Benton v. Snyder
| Decision Date | 03 February 1992 |
| Citation | 825 S.W.2d 409 |
| Parties | Brenda Clark BENTON, Plaintiff/Appellant, v. Edward SNYDER, M.D., Defendant/Appellee. |
| Court | Tennessee Supreme Court |
Donna R. Davis, Olen G. Haynes, Knoxville, for plaintiff/appellant.
Edward G. White, II, Knoxville, for defendant/appellee.
The primary issue raised by this appeal is whether the plaintiff's malpractice action for battery based on sterilization without consent was barred by the statute of repose. That question turns on whether there was fraudulent concealment which extends the statute of repose. The Court of Appeals found that evidence of fraudulent concealment sufficient to create a jury issue could only be established by violating a well-settled Tennessee rule against drawing an inference from another inference. The trial court had directed a verdict in favor of the defendant surgeon on the ground that there was insufficient evidence to create a jury question on whether the defendant caused plaintiff's sterilization. The Court of Appeals disagreed, deciding that there was evidence that the defendant performed the sterilization sufficient to create a jury issue. However, the Court of Appeals affirmed the trial court's directed verdict on the separate ground that there was insufficient evidence of fraudulent concealment. We agree with the Court of Appeals' decision as to the sufficiency of the evidence of sterilization. We disagree, however, with their conclusion that the evidence of fraudulent concealment was legally insufficient to make a jury question. Accordingly, we reverse the Court of Appeals and remand this case for a new trial.
More than eleven years ago, on February 4, 1980, the plaintiff, Brenda Clark Benton ("Benton"), was admitted to the Sweetwater Hospital in Sweetwater, Tennessee, for the birth of her child under the care of her family physician, Dr. William L. Harvey. During labor, fetal distress developed. As a result, Dr. Harvey consulted with the defendant Dr. Edward Snyder ("Snyder"), a general surgeon, and requested he perform an emergency cesarean section, to which Benton consented. After Dr. Snyder successfully performed the C-section, a healthy baby was born to Benton and she was discharged back to the care of Dr. Harvey.
Later, Benton married the child's father and they practiced birth control until 1984, when they decided to have another child. When she was unable to become pregnant, she discussed the problem with Dr. Harvey, who referred her in 1986 to Dr. Pleas R. Copas, a gynecologist. Dr. Copas performed a laparoscopy on August 28, 1986, which revealed that segments of her fallopian tubes were missing. Dr. Copas told Benton "that her tubes were blocked bilaterally and that the best course to pursue would be microsurgical correction of her tubes." He did not tell her he thought she had been surgically sterilized. He referred her to Dr. I. Ray King, an experienced gynecologic microsurgeon. On her initial visit in October of 1986, Dr. King informed Benton that it looked like portions of her fallopian tubes were missing and that she had probably been sterilized surgically. When he performed surgery to correct the condition, Dr. King found that both of her fallopian tubes had approximately one inch of tube missing. Dr. King successfully reconstructed the tubes, and Benton subsequently gave birth to another child.
On August 27, 1987, Benton filed a complaint, which alleged that Dr. Snyder sterilized her without consent during the cesarean section surgery on February 4, 1980, thereby committing battery, and thereafter fraudulently concealed his action.
At trial, Benton testified that she had no knowledge of ever having been sterilized until she was told by Dr. King, and that she had never consented to any sterilization procedure. Benton also testified that she had never undergone any surgical procedure during which she could have been sterilized except for the cesarean section performed by Dr. Snyder.
Dr. King, who surgically reconstructed Benton's fallopian tubes, testified that he thought she had been surgically sterilized. Dr. King said that he knew of no way segments of her fallopian tubes could have been missing due to accident or disease. Dr. King further testified that the division of her fallopian tubes could have been caused by either the palmeroy or bipolar cautery methods of sterilization. Dr. King described the palmeroy method as a process whereby the surgeon pulls up a knuckle of the fallopian tube, ties it off, and then cuts the top portion off the knuckle. According to Dr. King, it is preferable to use an absorbable suture in tying off the fallopian tube. The bipolar cautery method was described by Dr. King as a process whereby a small area of the fallopian tube is destroyed with an electrical surgical type of current. When asked his opinion, Dr. King stated he believed Benton had been sterilized with a variation of the palmeroy method.
Dr. Pleas R. Copas (the physician who referred Benton to Dr. King) reviewed the pathology report from Dr. King's reconstruction of Benton's fallopian tubes and, over the plaintiff's objection, gave his opinion as to how he thought she had been sterilized. Based on the absence of suture material from the scarred portions of fallopian tube removed by Dr. King, it was his opinion that Benton had been sterilized through the bipolar cautery method, rather than a variation of the palmeroy method.
When the defense called Dr. Snyder to the stand, he testified to his normal procedures in performing a cesarean section. Dr. Snyder said he performs a C-section by making an incision in the abdominal wall and the uterus, through which the baby is delivered, sewing up the incision with chromic (absorbable) sutures. The tissue removed is usually discarded, instead of being sent to the pathology lab, unless there have been complications with the delivery. This procedure, according to Dr. Snyder, takes approximately 25 to 35 minutes to perform.
Dr. Snyder also testified about his usual procedures in performing a tubal sterilization. He said that although he is familiar with the methods whereby only a portion of the fallopian tube is removed, such as the palmeroy or bipolar cautery methods, he always removes the entire fallopian tube by performing a salpingectomy. Once the tube is removed and the incisions are closed with chromic sutures, Dr. Snyder sends the tissue to the pathology lab to make sure that what has been removed is a fallopian tube, rather than an ovarian ligament. This procedure, according to Dr. Snyder, takes an additional 15 to 20 minutes if it is performed incidental to a cesarean section.
Although he admitted that the fallopian tubes are within the operative site for a cesarean section, Dr. Snyder denied sterilizing Benton after he delivered her baby on February 4, 1980. He says he would have known if he had done it. Dr. Snyder also testified that he could not have sterilized Benton because only portions of her fallopian tubes were missing and he always removes the entire tube. In addition, Dr. Snyder said that he could not have sterilized Benton using bipolar cautery because Sweetwater Hospital did not have bipolar cautery equipment in 1980. Furthermore, he stated that he did not have time to remove the fallopian tubes because he performed Benton's C-section in the normal range of 25 to 35 minutes. To further support his position, Dr. Snyder pointed to the operating room record which states that no tissue was sent to the pathology lab after Benton's C-section delivery.
The operating room personnel who were present on the day Dr. Snyder delivered Benton's baby also testified. None of these witnesses had any independent recollection of Benton's C-section delivery. Each, however, reviewed the medical records and, based on what was contained in the record, denied that Benton was sterilized after her C-section delivery. They testified that they had never seen Dr. Snyder perform any sterilization procedure other than a salpingectomy. They also said that had he done so, they would have either seen Dr. Snyder perform the sterilization procedure, or they would have seen the fallopian tube in the course of transmitting the tissue to the pathology lab.
On the hospital operating room record, Benton's delivery is cited as "C-section, appendectomy," with "appendectomy" marked out and "error" written above it. When asked about the deleted reference to appendectomy, Dr. Snyder denied performing an appendectomy on Benton and stated that the reference was due to a clerical error. He admitted searching for the appendix but said he could not find it. He denied that he intended to perform an incidental appendectomy without consent; however, there was evidence that his practice at the time was to do the incidental procedure without consent.
In addition to Benton's specific hospital record, the entire operating room record of Sweetwater Hospital for the period in question was introduced into evidence. The record demonstrates that in some of Dr. Snyder's sterilization procedures, only portions of the fallopian tubes were sent to the lab, and that in one procedure performed by Dr. Snyder, no tissue was sent to the pathology lab. The record also shows that Dr. Snyder had scheduled one sterilization and appendectomy for February 4, 1980 (the same day Benton's C-section was performed), and another one for the very next day.
At the close of all the evidence, the trial court granted the defendant Snyder's motion for a directed verdict, holding that the jury could not reasonably differ on the question of whether Dr. Snyder performed a sterilization procedure on Benton. Although the trial court did not have to reach the question of whether there was sufficient evidence of fraudulent concealment, it found there was, concluding that the statute of repose would not bar Benton's suit against Dr. Snyder if there was proof that he had performed a...
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