*1 contract arbitration. We also hold that involving commerce.” hold that We also chancery whole, court properly withheld viewed when the contract re- of fraudulent issue inducement from arbi- parties veals intention of the to arbi- tration accordance with the intention of disputes to trate all the extent allowed parties. Tennessee law. did parties Because the intend to not arbitrate contract formation As evidence a choice-of-law clause issues, the chancellor’s decision not to sub- clause, modify can not arbitration mit the claim of inducement to fraudulent appellant quotes our statement Tennes- arbitration was the FAA. consistent with Pulp & Eichleay see River Paper Co. Therefore, we affirm the of the (Tenn.1982), Corp., 637 S.W.2d Appeals Court and remand sole “parties should not [the be able to render of fraudulent issue inducement inapplicable by providing FAA] for arbi- chancery proceedings court for further particular tration under laws of opinion. consistent with this state.” See 637 In Ten- S.W.2d at 857. River, however, specifi- nessee we did appellant, are Costs assessed to the cally address the effects of a choice-of-law Company, Frizzell Construction Inc. upon other provisions. clause contract only held that the FAA rendered arbitra- ANDERSON, C.J., DROWOTA, agreements fully tion enforceable accord- BYERS, BIRCH, JJ., S.J., concur. terms, thereby modifying to their own our common law. We did not hold that incapable
parties choosing the law
by which arbitration is to be conducted. contrary
Such a rule would be to the decla- poli- that “the proarbitration ration FAA’s Vaughn Berdella & Ed SEAVERS operate cy regard without Seavers, die Thomas Plain parties.” wishes of the contracting See tiffs/Appellants, Mastrobuono, U.S. S.Ct. 1212. METHODIST CENTER OF MEDICAL Therefore, pol consistent with the RIDGE, Defendant/Appellee. OAK FAA, underlying holding icies our simply parties may this case reflects Tennessee, Supreme Court of they choose the arbitration law at Knoxville. governed. intend to be The enforcement Nov. 1999. the intent agreement according of this parties of the full with the accord Opinion Rehearing Denying FAA, parties even if the result is 27, 1999. Dec. agree judicial to submit some issues resolution that the FAA would otherwise
permit arbitration resolve. This Court
“may give rights effect to contractual expectations parties, without
doing policies violence behind Sciences, Inc.,
FAA.” Volt See Info. 479, 109 S.Ct. U.S.
CONCLUSION summarize,
To we that the chan- hold
cery finding court erred that this con- not “evidencing
tract is one a transaction
BACKGROUND Vaughn Berdella Seav- appellants, Seavers,1 appeal ers and Eddie Thomas appellate intermediate court’s de- from the *3 entry summary affirming cision appellee, in favor of the Method- (“medical Ridge ist Medical Center of Oak center”). suit is The basis of received to the ulnar nerve she patient right her arm while she was in purposes For the the medical center.2 summary parties stipulated judgment, in to the essential facts this case. appellant The was admitted into the Rowland, Knoxville, Elizabeth Ann Jan- after medical center on March she Edwards, Knoxville, Appellants. et for pneumo- viral diagnosed with bilateral Knolton, Ap- for Ridge, Robert W. Oak time, her At that she was able to use nia. pellee. there right normally arm and hand and ulnar signs right were no to her Philip Campbell, R. M. R. Bailey, Sadler later, appellant days nerve. Three Association, Cagle, Lawyers Hunter Trial medical center’s was transferred for Amicus Curiae. (ICU) for treatment of intensive care unit pneumonia. Treatment included intu- bation, sedation, injec- intravenous heavy OPINION tions, respirator. The placement and on BARKER, M. Justice. WILLIAM appellant had nurses’ notes reflect right full use of her left and extremities appeal to address granted time, again, and there was no indica- ipsa loquitur, whether the doctrine of res any problems dysfunc- tion that she had or Annotated as codified at Tennessee Code right tions with her ulnar nerve. 26—115(c), in applicable medi- section 29— cen- appellant stayed in the medical The cal cases where the month, one approximately ter’s ICU for prove rely upon expert testimony to must time, heavily during which she was sedated causation, the elements of standard any way. and unable to care for herself does not ordinari- and addition, during In was unable to talk she ly occur the absence of to an stay of her in the ICU due most medical mal- Upon review of Tennessee’s her positioned through endotracheal tube authority in other practice law and the The into her trachea. ICU mouth and doctrine jurisdictions, we conclude appellant nursing staff monitored ipsa loquitur may applied be positioning, responsible turning, judgments those .circumstances. hospital body in the restraining her reversed, and the case the lower courts bed. further remanded to the trial court for ICU, nursing not- in the staff opin- with this While proceedings accordance appel- grip ed for the first time ion. major nerves is one of three 2. The ulnar nerve 1. Mr. Seavers's claim is for loss of consortium expenses provides incurred on behalf of and medical hand that located in the arm and wife, his claim his Berdella Seavers. Because fingers. of the movement control we will refer to the is derivative singular. By the use of the appellants in the Seav- "appellant,” we refer to Ms. term ers. right lant’s hand was than in arm etiology,” weaker her was “of unknown and that developed left hand. Both of her hands had been could have her during restraints, placed in stay any wrist fastened to the in the ICU without deviation rails, hospital prevent bed her from from standards of care. pulling addition, removing they tube concluded that endotracheal the medical and the IV. When the endotracheal tube center staff had not deviated from the talk, was removed and the recognized treating standard of care complained right appellant, she that her arm was including manner numb difficulty using she had her they restrained her arms.
right hand. She was taken out of the ICU appellant opposed the medical cen- 31, 1993, on March and was moved into a summary ter’s motion judgment argu- private room at the medical center for genuine there were issues of ma- *4 recovery. further Dr. a Lynch, James appellant’s response terial fact. The was center, neurologist at the medical adminis- supported by deposition Stephen Dr. of (EMG) tered an electromyelogram on the Natelson, a neurosurgeon, and the affida- appellant approximately one week later. vits of both Dr. Natelson and Sharon The examination revealed that she had Woodworth, registered nurse who works damage suffered severe right to her ulnar Mary’s ICU St. Medical Center nerve.3 ap- Knoxville. Dr. Natelson had been the upon
Based injury, appel- pellant’s nerve neurologist since he and lant and her against husband filed suit right treated her arm left after she medical center for malpractice. ap- medical center.4 Dr. Natelson testified pellant alleged that the medical deposition appellant’s center’s his that injury nurses negligently positioned restrained or occurred prolonged pressure as result of her arm while she was under their on the ulnar right nerve her elbow. resulting in the damage right to her Although ulnar he could not offer conclusive causation, nerve. She later complaint proof amended her he stated that the nerve theory to include the loquitur. injury could have if a occurred member of 29-26-115(c) (1980). Tenn.Code Ann. pad staff nursing appel- ICU failed to prevent lant’s elbow or failed to her arm The medical center filed a motion for pressed from becoming against a ob- hard summary judgment supported by the affi- ject such as bed rail.5 davits of Dr. Bennett Blumenkopf, a neu- Lewis, rosurgeon, and regis- Elizabeth Both Dr. Natelson and Ms. Woodworth tered general nurse who works in opined care and appellant was under the intensive care experts opined units. Both exclusive control and care of the medical damage the nerve in appellant’s right nursing inju- center’s staff when the nerve appellant 3. The appellant's was released from the medi- ulnar nerve not caused was 8, 1993, April cal center on after she recov- any way multiple or related in to the sclerosis. pneumonia. discharge ered from the re- nothing suggest There is in the record to port did injury. not reflect her nerve She otherwise. however, deposition, testified in her center, when she left the medical she suffered 5.Dr. Natelson’s was corroborated variety problems right from a in her arm husband, appellant's Mr. stemming damage: from the nerve hot and deposition He testified Seavers. in his that he hand, pains cold from her elbow to her forming appel- noticed abrasions under the disfiguration "claw-like” and lack of move- lant’s while she was confined to bed arms hand, throughout ment in her and numbness placed ICU. He testified that he wash- her arm. cloths between her arms and the bed rails to prevent developing further soars from 4. Dr. Natelson has treated the ailments, appel- her arms. He had no including multiple various sclerosis pain diagnosed lant's arm until later when which she was with in 1979. Dr. the endotra- deposition Natelson testified in his cheal tube was removed from her mouth. causation, care not deviations from the stan- ry occurred. The ICU included ap- treatment dards of care. direct medical for the pellant’s position- but also the pneumonia, H. Judge Senior William Williams wrote turning appellant’s body while separately concurring opinion in a to em- hospi- confined she was sedated and phasize that res should never tal Natelson and Ms. bed. Dr. Woodworth where, apply malpractice cases treating patients stated that when ICU here, testimony is needed to under heavy who are unconscious or seda- establish the cause of the both restraint, tion or the standard profes- yvas that there from appli- deviation protection requires sional of the care Judge care. cable standard of Williams injuries patients’ extremities so opined experts appel- were needed in upon ulnar do not occur. nerves Based lant’s case the causal link because between their independent review any negligent nerve act results, they and the EMG records nursing staff the medical center’s opined type lay per- within the common if nursing would not have occurred sons.6 upheld staff the standard of care. had Judge wrote separately Crawford also question ipsa loquitur. on the In a summary reviewing the motion for *5 dissent, the agreed brief he with limited judgment, court that the trial determined loquitur in application of res expert testimony was to estab- necessary stated that doc- applicable lish but the both the standard of care apply appellant’s trine case be- should negligence whether be reason- cause the was within the com- ably the nerve inferred from circumstances sur- knowledge understanding mon of appellant’s injury. The trial rounding the court, therefore, persons. concluded res ipsa loquitur of unavailable appellant requests The Court claim appellant’s was otherwise Appeals reverse and to re- the Court Finding matter insufficient as a of law. no question mand the for a trial on fact, trial genuine issues of material negligence. She contends the doc- granted court the medical center’s motion provided ipsa loquitur, trine of as summary judgment. for Tennessee Annotated section 29-26- Code 115(c), should be extended made avail- Appeals A of the Court of af- majority able in cases where firmed court’s order granting the trial necessary prove expert testimony is summary judgment for medical center. and that elements of causation decisions both upon prior from Relying in the ordinarily occur absence and the Court of Appeals, Court application With intermediate held
majority of the court ipsa loquitur, appellant argues that she not apply did be- fact genuine has raised a issue material appellant’s cause was not within for trial. lay persons. common Long, See Poor Sisters St. Francis v. STANDARD OF REVIEW 434, 659, (1950); 190 Tenn. 230 S.W.2d 662 197, ap governing an Nichopoulos, 577 The standards German v. S.W.2d (Tenn. a motion pellate review of for sum App.1978). 202-03 Ct. The need court’s settled. according mary ma- are well Sum testimony, judgment judgment only when jority, conflicting mary appropriate was demonstrated party demonstrates that there questions negligence, moving evidence on plain case was not Nichopoulos, causation as Quoting from 577 S.W.2d " " 202, fly floating 'a in a bowl of buttermilk.' Judge stated that as Williams the issue
91
genuine
proof,
merely
are no
issues of material fact and
den of
but it
allows
infer
that he or
jury
she is entitled to
has a
ence of
where the
56.03;
matter of law. Tenn. R. Civ. P.
understanding
common
(Tenn.
Hall,
208,
Byrd v.
847 S.W.2d
210
in
events which resulted
1993).
summary judgment
review the
some
jury do not
occur unless
question
motion as a
of law in which our
Assoc. v.
negligent.
one was
Summit Hill
presumption
inquiry is de novo without a
Bd.,
91, 96
Knoxville Util.
667 S.W.2d
of correctness.
Finister v. Humboldt
(Tenn.
App.1983); Oliver v. Union
Ct.
Inc.,
435,
Hosp.,
General
970 S.W.2d
694,
Co., Tenn.App.
71 S.W.2d
Transfer
Omer,
(Tenn.1998); Robinson v.
952 478,
Negligence
57B
Am.Jur.2d
(Tenn.1997).
S.W.2d
We must
(1989).
§
weight
any
The
infer
view the evidence and all
infer
reasonable
ence to be drawn from the evidence is
light
ences
most favorable to the
jury.
the determination of the
Franklin v.
nonmoving party. Byrd, 847 S.W.2d at
Hosp., 696
Chapel
Collins
Connectional
210-11.
If both the facts and conclusions
(Tenn.
App.1985);
Ct.
John
S.W.2d
permit
to be drawn therefrom
a reasonable
Tenn.App.
Ely,
son v.
205 S.W.2d
conclusion,
person
to reach
one
then
(1947).
759, 762
summary judgment
appropriate.
Rob
inson,
Wells,
S.W.2d
Bain
jury may
presume
negli
(Tenn.1997).
S.W.2d
gence
from the fact of an
alone.
29-26-115(d)
(Supp.
Ann.
Tenn.Code
DISCUSSION
Lawrence,
1999);
Johnson
S.W.2d
law,
Under Tennessee
(Tenn.
App.1986).
Ct.
loquitur7 is a form of circumstantial evi
of showing
has the burden
circumstances
permits,
compel,
dence that
but does not
jury might reasonably
from which the
con
jury
to infer
from the circum
clude that
the defendant
negligent.
*6
injury.
stances of an
Poor Sisters
St.
of
Assoc.,
96;
Summit Hill
667
at
S.W.2d
Francis,
663;
230 S.W.2d at
Lewis v. Ca Ely,
plaintiff
at
205 S.W.2d
762. The
must
187,
808,
senburg, 157 Tenn.
7 S.W.2d
811
injured by
that he or
demonstrate
she was
(1928);
Hulett,
427,
Aimes v.
843 S.W.2d
instrumentality
that was within the de
(Term.
App.1992).
432
Ct.
The doctrine of
fendant’s exclusive control and
ipsa
res
loquitur
traditionally
has
been injury
ordinarily
would not
have occurred
in
available
cases where direct evidence of
the absence of
Provident
negligence
defendant’s
is either inacces
Co.,
& Accident
396
at
Ins.
S.W.2d
Life
by
plaintiff.
sible to or unknown
Prov
Crabtree,
354-55;
v.
Sullivan
36 Tenn.
ident
& Accident Ins. Co. v.
Life
Profes
(1953).
469, 473,
App.
782,
258
784
S.W.2d
Serv.,
199,
Cleaning
sional
217 Tenn.
396
351,
(1965);
S.W.2d
ipsa loquitur
356
57B Am.Jur.2d
The doctrine of res
(1989).
Negligence
applied
variety
1920
The
in a
doctrine
been
dispense
actions,8
with the
bur
and in the context of medical mal-
405,
721,
(1942)
ipsa loquitur,”
7. The term "res
translated lit-
Tenn.
158 S.W.2d
725-26
Latin,
erally
thing speaks
(holding
loquitur
ipsa
apply
from
means “the
where
res
foreign
itself.”
injured
particle
was
from a
Coca-Cola);
found in a bottle of
North Mem
Co.,
402,
phis
Bridge
v.
Sav. Bank Union
& Constr.
Pettigrew,
v.
See Browder
541 S.W.2d
161,
492,
(1917)
(Tenn.1976)
138 Tenn.
497
196 S.W.
(applying
ipsa loquitur
407
res
person
(permitting
inference in a
products liability
brought
suit
under
theo
brought by
al
suit
the estates of two
ry
negligence);
Provident
& Accident
Life
Co.,
employees for
acci
(holding
deceased
dent);
a construction
Ins.
practice, recognized jury. Knight, has been both See S.W.2d Bowman, Assembly. 450, (Tenn.1978); common law our 547 General law, 530-31; the common courts have Maury Under Keeton v. Coun- S.W.2d (Tenn. adopted version of restricted 713 S.W.2d Ct. ty Hosp., malpractice cases. loquitur medical App.1986); Leung, Stokes 651 S.W.2d (Tenn. permitted have been to use res Claimants App.1982). Expert Ct. ipsa loquitur only those cases where malprac- in medical reasonably proof jury is such can to assist the trier tice cases and to educate experi- from common infer malpractice lies alleged of fact unless negligent. ence defendant was per- knowledge9 within the common Francis, Poor See Sisters St Baldwin, sons. at 456. From S.W.2d Cocke, Quinley S.W.2d standard, it has rule in Ten- been the (1946); Tenn. S.W.2d subject nessee that when matter of Nichopoulos, 577 at 202. S.W.2d alleged malpractice requires a scientific exposition, then the fact has no trier of into fitting Medical to infer common from which knowledge” exception typi “common Fran- negligence. See Poor Sisters St. cally injuries such as a involve unusual cis, 662; Nichopoulos, 230 S.W.2d at patient’s sponge being or needle left in the at 202. S.W.2d following surgery abdomen or where patient’s eye during performance is cut use of The limited appendectomy. Nichopoulos, of an See cases has remained at 203 Harrison v. (citing 577 S.W.2d the law Tennessee even with the enact- Wilkerson, Tenn.App. 405 S.W.2d Malpractice ment of the Medical Review Patterson, 21 Meadows v. Act Board and Claims of 1975. Tenn.Code (1937)). 283, 109 Tenn.App. S.W.2d (1980 Supp. §§ Ann. 29-26-101 to -121 & permitted in those Jurors eases 1999). Act common law clarified the upon a common infer based all claim- by requiring injuries understanding such do sense (1) carry proving ants to burden attending occur unless the care, standard recognized physician provider or health-care (2) act in ac- that the defendant failed to question critical negligent. somehow applicable with the standard cordance instrumentality whether caus becomes (3) that as result proximate *7 injury was the defendant’s ing the omission, the defendant’s act or negligent control occurred. exclusive when oth- claimant suffered an Meadows, Harrison, 405 S.W.2d not have Id. 29- erwise would occurred. 109 S.W.2d 419-20. 26-115(a). expert testimony If is needed elements, the rebut the prove or above malpractice In other medical -115(b) follow parties must subsection ipsa loquitur doctrine of res has been pertinent part: in which states virtually upon the fact non-existent based profession in a care compli person No health medical involve most claims the laws requiring which is licensure under cated and technical information testify competent shall be beyond general knowledge this State riding Hosp., accident while Connectional S.W.2d at 20-21 killed in automobile 696 wrong (holding ipsa apply in a res passenger). aas nursing against claim ful death the defendant 280, home); Ray, Tenn.App. v. 322 Roberts 45 knowledge” standard 9. The "common 435, (1959) ipsa (applying 437 S.W.2d equated applicable when to the standard been plaintiff's loquitur in action where mal- allow res in medical courts building damaged by was defendant's store Schwartz, Murphy 739 practice cases. See v. automobile); Crabtree, at 785-86 258 S.W.2d 777, (Tenn. App.1986). 778-79 S.W.2d Ct. ipsa (permitting jury to a res infer consider ence of where the decedent
93 in any ipsa court of law to the facts extend the res doctrine to medical establish to be malpractice expert testimony established subsection cases where (a) practice unless he was licensed to required. a contiguous bordering the state or state contention strikes profession specialty or which would jurisdictions chord that has divided across expert testimony make his relevant country. majority In a of states which practiced the issues and had issue, have addressed this medical mal profession specialty or in one of practice claimants allowed to come for during year these states preceding support a ward with alleged injury the date states, In ipsa minority inference. wrongful act occurred. Tennessee, including negligence may 29-26-115(b).10
§Id.
malpractice
be inferred
Pertaining
to the doctrine of res
expert testimony
where
required.
Sev
loquitur, the Act essentially codified the
eral states also follow this restrictive view.
-115(c)
per-
common law. Section
reads
Gordon,
107,
v.
See Anderson
334 So.2d
part:
tinent
(Fla.Dist.Ct.App.1976);
109
Kapsch v.
In a
action as described in Stowers,
767,
539,
Ga.App.
209
434 S.E.2d
(a)
subsection
of this section there shall
(1993);
Pelley
Grefenson,
540
Le
v.
101
presumption
be no
of negligence on the
422,
962,
(1980);
Idaho
614 P.2d
966
Fors
part
Provided,
of the defendant.
howev-
State,
(Iowa
763,
mark v.
349
769
N.W.2d
er, there shall be a
presump-
rebuttable
1984);
Holy
v.
Hosp.
Orkin
Cross
Silver
tion that
negligent
defendant was
Inc.,
429,
207,
Spring,
318 Md.
569 A.2d
where it is shown by
proof
(1990);
209
Todd v. Eitel Hospital, 306
instrumentality causing injury
254,
357,
(1975);
Minn.
237 N.W.2d
361-62
(or defendants’)
the defendant’s
exclu-
Zarrett,
191,
Larsen v.
498
194
N.W.2d
sive control and that
the accident or
(N.D.1993);
v. Arnspiger,
Haddock
793
was one which
doesn’t
948,
(Tex.1990).
S.W.2d
951
occur in the
absence of
29-26-115(e).
§Id.
contrast,
many
permit
join
states
expert testimony
loqui-
-115(c)
Although the
language
section
tur in medical
cases. See Kerr
explicitly adopt
the restrictive
Bock,
321,
788,
Cal.Rptr.
v.
5
95
Cal.3d
view of res
loquitur, courts have con
684,
(1971);
Figuered,
P.2d
Medina v.
prohibit
tinued to
the res
inference
186,
292,
(1982);
Haw.App.
647 P.2d
cases Rumer,
495,
v.
Walker
Ill.2d
Ill.Dec.
is needed to assist the trier of
362,
689,
States,
381 N.E.2d
fact. See Ward v.
Savina
United
F.2d
(6th
Cir.1988)
Inc.,
Sterling Drug,
Kan.
795 P.2d
(applying Tennes
law);
Obion,
(1990); Cangelosi
see
Drewry County
Lady
935-36
v. Our
(Tenn.
Ctr.,
App.1981);
S.W.2d
Lake Reg’l
Ct.
Ni
Med.
564 So.2d
*8
of
(La.1989);
Boland,
chopoulos,
ap
Grossbard,
512,
1150,
testimony may
N.J.
A.2d
be
87
435
Such
essential
Broderick,
(1981);
where,
1157-58
Mireles v.
117
example
445,
863,
(1994);
N.M.
872 P.2d
866
Kam
medical malpractice,
some actions for
489,
Hosp.,
bat v. St.
N.Y.2d
Francis
knowledge
there is no
common
fund of
844,
456,
655 N.Y.S.2d
678 N.E.2d
459-60
permits
laymen
reasonably
which
(1997);11
v.
Morgan
Hosp.,
Children’s
draw the conclusion.
(1985);
185,
464,
St.3d
480 N.E.2d
Ohio
(Second)
§
Restatement
of Torts
328D
Polyclinic
Harrisburg
Hosp.,
Jones
(1965)
added);
cmt. d
also
(emphasis
see
465,
1134,
(1981);
Pa.
437 A.2d
Wil
al.,
Page
Prosser and Keeton
W.
Keeton et
606,
R.I.
Vesey,
kinson v.
295 A.2d
(5th
39,
§
Law
on the
Torts
at 247
676,
(1972);
Valley
Zee
Van
v. Sioux
ed.1984)
that when a
of com-
(stating
basis
489,
(S.D.1982);
Hosp., 315 N.W.2d
expert
knowledge
lacking,
mon
is
testimo-
Dumouchel,
73,
Pederson v.
Wash.2d
ny may provide sufficient foundation
Kelble,
431 P.2d
Hoven
of negligence).
an inference
79 Wis.2d
256 N.W.2d
(1977).12
Having carefully reviewed
au-
the above
thority, we believe that
better rule is
majority approach adopted
these
expert testimony in
mal-
to allow
supported
latter cases
Restate-
is
admissible,
practice
where otherwise
(Second)
d
ment
of Torts
328D cmt.
parties
establishing
assist the
both
(1965).
328D,
Under
an inference
section
un-
rebutting
negligence
inference
is available
both
ipsa
a theory
loquitur.
der
While
knowledge
where there is common
con-
is best
agree
we
cerning
where common
suited for cases where the nature of the
completely lacking.13
Com-
common
lies within the
d to
that:
provides
ment
the Restatement
persons,
no reason
we see
to contin-
expe-
In the
past
usual
the basis of
preclude
ue to
the use of the res
may
rience from which this conclusion
simply
doctrine
claimant’s
because
community,
be drawn
is common
complex than
leaving
is more subtle or
general knowledge,
and is a matter of
sponge
patient’s
of a
or a needle
recognizes
court
on much
body.
recognized by
As
the Restatement
it
no-
judicial
same basis as when
takes
majority
jurisdictions,
and a
of other
everyone
tice of
It
facts which
knows.
sup-
of negligence necessary
likelihood
however,
may,
supplied by
be
the evi-
may
port
charge
loquitur
under res
dence of
testi-
parties;
no
com-
exist even when there is
fund of
mony
does
usually
that such
event
knowledge concerning the
may
not occur
afford mon
nature
without
injury.
a sufficient basis for
the inference.
circumstances of an
See Connors
York,
high
11.
In New
the state
court has left
assist the trier of fact. See Harris v. Cafritz
(D.C.1976).
open
Hosp.,
of whether
Mem’l
364 A.2d
issue
may
prong
be used to establish
first
i.e.,
requirements
three
13.The Restatement lists
ipsa loquitur,
allowing
be
that must met before
the res
ordinarily
in the
occur
absence
negligence:
Kambat,
inference of
See
655 N.Y.S.2d
678 N.E.2d
case, however,
held
the court
(a)
by the
the event
harm suffered
[the
made out
for res
claim
plaintiff]
a kind which
does
based,
part, upon
(b)
negligence;
occur in
the absence
causes,
which demonstrated the defendant’s exclusive
including
responsible
the con-
other
contributory
any
control and the absence
*9
persons,
third
duct of the
plaintiff.
evidence;
act
Id. at 459-60.
sufficiently
eliminated
(c)
the indicated
is within
duty
scope
plain-
permits the
of the defendant's
12. The District of Columbia also
malprac-
of res
tiff.
use
medical
(Second)
(1965).
§
expert testimony
cases
is needed to
Restatement
Torts 328D
tice
University
Gyne
they keeping
Assoc. in
&
to
conditions nor are
Obstetrics
new
Inc.,
(2d Cir.1993)
cology,
changes
society.”
F.3d
abreast of
Connors v.
law);
(applying
Gynecol
Vermont
Restatement
University Assoc. Obstetrics &
(Second)
Inc.,
(D.Vt.1991),
ogy,
F.Supp.
Torts
328D cmt. d.
(2d
123, 128
Cir.1993);
4 F.3d
see also
aff'd
especially
This is
true
medical mal-
Jones,
The restrictive on the patient injured other while unconscious dur- overlooks the expert value of way, medical treatment. “In no other conditions, cases and po- ordinary further under usual and impediment ses a serious to those medical patient inju- obtain redress for such an malpractice claimants who can out a ry, hardship upon make and it is no the defen- prima can, case under res loquitur, explain, dant to if he how alone facie requirement Meadows, but for the testimo- occurred.” S.W.2d ny. As suggested, several courts have Spangard, See also Ybarra v. need become Cal.2d 154 P.2d Jones, norm medical cases because A.2d at Dailey v. Utah complex Ctr., of new and developments Reg’l Valley medi- 791 P.2d Med. (Utah Connors, 1990). cal science. See at 128. reasoning F.3d The same also experts “If courts refuse to allow testify applies patient in cases where the is some- injured by provider what is common within their how the health-care fields, they being responsive then are not a heavy while under sedative.15 problem 14. This also exists in cases where the she is forced to choose between the use of experts loquitur. defendant comes forward with or res testimo- ny allegations to refute the those even if the example, claimant feels com- 15. In this pelled respond expert testimony, deposition memory with he or her testified in that her *10 injury cen- response shortcomings nerve was under the medical injury keeping with control that the of the restrictive view and ter’s exclusive and malpractice in the ordinarily modern trend in medical would not have occurred the cases, expert testimony negligence.16 parties agree we conclude that absence appellant a was under the exclusive may prima be used establish that the facie ipsa loquitur. and care of the medical center negligence case of under res control The rec- this decision us to overrule the nerve occurred. requires While when law, supported appellant’s it is further shows that the prior case we find that ord stat hand functional fully Tennessee’s medical arm and were by right stated, Tennessee entered medical center’s previously ute. As when she the 29-26-115(b) problem sets that no detected Annotated section ICU and was Code grip the qualifications experts in medi ICU nurses noticed that forth the until the cases, experts strong was the requiring right to in her hand not as as cal time, practice During or a that grip “licensed to in the state in her left hand. be sedated, or re- contiguous profession appellant heavily a the was bordering state strained, complete tes under care of specialty which would make his the in the case timony relevant the issues the ICU nurses. spe practiced or profession [has] results, appel- upon the the Based EMG the cialty during one of states these that in her dysfunction lant shown has alleged preceding the that the
year date her damage arm resulted right from injury wrongful or act Section occurred.” to Dr. Natel- According ulnar nerve. right 29-26-115(c) permits ipsa in next the res son, by pro- likely was caused “where it is shown ference on from a hard longed pressure the nerve proof instrumentality that caus a bed This was object such as rail. ing injury was the defendant’s exclusive appel- that the corroborated evidence or was control and accident hospital strapped were lant’s arms in the doesn’t occur one stay in In addi- during bed her the ICU. negligence.” absence of tion, appellant’s husband testified Nothing suggests in the Act abrasion deposition his he noticed - inference of under section while arms appellant’s marks under 115(c) is available testi- confined to in the ICU. she was the bed contrary, mony unnecessary. To center Although experts for the medical required testimony because “un- was of testified nerve incon- it is most medical was no etiology,” there known -115(c) completely with section sistent from the standard of deviation application prohibit the of res this evidence was insufficient in those cases. law to matter of overcome other wit- by Dr. provided is wheth Natelson remaining question appellant. We conclude applied be nesses for er the res doctrine should the res appellant satisfied case to overcome -115(c) and summary judgment. requirements motion for section center’s fact genuine of material section has raised issue Tennessee Code Annotated Under There- 29-26-115(c), allegation appellant was on fore, in favor of the summary judgment by preponderance demonstrate case. in this improper of the center instrumentality evidence if made out problems to determine she has any in the ICU was court discomfort taking. charge prima by the support diminished medication she case to facie loquitur. lay testi- relies on 16. Whether mony experts, it is for or the *11 opine plain the standard of care and to CONCLUSION treating physician the has breach- whether do not at this time undertake We of care. ed standard reasoning the this to to extend decision litigant a to in other cases where seeks logical underpinnings for the re- The merely ipsa loquitur. voke res hold expert testimony and for quirement of that the res doctrine is available establishing a res case medical cases to raise an infer of res inconsistent. The doctrine ence even if expert translated, majority the loquitur, as causation, necessary prove is to the stan thing speaks means “the itself.” injury dard of fact that the the decision, however, majority’s Under the occur in the absence of longer injury thing” or “the no speak to for itself under a needs upon application Based ipsa loquitur. injury now res we conclude speaks through for itself assistance a genuine has raised issue of formation of testimony. of medical This We, therefore, fact. material reverse the testimony case hybrid ipsa/expert a judgments of the courts below and remand jury speculate a to as to the allows pro- to the trial court for further injury may an have manner ceedings opinion. consistent with this occurred without the assistance of medi- appeal appel- Costs of this are taxed to the I, therefore, testimony. cal believe lee, Methodist Medical Center of Oak establishing a strategies the two Ridge. medical case should remain jury and that mutually exclusive ANDERSON, C.J., BIRCH, J., proposi- should not be allowed to infer concur. expert generally tion that demands proof. HOLDER, DROWOTA, J., J. and See
separate Dissenting Opinion. has too Lastly, majority’s decision HOLDER, Justice, M. majority
JANICE application. broad an would dissenting. seemingly permit hybrid sedated, patient strategy whenever I separately write to I dissent because anesthetized, inju- or unconscious “and the believe that the ipsa loqui- doctrine of res ry complex procedure involved a applied tur in professional should be mal- exposition or otherwise practice when the nature of the Moreover, expert testimony.” hybrid injury is so obvious that common strategy may be invoked in cases such as experience could infer that an the case now before us where: injury would not have occurred the manner in which explain unavailable of negligence. absence The nature of the occurred; injury and the defendant’s injury simple should be so and clear as not expert opines speculate require layman analyze negli- have occurred the absence of injury might how the have occurred. gence. juror possess A generally does not necessary only procure A to assess whether now need physician negligent. pro- opine has been willing Some may inherently risky cedures be so that an should not have occurred. Such injury may permit go jury even physician may occur even when the a case to exceedingly though testify careful and not deviate is unable to to a does specific from the care. standard of care or the manner standard statute, therefore, Thus, jury which the occurred. Our requires expert testimony speculate to ex- as to how the generally is free summary may grant have A broad invocation of occurred. hybrid ipsa/expert testimony strat- defendants. *12 egy potentially professionals make to Justices Holder and Drowota adhere I, therefore, “good
insurers of results.” original dis- expressed views their dissent. senting opinion filed previously case.
I am authorized to state Justice joins dissenting opinion. Drowota in this ap- It is therefore ORDERED be,
pellee’s to rehear and is here- petition ORDER DENYING PETITION denied. REHEAR
TO
BARKER, Justice. appellee, Medical Methodist Center Ridge, petitioned Oak Court
rehearing following this case release opinion on Hav-
our
November
1999.
ing given
ap-
raised in the
arguments
Tennessee, Appellee,
STATE of
consideration,
petition
pellee’s
due
we con-
petition
without
clude
is
merit and
COOK, Sr., Appellant.
Willard C.
be
should
denied.
Tennessee,
Supreme
appellee
petition
in its
to
Court
argues
at Nashville.
opinion
rehear
our
conflict with
Holder,
(Tenn.
Kennedy v.
with ’ defendant plaintiffs allegations
who refutes the with summary to testimony is entitled produces
judgment when the no proof expert testimony.
rebuttal Kennedy, however, disagree with op- extent that it denies to sur-
portunity use res summary requiring in cases
vive opinion our in this
expert testimony. With longer is no loquitur confined realm of within Tennessee to the knowledge” jurors.
the “common
Instead, may be used expert testimony raise
combination with even in negligence,
an inference those testimony is required.
eases where
Nevertheless, Kennedy plain- because required expert
tiff failed introduce tes- prima
timony case of establish facie ipsa loquitur, even correct
the Court of in affirm- Appeals