Deuel v. The Surgical Clinic
| Decision Date | 16 August 2010 |
| Docket Number | No. M2009-01551-COA-R3-CV,No. 07C2368,07C2368,M2009-01551-COA-R3-CV |
| Parties | LORRAINE DEUEL, Individually and as Administratrix of the ESTATE OF CLYDE DEUEL, deceased v. THE SURGICAL CLINIC, PLLC and RICHARD J. GEER, M.D. |
| Court | Tennessee Court of Appeals |
H. Anthony Duncan, Nashville, Tennessee, for the appellant, Lorraine Deuel
C. J. Gideon, Jr. and Kimberly G. Silvus, Nashville, Tennessee, for the appellees, The Surgical Clinic, PLLC and Richard J. Geer, M.D.
Appeal from the Circuit Court for Davidson County
This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff's husband. Sponges were used in the patient's abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff's husband subsequently died of causes unrelated to the retained sponge. The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability. The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses' sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim. The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff's motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician's expert testimony that he was not negligent by relying on the nurses' sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician's negligence remains for trial.
OPINION
Joe P. Binkley, Jr., J.
In July 2006, Clyde Deuel ("Mr. Deuel") was diagnosed with pancreatic cancer when an endoscopic ultrasound revealed a tumor in his pancreas. The testing also showed two enlarged lymph nodes that appeared to be benign. Mr. Deuel's diagnosing physician then referred Mr. Deuel for surgery to remove the pancreatic mass. To that end, Mr. Deuel saw Defendant/Appellee Richard J. Geer, M.D. ("Dr. Geer"). Dr. Geer is a member and employee of Defendant/Appellee The Surgical Clinic, PLLC ("The Surgical Clinic" or "the Clinic").
On August 22, 2006, Dr. Geer performed surgery on Mr. Deuel at St. Thomas Hospital ("St. Thomas") in Davidson County, Tennessee to remove the cancerous portion of Mr. Deuel's pancreas. During the surgery, those assisting Dr. Geer included circulating nurse Richard Staats ("Nurse Staats") and scrub nurse Linda Miller ("Nurse Miller") (collectively, "the Nurses"). Both Nurses were employed by St. Thomas.
During Mr. Deuel's surgery, laparotomy sponges were placed in his abdomen; the sponges were to be removed before the incision was closed. Before Dr. Geer closed Mr. Deuel's surgical incision, Nurse Staats and Nurse Miller each counted the surgical sponges twice to verify that all sponges used during the operation had been removed. After the count, the Nurses told Dr. Geer that all sponges had been removed. Accordingly, Dr. Geer closed the incision, completing the surgical procedure.
After that, Mr. Deuel remained at St. Thomas for about a week, recovering from the surgery. During this time, Mr. Deuel experienced no apparent complications from the surgery. On August 30, 2006, Mr. Deuel was discharged from St. Thomas.
On the morning of September 5, 2006, Mr. Deuel felt nauseous and began to vomit. He was taken to the Middle Tennessee Medical Center's emergency room, where an X-ray and CT scan were taken. The tests showed a foreign body lodged in Mr. Deuel's abdomen, resulting in a partial bowel obstruction. Later the same day, Mr. Deuel was transported to St. Thomas to be examined by Dr. Geer.
At St. Thomas, Dr. Geer reviewed Mr. Deuel's CT scan and determined that the foreign body in his abdomen was a laparotomy sponge retained from the surgery performed over two weeks earlier. That afternoon, Dr. Geer performed another surgery on Mr. Deuel to remove the retained laparotomy sponge from his abdomen. This second surgery lasted approximately thirty-seven minutes. Mr. Deuel remained at St. Thomas to recover from the surgery and was ultimately discharged on September 12, 2006.
At some point, one of Mr. Deuel's enlarged lymph nodes, that had previously appeared benign, tested positive for cancer. Mr. Deuel was treated by an oncologist, and underwent chemoradiation therapy. In January 2007, Mr. Deuel declined further chemotherapy. He finally succumbed to the cancer; on March 25, 2007, Mr. Deuel died.1
On August 21, 2007, Mr. Deuel's widow, Plaintiff/Appellant Lorraine Deuel ("Mrs. Deuel" or "Plaintiff") filed the instant medical malpractice lawsuit against Dr. Geer, The Surgical Clinic, and St. Thomas.2 In the complaint, the Plaintiff invoked the doctrine of res ipsa loquitur. She contended that the Nurses negligently conducted an erroneous sponge count and that Dr. Geer negligently failed to confirm that all of the sponges in Mr. Deuel's abdomen had been removed prior to completing the August 2006 surgery. The complaint sought damages for Mr. Deuel's pain and suffering, mental anguish and loss of capacity to enjoy life, resulting from having to undergo the second surgery to remove the errant sponge, as well as Mrs. Deuel's loss of consortium.3
St. Thomas answered the complaint and generally denied the allegations. In their answer to the complaint, Dr. Geer and The Surgical Clinic4 admitted that a sponge was left in Mr. Deuel's abdomen and that surgeons remove sponges from the surgical field during surgery. Dr. Geer contended, however, that the retention of the sponge occurred "through no fault, negligence, or error" on his part. He asserted that it was customary to rely upon the Nurses' sponge count, and contended that he was not responsible for the retained sponge because the Nurses' sponge count had been erroneous. Dr. Geer also denied that the retained sponge was in his exclusive control. On these grounds, he denied liability and alternatively asserted comparative fault against St. Thomas.5
Discovery ensued. In the course of discovery, the deposition of Dr. Geer was taken. In his deposition, Dr. Geer described the use of laparotomy sponges during an operation. He said that the scrub nurse keeps the sponges, and when the surgeon needs a sponge, he asks the scrub nurse to provide one. The sponge is then placed in the operative site, usually by the surgeon but sometimes by the surgeon's assistant.
In February 2008, Dr. Geer filed a motion for summary judgment. In support of the motion, Dr. Geer filed his own affidavit. In the affidavit, Dr. Geer testified as to the recognized standard of care applicable to surgeons in Davidson County, Tennessee. During surgery, he said, the standard of care required the surgeon to focus on the complex task of removing the cancerous portions of the patient's organs, leaving the responsibility for accurate sponge, needle, and instrument counts with the circulating nurse and scrub nurse. Under the standard of care, the nurses would count the items twice and agree upon the results before the surgeon closes the surgical incision. Dr. Geer testified that he had complied with the applicable standard of care by successfully removing the cancer from Mr. Deuel's pancreas and waiting for the sponge count conducted by St. Thomas's nurses before closing the incision. Based on his affidavit, Dr. Geer argued that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law.
The Plaintiff filed a response in opposition to Dr. Geer's motion for summary judgment. She maintained that it was unnecessary for her to submit expert proof to rebut Dr. Geer's affidavit because her claim fit within the common knowledge exception to the requirement of expert proof in medical malpractice cases. Nevertheless, she filed the affidavit of Ralph Silverman, M.D. ("Dr. Silverman"), a colon surgeon whose practice was in St. Louis, Missouri.6 The Plaintiff also filed the affidavits of Nurse Staats and Nurse Miller.
In his affidavit, Dr. Silverman testified that the applicable standard of care required that a laparotomy sponge not be unintentionally left in a patient following surgery. He said that the surgeon and the assisting nurses share responsibility for ensuring that no sponges are left inside a patient. He explained that the nurses are required to conduct a sponge count both before and after surgery, and the surgeon is required to perform a methodical search of the operative site in conjunction with the sponge count, prior to closing the surgery incision. Dr....
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