Michael H. Gaw v. The Vanderbilt University

Citation: Not availableDocket: M2011-00306-COA-R3-CV

Court: Court of Appeals of Tennessee; April 19, 2012; Tennessee; State Appellate Court

Original Court Document: View Document

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The case involves an appeal following a jury verdict in a medical malpractice lawsuit filed by the parents of Michael H. Gaw, an infant who underwent surgery at Vanderbilt University Children's Hospital to repair a rare birth defect known as bladder exstrophy. The infant sustained permanent injuries post-surgery, prompting his parents to sue the hospital for failing to meet the expected standard of care. During the trial, the hospital sought a directed verdict on all claims, which was denied for claims related to informed consent and post-operative negligence, resulting in a jury ruling in favor of the plaintiff. The hospital appealed the decision, but the appellate court affirmed the trial court's judgment.

The background reveals that Michael was born on December 3, 2002, with bladder exstrophy, a condition requiring specialized surgical intervention. He was transferred to Vanderbilt, where Dr. John C. Pope IV determined he could undergo a "complete repair" of the bladder and penis. The procedure took place on December 5, 2002, and involved complex surgical techniques. Post-surgery, the infant experienced concerning symptoms, including bruising and discoloration of the penis, which were noted by medical staff. Despite these observations, Dr. Pope maintained that the condition was typical and did not warrant further surgical intervention, asserting that post-operative appearances do not always indicate health. The case highlights issues of medical negligence and informed consent regarding surgical practices in complex pediatric cases.

Dr. Pope performed surgery on an infant, Michael Gaw, resulting in significant discoloration and a “crusty” appearance of the penis, which he attributed to a scab without informing the parents about an injury. Upon discharge on December 28, 2002, Gaw had lost parts of the shaft and head of the penis. His care was transferred to Dr. John Gearhart, who informed the parents that Gaw had sustained an injury. Subsequently, Gaw's parents filed a lawsuit against The Vanderbilt University and Dr. Pope, claiming negligence. 

Dr. Gearhart, designated as an expert, testified that Gaw’s injury was due to Dr. Pope's post-operative negligence, asserting that the penis should have appeared "pink" rather than "purple" or "black" if proper care had been taken. He criticized Dr. Pope for stitching the pubic bones too tightly, which caused pressure on the erectile bodies, resulting in damage. Dr. Gearhart opined that if Dr. Pope had returned Gaw to surgery promptly to relieve the pressure, it was likely that less penile tissue would have been lost, although he could not quantify the exact amount that could have been preserved.

The term "less" is deemed undefined in the context of a medical expert's testimony regarding the impact of a surgical procedure on a patient's penis size. The expert acknowledges the difficulty in quantifying the exact amount of loss but asserts that the patient would not have suffered as much as he did. Vanderbilt made an oral motion for a directed verdict, which the court partially granted by dismissing the negligent supervision claim while denying it for informed consent and post-operative negligence. The jury ruled in favor of Vanderbilt on the informed consent claim but found Dr. Pope negligent in post-operative care, awarding the patient $1,300,000 in damages. Vanderbilt's subsequent post-trial motions for judgment, a new trial, or remittitur were denied. Vanderbilt filed a notice of appeal, raising five issues: the trial court's waiver of a geographic restriction for an expert witness, the sufficiency of causation proof, the admissibility of expert testimony on causation, the denial of a remittitur, and the exclusion of demonstrative evidence. The standard for reviewing directed verdicts requires viewing the evidence favorably for the non-moving party, and jury verdicts can only be overturned if there is no material evidence to support them. The appellate courts do not reweigh evidence or determine the preponderance of evidence, affirming jury findings if any material evidence exists.

Tennessee Code Annotated section 29-26-115(b) mandates that health care professionals must be licensed in Tennessee or a contiguous state and must have practiced there within the year preceding the alleged injury to provide expert testimony in malpractice cases. This requirement applies to both plaintiff and defense witnesses, although trial courts have discretion to waive it if necessary witnesses are unavailable. The standard for appellate review of a trial court's decision on expert competency is the "abuse of discretion" standard, which is lenient and does not allow for second-guessing unless the trial court is clearly in error.

Vanderbilt argues that the trial court improperly waived the contiguous state requirement to permit Dr. Gearhart's testimony, likening the situation to *Ward v. Glover*, where a waiver was denied despite the plaintiff having qualified experts already. In that case, it was ruled that allowing an out-of-state expert merely for their superior qualifications would undermine the locality rule. Conversely, Gaw defends the trial court's decision by citing *Pyle v. Morrison*, where the court allowed testimony from an expert in a similar context. The underlying issue revolves around whether allowing additional testimony from a highly qualified witness constitutes a valid waiver of the contiguous state rule or merely serves to enhance the plaintiff’s case.

An affidavit submitted by the plaintiff’s counsel indicated that only one witness was located within a contiguous state after a thorough search. The court upheld the waiver of the locality rule, emphasizing that statutes imply multiple witnesses may be appropriate and grant discretion to trial courts in matters of equity and justice. Although a prior case (Ward) did not support waiving the locality requirement, it did not suggest that the trial court's decision here was an abuse of discretion. The court referenced Pyle, which allows waiving the requirement if only one expert witness is found following a diligent search. Despite having retained a suitable witness, Gaw's counsel demonstrated a good-faith effort in seeking additional expert testimony, justifying the trial court’s waiver as an acceptable choice.

Regarding causation in a malpractice claim, the plaintiff must establish that the defendant's negligence was a proximate cause of the injuries sustained, as outlined in Tennessee law. The trial court denied Vanderbilt's motion for a directed verdict on whether Dr. Pope's negligent post-operative care legally caused Gaw's injuries. Vanderbilt needed to demonstrate that no evidence contradicted the assertion that Gaw would have suffered the same injuries regardless of Dr. Pope's actions. Causation must be proven by a preponderance of the evidence, meaning the plaintiff must show it is more likely than not that the defendant's negligence caused the injury. Mere injury occurrence does not equate to negligence.

Vanderbilt contended that Dr. Gearhart's causation testimony suggested a "loss of chance" claim, which is not recognized in Tennessee law. The loss of chance doctrine allows recovery when a delay in treatment diminishes a patient's chance of recovery. However, causation must be demonstrated to a reasonable degree of medical certainty, as mere possibility is insufficient to establish a causal link in medical malpractice cases. The Kilpatrick case emphasized that the loss of chance theory conflicts with the required level of certainty needed to prove causation in such claims.

In Tennessee, a plaintiff must establish that a physician's actions were more likely than not the cause of their injury. The case examines Dr. Gearhart’s testimony regarding whether Dr. Pope's conduct caused Gaw's injury or merely resulted in a loss of chance for recovery. Dr. Gearhart asserted that had Gaw been returned to surgery, he likely would not have suffered as much tissue loss. He attributed Gaw's injury to the sutures from a bladder repair, not the penile repair itself, suggesting that Dr. Pope should have removed those sutures to prevent complications. 

Despite Vanderbilt's argument that Dr. Gearhart's anecdote about another patient was irrelevant because it involved a different type of surgery, the anecdote was deemed pertinent as it illustrated the potential benefits of timely surgical intervention after a bladder repair. Vanderbilt also contended that Dr. Gearhart's “more likely than not” conclusion lacked a factual or scientific basis, particularly since he could not quantify the potential tissue loss had Gaw been re-operated on sooner. However, the court noted that the law does not require absolute certainty in establishing causation. Ultimately, the evidence presented by Dr. Gearhart was sufficient to create a factual issue for the jury, thereby overcoming Vanderbilt’s motion for a directed verdict.

Dr. Gearhart's testimony, based on his extensive experience with bladder exstrophy complications, indicated that if Dr. Pope had returned Gaw to surgery sooner after signs of oxygen deprivation appeared, Gaw would have experienced less penile tissue loss. Although Dr. Gearhart could not quantify the exact tissue loss due to Dr. Pope's negligence, his opinion was deemed sufficient to establish causation, similar to precedent set in White, where expert testimony indicated that timely intervention would improve patient outcomes. The court found that Dr. Gearhart's testimony did not merely suggest a "loss of chance" theory; instead, it provided enough basis to affirm that Dr. Pope's actions could have led to Gaw's injuries. Consequently, the denial of a directed verdict was upheld.

Regarding the admissibility of Dr. Gearhart's testimony, the trial court has discretion, which can be appealed if exercised arbitrarily. The court must ensure that the expert testimony is reliable and assists the jury in understanding the evidence, as outlined in Tennessee Rules of Evidence 702 and 703. Vanderbilt's attempt to exclude Dr. Gearhart's causation testimony was denied by the trial court, affirming that the testimony was valid under these rules.

Vanderbilt contends that Dr. Gearhart’s opinions are mere “baseless speculation” lacking adherence to relevant scientific methods as mandated by Rule 703. Vanderbilt claims that the trial court improperly admitted Dr. Gearhart’s testimony based primarily on his extensive resume rather than on the scientific validity of his reasoning and methodology. The trial court's order stated that Dr. Gearhart's experience in treating bladder exstrophy qualified him to offer his opinions; however, Vanderbilt argues this fails to satisfy Rule 703's requirements, asserting an abuse of discretion regarding the admission of his causation testimony.

Vanderbilt further argues that Dr. Gearhart provided no scientific data or basis for his causation opinion. In his deposition, Dr. Gearhart admitted he lacked scientific support for his assertion that earlier intervention would have reduced tissue loss, relying instead on his 25 years of experience with exstrophy patients. Vanderbilt maintains that such experience cannot replace scientific methodology, rendering his testimony speculative.

The Tennessee Supreme Court's decision in McDaniel outlines various nonexclusive factors for assessing the reliability of scientific testimony, including testing and methodology, peer review, known error rates, general acceptance in the scientific community, and whether the expert's research was independent of litigation. The trial court has broad discretion in determining testimony reliability and is not obligated to strictly apply these factors, which should be considered in the context of the specific issue and expert qualifications. Additional factors may include the expert's qualifications and the direct connection between their knowledge and the opinion offered, ensuring no significant analytical gap exists. While these factors assist in the trial court's gatekeeping role, admitted expert testimony remains subject to rigorous cross-examination and counter-evidence.

The trier of fact is responsible for evaluating expert opinions, and Vanderbilt failed to demonstrate that Dr. Gearhart's opinion was untrustworthy under Rule 703 of the Tennessee Rules of Evidence. Dr. Gearhart's conclusions were based on his extensive clinical experience with bladder exstrophy and relevant academic work. The Tennessee Supreme Court indicates that expert opinions are considered reliable if they are straightforward and supported by a rational explanation. Dr. Gearhart attributed Gaw's injury to reduced blood supply caused by pressure on his pubic bones, supported by his clinical experience and a specific case where surgery prevented further tissue loss. His testimony, despite rigorous cross-examination, was deemed reliable by the trial court.

Regarding the jury's verdict, while the jury primarily calculates damages, the trial court can adjust these awards to ensure justice and avoid retrials. The court may grant remittitur if it believes the jury's verdict is excessive. Deference is given to trial judges who have approved jury awards. The appellate review focuses on whether material evidence supports the jury's award of $1,300,000 to Gaw, which included $500,000 for pain and suffering and $800,000 for permanent impairment. Despite Vanderbilt's argument about insufficient causation, the court upheld Dr. Gearhart's testimony as material evidence supporting the jury's findings, justifying the denial of remittitur.

Lastly, the court addressed Vanderbilt's attempt to introduce intra-operative and post-operative photographs of a male child undergoing surgery, which was prohibited by the trial court.

The admissibility of photographs in court is at the discretion of the trial court, and appellate courts will only overturn these decisions if there is an abuse of discretion. Abuse of discretion is identified when the trial court applies incorrect legal standards, reaches illogical conclusions, or makes clearly erroneous assessments of evidence. In this case, Vanderbilt was prevented from showing five photographs related to a surgical procedure involving a pediatric urologist. Vanderbilt argued that this limitation negatively impacted the jury's understanding of the surgery and their verdict. However, the trial court permitted the introduction of twenty-five color diagrams that effectively illustrated the surgical process without the need for potentially less informative real-life photographs. The court allowed two surgical photographs, demonstrating that it exercised its discretion appropriately. Vanderbilt failed to prove that the trial court's decisions were based on incorrect legal standards or caused any injustice. Consequently, the appellate court affirmed the trial court's judgment, with costs assessed against Vanderbilt University and its affiliated medical center.