinologist, right?

A. That's correct.

Q. Who performs a procedure that is one of the

accepted methods of addressing gynecomastia but not the

one you would choose, right?

A. Not for this patient. That's correct.

Q. And technically performs the procedure in a

fashion that complies with accepted standards of care,

correct?

A. Yes.

It is not a departure from the applicable standard of care for a physician

to use a procedure that is but one of several procedures recognized in the

profession as adequate in the treatment of the plaintiff's condition. In

Blankenship v. Baptist Memorial Hospital, this court observed:

In Snyder v. St. Louis Southwestern R. Co., 228 Mo.

App. 626, 72 S.W.2d 504, 512, the court said on this

question:

"We have found no better statement of the rule of care

required of a physician than in the case of Bailey v. [St.

Louis-San Francisco] R. Co., Mo. App., 296 S.W. 477, cited

by plaintiff, where this court, speaking through Judge Cox,

said:

" 'Physicians and surgeons must be allowed a wide

range in the exercise of their judgment and discretion. The

science of medicine is not an exact science. In many

instances there can be no fixed rule by which to determine

duty of a physician, but he must often use his own best

judgment and act accordingly. By reason of that fact the law

will not hold a physician guilty of negligence * * *, even

though his judgment may prove erroneous in a given case,

unless it be shown that the course pursued was clearly

against the course recognized as correct by the profession

generally. As long as there is room for an honest difference

of opinion among competent physicians, a physician who

uses his own best judgment cannot be convicted of

negligence, even though it may afterward develop that he

was mistaken. [Citing cases].'"

[6] And where there is a difference of opinion among

physicians or surgeons with reference to the treatment to be

given in a particular case, a physician will not be held liable

for malpractice if he follows the course of treatment

advocated by a considerable number of physicians of good

standing in his community. It would not be competent for a

court or jury in such a case to say that a physician who

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followed either of said different methods of treatment was

negligent.

Blankenship v. Baptist Mem'l Hosp., 26 Tenn. App. 131, 143-44, 168 S.W.2d

491, 496 (1942); see also McPeak v. Vanderbilt Univ. Hosp., 33 Tenn. App. 76,

229 S.W.2d 150 (1950).

This rule is reiterated in Tennessee Pattern Instructions (civil) 3rd at

section 6.14. (The pattern jury instruction presupposes a dispute in expert

witness testimony which does not exist in this case.)

Dr. Buckspan, along with his two experts, Doctors DeLozier and

Barton, testified that the procedure used by Dr. Buckspan complied with the

applicable standard of care and that neither in choosing the particular procedure,

nor in the execution of the same, did the conduct of Dr. Buckspan fall below the

standard of care.

Taking the testimony of Dr. Bussey as a whole, he simply disagrees

with the procedure used by Dr. Buckspan, while at the same time acknowledging

that such procedure is a recognized method of treating gynecomastia and that the

procedure was performed in a professionally acceptable manner. Thus it is that

no expert testimony in the record establishes a prima facie case that Dr.

Buckspan deviated from the applicable standard of care in his treatment of

Plaintiff. The trial court correctly directed a verdict in favor of the defendant on

the medical malpractice issue.

V. Res ipsa Loquitur

Plaintiff relying on Underwood v. H. C. A. Health Servs. of Tennessee,

892 S.W.2d 423 (Tenn. Ct. App. 1994), asserts the application of res ipsa

loquitur.

Tennessee Code Annotated section 29-26-115(c) provides:

In a malpractice action as described in subsection (a) of this

section there shall be no presumption of negligence on the

part of the defendant. Provided, however, there shall be a

rebuttable presumption that the defendant was negligent

where it is shown by the proof that the instrumentality

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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. § 29-16-115(c)(1980).

Underwood involved an action by a hospital visitor for injuries

sustained when the cover of a self-service ice dispenser in the hospital cafeteria

fell on her. The trial court directed a verdict for the defendant which was

affirmed by the court of appeals. The case had nothing to do with res ipsa

loquitur in the context of a medical malpractice claim.

In this case there is no medical expert testimony establishing the

negligence of Dr. Buckspan and no evidence of accident or injury caused by an

instrumentality under the exclusive control of the defendant. This action is not

one where a jury based upon their own common knowledge and observation can

infer negligence.

"Since there are only some instances where a pleading of res ipsa

loquitur is applicable in medical malpractice cases, the doctrine is not applicable

and recovery cannot be had without medical proof that the negligence actually

occurred; . . . " 61 Am.Jur. 2d Physicians, Surgeons, etc., § 338, (1981). As

observed by the Court of Civil Appeals of Texas:

There are only very, very few instances where a

pleading of res ipsa loquitur is applicable in medical

malpractice cases. Where negligence is alleged against a

doctor, it must be proved by expert medical testimony before

the case can be developed. The doctrine of res ipsa loquitur

is not applicable and recovery cannot be had without medical

proof that the negligence actually occurred."

Goodnight v. Phillips, 418 S.W.2d 862, 868 (Tex. Civ. App. 1967).

The trial court correctly directed a verdict on res ipsa loquitur.

VI. Other Issues

The remaining issues asserted by Plaintiff relate to damages and to the

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admissibility of certain evidence. Having determined that the trial court was

correct in directing a verdict for Defendant on all liability issues, it is not

necessary to discuss damage issues although it might be well to point out that

evidence offered by Defendant of prior use by Plaintiff of anabolic steroids was

irrelevant to any issue before the court. It may have been a cause for the

development of the condition for which Plaintiff sought medical assistance in the

first place. It is neither cause in fact or proximate cause of any injury or loss

suffered by Plaintiff. See McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.

1991).

Finally, Plaintiff claims that his constitutional right to a trial by jury

was violated when the trial court acting under Rule 50.02 of the Tennessee Rules

of Civil Procedure directed a verdict for the defendant after declaring a mistrial

because the jury was unable to agree. Plaintiff relies primarily on a statement by

the court of appeals from Keith v. Norris, 57 Tenn. App. 423, 419 S.W.2d 189

(1967), which has not been cited in any reported decision in the ensuing thirty-

one years. Said the Keith court:

[2] We take up next, on its merits, the question of

whether the trial judge ruled correctly, when on defendant's

motion for a new trial, he undertook to correct what he

concluded had been an error, and granted defendant's motion

for a directed verdict. The fact that the trial judge was

enough doubtful about the matter to overrule the motion for

directed verdict indicates to some extent, at least, that

reasonable minds might differ as to whether or not such

motion should be granted, and the subsequent fact that the

jury to whom the case was submitted did in fact disagree,

clearly indicates that reasonable minds did disagree.

Id. at 429, 192.

To attribute to this ill-advised statement from Keith the meaning

asserted by the Plaintiff would effectively destroy Rule 50.02 in any case where

a jury was unable to agree and a mis-trial thus made necessary. The pertinent

portion of Rule 50.02 provides: "Whenever a motion for a directed verdict made

at the close of all the evidence is denied or for any reason is not granted, the

court is deemed to have submitted the action to the jury subject to a later

determination of the legal questions raised by the motion."

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Such is precisely what happened at bar when the trial judge reserved

action on the motions for a directed verdict filed by the defendant and submitted

the case to the jury. At a separate hearing held after the mis-trial was declared

the trial judge determined that the motion for a directed verdict was sound in law

and granted same. This action was in conformity with correct procedure.

Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977).

The judgment of the trial court is in all respects affirmed with costs

assessed against appellant.

________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_______________________________________

HENRY F. TODD, PRESIDING JUDGE, M.S.

_______________________________________

BEN H. CANTRELL, JUDGE

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