Church v Perales, 97-00227

CourtCourt of Appeals of Tennessee
Citation39 S.W.3d 149
Docket Number97-00227
Decision Date22 August 2000


No. M1997-00227-COA-R3-CV


March 1998 Session

Filed August 22, 2000

Appeal from the Circuit Court for Davidson County No. 96-C-1097

Barbara N. Haynes, Judge

This appeal involves a dispute between an elderly patient and her physicians regarding their treatment of a severe post-operative infection caused by a bowel perforation that occurred during gynecological surgery. The patient filed suit in the Circuit Court for Davidson County against five physicians and a hospital alleging medical battery and malpractice. The trial court granted a summary judgment to the physicians and the hospital and dismissed the patient's case. On this appeal, the patient takes issue with the summary judgment granted to her gynecologist, a consulting general surgeon, and the gynecologist attending her following surgery in her gynecologist's absence. We have determined that the trial court properly dismissed the patient's medical battery and informed consent claims against her gynecologist. However, we have also determined that the three physicians have not demonstrated that they are entitled to a judgment as matter of law on the patient's medical malpractice claim based on the delay in diagnosing and treating the bowel perforation.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part; Vacated in Part; and Remanded

Barbara G. Medley, Lewisburg, Tennessee, for the appellant, Dolly N. Church.

Noel F. Stahl, Nashville, Tennessee, for the appellee, Maria Perales.

Dixie W. Cooper and Shirley A. Irwin, Nashville, Tennessee, for the appellee, Laura Dunbar.

Ed R. Davies and E. Reynolds Davies, Jr., Nashville, Tennessee, for the appellee, Stephen J. Ross.

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which HENRY F. TODD, P.J., M.S., and BEN H. CANTRELL J., joined.


Dolly N. Church, a Lewisburg resident in her mid-seventies, had experienced problems with urinary incontinence and vaginal prolapse for several years. She had a partial hysterectomy in 1990 to address the prolapse problem, but the procedure was not successful. In December 1993, she consulted Dr. Maria Perales, a Nashville gynecologist, about these conditions. Dr. Perales examined Ms. Church, and, in addition to a grade three vaginal prolapse, she discovered a large cystocele protruding out of Ms. Church's vaginal wall as well as a rectocele in the posterior vaginal wall. Dr. Perales advised Ms. Church that her treatment options included surgery or a more conservative, non-surgical management of her condition. Ms. Church opted for the non-surgical option. However, in November 1994, Ms. Church returned to Dr. Perales to request surgery.

Dr. Perales had been inclined initially to perform the procedures laparoscopically. However, during her pre-surgical consultation with Ms. Church and Ms. Church's daughter on March 2, 1995, she discovered extensive hypermobility of Ms. Church's urethra along with the other conditions she had already observed. In addition, Ms. Church disclosed for the first time that she did not wish to receive any blood or blood products during surgery because she was a Jehovah's Witness. In view of Ms. Church's religious beliefs and the danger of blood vessel compromise during laparoscopic surgery, Dr. Perales decided to perform a more traditional exploratory laparotomy. While explaining the proposed procedure to Ms. Church, Dr. Perales discussed the possible removal of Ms. Church's fallopian tubes and ovaries, as well as the potential risks and complications of the surgery, including infection and bleeding. Following this discussion, Ms. Church consented to the surgery.

Ms. Church was admitted to Southern Hills Medical Center in Nashville on March 8, 1995 for her surgery. However, the surgery was postponed because of an unexpected complication that could have interfered with her anesthesia. She was re-admitted to Southern Hills on March 22, 1995. Before the surgery, she executed a consent form acknowledging that the operation's risks had been disclosed to her and specifically authorizing Dr. Perales, and any surgeons she might associate, to perform the exploratory laparotomy, a bilateral salpingo oophorectomy (removal of her ovaries and fallopian tubes), a bladder suspension, and anterior and posterior vaginal repair. She also authorized Dr. Perales "to do whatever . . . she deems advisable" if she or the other physicians encountered "unforseen conditions . . . in the course of the operation calling . . . for procedures in addition to or different from [the ones specifically listed]."

Unforeseen complications did arise during Ms. Church's surgery. While performing the vaginal vault suspension, Dr. Perales discovered that a portion of Ms. Church's bowel was adhering to the vaginal wall. Correcting this condition required Dr. Perales to cut a small loop of the bowel away from the upper portion of the vaginal wall. Dr. Perales also discovered a suspicious mass that had involved the left ovary and accordingly removed Ms. Church's ovaries, uterine tubes, and related ligaments. After removing the left ovary, Dr. Perales noted hardening and hypertrophy in a portion of Ms. Church's sigmoid colon. Suspecting malignancy, Dr. Perales summoned Dr. Laura Dunbar, a general surgeon, to the operating room for a consultation. Dr. Dunbar performed a limited rigid sigmoidoscopy but was unable to examine the abnormal bowel section itself because Ms. Church had not been prepped for a bowel procedure. Following these procedures, Ms. Church's incision was closed, and she was transferred to the recovery room.

Ms. Church's post-operative recovery did not go well. She experienced preternatual abdominal pain and nausea; her urinary output decreased; and she developed a persistent fever. Dr. Perales performed ultrasound and blood tests to determine the cause of Ms. Church's difficulties. On March 24, 1995, Dr. Perales consulted with Dr. Dunbar, and the two physicians decided to give Ms. Church additional fluids and to continue to monitor her kidney function. Three days later, on March 27, 1995, after Ms. Church did not improve, Dr. Perales consulted Dr. Clara Womack, a nephrologist. Dr. Womack examined Ms. Church, ordered a CT scan to verify that she had both kidneys, and then recommended continuing the regimen of managing Ms. Church's fluid intake.

Ms. Church's condition continued to worsen, and she began to experience shortness of breath. On March 29, 1995, seven days after surgery, Dr. Perales brought in Dr. Mary McElaney who concluded that Ms. Church was "in mild distress" and was suffering from low oxygen in her blood. An X-ray was taken to rule out the possibility of a blood clot. Dr. Perales left Nashville on March 29, 1995, to attend a conference in Arizona, leaving her patients, including Ms. Church, in the care of Dr. Steven Ross, a gynecologist.

Ms. Church's condition continued to deteriorate, and on March 29, 1995, Dr. McElaney approved transferring her to the Southern Hills intensive care unit where she was promptly placed on life support. Dr. McElaney advised Ms. Church's family that her condition was serious. Dr. Ross examined Ms. Church in the intensive care unit and ordered additional tests, including a second CT scan on March 29, 1995 which confirmed the presence of free air in Ms. Church's abdomen. By March 30, 1995, with Ms. Church's blood pressure dropping and her abdomen palpably tight, Dr. McElaney began to suspect sepsis (blood poisoning). Dr. Dunbar suspected acute pancreatitis.

On March 31, 1995, Ms. Church was returned to surgery for a second exploratory laparotomy performed by Drs. Dunbar and Ross. The operation revealed that Ms. Church had a perforated bowel that had caused a severe infection in her abdominal cavity.(FN1) The physicians repaired the perforation and drained what Dr. Dunbar characterized as "a large amount" of pus from Ms. Church's abdomen. Following this procedure, Ms. Church was returned to intensive care where she remained in serious condition for weeks. She was connected to a ventilator and required pulmonary artery catheter monitoring, as well as total parenteral administration of food and water. Ms. Church was not removed from life support until May 26, 1995. Thereafter, on June 22, 1995, three months after her admission to Southern Hills, Ms. Church was transferred to a nursing home in Lewisburg.

On March 21, 1996, Ms. Church filed suit in the Circuit Court for Davidson County against Drs. Perales, Dunbar, Ross, McElaney, and Womack and HCA Health Services of Tennessee, Inc., d/b/a Southern Hills Medical Center,(FN2) alleging medical battery and medical malpractice. All defendants filed answers denying liability. In August 1996, the trial court granted summary judgment to HCA and Doctors Womack and McElaney. Subsequently Drs. Perales, Dunbar, and Ross moved for summary judgment. In May 1997, the trial court granted those defendants summary judgment. Completely out of court on her lawsuit at that point, Ms. Church appealed from the summary judgment granted to Drs. Perales, Ross, and Dunbar.(FN3)


Summary judgments enable courts to conclude cases that can and should be resolved on dispositive legal issues. See Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Airport Props. Ltd. v. Gulf Coast Dev., Inc., 900 S.W.2d 695, 697 (Tenn. Ct. App. 1995). They are appropriate only when the facts material to the dispositive legal issues are undisputed. Accordingly, they should not be used to resolve factual disputes or to determine the factual inferences that should be drawn from the evidence when those inferences are in dispute. See Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988).

Medical malpractice cases may be adjudicated by summary judgment in proper circumstances. See, e.g., Donnelly v. Walter, 959 S.W.2d 166, 168 (Tenn. Ct. App. 1997)...

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