                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                 ______________________________________________

EARNESTINE COLE,

       Plaintiff-Appellant,
                                                                        FILED
                                                    Claims Commission No. 97487
Vs.                                                 C.A. No. 02A01-9801-BC-00004
                                                                        July 16, 1998
STATE OF TENNESSEE,
                                                                       Cecil Crowson, Jr.
      Defendant-Appellee.                                  Appe llate Court C lerk
____________________________________________________________________________

                  FROM THE TENNESSEE CLAIMS COMMISSION
             THE HONORABLE MARTHA BRASFIELD, COMMISSIONER




                       William B. Raiford, III; Merkel & Cocke, P.A.
                                of Clarksdale, Mississippi
                                      For Appellant

                          Beauchamp E. Brogan, General Counsel
                        JoAnn C. Cutting, Assistant General Counsel
                                       For Appellee




                                       AFFIRMED

                                      Opinion filed:




                                                           W. FRANK CRAWFORD,
                                                           PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE


       This is a medical malpractice case tried by the Tennessee Claims Commission.

Claimant/Appellant Earnestine Cole (Cole) appeals from the judgment of the Claims

Commission for Defendant/Appellee State of Tennessee. Cole filed this complaint alleging that
she had a tubal ligation and sterilization performed while a patient at the Regional Medical

Center in Memphis, Tennessee. She avers that she was under the care and treatment of Dr. Lynn

Ware, a medical resident employee of the State of Tennessee at the University of Tennessee

School of Medicine, who was under the supervision of Dr. Bertram Buxton, a professor at the

university.   Cole essentially alleges that the defendant, State of Tennessee, through its

employees, breached the recognized standard of acceptable professional practice in its medical

treatment, thus resulting in her becoming pregnant after the operation was performed.

       After an evidentiary hearing, Commissioner Martha Brasfield filed a thorough and

comprehensible order which we adopt as a part of this Opinion:

                      The claimant, Ms. Ernestine Cole, filed a claim for

               damages against the defendant, the State of Tennessee, alleging

               that professional malpractice was committed upon her by

               employees of the University of Tennessee.



                      The Tennessee Claims Commission has jurisdiction over

               this claim pursuant to Tenn. Code Ann. section 9-8-307 (a)(1)(D).



                      The parties stipulated that the physicians named in this

               lawsuit, Dr. Lynn Ware and Dr. Bertram Buxton, were employees

               of the State of Tennessee at the time the alleged malpractice

               occurred.



                      On March 9, 1988, the claimant, a 35-year-old single

               mother of three children, had a tubal ligation and sterilization

               performed at the Regional Medical Center in Memphis,

               Tennessee. Prior to the surgery, the claimant signed a Consent

               for Operation which stated a failure rate of 1:300-400 for the type

               of sterilization to be performed. The surgery was performed by

               Dr. Lynn Ware, a medical resident at the University of Tennessee,

               under the supervision of Dr. Bertram Buxton, a professor at the


                                               2
University of Tennessee. The type of ligation which Dr. Ware

performed is known as a silastic band tubal sterilization. In this

type of procedure, a segment of each fallopian tube is grasped

with a surgical instrument and doubled (or “knuckled”), and a

tiny silicone (silastic) ring is slipped over the “knuckle” to

achieve occlusion of the tube.



       Dr. Ware had performed approximately 50 tubal ligations

prior to the claimant’s surgical ligation. Her operative report,

dictated less than an hour after she performed the claimant’s tubal

ligation, stated that she placed a silastic ring on each fallopian

tube and then injected methylene blue dye through the uterus and

into the tubes to verify occlusion. No spillage of dye was

observed from either fallopian tube. Dr. Ware’s notes indicate

that Dr. Buxton was in attendance during the surgery. Dr. Buxton

testified that he was “quite diligent” in his role as an attending

surgeon, and that it was his practice to check his students’

surgical work before the surgical incision was closed. Although

he did not specifically recall attending the claimant’s surgery, he

testified that he believed that he was present during the surgery

and that he inspected Dr. Ware’s work prior to the closing of the

surgical wound. He signed the operative report (which was

dictated by Dr. Ware approximately twenty to thirty minutes after

the surgery) as well as the progress notes.



       In October of 1988, the claimant discovered that she was

pregnant with twins, who were delivered at Baptist Memorial

Hospital by Dr. Marva Souder in February of 1989. Immediately

after the delivery of the twins, a second tubal ligation procedure

was performed by Dr. Souder. Dr. Souder’s operative notes state:


                                 3
       FINDINGS:       Bilaterally     normal     appearing

       fallopian tubes. There was no ring found on the

       right tube. On the left tube, the Fallope ring was

       on the mesosalpinx, but the tube did not appear to

       be occluded.



       TECHNIQUE: . . . The right fallopian tube was

       grasped . . . and brought to the surface in its entire

       length with the findings as noted above. The tube

       was grasped in an avascular area to form a

       knuckle of tube. A free-tie of . . . plain catgut was

       placed at the base of the knuckle. A second free-

       tie was placed adjacent to the first tie.        The

       knuckle of tube was then excised and the resulting

       pedicle was inspected for hemostasis. It was then

       released to the abdomen. The same procedure

       was performed on the left tube with findings as

       noted above . . . .



       The excised portions of the tubes were sent to a pathology

laboratory for routine analysis.      According to Dr. Thomas

Chesney, the pathologist who examined the specimens, the

purpose of the analysis was to determine whether the fallopian

tubes had been entirely transected by the second tubal ligation

procedure. Following his examination of the specimen, Dr.

Chesney issued the following report:



       A. PORTION OF LEFT FALLOPIAN TUBE:

       Received is a 2.4 cm long x 0.4 x 0.5 cm, white-

       tan, tubular structure enveloped in a thin, pink-tan,


                                 4
       fibrous membrane. The tissue is consistent with

       a portion of fallopian tube. The fimbriated end is

       identified.     A fallope ring is present at the

       proximal end of the specimen . . . .



       B. PORTION OF RIGHT FALLOPIAN TUBE:

       Received in fixative is a 2.2 cm in length x 0.8 x

       0.6 cm diameter, white-tan, tubular portion of

       tissue enveloped in a thin, purple-tan, fibrous

       membrane. The tissue is consistent with a portion

       of fallopian tube and the fimbriated [sic] end is

       identified . . . .



The report concluded that the specimens were two “completely

transected negative segment[s] of oviduct.[”]



       In approximately May of 1990, at the claimant’s request,

Dr. Chesney re-examined the fallopian tube specimens (which

had been preserved in paraffin after the initial laboratory

analysis). The purpose of this examination was to determine

whether the segment removed by Dr. Souder showed evidence of

tubal occlusion. Dr. Chesney re-sectioned and re-examined the

fallopian tube specimens and issued the following report:



       NOTE: The remaining available tissue from the

       fallopian tube segments . . . was submitted for

       sectioning on May 15, 1990 . . . The cross sections

       do not reveal tubal obstruction, nor would they be

       expected to since the pathological analysis of

       these tubes was directed to ascertainment of the

                                5
       completeness of the tubal interruption procedure

       of February 25, 1989. The portions of left tube .

       . . present on the slides may not represent the part

       immediately adjacent to the grossly identified

       fallope ring, nor was it intended that the portions

       of the right tube . . . represent the previously

       ligated area. The latter may indeed still remain in

       the patient. These recut slides . . . first as the

       original slides . . . reflect portions of the tubes

       apparently uninvolved by the original tubal

       ligation procedure of 1988, thus no opinion can be

       rendered as to the completeness of that procedure

       on the basis of this microscopic material.



       The claimant maintains that the tubal ligation performed

by Dr. Ware in March of 1988 was negligently done. The

claimant further avers that Dr. Buxton failed to properly supervise

the procedure performed by Dr. Ware. As a result of this alleged

malpractice, the claimant maintains that she has suffered physical,

mental and monetary damages. She sues the defendant for the

recovery of the costs associated with the pregnancy and birth of

the twins, for the costs of the second tubal ligation, for pain and

suffering, and for mental anguish.



       The defendant denies malpractice in the tubal ligation

procedure, and maintains that the claimant has failed to prove that

Dr. Ware violated the recognized standard of acceptable

professional practice in the medical profession. The defendant

holds that tubal ligations sometimes fail because the fallopian

tubes “recanalize,” or because occluding devices (in this case,


                                6
silastic rings) can “migrate,” break, or slip post-operatively, either

of which circumstances could arise absent a physician’s

malpractice. The defendant points out that the claimant signed a

consent for operation form which specifically stated that tubal

ligation procedures fail at a rate of 1:300-400.



        The claimant’s burden of proof in this claim is set out in

Tenn. Code Ann. Section 29-26-115(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 he 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 standards; (3) As a

proximate result of the defendant’s negligent act or omission, the

plaintiff suffered injuries which would not otherwise have

occurred.” Negligence may not be presumed from the fact that

the treatment was unsuccessful. (See, Johnson v. Lawrence, 720

S.W.2d 430 (Tenn. Ct. App. 1986) and Watkins v. United States,

482 F. Supp. 1006 (M.D. Tenn. 1980).



        The parties essentially agreed that the tubal ligation

procedures described by Dr. Ware in her operative report met the

recognized standard of acceptable professional practice for tubal

ligations if those procedures were performed as Dr. Ware

described. The claimant alleges that the standard procedures were

not performed by Dr. Ware as described in her operative notes,

that Dr. Ware failed to act with ordinary and reasonable care in

                                  7
performing those procedures, and that Dr. Buxton failed to act

with ordinary and reasonable care in supervising and inspecting

Dr. Ware’s work. In support of her allegations, the claimant

points out the following:



(1) During the second sterilization procedure, Dr. Souder found

no silastic ring on the right fallopian tube;



(2) Dr. Souder observed no scarring on either fallopian tube;



(3) Dr. Souder observed that the left silastic ring was on the

mesosalpinx instead of on the fallopian tube;



(4) In her initial deposition, Dr. Ware described an incorrect

location for placement of the silastic rings;



(5) There was no evidence or opinion that the left silastic ring had

“migrated” from another location;



(6) There was no evidence that the silastic rings used by Dr. Ware

were defective or broken;



(7) Although the methylene dye test revealed no spillage of dye

from the fallopian tubes, the test is not a reliable test of tubal

occlusion.



        With regard to the surgical procedure, itself, and the

malpractice allegedly committed by Dr. Ware, the claimant’s

expert witness, Dr. Albert Alexander, a retired obstetrician and

gynecologist, testified that Dr. Ware inappropriately placed the


                                 8
left silastic ring on the mesosalpinx near the fimbriated end of the

left fallopian tube, and had placed no ring at all on the right

fallopian tube. He based his findings on Dr. Souder’s operative

notes. He opined the claimant’s fallopian tubes should have

evidenced scarring had the silastic rings been appropriately placed

and remained in place for as little as 12-24 hours. Dr. Alexander

further testified that a recanalization of the fallopian tubes should

have left visible signs which Dr. Souder should have been able to

have seen during the second sterilization procedure.             Dr.

Alexander also discounted the defendant’s theory that the silastic

rings may have broken, migrated or slipped. He stated that a

broken or defective ring should have evidenced its defect during

the surgery. With regard to the methylene dye test, Dr. Alexander

testified that although the spillage of dye from the fallopian tubes

is a certain indicator that an attempted occlusion was not

successful, the test is “very unreliable” for proving successful

tubal occlusion; therefore, the dye test performed by Dr. Ware did

not prove conclusively that the silastic rings had been properly

placed.



          The defendant’s expert witness, Dr. Dwight Pridham, a

professor at the University of Louisville medical school

specializing in obstetrics and gynecology and in reproductive

endocrinology, opined that Dr. Souder’s findings with regard to

the silastic rings did not prove that the rings had been improperly

placed during the first tubal ligation procedure. Dr. Pridham

testified that necrosis (death of tissue) often occurs in the

“knuckles” of the tube formed by the ligation process, and that

these knuckles may “drop off’ following successful occlusion of

fallopian tubes, leaving the silastic rings “attached to what was

                                 9
left after the necrosis had occurred, which is often the

mesosalpinx below the fallopian tube.” He testified that the rings

may also become “epithelized” (covered with tissue) and thus

may not be visible to the naked eye. Dr. Chesney, the pathologist

who examined the fallopian tube segments excised by Dr. Souder,

also testified that the tiny silastic rings sometimes become

encapsulated with tissue and may be invisible to the naked eye.

With regard to the lack of scarring, Dr. Pridham testified that

“[m]ost of the time you can identify a scarred area, an area that is

absent of apparent tubal lumen, but that is not always the case . .

. there have been a number of occasions when I have been

looking at a uterus, often at the time of hysterectomy and

occasionally at the time of re-anastomosis (reversal of a tubal

ligation)where it’s been difficult to tell where the tube has been

obstructed.”



        All of the physicians testified that tubal ligations can fail

due to the “recanalization” of the fallopian tubes. According to

Dr. Pridham, this recanalization is not always evident to the

naked eye.



        Further, all physicians testified and all proof indicated that

the methylene blue dye test is not a perfect indicator of tubal

occlusion. Spillage of blue dye from the fimbriated end of the

tube indicates that the tube is not occluded; the fact that blue dye

does not spill from the fimbriated end is not proof that the tube is

occluded. (The proof showed that the dye may not spill from the

fimbriated ends of a patent (non-occluded) tube for several

reasons: (1) The dye is not properly injected into the uterus,

which would constitute negligence on the part of a medical

                                 10
professional; (2) The fallopian tube can spasm, shutting off the

flow of the dye; (3) Another occlusion or obstruction in the tube

can prevent the flow of the dye. Items 2 and 3 would not

constitute negligence on the part of a medical professional.)

Nevertheless, the blue dye test was the only available test which

could be performed after tubal ligations which gave an indication

of occlusion, and administering this test was the standard of care

in this operation.



        It must be found that Dr. Pridham’s credentials more

thoroughly qualify him to opine in the field of tubal ligations and,

specifically, in the area of re-anastomosis of fallopian tubes. As

was previously stated, Dr. Pridham’s area of specialization is in

reproductive endocrinology, and as a part of his work he has

personally viewed the fallopian tubes of approximately 200

women who had undergone tubal ligations. (Dr. Pridham’s field

of specialization involves reversals of tubal ligations.)       His

credentials evidence a special knowledge in the field of

sterilization by tubal ligation.



        Dr. Alexander’s testimony cannot be given as much

credence as Dr. Pridham’s for several factual reasons: (1) Dr.

Alexander had never performed a tubal ligation using silastic

rings; (2) He had personally seen the internal anatomy of only one

patient who had previously undergone an unsuccessful tubal

ligation procedure; and (3) Dr. Alexander’s testimony evidenced

some confusion with regard to the usage of the words “proximal”

and “distal” in relation to the two ends of a fallopian tube. This

confusion resulted in a misinterpretation of the pathology

laboratory’s findings concerning the location of the silastic ring


                                   11
found by Dr. Souder.



        Dr. Pridham’s testimony effectively and credibly refutes

the claimant’s assertion that Dr. Souder s [sic] findings prove that

malpractice was committed by Dr. Ware. Dr. Pridham gave

convincing testimony that silastic bands can become displaced

even when properly placed. He also gave convincing testimony

concerning a fallopian tube’s ability to show no immediately-

visible signs of scarring and/or occlusion following successful

ligation. Therefore, it would appear that even though Dr. Souder

may not have found silastic rings where Dr. Ware should have

placed them, this is not absolute proof that Dr. Ware incorrectly

placed the rings.



        Further, it must be noted that the accuracy of Dr. Souder’s

operative notes appears questionable when compared with Dr.

Chesney’s (the pathologist’s) findings.        First, Dr. Chesney

described receiving the fimbriated ends of the left and right

fallopian tubes. Dr. Souder’s operative notes indicate that she

excised two “knuckle[s] of tube.” Dr. Chesney testified, “[i]t

sounds like she’s taking out a segment of the mid portion of the

fallopian tube, but not taking out the distal [fimbriated] end of the

tube . . . I would say that this sounds like she’s done a different

operation than the operation you would do to get the specimen

that we got.” Secondly, Dr. Souder described having observed

the left silastic ring on the mesosalpinx, while Dr. Chesney’s

observation was that the “fallope ring [was] present at the

proximal end of the specimen.” According to Dr. Chesney, the

“proximal end” was the cut end of the specimen -- the end closer

to the uterus. Except for certain testimony of Dr. Alexander in


                                 12
interpreting Dr. Chesney’s pathology report, all the physicians

who discussed the terms “proximal” and “distal” as it pertained

to a fallopian tube testified that, in medical terminology, the

proximal end of the fallopian tube was that part nearer to the

uterus, and the distal end was that part nearer to the fimbriated

end. During specific questioning regarding the location of the

silastic ring on the specimen received by the pathology lab, Dr.

Chesney testified that he believed that the ring “was on the tube

rather than on the mesosalpinx.”        Dr. Chesney studied the

specimen in the laboratory and, therefore, his pathological

analysis of the tissue samples would have been more thorough

than Dr. Souder’s clinical observations. Thus, it would appear

that at least two of Dr. Souder’s observations -- (1) the portions

of tube she excised and (2) the location of the left silastic band --

were incorrect.



        In must further be noted that Dr. Souder’s claim that the

fallopian tubes were “brought to the surface in [their] entirety”

was found by Dr. Pridham to be unusual or unlikely. Dr. Pridham

explained that, while the fimbriated ends of fallopian tubes (the

“distal” ends) are “somewhat loose,” they are held in place near

the ovaries by ligaments. Dr. Souder did not use a laparoscope

during the tubal ligation procedure. Access to the fallopian tubes

was gained through a small incision (typically ½” to 1", according

to Dr. Pridham) made below the umbilicus. Dr. Pridham testified

that “[w]ith postpartum sterilizations the exposure and

visualization that you have is adequate to do a sterilization, but

you do not have a very good overall visualization of the entire

pelvis . . . You can see a portion of things at a time well enough

to identify the tube and to pull it up and to remove a portion, but


                                 13
not an overall visualization as you would have in a more routine

laparotomy, a larger incision . . . [Y]ou would not usually be able

to easily bring the entire tube through the incision at one time.

You can pick up a portion and work your way down the tube to

see the fimbriated end . . . That’s because the tube is obviously

attached to something in the pelvis . . . I really can’t say it’s

impossible to do it, just that it would be atypical in this type of

procedure to bring the entire tube in the incision.” Dr. Pridham’s

testimony evoked additional doubt concerning the accuracy of the

findings as reported by Dr. Souder’s operative notes.



       Dr. Souder’s observations were the claimant’s only

evidence that Dr. Ware incorrectly placed (or failed to place) the

silastic rings during the first tubal ligation procedure, but the

discrepancies and oddities in her report rob it of much of its

credibility. Neither Dr. Pridham nor Dr. Chesney could reconcile

Dr. Souder’s report with the specimens received by the pathology

laboratory. Dr. Souder did not testify in this claim, and thus these

discrepancies remain unreconciled.



       Rule of Civil Procedure 56.05 provides in part that

“[e]xpert opinion affidavits shall be governed by Tennessee Rule

of Evidence 703" which states as follows:



        The facts or data in the particular case upon which

        an expert bases an opinion or inference may be

        those perceived by or made known to the expert at

        or before the hearing. If of a type reasonably

        relied upon by experts in the particular field in

        forming opinions or inferences upon the subject,


                                14
       the facts or data need not be admissible in

       evidence. The court shall disallow testimony in

       the form of an opinion or inference if the

       underlying facts or data indicate lack of

       trustworthiness. [Emphasis added]



       In this claim, the “underlying facts or data” on which the

claimant’s expert based his opinion -- the operative report of Dr.

Souder -- lacks trustworthiness. The procedure described in her

operative notes (i.e., lifting the entire fallopian tube through the

incision) was, according to the defendant’s expert witness,

unlikely or unusual. More importantly, Dr. Souder’s description

of the portions of tube which she excised during the second tubal

ligation procedure does not describe the portions of tube received

by the pathological laboratory.



        In Freda G. Moon v. St. Thomas Hospital, Court of

Appeals, Middle Section, April 25, 1997, the court stated, “[i]f

opinion testimony must be disallowed when the underlying facts

indicate a lack of trustworthiness, it certainly must be disallowed

when the underlying facts are inaccurate.” As the claimant’s

expert witness, Dr. Alexander, based his opinions on Dr. Souder’s

operative report, and as this operative report appears to be an

inaccurate and unreliable source of information, Dr. Alexander’

testimony and expert opinions, which are based upon Dr.

Souder’s operative report, should be disallowed pursuant to

Tennessee Rule of Evidence 703.



        Nothing in Dr. Chesney’s second laboratory analysis

confirms the claimant’s theory that the tubal rings were mis-

                                15
placed by Dr. Ware. By the time of the second analysis, the

fallope ring had become separated from the remainder of the

specimen, and Dr. Chesney could not locate it. Dr. Chesney re-

sectioned the remaining fallopian tube specimens and did not find

evidence of tubal occlusion; however, as Dr. Chesney stated, the

portions of tube removed during the second sterilization were

apparently uninvolved in the first sterilization procedure. If Dr.

Ware placed the silastic rings in an appropriate area (which,

according to the expert witnesses, is the middle third of the tube,

slightly toward the uterus), one would not expect the fimbriated

ends of the tubes to evidence occlusion: the occluded area of the

tube would remain inside the claimant’s body. Thus, the absence

of occlusion in the specimens sent to the pathology laboratory

does not prove that the claimant’s fallopian tubes were never

occluded by the first tubal ligation.



        The claimant points out that Dr. Ware, in her first

deposition, incorrectly described the proper location for the

placement of silastic bands. In that deposition, Dr. Ware stated

that the rings should be placed roughly in about the middle of the

tube, out towards the fimbriated ends rather than up close to [the]

uterus. This is an incorrect location, according to the physician

witnesses. In her second deposition, Dr. Ware, herself, stated that

the rings should be placed just a little past [the] first third of the

tube, or closer to the uterus than to the fimbriated ends. The fact

that Dr. Ware initially described an incorrect location, coupled

with the fact that Dr. Chesney found the left fallope ring at the cut

end of a sample which was 2.4 cm. long (and testified that he

believed the ring to have been initially placed in that location),

tends to lend weight to the claimant’s position that Dr. Ware


                                 16
simply did not know the correct location for placement of the

bands and put them in the wrong place. However, there has been

no testimony concerning the over-all length of the claimant’s

fallopian tubes.    The physicians testified that the length of

women’s fallopian tubes varies from six to eight centimeters. If

the claimant’s fallopian tubes were at the shorter end of this

estimate, by the time a knuckle of tube was formed and the

knuckle necrosed, the ring might well have been properly placed

on the middle third of the tube and still have been found 2.4 cm.

from the fimbriated end.



        In further support of her allegation that Dr. Ware did not

properly place the rings on the fallopian tubes, the claimant

submitted for introduction four studies performed by senior

medical students at UT. Two studies were introduced as exhibits:

(1) “Method Failures of Laparoscopic Tubal Sterilization in a

Residency     Training     Program”       [Exhibit   1a]   and   (2)

“Chromopertubation at Laparoscopic Tubal Occlusion” [Exhibit

16]. The remaining two studies, (3) “A Model for Resident

Surgical Training in Laparoscopic Sterilization” and (4) “Gross

and Histologic Examination of Tubal Ligation Failures in a

Residency Training Program,” were introduced as exhibits Y and

Z for identification purposes only, with a ruling to be made on

their admissibility in the final order.



        The first of these studies [Exhibit 1A] was conducted by

G. Michael Henry and was presented to the UT faculty and

residents by Dr. Henry as his “senior paper” in approximately

May of 1988. This paper indicated a greater-than-average failure

rate for tubal ligations performed by UT residents.


                                17
        The second study evaluated the effectiveness of the

methylene blue dye test (chromopertubation)following tubal

ligations to determine if the tubes were occluded.



        The third study sought to identify possible anatomical

reasons for the high failure rate of tubal ligations. This study,

published in September of 1990, concluded that it was the

residents’ lack of expertise and the attending surgeons’ failure to

properly supervise the procedures that were responsible for the

high failure rate.



        The fourth study, published in March of 1994, suggested

training techniques and for residents [sic] which were expected to

lower the failure rate for future procedures.



        The defendant objected to the entering these studies into

evidence [sic].



        The claimant suggests that these studies indicate that,

more likely than not, Dr. Ware was negligent in performing the

claimant’s tubal ligation. The claimant acknowledges that she did

not participate in any of these studies. There is no proof that Dr.

Ware performed any of the ligations which were included in the

studies or that she was interviewed in these studies. These studies

are not relevant to the issue as to whether or not Dr. Ware was

negligent in performing the claimant’s tubal ligation. Studies 3

and 4 will not be admitted into evidence and will not be

considered in this opinion.



        With regard to Dr. Buxton’s supervision of the procedure


                                18
                 performed upon the claimant by Dr. Ware, the operative notes

                 reflect that Dr. Buxton was present in the operative suite. Dr.

                 Buxton testified to an honest diligence to his role as attending

                 physician. Dr. Buxton did not have any specific recollection

                 about the claimant’s surgery, but testified very firmly that he

                 routinely and normally checked behind the residents, and that he

                 would have left the operating room when he “had indeed seen that

                 the rings were placed on what [he] agreed were the tubes, number

                  one, and number two, waited to see whether any retrograde

                  administration of methylene blue came through the cannula

                  placed in the uterus and out the tubes and then [he] would have

                  left . . . .” The claimant presented no evidence that Dr. Buxton

                  was not in the operating suite or did not inspect Dr. Ware’s work

                  before the closing of the surgical wound. Thus, it must be found

                  that the claimant has failed to prove her claim that Dr. Buxton

                  was negligent in his supervision of the surgery performed upon

                  her by Dr. Ware.



                           It is found that the claimant has failed to carry her burden

                  of proving negligence on the part of Dr. Ware and/or Dr. Buxton.

                  Thus, this claim must be dismissed.



                           IT IS, THEREFORE, ORDERED, ADJUDGED AND

                  DECREED that this claim should be, and is hereby, dismissed.



         This is a direct appeal from the Tennessee Claims Commission and is governed by the Tennessee Rules of

Appellate Procedure and T.C.A. § 9-8-403(a)(1) (Supp. 1997). Since this is a nonjury case, it is reviewed de novo

upon the record with a presumption of correctness of the Commissioner’s findings of fact. T.R.A.P. 13(d), Sanders

v. State, 783 S.W.2d 948, 951 (Tenn. App. 1989).

         The sole issue on appeal is whether the evidence preponderates against the Claims Commissioner’s finding


                                                      19
that the claimant failed to show that the State employees did not conform to the standard of care.

         The plaintiff’s burden of proof as set out in T.C.A. § 29-26-115(a) (1980) is included in the Commissioner’s

order. Cole first contends that the Commissioner misapplied the plaintiff’s burden of proof by requiring her to prove

the physicians’ negligence by more than a preponderance of evidence. Cole cites the following portion of the

Commissioner’s order in support of this contention:

                           Dr. Pridham’s testimony effectively and credibly refutes
                   the claimant’s assertion that Dr. Souder s [sic] findings prove that
                   malpractice was committed by Dr. Ware. Dr. Pridham gave
                   convincing testimony that silastic bands can become displaced
                   even when properly placed. He also gave convincing testimony
                   concerning a fallopian tube’s ability to show no immediately-
                   visible signs of scarring and/or occlusion following successful
                   ligation. Therefore, it would appear that even though Dr. Souder
                   may not have found silastic rings where Dr. Ware should have
                   placed them, this is not absolute proof that Dr. Ware incorrectly
                   placed the rings.

(Emphasis added). This argument is without merit. When this finding is placed in context with the entirety of the

Commissioner’s order, it is clear that the Commissioner issued her ruling based on a preponderance of the evidence

standard.          Cole next asserts that even if the trial court employed the proper burden of proof, the preponderance

of the evidence does not support its ruling. The thrust of Cole’s suit is based on the testimony of her expert, Dr.

Alexander, who, in turn, based his opinion primarily on Dr. Souder’s operative report of the second sterilization

procedure. The preponderance of the evidence does not weigh against the Commissioner’s decision to discount Dr.

Alexander’s testimony, since it justifiably found that Dr. Souder’s report was inaccurate and unreliable.

         As elucidated in the Commissioner’s Order, several unresolved discrepancies exist between Dr. Souder’s report

and Dr. Chesney’s pathology report. Namely, there were discrepancies concerning the segment of the tube that was

excised by Dr. Souder and delivered to Dr. Chesney1 and discrepancies concerning the location of the silastic band in

relation to the left fallopian tube. Based on the testimony of both Dr. Chesney and Dr. Pridham, Dr. Souder’s report is

inconsistent with the procedure performed. Furthermore, Dr. Pridham noted that Dr. Souder’s report may be unreliable

due to the size of the incision, the presence of inadequatelighting, and the unlikelihood of pulling the fallopian tubes




         1
             At trial, Dr. Pridham testified as follows:
                   Q. Can you in any way reconcile this pathology report with
                   Dr. Souder’s operative report and what she described in that
                   report?
                   A. No, that really does not make a lot of sense to me. If
                   you’re doing a Pomeroy and you’re taking a knuckle of tube
                   you’re not taking the fimbria. If you did a fimbriectomy,
                   which is a different procedure, then you would have the
                   fimbria. Those don’t make sense.

                                                          20
in their entirety to the surface of the skin as described by Dr. Souder’s report. Although Cole’s expert, Dr. Alexander,

attempted to reconcilethe reports, the preponderance of the evidence supports the Commissioner’s finding that Dr.

Pridham is a more qualified expert for the reasons set forth in the Commissioner’s Order. See State v. Ballard, 855

S.W.2d 557, 562 (“In Tennessee the qualifications,admissibility, relevancy and competency of expert testimony are

matters which largely rest within the discretion of the trial court.”) In light of the unreliabilityof Dr. Souder’s report,

the Commissioner was justified in discounting Dr. Alexander’s testimony. See Tenn. R. Evid. 703 (“The court shall

disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of

trustworthiness.”).

         In her brief, Cole raises several arguments,each of which were discussed in detail in the Commissioner’s

Order.2 After an extensive review of the record, we find that the Commissioner’s findings with regard to these

arguments are supported by the preponderance of the evidence and the law. Although Cole did an exemplary job in

demonstrating the possibility that the sterilization procedure was negligentlyperformed, we are unable to hold that

the preponderance of the evidence indicates that the Commissioner’s findings are erroneous.

         The judgment of the Commissioner is affirmed. Costs on appeal are assessed against the Appellan

                                                                    _________________________________
                                                                    W. FRANK CRAWFORD,
                                                                    PRESIDING JUDGE, W.S.
CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




         2
          Specifically, Cole mentions Dr. Ware’s testimony regarding the appropriate
location for the placement of the fallope ring, the use of methylene blue dye as a test, the
absence of scarring in Dr. Souder’s report, the alleged lack of evidence of alternative
explanations for the failure of the sterilization, the University studies that Cole attempted to
introduce into evidence, and the alleged lack of evidence demonstrating that Dr. Buxton
supervised the results.

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