                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                         February 18, 2003 Session

                 JAMES CARROLL, ET AL. v. STATE OF TENNESSEE

                               Direct Appeal from the Claims Commission
                              No. 204193 Randy C. Camp, Commissioner



                          No. W2002-02105-COA-R3-CV - Filed April 3, 2003


This case involves an appeal from a decision of the Claims Commission that resident physicians, as
employees of the State, were negligent in the care and treatment of Jessica Carroll, and that such
negligence was the proximate cause of her death. The Commissioner assessed fifty-one percent fault
against the residents resulting in a judgment against the State of $255,000.00. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed; and
                                        Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,W.S.,
and ALAN E. HIGHERS, J., joined.

Thomas McAlexander, Assistant General Counsel, for the State of Tennessee.

Philip E. Mischke and Scott B. Ostrow, Memphis, Tennessee, for the appellees, James Carroll and
Forestine Carroll, for the Use and Benefit of the Estate of Jessica Carroll, a minor deceased.
                                            OPINION

       This case arises out of the same set of facts as Carroll v. Whitney, 29 S.W.3d 14 (Tenn.
2000). The facts, as presented in that opinion, are as follows:

                Jessica Renee Carroll, a fourteen-month-old child, died of sepsis1 and
         pneumonia on March 23, 1992, while she was a patient at LeBonheur Children's
         Medical Center (LeBonheur). The previous day, because Jessica was vomiting and
         running a fever between 100 and 105 degrees, her mother, Forestine Carroll,

         1
           The evidence in this case indicates that sepsis is a bacterial infection. External symptoms of sepsis include
fever, hyperventilation, skin rash, and decreased urine output. B lood cultures of individuals infected with sepsis may
reveal the pre sence of bacteria o r a low white blood cell count. Once a diagnosis of sepsis is suspected, it is generally
recommended that intravenous antibiotic therapy be initiated as quickly as possible. In addition, administration of
intravenous fluids is used to comple ment the antibiotic treatment.
contacted Dr. Carolyn Whitney, Jessica's pediatrician. Later that day, Jessica's
temperature began to fall and her vomiting ceased. Although Dr. Whitney agreed to
see Jessica in her office the next day, she advised Mrs. Carroll to take Jessica to the
emergency room if Jessica began having more problems with her temperature or
vomiting.

         When Dr. Whitney examined Jessica the next day, March 23, 1992, she found
her to be nonresponsive with a low white blood cell count although she had only a
slight fever. In addition, Dr. Whitney diagnosed Jessica as suffering from tonsillitis,
a heart murmur, and dehydration. Jessica was admitted to LeBonheur, and Dr.
Whitney ordered that she be administered antibiotics and intravenous fluids.
Although Dr. Whitney did not include information concerning Jessica's low white
blood cell count in her admission orders, she did direct that a complete blood count
be performed.

        At LeBonheur, Jessica was examined at approximately 1:00 p.m. by Dr.
Reggie Lyell and Dr. Azra Sehic, University of Tennessee resident physicians. Dr.
Lyell was a first-year resident physician, and Dr. Sehic was the supervising resident.
Dr. Sehic was concerned that Jessica might be suffering from pneumonia with
possible sepsis, and she ordered blood tests to be conducted. Dr. Lyell called and
notified Dr. Whitney that Jessica's condition was stable. Both Dr. Lyell and Dr. Sehic
were aware of the treatment ordered by Dr. Whitney, and Dr. Sehic later conceded
that antibiotics, once recommended, should be administered within thirty minutes.

       Around 3:30 p.m., Dr. Lyell was notified that the tests performed on Jessica's
blood revealed the presence of bacteria in her blood. Dr. Lyell then contacted Dr.
Sehic to inform her of the results. Although more than two and one-half hours had
passed since the initial examination of Jessica at LeBonheur, Jessica still had not
received the antibiotics and intravenous fluids ordered by Dr. Whitney. Dr. Sehic
again examined Jessica and concluded that she needed to receive intravenous fluids
and should be transferred to the intensive care unit. Shortly thereafter, Jessica
suffered a seizure and lapsed into unconsciousness that lasted until her death around
6:30 p.m. The cause of Jessica's death was ultimately determined to be pneumonia
and sepsis.

       After Jessica's death [the Carrolls] brought a medical malpractice action
against . . . Dr. Sehic and Dr. Lyell (the residents). The residents filed a motion to
dismiss arguing that, as state employees, they were immune from suit pursuant to
Tennessee Code Annotated section 9-8-307. The trial court granted the motion. . . .
       The plaintiffs then . . . filed a claim against the State of Tennessee in the
Claims Commission for the actions of the residents.




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Carroll, 29 S.W.3d at 15-16.

        At the conclusion of the Claims Commission trial, the Claims Commissioner returned a
verdict in the Carrolls’ favor, awarding damages in the amount of $500,000.2 The Commissioner
assessed fault as follows: fifty-one percent (51%) to the residents, sixteen percent (16%) to
LeBonheur, and thirty-three percent (33%) to Dr. Whitney. The Claims Commission subsequently
entered a judgment against the State for $255,000.00, this figure representing fifty-one percent (51%)
of the total award. The State then perfected this appeal.

                                                          Issue

         The State frames the issue as follows:

                Whether the Claims Commissioner properly determined that any alleged
         negligence on the part of the residents employed by the State of Tennessee
         proximately resulted in Jessica Carroll suffering injuries which would not have
         otherwise occurred?

                                                 Standard of Review

        Our standard of review of the findings of fact by the Commissioner is established by Rule
13(d) of the Tennessee Rules of Appellate Procedure providing: “Unless otherwise required by
statute, review of the findings of fact by the trial court in civil actions shall be de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). “No presumption of
correctness attaches to the trial court's conclusions of law.” Tenn. Farmers Mut. Ins. Co. v. Moore,
958 S.W.2d 759, 763 (Tenn. Ct. App. 1997).

                                                       The Proof

       Causation questions are “fact-sensitive” and must be determined “in light of logic,
common sense, policy, and precedent.” Burgess v. Harley, 934 S.W.2d 58, 68 (Tenn. Ct. App.
1996). Further, it has been held that unless undisputed facts permit a reasonable person to reach
only one conclusion, the issue of causation must be resolved by the finder of fact. McClenahan
v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991). For the following reasons we conclude Appellees
have met their burden on the issue of causation.




         2
           The Commissioner’s award was within that authorized by the then applicable version of Tenn. Code Ann. §
9-8-307(e) which provided that “[f]or causes of action arising in tort, the state shall only be liable for damages up to the
sum of three hundred tho usand dollars ($3 00,0 00) per claimant and o ne million dollars ($1 ,000 ,000 ) per o ccurrence.”
Tenn. Code Ann. § 9-8-307(e) (1992). These statutory maximums are still in effect, having not changed since 1992.

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        Expert opinion testimony is generally required to prove causation in a medical
malpractice action. Doland v. Cunningham, 648 S.W.2d 652, 654 (Tenn. App. 1982). “Expert
testimony is required in medical malpractice cases to assist and to educate the trier of fact unless
the alleged malpractice lies within the common knowledge of lay persons.” Seavers v.
Methodist Med. Ctr., 9 S.W.3d 86, 92 (Tenn. 1999) (citing Baldwin v. Knight, 569 S.W.2d 450,
456 (Tenn. 1978)). In this case, both sides presented conflicting expert testimony before the
Commissioner. Our supreme court has held that when the testimony of medical expert witnesses
conflicts, the trier of fact “should be left free to adopt that view which is most consistent with
reason and justice.” Martin Bros. Container and Timber Corp. v. Lynch, 551 S.W.2d 687, 690
(Tenn. 1977) (quoting Graybeal v. Smith, 225 S.W.2d 556 (Tenn. 1949)). In the present case,
the record reflects that the learned Commissioner adopted that view.

        The Appellees presented Dr. Shapiro as an expert witness. The Commissioner
specifically found “that Dr. Shapiro’s opinion is that most closely-related to the factual situation
found by the Commissioner.” “Unlike this Court, the trial court observed the manner and
demeanor of the witnesses and was in the best position to evaluate their credibility.” Union
Planters Nat'l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000).
The trial court's determinations regarding credibility are accorded deference by this Court. Id.;
Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 563 (Tenn. 2001). “[A]ppellate courts will not
re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence
to the contrary.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). This Court
has held that trial courts are in a superior position to judge the credibility of witnesses. Royal
Ins. Co. v. Alliance Ins. Co., 690 S.W.2d 541, 543 (Tenn. Ct. App. 1985); Duncan v. Duncan,
686 S.W.2d 568, 571 (Tenn. Ct. App. 1984). Accordingly, great weight is given to the trial
court's findings of fact which are made after viewing the demeanor of the witnesses and resolving
the conflicts or discrepancies in their testimony. Rhea v. Meadowview Elderly Apts Ltd., 676
S.W.2d 94, 95-96 (Tenn. Ct. App. 1984).

        “[E]ach commissioner sitting individually has exclusive jurisdiction to determine all
monetary claims against the state based on the acts or omissions of ‘state employees[]’”
including claims asserting “medical malpractice by a state employee. . . .” Tenn. Code Ann. §
9-8-307(a)(1) and (a)(1)(D) (Supp. 2002). At the conclusion of the proof the Commissioner
rendered an oral opinion from the bench that was transcribed and incorporated by reference into
the final order. The Commissioner noted that Dr. Shapiro’s testimony was that, in his opinion,
Jessica would have survived had timely administration of IV fluids and antibiotics been given. In
addition to specifically crediting Dr. Shapiro’s testimony that Jessica would have survived if the
proper course of treatment had been followed, the chancellor also found that

       [a]lthough . . . errors were committed by Dr. Whitney and also be [sic] LeBonheur
       personnel, the Commission believes that the critical issue is the intervening failure
       of the defendant’s residents who were present on the floor with Jessica at her
       bedside to timely notify Dr. Whitney that her orders had not been filled for IV fluids
       and antibiotics. (Emphasis added.)


                                                -4-
        A negligent act or omission must have been a substantial factor in bringing about the
injury in order to be a proximate cause of that injury. Boling v. Tennessee State Bank, 890
S.W.2d 32, 36 (Tenn. 1994). More than one negligent act or omission may be the proximate
cause of an injury. Kelley v. Johnson, 796 S.W.2d 155, 159 (Tenn. Ct. App. 1990).
Accordingly, a negligent act or omission may be a proximate cause of an injury although it is not
the singular cause of the injury. Lancaster v. Montesi, 390 S.W.2d 217, 221 (1965).
Additionally, all parties whose negligence is a proximate cause of an injury may be liable for the
injury. McClenahan v. Cooley, 806 S.W.2d at 775.

        After hearing and considering the expert testimony the Commissioner found that, absent
the residents’ failure to timely notify Dr. Whitney that her orders had not been complied with,
Jessica would have survived. In other words, the Commissioner found the inaction of the
residents to be a proximate cause of Jessica’s death. After a thorough review of the record we
conclude that the evidence does not preponderate against this finding.

                                           Conclusion

       We are unable to find that the evidence preponderates against the Commissioner’s
findings and the judgment is accordingly affirmed. The costs of this appeal are taxed to the
Appellant, the State of Tennessee.


                                                     ___________________________________
                                                     DAVID R. FARMER, JUDGE




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