author: D. MICHAEL SWINEY, J.,

text:
    Donna S. YOUNG v. Fred C. HARTLEY, M.D., et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Feb. 3, 2004 Session.
    May 10, 2004.
    Permission to Appeal Denied by Supreme Court Nov. 15, 2004.

      Donna Sue Young, Johnson City, Tennessee, pro se.
    James E. Brading; Charles T. Herndon, IV; and Bradley E. Griffith; Johnson City, Tennessee, for the Appellee, Fred. C. Hartley, M.D.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., E.S., and CHARLES D. SUSANO, JR., J„ joined.

Donna S. Young (“Plaintiff’) sued Fred C. Hartley, M.D. (“Defendant”) claiming that during a tubal ligation, Defendant negligently performed additional surgeries upon Plaintiffs vaginal area without her consent and that those extra surgeries caused Plaintiff to suffer physical and emotional damage. After trial, the jury returned a verdict in Defendant’s favor. Plaintiff appeals raising, among other things, several questions regarding the admission of evidence at trial. We affirm.

Background

Numerous lay and expert witnesses testified at the trial in this matter. Because of the number and type of issues raised in this appeal, it is necessary that we discuss in detail the evidence presented at trial.

In late April or early May of 1999, Plaintiff went to Defendant seeking a tubal ligation. Defendant performed a pregnancy test and determined Plaintiff was pregnant. Plaintiff claims she did not know she was pregnant when she went to Defendant’s office. Defendant referred Plaintiff to the Knoxville Center for Reproductive Health where Plaintiff had an abortion. Plaintiff claims she had no complications from the abortion. Plaintiff has three children and gave birth vaginally each time. She admitted she had tears during the birth of her first two children, but does not recall having stitches with the last. Another doctor, Dr. Gantt, removed an inclusion cyst from the left side of Plaintiffs labia minora in 1992.

On May 27, 1999, approximately one month after the abortion, Defendant performed a tubal ligation on Plaintiff. Defendant claims that just prior to the surgery, Plaintiff asked him if he would remove a skin tag in her vaginal area. During the surgery, Defendant removed a skin tag from Plaintiffs right labia minora and placed two stitches in that area. Plaintiff, however, claims she never had a skin tag and never asked Defendant to remove one. Plaintiff sued Defendant claiming he had done two unnecessary surgeries in her vaginal area, removing a skin tag and removing an inclusion cyst, and that these extra surgeries caused damage to Plaintiffs clitoris.

Plaintiff remembers very little of her experience in the hospital pre-surgery. She does not recall speaking with Defendant prior to the surgery. Plaintiff stated she remembers being taken to a room and given a gown to change into. She stated “I just put on the gown and laid in the bed. The next thing I remember is a whole lot of people standing around me, and then ... Then the next thing I remember was being in another room and everything was white. The walls were white, the carpet. I mean everything was just white.... ” Plaintiff does remember a woman in a flowered dress telling her prior to surgery that her insurance would not cover the surgery.

Plaintiff stated that when she awoke from surgery she was “screaming in pain.” She claims she experienced severe pain while at the hospital. Plaintiff also claims that although she wasn’t bleeding bad before she left the hospital, she began bleeding from her vaginal area in the middle of the night, but not from her clitoris. Plaintiff claims that although she had minimal blood loss at the hospital, the bleeding that started in the middle of the night was considerable.

Pamela Johnson, a registered nurse who cared for Plaintiff in the recovery room known as the post-anesthesia care unit (“PACU”), testified that Plaintiff was in PACU for approximately forty-five minutes. Ms. Johnson explained that when a patient who has had a vaginal entry or surgery arrives in PACU, Ms. Johnson cleans the patient’s peri area and carefully checks for any bleeding. The records show Plaintiff had no vaginal bleeding on admission to PACU, halfway through Plaintiffs PACU stay, and upon discharge from PACU. Ms. Johnson charted that when Plaintiff left PACU, she was breathing well, was comfortable, reported that her pain had eased and had no vaginal bleeding. The records show Plaintiff received what Ms. Johnson described as a smaller than normal dose of pain medication in PACU. Although Plaintiffs blood pressure was elevated when she arrived in PACU, it was normal when she left. Ms. Johnson testified that she has never in her entire career seen a patient, including Plaintiff, with ten to twenty stitches in the clitoral area.

When questioned regarding her stay in PACU and the records, Plaintiff stated she does not recall being in PACU post-surgery and stated “I’ve disagreed with a lot of the records.”

Pat Bishop, a licensed practical nurse who also cared for Plaintiff post-surgery, testified she never heard Plaintiff screaming or crying in pain. Ms. Bishop charted that Plaintiff was experiencing no pain and did not receive anything for pain post-op. Ms. Bishop noted that Plaintiff had scant bleeding on her abdominal band-aid. Ms. Bishop charted that Plaintiff received a meal, ate twenty-five percent of it and tolerated it well. The chart shows Ms. Bishop took Plaintiffs blood pressure and it was 110/70. Plaintiff, however, claims her blood pressure was not taken. Ms. Bishop testified that a patient has to meet certain criteria before they can be discharged, i.e., “their pain has to be controlled, their nausea controlled, and they have to be accompanied by someone. They’re not allowed to drive themselves home.” Ms. Bishop testified she actually had to see Plaintiff leave with someone upon discharge, not just rely on what Plaintiff said. Prior to discharge, Ms. Bishop made Plaintiff a follow-up appointment with Defendant for June 3rd. Ms. Bishop testified that in her thirty-five years as a licensed practical nurse, she has never seen a patient, including Plaintiff, with twelve to eighteen stitches in their frenulum or clitoris.

Plaintiff claims that after the surgery, Defendant came to her room and told her he did “two extra little surgeries” but that he would not charge her for them. She says Defendant told her he had removed an inclusion cyst and a skin tag and assured her she did not have cancer. She says Defendant guaranteed her there was no cancer and told her there was no need to send the tissues to pathology.

Plaintiff claims that a couple of minutes after Defendant left her room, “a lady came in and told me it was time for me to leave.” Plaintiff claims she told this woman she had not called her sister yet, but the woman just told her it was time to leave and that this woman walked her to the door. Plaintiff claims she drove herself home, but does not remember how. The discharge notes made by Pat Bishop, however, show that Plaintiff was given discharge instructions, was ambulatory and in stable condition, and was accompanied by a friend when she left the hospital.

Plaintiff claims when she got home the pain was getting worse, she was “all swollen in the clitoris area and down the side” and there were stitches everywhere. She claims she took some Tylenol and went to bed. Plaintiff claims she spoke to her sister, her boyfriend, and a few female friends on the phone either that day or over the next couple of days. Plaintiff also allowed some friends to see the area over the course of the next couple of weeks. Plaintiff had one friend take pictures of Plaintiffs vaginal area, and those pictures were introduced at trial.

Plaintiff claims that when she went to Defendant’s office on June 3rd to have the stitches removed, she told Defendant she thought she was “going to bleed to death.” She claims Defendant explained the surgeries to her using pictures and again guaranteed her she did not have cancer. Plaintiff, however, thought Defendant was not being honest with her so Plaintiff got some money from a friend to buy a tape recorder so she could secretly tape Defendant. Plaintiff claims she knew she did not have a skin tag or an inclusion cyst and that she thought Defendant was lying to her.

A couple of days after the stitches were removed, Plaintiff and her sister went to Defendant’s office to speak to Defendant, and they secretly tape recorded the conversation. The tape and a transcription of it were introduced at trial. Plaintiff claims she told Defendant they were there because her sister wanted to make sure Plaintiff did not have cancer. After this visit, Plaintiff did not return to Defendant.

Plaintiff claims Defendant either removed or damaged all or a portion of her clitoris. She claims she has not had sexual intercourse with any man since the surgery and that she has not experienced any sexual stimulation that was pleasurable although she has tried masturbation and a vibrator. Plaintiff claims she had no problem with sexual arousal prior to the surgery, but that she is no longer capable of having sexual intercourse.

At the time of the surgery, Plaintiff was dating David Cross. Mr. Cross testified he saw Plaintiff about two days after the surgery when she stopped by his house. Mr. Cross testified Plaintiff looked okay but was complaining that it hurt her to walk. He stated their relationship fell apart after the surgery because Plaintiff was always hurting and complaining. He also testified they never had sex after the surgery.

Shortly after the surgery, in June or July of 2001, Plaintiff met Alan Gates and the two began dating. Plaintiff claims she never had sex with Alan Gates. Plaintiff claims she and Mr. Gates went away to the beach and stayed in a motel together and slept in the same bed naked one time, but that they never had sex. She claims she stimulated him sexually one time on the trip to the beach and over the course of their relationship approximately four times.

Alan Gates testified he had sex with Plaintiff after they had dated for a couple of weeks. He says Plaintiff never complained of any pain or lack of feeling when they had sex. Mr. Gates claims he and Plaintiff had sex at his apartment, at a trailer, on a pontoon boat, on an island during a camping trip, and during trips together out-of-town. He states “[ujsually when we slept together we had sex. I mean, you know, that’s normal, I think.” Mr. Gates believes Plaintiff had orgasms and states “[i]f she didn’t she was putting on a lot.” Mr. Gates says their relationship lasted until March or April and during that time he estimated he and Plaintiff had sex a hundred times, maybe more.

Mr. Gates also testified he had ridden with Plaintiff on a Sea Doo one or two times and that his son had ridden with Plaintiff on it quite a few times. In addition, Mr. Gates stated he had seen his son, Dustin, give Plaintiff rides on an ATV on trails in the woods and through fields. Fifteen-year-old Dustin Gates testified he had given Plaintiff a ride on the Sea Doo three or four times and had also ridden her on the ATV on pretty rough terrain in the woods and that he never heard her complain about pain from the rides.

Plaintiff claims she has ridden on an ATV only one time and that was prior to the surgery. She claims she rode a Sea Doo one time with Alan Gates for about four minutes and claims it hurt so bad that she yelled and scared Alan and they both fell off. She claims she has never ridden a Sea Doo any other time. Plaintiff claims she never rode on an ATV with Dustin.

Plaintiff claims that approximately six weeks after they met, Mr. Gates bought her a Mercedes worth approximately $50,000 for her birthday. Mr. Gates, however, testified that Plaintiff borrowed approximately $50,000 from him early on in their relationship to buy the Mercedes. Mr. Gates claims he and Plaintiff had sex a couple of times before she borrowed the money. Mr. Gates states Plaintiff told him “she was going to be the richest bitch in Johnson City in December.... ” December was when the trial of this matter originally was scheduled to begin.

Plaintiff claims she broke up with Alan Gates when she discovered he and a friend “had thousands of pills and baggies, trash bags full of Marijuana.” She claims Mr. Gates threatened to testify that he had sex with her if she refused to many him so she would be precluded, as his wife, from testifying against him regarding the drugs.

Plaintiff claims she has been unable to work since the surgery and that she would have to lock the door of her shop “two or three times a day and have to go home and pick up clothing because I would bleed so bad I’d bleed on my clothing.” Plaintiff claims she changed pads for bleeding during the eight weeks after surgery “as many as 30 times a day” and that she had even “put towels down there instead of pads.” She also claims she couldn’t lift or walk much so she just closed up her shop. Plaintiff opened her business, Sea Scape, in September of 1998, and closed it in August of 2000. Plaintiff claims her shop was doing well until the surgery, but that after the surgery she “just couldn’t walk because of the pain” and had to close the shop. She did, however, admit to writing bad checks when she first opened her business. Plaintiff also claims she can no longer ride a bicycle or jog and that she “can’t wear jeans or anything like that ...” because of constant pain.

The next doctor Plaintiff saw after the surgery was Dr. Link, a plastic surgeon. Plaintiff went to Dr. Link seeking liposuction surgery of what Plaintiff calls a “tummy tuck.” Dr. Link’s records show Plaintiff never mentioned to Dr. Link that she was having any problems from the surgery at issue in this case, or even that she recently had surgery. Plaintiff scheduled surgery with Dr. Link for July 6,1999, less than two months after the surgery at issue in this case. Plaintiff called and cancelled that surgery on the day of surgery.

Plaintiff did not see a doctor for the problems she claims Defendant caused for approximately a year and a half. She claims she called four or five different doctors and made appointments, but then wouldn’t go “[bjecause I was afraid they were going to tell me that I had cancer or I truly didn’t have my clitoris anymore, and I just didn’t want to hear it.”

After Plaintiff filed this lawsuit, her attorneys sent her to be examined by Dr. Christine Neal. Dr. Neal specializes in obstetrics and gynecology. Dr. Neal testified as one of Plaintiffs expert witnesses during trial. Dr. Neal testified that during her examination of Plaintiff, Dr. Neal saw a segment of Plaintiffs labium minora was missing and that around Plaintiffs clitoris was a white area with some scarring. Dr. Neal testified her initial examination of Plaintiff was limited because Plaintiff was in pain and could not tolerate having the foreskin of the clitoris pushed back. Dr. Neal stated “I did not see a clitoris at all. There was something in there that I .couldn’t see well. I felt like I needed to get a better exam, but I simply couldn’t do it because of the discomfort there.” Dr. Neal knows of no treatment to fix the problem she believes Plaintiff has. Dr. Neal believes Plaintiffs complaints are consistent .with Dr. Neal’s physical findings. Dr. Neal admitted that Plaintiffs having had an abortion several weeks before her surgery could have caused bleeding, but she stated the bleeding should have stopped within about two weeks after the procedure. Dr. Neal also admitted that during her career she had never done or seen a clitoral circumcision, other than this case.

Dr. Neal referred Plaintiff to Lauree Ramsden, a licensed clinical social worker, whom Plaintiff saw four or five times. Ms. Ramsden contacted Dr. Neal recommending medication and Dr. Neal prescribed Zoloft.

Plaintiff’s attorneys also sent her to be examined by Dr. William Saye, who specializes in gynecology. Dr. Saye also testified at trial as an expert for Plaintiff. Dr. Saye examined Plaintiff and explained at trial that he found “looking at the perineal area, the little rabbit ears that I described to you were asymmetrical. One side didn’t look like the other side.... And that was the right side.” He also noted Plaintiffs clitoris did not look symmetrical. Dr. Saye testified that when he pulled back the hood to visualize the clitoris, this caused Plaintiff discomfort. Dr. Saye stated “that the right side of the clitoris was no longer present. And at the base of the clitoris, this side, was an area that I described in my note as something that looked like a crater.” Dr. Saye also stated he saw “[o]n the right side of the vagina there was a scar that was about a centimeter and a half that still had the evidence of two big sutures that had been placed in this area.” Dr. Saye opined after examining Plaintiff that “the right side of the clitoris was no longer present” and that there was a crater and something was missing. His finding was “an abnormal right labia minora, an abnormal clitoris and a scar on the right inside of the vagina.” Dr. Saye opined Plaintiffs condition could have been caused by an injury or an electrical burn rather than a total excision of the clitoris. Dr. Saye opined the injury may have been caused by electrocautery used during the surgery at issue in this case.

In addition to their separate examinations of Plaintiff, Dr. Neal and Dr. Saye conducted a joint examination of Plaintiff on July 8. Pictures were taken during this examination and were introduced at trial. Dr. Neal stated that at this examination Plaintiff was not experiencing as much tenderness and Dr. Neal explained:

[I] was able to pull the foreskin over the clitoris back a little better. The little thing that I had seen that I wasn’t sure what it was I was now pretty certain was part of the clitoris remaining. Dr. Saye and I did look at that together, and we both felt comfortable that that’s what we were seeing.

Dr. Neal explained the difference between her findings and Dr. Saye’s findings is that Dr. Saye is certain the little tiny something they saw was clitoral tissue and Dr. Neal is not sure, but believes it may be clitoral tissue.

Defendant testified regarding the surgery he performed on Plaintiff. Defendant claims he saw Plaintiff on the morning of the surgery and spoke to her prior to the surgery. He went to discuss the insurance situation with Plaintiff after he was informed Plaintiffs insurance would not pay. He stated Plaintiff requested he proceed with the surgery anyway. Defendant testified he also spoke to Plaintiff while she was in the holding area prior to surgery and that this is where Plaintiff requested removal of a skin tag. Defendant claims Plaintiff called him over and “indicated to me that she had a bump or a skin tag ... [o]n the right side of her vagina and would I remove it?” Defendant told her that if he could identify it and it was very minor he would go ahead and do that. Defendant claims Plaintiff was lucid and “[s]he knew who I was. She knew where she was.... It was my assessment that she was absolutely aware and alert.” There were no other witnesses to this conversation and Defendant did not ask Plaintiff to sign a consent form for the removal of the skin tag. Defendant stated this conversation occurred before Plaintiff received Versed and was moved into the operating room, but after Plaintiff had received Valium. Defendant explained that the anesthesiologist is with the patient from the time the Versed is administered through the IV line throughout the surgery. Defendant admitted Versed causes amnesia.

Defendant explained he began the surgery by removing the skin tag by “lifting it up with pick-ups, which is like a tweezers and taking a small scissors and, and cutting it at its base and then putting two stitches across that edge to keep those edges together at that time.” Defendant estimated the skin tag was at approximately the eleven o’clock position. Defendant explained that the skin tag he removed was on Plaintiffs right labia minora and the inclusion cyst that Dr. Gantt removed years earlier was on the left labia minora. Defendant testified he did not remove a cyst.

Defendant believes it was within the standard of care to remove the skin tag stating “[w]e do things our patients ask us to do if they’re minor and they don’t cause them any harm and they know what they’re asking about.” Defendant stated he did nothing to Plaintiff except perform a tubal ligation and remove a skin tag. Defendant explained there was no reason to preserve this skin tag and send it to the lab for testing. Defendant, however, stated that he would have sent an inclusion cyst to the laboratory if he had removed one.

Defendant explained that Plaintiff had two stitches from the removal of the skin tag and stitches in the navel from the tubal ligation and no other stitches. There were two suture sets used in the surgery, one for the vaginal part of the procedure and one for the abdominal part. They could not use the same suture set for both areas because the areas have two different levels of sterility. Plaintiffs expert, Dr. Neal, when questioned stated if you had 15 to 20 stitches in the vaginal area you would use at least three suture sets in that area and if you had 5 to 10 stitches you would use at least two suture sets. Plaintiff filed an affidavit claiming she had 10 to 12 stitches in the vaginal area and told Dr. Neal that she had 15 to 20 stitches.

The surgery took approximately twenty-three minutes and Defendant stated if there had been the number of stitches Plaintiff claims, it would have taken considerably longer. Defendant stated “This procedure, to be done by me in this amount of time, means that it went very well. I didn’t have any, we didn’t have any glitches. Everything went smoothly to do the skin tag and tubal ligation in, in twenty-three minutes. We’re not trying to break records or speed records, but that means there weren’t any problems.” In their pre-surgery conversation, Defendant told Plaintiff she might have a stitch from the skin tag and “that’s really all I told her because that, there really aren’t any complications from taking off skin tags. They’re very minor.”

Defendant stated the scar Plaintiff has is compatible with the laceration noted in the records from the birth of Plaintiffs child in 1978. Defendant testified there was no electrocautery used during the surgery that could have caused any of the complaints Plaintiff has. Defendant testified “[t]here was no cautery used in the vaginal area whatsoever.” He explained that if something is cauterized it is burned. Defendant stated that it was not even a possibility the bipolar electrocautery came into contact with the clitoris as Dr. Saye opined.

Dr. Christopher Mitchell, the resident who assisted Defendant with Plaintiffs surgery, also testified at trial. Dr. Mitchell testified that as he and Defendant scrubbed for Plaintiffs surgery, Defendant told him Plaintiff had requested the removal of a skin tag from her labia. Dr. Mitchell testified that during the surgery, Defendant grasped the skin tag with forceps and snipped it off with a pair of scissors and used a couple of interrupted sutures to stop the bleeding. He stated it was “very straightforward. A simple task.” Dr. Mitchell estimated the skin tag was roughly between the nine and ten o’clock position three or four centimeters from the clitoris. He testified that after the skin tag was removed, they proceeded to perform the tubal ligation. Dr. Mitchell testified no electrocautery was used in the vaginal area.

Catherine Hooten, the surgical tech who assisted in the operating room, also testified at trial. Ms. Hooten testified the bipolar electrocautery device is approximately eighteen inches long in its assembled state. Ms. Hooten testified she has seen skin tags removed that weren’t listed on the consent form and stated that usually the patient has requested removal after the consent was signed. Ms. Hooten stated that very often the skin tag is simply thrown away after removal and is not sent to the lab. Ms. Hooten testified she had a total view of both areas of the surgical site, Plaintiff’s vaginal area and her abdominal area, and stated neither Plaintiff’s clitoris nor her frenulum were removed in whole or in part. Ms. Hooten testified it usually takes approximately thirty minutes for Defendant to perform an uncomplicated bilateral tubal ligation.

Emma Rastell is a now-retired licensed practical nurse who worked for Defendant during the relevant time period. Ms. Ras-tell testified that she observed one stitch in Plaintiff’s vaginal area during Plaintiffs post-surgery visit to Defendant’s office.

Dr. Charles Hillman, Defendant’s expert witness, testified Valium, which Plaintiff received prior to her pre-surgery conversation with Defendant, is an anti-anxiety medication. Dr. Hillman stated “[fit’s not considered a sedative or an anesthetic, but it’s used usually preoperatively just to calm patients, and make them better able to comprehend what’s happening to them and prepare them for surgery.” Dr. Hill-man stated it is a judgment call on the part of the physician as to whether a patient is conscious and aware and capable of making decisions. Dr. Hillman opined that Defendant met the standard of care regarding removal of the skin tag. Further, Dr. Hillman stated skin tags usually are not sent to pathology. That decision is left up to the physician.

Dr. John Rock, Defendant’s other expert witness, is a reconstructive surgeon who does specialized surgery. Dr. Rock’s areas of interest include congenital abnormalities of the pelvis, uterus, vagina, external genitalia, clitoris, labia minora, and majora. He also sees patients with structural abnormalities and has treated women and recreated their clitoris after the clitoris has been circumcised. Dr. Rock opined that “[Defendant] did not remove any part of the clitoris, or the prepuce, or the frenu-lum. He did have a removal of a skin tag, but that is the only thing, in my opinion, that was removed.” Dr. Rock does not believe the surgery caused any injury to Plaintiff.

Dr. Rock examined Plaintiff in January of 2001. Dr. Rock located Plaintiff’s clitoris and testified “I actually picked up, palpated the clitoris, the clitoris was there, pulled back the prepuce, and visualized the glans. The glans was there. The frenu-lum were intact....” Dr. Rock used the photographs taken during Dr. Neal and Dr. Saye’s joint examination to illustrate his points stating “if they knew how to examine external genitalia they’d have the answer. [Dr. Neal’s] almost grasping the clitoris.... So there’s a base knowledge defect in terms of understanding clitoral anomaly on the part of the examiner.” Dr. Rock saw no evidence of a crater. Dr. Rock stated that if the right side of Plaintiff’s clitoris were missing it would had to have been resected and he explained that in order for this to happen

you do a circumferential incision in the top of the, of the dorsal area of the skin, mobilize the skin down to expose the, the entire shaft of the clitoris, and then you would actually make an incision in the corpora on that side and take out a segment, or wedge, and, and then you use electro-cautery or suture if you get your hemostasis.

The case was tried on Plaintiffs Second Amended Complaint. In her Second Amended Complaint, Plaintiff alleged Defendant was liable to her because of his “intentional conduct and/or negligence” and for “medical battery.” The jury found for Defendant and a judgment was entered dismissing Plaintiffs case against Defendant. Plaintiff filed a motion for new trial, which the Trial Court denied. Plaintiff appeals to this Court.

Discussion

Although Plaintiff raises eleven issues on appeal, resolution of several of these issues would require this Court to consider what Plaintiff describes as newly discovered evidence or post-judgment facts. We entered an order on September 19, 2003, denying Plaintiffs request to supplement the record by newly discovered evidence and an order on December 5, 2003, denying Plaintiffs motion to consider post-judgment facts. As such, we will not consider Plaintiffs issues relating to what Plaintiff describes as newly discovered evidence or post-judgment facts.

We restate the issues properly before us on appeal as: 1) whether the Trial Court erred in allowing Plaintiffs abortion consent form to be admitted into evidence; 2) whether the Trial Court erred in allowing the admission of evidence regarding Plaintiffs personal finances, the status of Plaintiffs company, and Plaintiffs failure to file income taxes; 3) whether the Trial Court erred in allowing the admission of evidence regarding the birth of Plaintiff’s second child; 4) whether the Trial Court erred in excluding as evidence the last page of a hospital bill; 5) whether the Trial Court erred in allowing Dustin Gates to testify; and 6) whether there was material evidence to support the jury’s verdict. Defendant also raises an issue regarding whether this is a frivolous appeal.

Issues regarding admission of evidence in Tennessee are reviewed for abuse of discretion. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn.Ct.App.2001). “[Tjrial courts are accorded a wide degree of latitude in their determination of whether to admit or exclude evidence, even if such evidence would be relevant.” Id. Our Supreme Court discussed the abuse of discretion standard in Eldridge v. Eldridge, stating:

Under the abuse of discretion standard, a trial court’s ruling “will be upheld so long as reasonable minds can disagree as to [the] propriety of the decision made.” A trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice,to the party complaining.” The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001) (citations omitted).

Appellate courts ordinarily permit discretionary decisions to stand when reasonable judicial minds can differ concerning their soundness. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn.Ct. App.1999). A trial court’s discretionary decision must take into account applicable law and be consistent with the facts before the court. Id. When reviewing a discretionary decision by the trial court, the “appellate courts should begin with the presumption that the decision is correct and should review the evidence in the light most favorable to the decision.” Id.

We begin by considering whether the Trial Court erred in allowing Plaintiffs abortion consent form to be admitted into evidence. Plaintiff filed a motion in li-mine seeking, among other things, to have excluded all evidence pertaining to her abortions. The Trial Court entered an order on August 20, 2002, holding that evidence of the abortion Plaintiff had one month prior to the surgery at issue was relevant and admissible. The order excluded evidence regarding all previous abortions. At trial, the only evidence introduced regarding Plaintiffs abortions was the consent form from the abortion that Plaintiff received one month prior to the surgery at issue. This consent form listed possible complications of the procedure, including bleeding. At trial, Dr. Neal, Plaintiffs expert witness, testified bleeding was a possible complication of an abortion. As one of Plaintiffs complaints in this suit regards heavy bleeding, evidence showing that bleeding is a possible complication of a surgical procedure Plaintiff had only one month prior to the surgery at issue was relevant and admissible.

Further, we note that at the beginning of the voir dire, the Trial Court told the potential jury members that Plaintiff had obtained an abortion one month prior to the surgery at issue and asked the potential jurors if this information would affect their verdict. Several potential jurors did state that knowledge of Plaintiffs abortion could affect their verdict and in each of these situations, the Trial Court excused the potential juror. The members of the final jury panel each indicated they either were not opposed to abortion, or that their personal feelings regarding the subject would not affect their verdict in any way.

We believe reasonable minds could disagree as to the propriety of the decision made by the Trial Court to admit the abortion consent form, the very essence of a discretionary decision. We believe this to be especially so given Dr. Neal’s testimony that bleeding is a possible complication of an abortion, and the Trial Court’s pre-emptive measures taken in voir dire. Given these pre-emptive measures taken by the Tidal Court, even if it were error by the Trial Court to admit the abortion consent form, we hold that such error did not more probably than not affect the judgment or result in prejudice to the judicial process. See Tenn. R.App. P. 36(b). Given this, we will not substitute our judgment for that of the Trial Court, and we find no abuse of discretion or reversible error regarding the admission of the abortion consent form.

We next consider whether the Trial Court erred in allowing the admission of evidence regarding Plaintiffs personal finances, the status of Plaintiffs company, and Plaintiffs failure to file income taxes. Plaintiff filed a motion in limine requesting, among other things, the exclusion of evidence pertaining to Plaintiffs financial status and business practices. The Trial Court’s August 20, 2002, order held the Defendant could offer evidence regarding Plaintiffs financial problems “if the plaintiff makes or has made statements that would be contradicted by such evidence” or “as it relates to motivation or credibility.”

During cross-examination, Plaintiff was asked if her business was in dire financial straits. She denied it was. A letter from another attorney who had represented Plaintiff then was introduced. This letter, written to Plaintiffs creditors, suggested that Plaintiff qualified to file for bankruptcy and asked the creditors to agree to allow Plaintiff to make small payments instead. Plaintiff then was asked if her business at the time the letter was written was in essence insolvent. Plaintiff denied this assertion. Plaintiff, however, admitted to writing bad checks. As far as the evidence regarding payment of income taxes, Plaintiff swore during her deposition that she did file income tax forms every year and that she could provide copies for the past few years. Plaintiff later claimed someone broke into her house and stole only a box from her closet where she kept important records such as the tax returns. When ordered by the Trial Court to obtain copies from the government, Plaintiff finally admitted she had not filed her income taxes for the requested years despite her sworn deposition testimony to the contrary.

The Trial Court allowed Defendant to offer evidence regarding Plaintiffs financial problems “if the plaintiff makes or has made statements that would be contradicted by such evidence” or “as it relates to motivation or credibility.” Plaintiff made several inconsistent statements under oath regarding her financial status and the status of her business. At a minimum, we believe reasonable minds could disagree as to the propriety of the decision made by the Trial Court to admit the evidence of Plaintiffs financial condition to impeach her credibility, the very essence of a discretionary decision. Given this, we will not substitute our judgment for that of the Trial Court, and we find no abuse of discretion regarding the admission of the evidence of Plaintiffs financial condition.

We next consider whether the Trial Court erred in allowing the admission of evidence regarding the birth of Plaintiffs second child. This evidence showed Plaintiff had some vaginal scarring and was relevant because the scarring appears in the area where Plaintiff claims Defendant performed unwanted surgery. Tennessee Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Evidence of prior scarring in the same area where Plaintiff claims Defendant performed unwanted surgery is relevant to a determination of whether Defendant caused the damages about which Plaintiff complains. As the evidence unquestionably was relevant, and reasonable minds at least could disagree as to the propriety of the decision made by the Trial Court to admit the evidence regarding the birth of Plaintiffs second child, once again the very essence of a discretionary decision, we will not substitute our judgment for that of the Trial Court. We find no abuse of discretion in the Trial Court’s decision to admit the evidence regarding the birth of Plaintiffs second child.

We next consider whether the Trial Court erred in excluding as evidence the last page of a hospital bill. The Trial Court admitted into evidence the pages of the bill in question that listed supplies and a corresponding charge for each item or items. The Trial Court, however, refused to admit the last page of the bill that contained only a description of miscellaneous and a corresponding charge. Plaintiff had no testimony or other evidence to explain to the jury anything about the charge listed on the last page of the bill. The Trial Court stated such a description would force the jury to speculate regarding what supplies were encompassed within the charge for these miscellaneous items. A jury may not engage in speculation. Stringer v. Cooper, 486 S.W.2d 751, 756 (Tenn.Ct.App.1972) (stating “we understand the holding in those cases and many more like them to be that a jury may not speculate as to cause when one is not shown.... ”); Moon v. Johnston, 47 Tenn.App. 208, 337 S.W.2d 464, 469 (1959) (holding a jury is not permitted to speculate or guess as to proximate cause). Without any testimony or other evidence to explain to the jury what these charges were for, this evidence simply was not relevant and, therefore, not admissible. Tenn. R. Evid. 401 and 402. As such, the Trial Court properly excluded the last page of the hospital bill. We note, once again, that the Trial Court’s decision to exclude this evidence is one about which reasonable minds could disagree as to the propriety of that decision, and we find no abuse of discretion in the Trial Court’s decision to exclude this unexplained and speculative evidence.

Next, we consider whether the Trial Court erred in allowing Dustin Gates to testify. Plaintiff argues that Dustin Gates’ identity and testimony never were properly disclosed during discovery and, therefore, Dustin Gates should have been precluded from testifying. Plaintiff admits that Dustin Gates was listed on Defendant’s timely filed witness and exhibit list. Plaintiff, however, claims she submitted interrogatories to Defendant that requested Defendant “to identify all possible witnesses in the case.” Plaintiff claims Defendant did not list Dustin Gates as a possible witness in his answers to these interrogatories. As such, Plaintiff claims Defendant did not comply with the Rules of Civil Procedure regarding discovery and Dustin Gates should have been prevented from testifying. Unfortunately, neither a copy of the interrogatories nor Defendant’s answers to them are in the record before us on appeal. Because Plaintiff has admitted that Defendant timely filed his witness and exhibit list which named Dustin Gates as a witness and as we do not have before us in this record Defendant’s interrogatory answers upon which Plaintiff bases her argument, we find that no error occurred when the Trial Court allowed Dustin Gates to testify.

Finally, we consider whether there was material evidence to support the jury’s verdict. “Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict.” Tenn. R.App. P. 13(d). As our Supreme Court has explained:

It is the time honored rule in this State that in reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury.

Crabtree Masonry Co., Inc. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn.1978).

Defendant testified he did nothing to Plaintiff except perform a tubal ligation and remove a skin tag and that he did not fall below the standard of care in doing so. Defendant testified Plaintiff called him over and “indicated to me that she had a bump or a skin tag ... [o]n the right side of her vagina and would I remove it?” Defendant claims Plaintiff was lucid and “[s]he knew who I was. She knew where she was.... It was my assessment that she was absolutely aware and alert.” Defendant also testified that for him to perform the removal of the skin tag and a tubal ligation in twenty-three minutes meant there were no complications.

Dr. Mitchell, the resident who assisted with Plaintiff’s surgery, and Ms. Hooten, the surgical tech, also both testified regarding the surgery and both maintained that Defendant only removed a skin tag and performed a tubal ligation and that nothing was done to Plaintiffs clitoris. Dr. Mitchell described the removal of the skin tag as “very straightforward. A simple task.” Ms. Hooten testified it usually takes approximately thirty minutes for Defendant to perform an uncomplicated bilateral tubal ligation.

Ms. Johnson, the registered nurse who cared for Plaintiff in PACU, testified Plaintiffs stay in that unit was uneventful and that Plaintiff did not have ten to twenty stitches in the clitoral area, as Plaintiff claims. Ms. Johnson charted that when Plaintiff left PACU, she was breathing well, was comfortable, reported that her pain had eased and had no vaginal bleeding. The records show Plaintiff received what Ms. Johnson described as a smaller than normal dose of pain medication in PACU. Ms. Bishop, a licensed practical nurse who also cared for Plaintiff post-surgery, testified she never heard Plaintiff screaming or crying in pain. Ms. Bishop charted that Plaintiff was given discharge instructions, was ambulatory and in stable condition, and was accompanied by a friend upon discharge. Ms. Bishop also testified that Plaintiff did not have twelve to eighteen stitches in the clitoral area. Ms. Rastell, a licensed practical nurse who worked for Defendant, saw Plaintiff during her post-surgery visit to Defendant’s office and testified Plaintiff had only one stitch in the vaginal area.

Dr. Hillman, Defendant’s expert witness, testified it is a judgment call on the part of the physician as to whether a patient is conscious and aware and capable of making decisions. Dr. Hillman opined that Defendant met the standard of care regarding removal of the skin tag and stated skin tags are usually not sent to pathology, but that decision is left up to the physician.

Defendant’s expert witness, Dr. Rock, examined Plaintiff and opined that “[Defendant] did not remove any part of the clitoris, or the prepuce, or the frenulum. He did have a removal of a skin tag, but that is the only thing, in my opinion, that was removed.” Dr. Rock also testified he does not believe the surgery caused any injury to Plaintiff. Dr. Rock located Plaintiffs clitoris and testified “I actually picked up, palpated the clitoris, the clitoris was there, pulled back the prepuce, and visualized the glans. The glans was there. The frenulum were intact....” Dr. Rock used the photographs taken during Dr. Neal and Dr. Saye’s joint examination to illustrate his points and stated “if they knew how to examine external genitalia they’d have the answer. [Dr. Neal’s] almost grasping the clitoris.... So there’s a base knowledge defect in terms of understanding clitoral anomaly on the part of the examiner.”

Alan Gates testified he met Plaintiff after the surgery and that during the course of their relationship he had sex with Plaintiff a hundred times, maybe more, at various places including at his apartment, at a trailer, on a pontoon boat, on an island during a camping trip, and during trips together out-of-town. He testified Plaintiff never complained of any pain or lack of feeling when they had sex. Mr. Gates testified he believes Plaintiff had orgasms and states “[i]f she didn’t she was putting on a lot.” In addition, both Alan Gates and Dustin Gates testified Plaintiff rode on a Sea Doo and an ATV and never complained of pain.

The jury was entitled to find the evidence presented in favor of Defendant more credible than the evidence presented by Plaintiff, and clearly they did so. Tak-mg the strongest legitimate view of all the evidence in favor of the verdict, assuming the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and discarding all evidence to the contrary, as we must, we find there was material evidence to support the jury’s verdict. We, therefore, must and do affirm the jury verdict in favor of Defendant.

In the exercise of our discretion, we decline to hold that this is a frivolous appeal and further decline to award Defendant attorney’s fees.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below. The costs on appeal are assessed against the Appellant, Donna S. Young, and her surety.

      . Plaintiff also sued Johnson City Eye and Ear Hospital, Inc., d/b/a Johnson City Speciality Hospital and Medical Center Obstetrics and Gynecology, P.C., but took a voluntary dismissal as to these entities prior to trial.


source: Caselaw Access Project

author: W. FRANK CRAWFORD, P.J., W.S.,

license: Public Domain

text:
    Helaine RICHBERGER v. The WEST CLINIC, P.C., et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Feb. 17, 2004 Session.
    April 6, 2004.
    Permission to Appeal Denied by Supreme Court Oct. 4, 2004.

      Al H. Thomas and Regina Guy of Memphis, for Appellant, Helaine Richberger.
    David M. Cook and Gregory A. Ziskind of Memphis, for Appellees, The West Clinic, P.C. and Sandy Miller, R.N.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which DAVID R. FARMER, J. and HOLLY M. KIRBY, J., joined.

Plaintiff filed medical malpractice action against clinic, treating nurse, and supervising physician for injuries suffered as a result of alleged negligent chemotherapy treatment. Trial court granted summary judgment in favor of defendants, finding that registered nurse was not qualified as an expert on the issue of medical causation, and further noting that the deposition testimony of lone expert physician failed to establish that the plaintiffs injuries were caused by the negligence of the defendants. Plaintiff appeals. We affirm.

Marshall Richberger was diagnosed with colon cancer in 1991 and died on May 10, 1997, as a result of a protracted struggle with this disease. Helaine Richberger, his natural daughter and next of kin, was substituted as party-plaintiff in this cause on January 9,1998.' In the interest of clarity, we will refer to Marshall Richberger as “Mr. Richberger” or the “deceased.” All references to “plaintiff’ with respect to pleadings filed after May 10, 1997 should be regarded as references to Helaine Rich-berger.

Mr. Richberger first presented to The West Clinic, P.C. (“West Clinic”), for chemotherapy treatment in July 1991, after an unsuccessful operation to remove a cancerous tumor from his colon. Dr. Kurt W. Tauer (“Dr. Tauer”) acted as the deceased’s treating physician during the post-operative period, and continued his care for Mr. Richberger until his death in 1997. During the initial six-month postoperative period, Mr. Richberger underwent “systemic chemotherapy treatment” with the drugs 5-FU and Leucovorin. According to Dr. Tauer’s deposition testimony, both drugs were administered intravenously through the right hand. Upon completion of his treatment in December 1991, Mr. Richberger was declared to be in remission.

Mr. Richberger suffered a recurrence of his cancer in December 1994, and began renewed chemotherapy treatments shortly thereafter. Mr. Richberger was again treated with 5-FU and Leucovorin, but on a different schedule than his first round of administration. Dr. Tauer testified that treatment was discontinued in June 1995 as a result of Mr. Richberger’s favorable response and improved condition.

In October 1995, Mr. Richberger learned that his cancer had markedly progressed and required further treatment. On October 25, 1995, he presented to the West Clinic for chemotherapy treatment involving the drug Mitomycin. Sandy Miller, R.N. (“Ms. Miller”), the treating nurse, testified in her deposition that she obtained Mr. Richberger’s informed consent prior to administration, explaining to him the potential risks of treatment, including extravasation. Ms. Miller averred that she further advised him to warn her if he felt any burning or sensation of pain during the procedure.

Ms. Miller testified that she began treatment with the insertion of a saline I.V. into Mr. Richberger’s right arm, approximately one-half inch above his wrist bone. The I.V. provided a continuous flow of normal saline during the procedure. Ms. Miller next administered a dose of Decadron for nausea, and began a slow push of the Mitomycin through a needle inserted into the vein near Mr. Richberger’s wrist. During administration of the Mitomycin, Ms. Miller monitored Mr. Richberger’s blood return every minute for 10-15 minutes, and recorded that he had “excellent blood return.” Ms. Miller testified that Mr. Richberger never complained of any “pain” during her administration of the Mitomycin, but acknowledged that she stopped the procedure briefly when he complained of aching in his right arm. Ms. Miller testified that the deceased’s reaction to the treatment was normal, and noted that she was able to alleviate his discomfort with the application of a hot pack and thereafter resume treatment. Ms. Miller further noted that she saw no evidence of swelling or redness at the insertion site.

Once she had administered the full dose of Mitomycin, Ms. Miller waited for the saline to thoroughly flush Mr. Richberger’s veins before stopping the I.V. flow. Ms. Miller next administered the drug Leuco-vorin via slow push, and followed with a slow push of the drug 5-FU. It is evident from the testimony in the record that Ms. Miller documented the medications administered to the deceased; however, the order in which these drugs were administered was not specified.

On October 30, 1995, Mr. Richberger returned to the West Clinic complaining of pain and blistering in his right hand. Both Dr. Tauer and Ms. Miller confirmed that the blistering was distal to the I.V. site, an uncommon occurrence according to Dr. Tauer, who testified that normally damage is seen at the site of the injection. Dr. Tauer concluded that it was clear that Mr. Richberger suffered an extravasation of Mitomycin during the October 25, 1995 procedure, noting that the burning sensation was a serious indicator of extravasation.

In an attempt to “control and clean up” the tissue damaged by the Mitomycin ex-travasation, Mr. Richberger underwent daily whirlpool and physical therapy treatment. On November 3,1995, he called the West Clinic and voiced renewed complaints of pain. Ms. Miller testified that she instructed Mr. Richberger to apply Neospo-rin to the wound and ordered Lortab for his pain. That same month, Mr. Richber-ger was referred to Dr. Robin Stevenson, a plastic surgeon, for additional treatment and consultation. Mr. Richberger’s complaint describes his condition, treatment and operation history after. November 1995:

On examination by Dr. Stevenson, Plaintiff was found to have a partial to full thickness injury to the dorsum of the hand extending into the second web space and proximately to the proximal hand. Dr. Stevenson also found Plaintiff had lost some motion of. the MP joints.
Dr. Stevenson referred Plaintiff Rich-berger to Baptist Hospital physical therapy department for daily dressing changes, debridement, and range of motion to the MP joints.
In January 1996, Plaintiff Richberger was admitted to Baptist Hospital due to full thickness skin loss, infection, and blistering of his [right] hand. Plaintiff received Hyperbaric oxygen treatment but later had to be taken to surgery where he underwent a posterior inter-ossesous rotational skin flap to cover the dorsum of his [right] hand.
Because of the extravasation injury to Plaintiffs hand from the chemotherapy agent, ■ Plaintiffs chemotherapy treatments were discontinued so . that his right hand would heal; however, because of plaintiffs cancerous condition the chemotherapy had to be resumed.
Plaintiff Richberger continued to experience necrosis and infection to his [right] hand and had to undergo amputation of his index finger in May 1996.

On October 2,1996, Mr. Richberger filed a complaint for medical malpractice against Dr. Tauer, West Clinic, and Ms. Miller, alleging negligence by defendants in the October 25, 1995 chemotherapy treatment. The complaint includes the following allegations of negligence -and resulting damages:

Defendant Miller, employee of Defendant West Clinic and/or Defendant Tauer, negligently continued to infuse [Mitomycin] despite plaintiff Riehber-ger’s complaint of pain and burning, causing plaintiff serious and permanent injuries.
Defendant Miller was negligent in failing to report Plaintiff Richberger’s complaints of pain and burning to Defendant Tauer causing Plaintiff to suffer serious and permanent injuries.
Defendant Miller failed to provide proper nursing care to Plaintiff Richber-ger causing him to suffer serious and permanent injuries.
Defendants West Clinic and Tauer failed to provide and are liable under the doctrines of Respondeat Superior and under the doctrine of Apparent Agency for the failure of the defendant Miller, to provide adequate and appropriate medical care during chemotherapy treatment to plaintiff Richberger, as well as other acts and omissions which breach the standard of care.
DAMAGES
Plaintiff alleges that as a direct and proximate result of the negligence and medical malpractice by the Defendants, Plaintiff Marshall Richberger suffered substantial damages as follows:
a. caused to suffer and incur severe and permanent physical damages to his body resulting in extreme pain and suffering, that he required medical treatment to treat his injuries, thereby incurring substantial medical expenses as well;
b. caused to suffer substantial loss of wages and/or the loss of the capacity to earn his normal wages;
c. caused to endure severe emotional distress and mental anguish.

(emphasis in original).

Defendants filed a joint answer on November 19, 1996, denying all allegations of negligence and asserting as an affirmative defense that Mr. Richberger’s treatment on October 25, 1995 “was in entire conformity with the recognized standard of acceptable professional practice for their specialties in this community, and that the plaintiffs have sustained no injury as the result of any treatment provided by [defendants].” As noted, Mr. Richberger died in May 1997, and his daughter was substituted as party-plaintiff.

On February 25, 1998, Dr. Tauer filed a motion to dismiss or for summary judgment supported by his deposition. That same day, West Clinic and Ms. Miller filed a joint motion to dismiss for summary judgment supported by the deposition of Sandy Miller. In opposition to the defendants’ motion, plaintiff relied on the affidavit and deposition of Yvonne Yetman, R.N.(“Ms. Yetman”), and the deposition of Dr. Tauer.

On June 23,1999, plaintiff filed an order voluntarily dismissing Dr. Tauer as a party-defendant to the action. On December 9, 2002, a hearing was held on the motion of West Clinic and Ms. Miller. The trial court granted defendants’ motion by order filed December 23, 2002, stating:

Having considered the parties written submissions, the deposition of Kurt W. Tauer, M.D., argument in open comb and the entire record in this cause, the court is of the considered opinion that the defendants’ motion is well taken and should be granted. According to T.C.A. § 63 — 7—103(b), a registered nurse is prohibited from making a medical diagnosis and is therefor not competent to offer opinions on medical causation in a medical malpractice action. The court has considered and relies upon the Com-t of Appeals decisions in the cases of Nash v. Goodlark Hospital, 1990 WL 56192 (Tenn.Ct.App. May 4, 1990), and Bishop v. Smith Nephew Richards, Inc., No. 02A01-9405-CV-00108, 1995 WL 99222 (Tenn.Ct.App. Mar.10, 1995). The discovery deposition of Dr. Tauer is likewise insufficient to satisfy the plaintiffs burden. The medical malpractice statute requires that the plaintiff prove that the defendants failed to act in accordance with the recognized standard of acceptable professional practice and that as a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise occurred. T.C.A. § 29-26-115. Dr. Tauer’s testimony does not establish that the decedent’s injuries were caused by the negligence of the defendant, Ms. Miller. Incorporated by reference is the transcript of proceedings in this cause of December 10, 2002.

Plaintiff filed a timely notice of appeal on January 13, 2003, and presents to this Court the following issues for review: (1) Whether a registered nurse is permitted to testify as an expert witness in a medical malpractice action as to the issue of causation; and (2) Whether the remaining evidence in the record was sufficient to create a genuine issue of material fact as to medical causation pursuant to T.C.A. § 29-26-115(a)(3).

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the non-moving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993), our Supreme Court stated:

Once it is' shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides- that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court’s grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

I.

The first issue presented for review is whether the trial court erred in ruling that a registered nurse is prohibited from testifying as an expert witness as to the issue of causation in a medical malpractice action for the purpose of satisfying T.C.A. § 29-26-115(a)(3). The court’s ruling was based on its conclusion that a “registered nurse is prohibited from making a medical diagnosis [pursuant to T.C.A. § 63-7-103(b),] and is therefore not competent to offer opinions on medical causation in a medical malpractice action.”

In Tennessee, medical malpractice actions are governed by the provisions of T.C.A. § 29-26-115 (Supp.2003), which provides in pertinent part:

(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b):
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(8) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.

In the instant matter, we are particularly concerned with subsection (b), and whether a registered nurse is competent, as envisioned under the statute, to testify as an expert in a medical malpractice action for the purpose of satisfying T.C.A. § 29-26 — 115(a)(3). From our review of the authority in this jurisdiction, we find that the trial court did not err in ruling that Ms. Yetman was prohibited from testifying as an expert regarding the issue of causation.

In Nash v. Goodlark Hospital, 1990 WL 56192 (Tenn.Ct.App. May 4, 1990), the Tennessee Court of Appeals, Middle Section, considered whether the trial court erred in granting summary judgment in favor of the defendant hospital and nurse in a medical malpractice action. The court specifically examined the causation testimony of defendants’ expert physician witness, Dr. E. Wiser, and the countervailing standard of care and causation testimony of Ms. Melanie Joy, a Registered Nurse. Upon consideration of the conflicting causation testimony, the court noted:

Dr. Wiser testified, as we have noted, that the airway of the decedent was clear and unobstructed, that he did not suffocate, and that he died naturally as a result of the advanced and incurable nature of his disease.
The counter-affidavit of Nurse Joy is insufficient to overcome Dr. Wiser’s testimony. While the appellee takes it to task because Nurse Joy states that she bases “this affidavit upon my training, education and experience as well as the facts of this case which have been told to me” and “from reading the documents in this case,” we think it clear that the failure of the appellant to countervail the positive testimony of the appellee’s expert respecting causation is fatal to her insistence that a genuine issue of a material fact, Rule 56, Tenn. R. Civ. P., exists for determination by a jury. Even if by a generous extrapolation of Nurse Joy’s affidavit we concluded that she reached the issue of causation, the fact remains that she is prohibited from making a medical diagnosis, T.C.A. 63-7-103(b). Consequently, it is uncontra-dicted in this record that the decedent did not die of strangulation or suffocation; and it is not rebutted that his death was the result of incurable disease.
Summary judgment was therefore proper. See Bowman v. Henard, 547 S.W.2d 527 (Tenn.1977).

Id. at *2 (emphasis added).

In Bishop v. Smith Nephew Richards, Inc., No. 02A01-9405-CV-00108, 1995 WL 99222 (Tenn.Ct.App. Mar.10, 1995), this Court considered, inter alia, the issue of whether the trial court erred in granting summary judgment to defendant. Id. at *2. Plaintiffs complaint alleged, in part, that defendant Karen Calabretta, an occupational health nurse, was negligent in her care of plaintiff for complications from a previously sustained head injury, and that said treatment was the direct and proximate cause of plaintiffs injuries and damages. Id. In support of her Motion for Summary Judgment, the defendant relied primarily upon the affidavit of Dr. Alan Boyd, “which state[d] in substance that there was no medical treatment that could have been provided after [the date of the accident] that would have prevented [the later arising injury.]” Id. at *3. Plaintiff filed the affidavits of Dr. William G. Jennings and three nurses in opposition to defendant’s motion. Id. at *4-5. Upon examination of the testimony in the record, we concluded:

Dr. Jennings clearly opined that the hematoma discovered December 17, 1990, proximately resulted from the trauma of November 12, 1990, but he does not state that more probably than not Bishop had better than an even chance of recovering from this hemato-ma absent Calabretta’s negligence. The sum total of his affidavit concerning causation as it relates to Calabretta is that there is a possibility the damage could have been avoided. This is not sufficient to show causation. White v. Methodist Hosp. South, 844 S.W.2d 642, 648-49 (Tenn.App.1992). Plaintiffs also rely upon the affidavits of three nurses, which, in addition to stating the standard of care and deviation therefrom, give opinions regarding causation essentially the same as Dr. Jennings. In addition to being outside the expertise of the nurses, see T.C.A § 63-7-103(b) (1990); Nash v. Goodlark Hospital[, 1990 WL 56192 (Tenn.]Ct.App. May k, 1990), these opinions regarding causation are speculative in the same manner and for the same reasons set out for Dr. Jennings. Accordingly, the trial court correctly granted summary judgment to defendant Calabretta.

Id. at *5 (emphasis added).

Based upon the foregoing authority, we find that the trial court did not err in concluding that Ms. Yetman was prohibited from testifying as an expert witness with regard to the issue of causation.

n.

Plaintiff next asserts that even if Ms. Yetmen’s discovery deposition testimony is not considered for the purpose of satisfying plaintiffs burden to prove causation under T.C.A. § 29-26-115(a)(3), the deposition testimony of Dr. Tauer is sufficient to create a genuine issue of material fact with regard to causation.

When questioned regarding his expert medical opinion as to the cause of Mr. Richberger’s injury, Dr. Tauer testified unequivocally that the injuries suffered were caused by an extravasation of Mito-mycin into the deceased’s tissue, stating:

Q. Do you have an opinion, Doctor, based upon a reasonable degree of medical certainty as to what caused Marshall Richberger this injury that he sustained?
A. Oh, I know exactly what caused it.
Q. Tell us, please.
A. In spite of our routine procedure of care, he was given a drug that has a terrible side effect of causing tremendous tissue injury if any of it gets outside of the vein; and he had an extrava-sation by the drug which caused him tremendous injury to his hand.
Q. And in your opinion even if Sandy Miller had given it in the dorsum of the hand, you do not think it would have been a deviation from the standard of care?
A. If he had a good flowing running I.V., it would not have been her first choice, but it would not have been a deviation of care.
Q. That wasn’t my question. My question is do you have any opinion in retrospect as to how the administration of Mitomycin to Marshall Richberger could have been given without causing this injury that he sustained?
A. Are there other things that we could have done that would have been outside of our usual operating procedure to make sure that this was not done, yes.
Q. What would they have been?
A. The central line and the porta cath that you talked about would be ways to prevent this kind of injury from happening; but as I stated earlier when you asked that question, when a patient gets Mitomycin for the first time and they have good I.V. blood return, we don’t normally do that.
Q. So I gather it’s your contention that this type of injury that Marshall Rich-berger sustained can occur absent negligence?
A. Yes.
Q. And is it true that every time it [has] happened out here at West Clinic it’s always been absence of negligence?
A. Well, first of all, let me suggest that it doesn’t happen out here very much at West Clinic; but every time it does happen, it’s not because of negligence, it’s just because of bad luck.

As noted, Dr. Tauer’s deposition testimony clearly identifies the extravasation of Mitomycin into the surrounding tissue as the cause of Mr. Richberger’s injury. Moreover, Dr. Tauer’s testimony further evidences an opinion that the extravasation, in this case, did not occur as a result of any negligent conduct on Ms. Miller’s behalf. We note that there is no other qualified expert testimony in the record pertaining to or addressing the issue of causation.

Thus, as the record stands, we have only the expert medical testimony of Dr. Tauer that Mr. Richberger’s injury was caused by the extravasation of Mitomycin into the surrounding tissue, and his further insistence that the extravasation was not the product of any negligent care or conduct. Although Ms. Yetmen maintains that Ms. Miller deviated from the applicable standard of care in her treatment of the deceased on October 25, 1995, she concedes that the extravasation of a vesicant can occur absent negligence. The record is devoid of any expert testimony directly connecting Ms. Miller’s alleged negligent conduct and care to the deceased’s injury.

Accordingly, we affirm the trial court’s Order of December 23, 2002 granting defendants The West Clinic, P.C., and Sandy Miller, R.N., summary judgment. Costs of this appeal are assessed against the plaintiff, Helaine Richberger, and her surety.

      . Mitomycin is a vesicant — an antibiotic or drug used in the treatment of cancer that is known to cause blisters or blistering. Ms. Miller testified that Mitomycin was the only vesicant administered to the deceased to her knowledge.

      . Extravasation is the discharge or escape of blood or another substance such as an injected chemotherapy agent, from the vein into the surrounding tissue. Extravasation of Mito-mycin during injection is known to result in "necrosis and consequent sloughing of tissue.”

      . Plaintiff notes that Mr. Richberger testified in his deposition that he remembered the injection site as the dorsum of his right hand. Mr. Richberger's deposition was not included as part of the record on appeal.

      . Plaintiff notes that Mr. Richberger testified in his deposition that he remembered Ms. Miller administering Mitomycin last in the sequence of drugs identified. The facts, as recounted by this Court, represent Ms. Miller’s recollection as to the sequence of administration. We reiterate that Mr. Richberger’s deposition was not included in the record on appeal.