During surgery on October 14, 1999, to repair a bilateral inguinal hernia, Dr. Yung Gil Lee performed an orchiectomy, removing Darrell Massingale's left testicle without prior consent. Massingale developed complications post-surgery, including lymphedema and a recurrent hernia, leading him to sue Dr. Lee for medical malpractice and medical battery. The trial court granted a directed verdict on the medical battery claim, while the medical malpractice claim resulted in a mistrial. Upon reconsideration, the court also directed a verdict on the malpractice claim, dismissing the case.
Massingale appealed, arguing that the trial court erred in directing verdicts for both claims. The appellate court affirmed the directed verdict on the medical malpractice claim but reversed the decision on the medical battery claim, remanding it for a new trial. The background revealed that Massingale, unaware of the testicle's removal and believing the surgery would not affect his manhood, had signed a consent form but claimed he did not consent to the orchiectomy. The trial court previously recognized a genuine issue of material fact regarding the battery claim.
The consent form signed by the plaintiff allowed for operations or procedures beyond what was initially planned, in response to unforeseen conditions deemed necessary by the physician. Following surgery, the plaintiff experienced significant scrotal swelling, describing it as feeling like "a big basketball." Approximately a month later, he consulted Dr. Frederick A. Klein, who noted that temporary swelling is common post-surgery, particularly after hernia repairs, but typically resolves in a few weeks. The plaintiff developed a recurrent right-sided hernia and underwent three additional surgeries. After the first, he experienced some swelling but was able to dress himself, though he admitted to swelling after each subsequent surgery.
Dr. James W. Taylor, who assisted in one of these surgeries, reported that the plaintiff had severe scrotal edema, a large inguinal hernia, and a significant amount of tissue that required resection, amounting to 12 to 25 pounds. The defendant, who performed the initial surgery, explained that the plaintiff's bilateral inguinal hernia was exceptionally large and that some post-operative swelling is expected. He did not inform the plaintiff prior to surgery about the possibility of losing a testicle, as it was not considered a typical risk.
During the surgery, the defendant encountered complications due to inflammation, which fused the omentum and spermatic cord, making separation impossible. He assessed the plaintiff's left testicle as likely non-functional and indicated that blood circulation was compromised, suggesting that the testicle might develop gangrene or an abscess. The defendant ultimately decided to remove the testicle to prevent further complications related to the hernia repair.
Defendant testified about encountering unexpected challenges during surgery, indicating a need for additional information before proceeding, particularly regarding the left and right testicles and the unusual positioning of the ureter. He chose not to use mesh to repair the hernia due to concerns about infection risks, stiffness, and potential nerve damage, asserting that leaving the area alone was a better approach. The operative report noted that both inguinal walls were weakened, with no strong tissue available for repair.
Dr. Roy Lawrence Kroovand, an expert witness for the Plaintiff, criticized Defendant's surgical decisions, asserting that attempting to repair both hernias simultaneously breached the standard of care. He emphasized the need for informed consent before the removal of the testicle, especially when unexpected findings arise during surgery. Dr. Kroovand highlighted the critical functions of the testicle and noted that post-surgery tests revealed the Plaintiff had a severely low testosterone level, measuring at 92, significantly below the normal range of 241 to 827.
No testosterone level tests were conducted on the Plaintiff prior to the surgery, making it impossible to determine the surgery's impact on testosterone levels. Dr. Kroovand acknowledged that losing one testicle does not lead to sterility. He criticized the Defendant for not using mesh in the hernia repair, stating that standard care dictates using a mesh graft, specifically Marlex, when tissue is too weak to hold sutures. Dr. Kroovand linked the failure to use mesh to a recurrence of the hernia and subsequent lymphedema but recognized that some surgeons opt against using mesh due to associated risks like infection.
He described the challenges involved in reoperating on an area previously treated with mesh, labeling it a "disaster." While he noted that inguinal hernia repairs can cause temporary lymphatic irritation and scrotal swelling, he did not assert with certainty that the recurrent right hernia was the sole cause of the lymphedema, suggesting it was likely a contributing factor. He stated the hernia repair on the left side had no relation to the lymphedema.
Dr. Kroovand elaborated that the recurrent hernia's size led to significant pressure on the lymphatic drainage, potentially affecting both sides and causing fluid accumulation, which resulted in swelling. He also acknowledged that the Plaintiff's obesity could be a factor in the lymphedema, explaining that excessive omentum can complicate hernias and contribute to fluid retention and tissue swelling.
William E. Kennedy, M.D., an orthopedic surgeon specializing in independent medical examinations, testified as an expert witness for the Plaintiff. He assessed the Plaintiff and concluded that he has a 42 percent permanent physical impairment due to a urethral disorder, sexual dysfunction, partial loss of the scrotum, and loss of the left testicle. Dr. Kennedy indicated that this impairment is expected to persist for the Plaintiff's lifetime. At the time of evaluation, the Plaintiff weighed 353 pounds. Although Dr. Kennedy did not conduct specific tests, he observed that the Plaintiff's penis was largely obscured by enlarged, edematous tissue, complicating normal sexual function.
Dr. Kennedy described edema as increased fluid accumulation leading to soft tissue enlargement and established a causal link between his findings and the surgical records from the Plaintiff's surgery on October 14, 1999, along with subsequent scrotoplasties. He advised against certain physical activities for the Plaintiff, recommending limits on bending, stooping, lifting (maximum of 20 pounds occasionally and 7 pounds frequently), and prolonged sitting or standing. He indicated that the significant edema and enlargement of the scrotum contributed to the urethral disorder and dysfunction in voiding, with the absence of a testicle further impairing sexual function.
During cross-examination, Dr. Kennedy acknowledged inconsistencies in his prior deposition testimony regarding the causation of the Plaintiff's complaints, stating that he had gained clarity on the matter since that time. Another expert witness, Julian M. Nadolsky, Ed.D., also testified on behalf of the Plaintiff.
Dr. Nadolsky, owner of The Rehabilitation and Wellness Corporation, assessed the Plaintiff in October 2001, conducting interviews and tests on general intelligence, reading, and arithmetic abilities, alongside a review of the Plaintiff's medical records. His vocational analysis revealed that the Plaintiff scored in the below-average range across all tests and opined that the Plaintiff had lost access to approximately 96% of jobs in the local labor market due to complications from bilateral inguinal hernia surgery performed on October 14, 1999. Dr. Nadolsky stated that it was highly unlikely the Plaintiff could perform regular job duties and concluded that he was 100% disabled for employment, a status he believed would persist.
In contrast, Dr. Walter B. Rose, a general surgeon for the Defendant, testified that the surgery was conducted appropriately and asserted that there is no universal standard for hernia repair techniques. He emphasized that while there are basic principles, variability exists, and the primary goal is to safely and efficiently repair the hernia defect without unnecessary risk. Dr. Rose indicated that the recurrence of hernias cannot be guaranteed against any surgical technique and noted that many surgeons, himself included, commonly perform bilateral hernia repairs simultaneously. He explained the risks associated with ischemia and tissue death during hernia surgery and argued that the Defendant did not breach the standard of care by opting not to use mesh, acknowledging the ongoing debate in the surgical community regarding the use of mesh in repairs. Dr. Rose shared concerns about complications arising from mesh, including difficult revisions due to the body's inflammatory response to the foreign material.
Dr. Rose acknowledged a 0.5% chance of recurrence when using mesh in hernia repairs and stated he would routinely use mesh bilaterally if he were to perform the surgery on the Plaintiff. He noted there is no consensus among surgeons regarding mesh usage—some never use it while others always do. In his experience, Dr. Rose has performed orchiectomies during hernia repairs five or six times without prior mention on consent forms, as the removal is not part of the planned procedure and arises from intraoperative decisions to avoid compromising blood supply, which could lead to complications such as tissue death, chronic pain, infection, and scarring.
Dr. Rose emphasized that it is generally inadvisable to wake a patient to address complications during a hernia repair, as this could increase risks and complications. He referred to the Plaintiff’s pathology report, indicating blood supply compromise to the testicle and noted significant removal of omentum, which showed necrosis and calcification—indicative of tissue death and healing attempts. Dr. Rose opined that the Defendant did not breach the standard of care by removing the testicle, as it was in the best interest of the patient given the circumstances. He explained that the loss of one testicle typically does not significantly impact spermatogenesis or hormonal production in a healthy male, as the remaining testicle compensates adequately.
Dr. Rose testified that the removal of the testicle was necessary due to its compromised state, which resulted from the surgical dissection needed to address the hernia. He indicated that halting the operation at that stage would have left dead tissue, leading to a worse outcome. The testicle was already compromised due to adherent tissue and stretching from surrounding conditions. He noted that swelling (edema) is common after hernia surgeries due to the loose nature of the tissue, which generally subsides within six to eight weeks. Dr. Rose opined that the plaintiff would have developed lymphedema regardless of who performed the surgery and that the recurrent hernia did not contribute to it. He clarified that the use of mesh in surgery does not affect lymphedema development and identified only a few causes for significant lymphedema, primarily the division of lymphatic channels or malignancy infiltration.
Dr. Rose stated that the incisions made during surgery did not cause the lymphedema, but acknowledged the plaintiff was already close to developing it. He explained that chronic lymphedema is unpredictable, and an underlying condition can be exacerbated by a surgical event. He referenced the plaintiff's history of lymphedema in 1997 and explained that lymphatic channels, which are often undetectable, can be inadvertently divided during inguinal hernia surgery.
Dr. Witt, specializing in urology, corroborated that lymphedema occurs when lymph fluid builds up due to either blockages or overproduction. He identified potential causes for blockages, including surgical incisions, malignancies, infections, or trauma.
Dr. Witt testified that hernia surgery can lead to lymphedema if lymphatic channels are severed, resulting in impaired lymph flow. He clarified that recurrent hernias do not cause lymphedema and that the removal of a testicle does not affect sperm production or sexual functions, as the remaining testicle compensates. He noted uncertainty regarding the impact of testicle loss on testosterone levels due to a lack of pre-surgery data and mentioned available treatments, including testosterone replacement therapy.
Dr. Witt raised concerns about mesh used in hernia repairs, suggesting a potential link between mesh and infertility due to scarring, with a 5-10% incidence of sperm absence in ejaculate. Despite his insights, he acknowledged his lack of qualification in discussing hernia repairs.
Dr. Wray, a clinical psychologist, assessed the Plaintiff's job market access as reduced by 74% and disagreed with another expert's view on the Plaintiff's inability to benefit from training. He critiqued the testing methods used by Dr. Nadolsky, suggesting that early mistakes could distort math ability assessments and that the reading test was not a true measure of reading skills. Dr. Wray based his evaluation on Dr. Nadolsky's results, using a broad dataset from Tennessee for his impairment rating.
Dr. Klein, the urologist who operated on the Plaintiff, stated that the Defendant met the standard of care and mentioned his preference for staged surgeries rather than bilateral repairs in one procedure. He consistently uses mesh in hernia surgeries, believing it significantly reduces recurrence risk. However, he acknowledged complications associated with mesh, including infections and serious adverse outcomes, emphasizing that hernia repair techniques vary among surgeons.
Dr. Klein testified that the use of mesh by the Defendant would have prevented the recurrence of the hernia, but not the development of Plaintiff's lymphedema, which he could not definitively link to the Defendant's actions. He noted that factors contributing to the lymphedema included Plaintiff's past hernia surgeries, which might have disrupted lymphatic drainage, and the presence of abdominal material in the scrotum, potentially causing a severe local tissue reaction. He also mentioned that lymphedema could be congenital or related to Plaintiff's size, emphasizing its multifactorial nature.
Regarding the medical battery claim, the Trial Court granted the Defendant’s directed verdict, concluding that Plaintiff had consented to unforeseen procedures during surgery. The court distinguished this case from *Blanchard v. Kellum* due to the presence of consent and from *Bates v. Metcalf* because there was no demonstrated emergency warranting immediate additional surgery.
The Defendant also sought a directed verdict on the medical malpractice claim, arguing that Plaintiff's expert, Dr. Kroovand, was not qualified and that there was insufficient evidence of negligence causing Plaintiff's injury. The Trial Court denied this motion and allowed the claim to proceed to the jury, which resulted in a deadlock and mistrial. Upon reconsideration, the Trial Court highlighted that differing surgical practices regarding mesh use exist, and cited precedent affirming that a physician is not negligent for choosing an accepted treatment method that may later prove unsuccessful.
A jury's verdict on negligence related to the use of mesh in surgery cannot rely on inconclusive, contradictory, or speculative evidence unless other competent evidence is presented. The trial court found that the plaintiff's expert urologist indicated both the failure to use mesh and the recurrence of a hernia contributed to the plaintiff's lymphedema, though certainty regarding the exact cause was unattainable. The trial court granted the defendant's motion for a directed verdict on the medical malpractice claim.
On appeal, the plaintiff raises two issues: whether the trial court erred in granting a directed verdict on the medical battery claim and the medical malpractice claim. The appellate court follows the standard that trial courts must view evidence favorably for the non-moving party when ruling on directed verdicts, allowing such a motion only if reasonable minds could only reach one conclusion.
The criteria for determining medical battery focus on whether the patient was aware of the procedure being performed and if they authorized it. A medical battery claim arises if either question is answered negatively. If both are affirmative, and the plaintiff claims a lack of information regarding risks, the claim falls under informed consent. In this case, the relevant questions are whether the plaintiff knew about and authorized the orchiectomy procedure. The consent form signed by the plaintiff before surgery allows for operations beyond those initially contemplated.
The jury was presented with evidence beyond just the signed consent form for the medical battery claim, specifically the Plaintiff's inquiry about potential effects on his manhood prior to surgery and the Defendant's response. This testimony suggests that reasonable minds could dispute whether the Plaintiff was fully aware of and authorized the surgery, indicating the Trial Court erred in granting a directed verdict on this claim. The consent form, while signed, is deemed general and nonspecific, contrasting with the specific nature of the Plaintiff's question and the Defendant's reply. Consequently, the directed verdict on the medical battery claim is reversed, and the case is remanded for a new trial.
Regarding the medical malpractice claim, Tennessee law requires the Plaintiff to demonstrate the standard of care, that the Defendant failed to adhere to that standard, and that this failure caused the Plaintiff’s injuries. The Trial Court noted expert testimony indicating that the use of mesh in surgery is variable among surgeons and carries risks. Citing precedent, the Court stated that a physician cannot be deemed negligent for choosing an accepted method of treatment that is not universally favored, unless there is competent evidence proving negligence in the specific context. The Court concluded that without such evidence regarding mesh usage in the community, a jury verdict could not rely on inconclusive or speculative evidence.
Plaintiff's expert urologist testified that both the absence of mesh and the recurrence of the hernia contributed to the development of lymphedema, but he could not definitively state that the use of mesh would have prevented the recurrence or avoided complications from the surgery. The Trial Court analyzed this testimony and determined that it was insufficient for a reasonable jury to find in favor of the Plaintiff on the medical malpractice claim. It concluded that the Plaintiff did not prove that the standard of care necessitated the use of mesh or that the Defendant's actions led to damages that would not have occurred otherwise. Furthermore, the Plaintiff failed to demonstrate that performing repairs on both sides in one surgery breached the standard of care or caused additional damages. After reviewing the evidence in favor of the Plaintiff while disregarding contrary evidence, the court agreed with the Trial Court’s findings, affirming the directed verdict on the medical malpractice claim. The judgment of the Trial Court is affirmed in part, reversed in part, and the case is remanded for a new trial solely on the Plaintiff’s claim for medical battery, with appeal costs assessed against the Appellees, Yung Gil Lee, P.C. and Yung Gil Lee, M.D.
