A malpractice action filed by Herman Davis and Darnell Davis against Dr. Paul A. Hatcher was dismissed following a motion for summary judgment. The case stemmed from a routine prostate resection where a malfunctioning resectoscope, manufactured by Circon ACMI Ohio Manufacturing Company, caused significant injury to the plaintiff, specifically burns to the penis. The plaintiff alleged that Dr. Hatcher was negligent for failing to: (1) test and inspect the resectoscope, (2) properly utilize it, (3) identify its malfunction, and (4) timely discover the resulting injury. Dr. Hatcher acknowledged that an injury occurred but denied any negligence, asserting that he adhered to acceptable medical practices and pointed to possible comparative negligence on the part of the manufacturer.
In support of his motion for summary judgment, Dr. Hatcher presented an affidavit from Dr. David F. Paulson, a urology professor, who stated that the procedure was conducted within the standard of care and that the complications were not due to any negligent acts by Dr. Hatcher. However, Dr. Paulson did not address the cause of the plaintiff’s injury. Dr. Hatcher's affidavit indicated that the burn likely resulted from an unforeseen defect in the resectoscope. Subsequently, Dr. Hatcher amended his answer to include allegations of negligence against the manufacturer for failing to provide adequate warnings regarding the use of their equipment. The appellate court reversed the dismissal and remanded the case for further proceedings.
The amended answer alleges that the manufacturer failed to adequately warn the University of Tennessee Memorial Hospital about the critical need for uniform lengths of cutting loops and knives, as well as the proper cleaning of the resectoscope. The defendant also accuses the hospital of negligence for (1) not providing properly maintained equipment, (2) failing to inform him of the manufacturer's safety warnings regarding the resectoscope, and (3) supplying a cutting knife of incorrect length, which led to electrical contact with the patient.
In response to the defendant's motion for summary judgment filed on March 7, 1995, the plaintiff submitted affidavits from Dr. William Campbell, Dr. Dennis Doblar, and Dr. Cecil Morgan, Jr., who previously provided deposition testimony. Dr. Campbell, a biomedical engineer, reviewed various materials and opined that the plaintiff's burn injury was caused by electrical power from the resectoscope, which could have been avoided if the device had been used following proper biomedical engineering standards and manufacturer guidelines. Dr. Doblar, a professor in anesthesiology and biomedical engineering, concurred with Dr. Campbell, suggesting that the injury might have resulted from either a reused knife, operator error, or improper timing in the use of the resectoscope. He indicated that the defendant's actions fell below accepted professional standards. Dr. Morgan, a urologist, testified that Dr. Hatcher likely caused the injury by improperly using the resectoscope or failing to recognize its defective configuration.
On the same date, the defendant filed a supplement to the motion for summary judgment, referencing his affidavit and excerpts from six witness depositions to argue that the cause of the injury was uncertain and could involve negligence by the hospital, Dr. Hatcher, or the equipment manufacturer. Notably, Dr. Campbell's deposition indicated uncertainty regarding the injury's cause and the standard of care in Knoxville, raising questions about the consistency of his statements. The plaintiff expressed concerns over the defendant's filing of additional materials related to the motion for summary judgment just before the hearing on March 8, 1995.
The court addresses the appropriateness of dismissing the case without ruling on the late filing under Rule 56 of the Tennessee Rules of Civil Procedure. The affidavits opposing the motion raise significant issues regarding the defendant’s negligence, which typically would necessitate denial of the motion due to evident material facts. However, the defendant's counsel argues that the affidavits conflict with prior deposition testimonies, making them nonprobative, citing Reid v. Sears, Roebuck and Co.
Specifically, Dr. Campbell’s affidavit lacks probative value as he does not possess knowledge of the standard of care in Knoxville, a requirement for his testimony. Conversely, Dr. Doblar’s affidavit does not conflict fatally with his deposition; it can be viewed as clarifying rather than contradicting his earlier statements. Similarly, Dr. Morgan’s affidavit does not present a fatal inconsistency with his deposition, as he distinguishes between observed facts and formulated opinions.
The court emphasizes that the determination of summary judgment involves assessing material factual issues, which cannot be resolved solely through affidavits. Consequently, the court finds the motion for summary judgment was improperly granted due to the presence of contested material facts. Despite acknowledging the plaintiff's 15-month delay in responding to the motion, the court identifies sufficient evidence that the defendant operated the device causing the plaintiff’s burn injury, which fell below acceptable standards. The specific origin of the burn (thermal, chemical, or electrical) holds minimal legal importance.
The defendant contends that the plaintiff's expert testimonies are inconsistent, undermining their probative value. This claim has some merit but is not wholly substantiated. Dr. Morgan, in his affidavit, asserts that Dr. Hatcher likely caused Herman Davis's burn injury due to improper use of a resectoscope, which he should have recognized. The device was under Dr. Hatcher's exclusive control, and such injuries typically indicate negligence. However, in prior discovery, Dr. Hatcher expressed uncertainty about the burn’s origin and conceded a lack of factual basis for assuming the injury resulted from human error. This dialogue implies personal knowledge despite the focus on opinion.
The court notes that Dr. Morgan's affidavit does not contradict his earlier testimony as claimed by the defendant. In summary judgment, evidence is not weighed, and this process should not replace a trial. The plaintiff references T.C.A. 29-26-115, which establishes that while there is no presumption of negligence in malpractice cases, a rebuttable presumption exists when the injury-causing instrumentality was under the defendant's exclusive control and the injury is one that typically does not arise without negligence. The precedent set in Ward v. United States indicates that this presumption (res ipsa loquitur) should not apply if specific acts of negligence are presented. Nonetheless, the plaintiff may plead the statute as an alternative ground for relief. Sufficient evidence exists indicating that Dr. Hatcher had exclusive control over the instrumentality and that the injury does not ordinarily occur without negligence, thus establishing a rebuttable presumption of negligence for trial resolution. The previous judgment is reversed, and the case is remanded for trial, with costs assigned to the appellee.
