             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                             FILED
                                                                  April 16, 1999

TINA KENNEDY,                           )                  Cecil Crowson, Jr.
                                        )                 Appellate Court Clerk
      Plaintiff/Appellee,               )
                                        )      Appeal No.
                                        )      01-A-01-9805-CV-00242
VS.                                     )
                                        )      Franklin Circuit
                                        )      No. 9783-CIV
DR. T. SCOTT HOLDER and                 )
STONES RIVER HOSPITAL, INC.,            )
d/b/a SOUTHERN TENNESSEE                )
MEDICAL CENTER,                         )
                                        )
      Defendants/Appellants.            )


       APPEALED FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                   AT WINCHESTER, TENNESSEE

                 THE HONORABLE BUDDY D. PERRY, JUDGE



THOMAS C. FARIS
101 S. College Street
Winchester, Tennessee 37398
      Attorney for Plaintiff/Appellee

WILLIAM C. RIEDER
214 North Atlantic Street
Tullahoma, Tennessee 37388
      Attorney for Defendant/Appellant Dr. T. Scott Holder

C. J. GIDEON, JR.
EDWARD A. HADLEY
Suite 1900, NationsBank Plaza
414 Union Street
Nashville, Tennessee 37219-1782
       Attorneys for Defendant/Appellant Stones River Hospital, Inc.
       d/b/a Southern Tennessee Medical Center



                            REVERSED AND REMANDED



                                               BEN H. CANTRELL,
                                               PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
COTTRELL, J.




                                OPINION
              In this medical malpractice case, the trial court overruled the defendants’

motions for summary judgment. The court was of the opinion that the lay testimony

of the plaintiff created a disputed question of fact on the defendants’ negligence. We

reverse and dismiss the plaintiff’s claims.



                                              I.



              Tina Kennedy, in active labor, was admitted to Southern Middle

Tennessee Medical Center under the care of Dr. T. Scott Holder. A normal birth

occurred after approximately nine hours of labor. Ms. Kennedy had an episiotomy to

avoid tearing during the delivery, but the floor of her vagina tore further. In repairing

the third degree laceration, Dr. Holder placed gauze-like sponges in Mrs. Kennedy’s

vagina to stop the bleeding around the laceration site. Three days after entering the

hospital Mrs. Kennedy went home with her new baby.



              Six days later, Mrs. Kennedy discovered the gauze sponges still in her

vagina. Alarmed, she went back to the hospital emergency room, where the physician

on duty extracted the foreign material without anesthetic. Mrs. Kennedy suffered pain

and discomfort during the seven day period and the removal procedure caused severe

pain.



              Mrs. Kennedy sued Dr. Holder and the hospital, claiming that Dr. Holder

was negligent, and that the hospital staff and nurses were also negligent because they

did not follow a procedure that would have ensured that the foreign objects were

removed from her body. Mrs. Kennedy also alleged that Dr. Holder’s conduct was

reckless and in wilful disregard of her safety. She asked for compensatory and

punitive damages.



              Dr. Holder and the hospital answered the complaint and moved for

summary judgment. They filed Dr. Holder’s affidavit and the affidavits of three other

Board certified physicians, all saying that Dr. Holder’s conduct did not deviate from the

standard of care for physicians practicing in the area of Winchester and Franklin

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County, Tennessee. The affidavits state that gauze-like material can be left in a

patient’s vagina during a vaginal delivery in the absence of negligence on the part of

the physician. They also state that, unlike a surgical procedure involving an incision

in a patient’s body where sponges are placed in the incision, in a vaginal delivery

neither the doctor nor the nurses are required to account for all the sponges used in

the procedure. The key difference in the two procedures is that the sponge-like

objects may be easily removed from the vagina without further surgery.



                Mrs. Kennedy relied on her affidavit to resist the motion for summary

judgment. Her affidavit restates the facts alleged in her complaint and takes issue

with the doctors’ statements that the gauze-like material was essentially a tampon.

She states that there were three separate masses of the material, each one

individually larger than a tampon, and that they were tightly packed in place. The

plaintiff also filed Dr. Holder’s deposition in which he stated that leaving sponges in

a patient’s vagina was not normal procedure and that he did not intend for it to happen

in this case.



                The trial judge overruled the motions for summary judgment but granted

the defendants permission to appeal under Rule 9, Tenn. R. App. Proc.



                                            II.

                A.     HAS   THE    PLAINTIFF     SATISFIED   THE   COMMON
                KNOWLEDGE EXCEPTION TO THE STATUTORY REQUIREMENT
                THAT   MEDICAL     MALPRACTICE    BE   PROVED   BY EXPERT
                TESTIMONY?




                By statute a plaintiff suing a medical provider for malpractice must show

by expert proof:

                (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;


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              (2)    That the defendant acted with less than or failed to
              act with ordinary and reasonable care in accordance with
              such standard; and

              (3)     As a proximate result of the defendant’s negligent
              act or omission, the plaintiff suffered injuries which would
              not otherwise have occurred.

Tenn. Code Ann. § 29-26-115.



              This statute requires expert proof of all the elements of the tort. Baldwin

v. Knight, 569 S.W.2d 450 (Tenn. 1978).           Summary judgment in favor of the

defendants in a medical malpractice action may be appropriate where the defendants

produce expert proof that completely refutes the plaintiff’s allegations of negligence

and the plaintiff does not produce rebuttal proof by expert testimony. Dolan v.

Cunningham, 648 S.W.2d 652 (Tenn. App. 1982). An exception to this high standard

has been recognized where the alleged acts of negligence are so obvious that they

come within the common knowledge of laymen. Ayers v. Rutherford Hosp., Inc., 689

S.W.2d 155 (Tenn. App. 1984). For instance, sewing up a surgical sponge in a

patient’s body clearly qualifies as negligence even without an expert to tell us so.

Rural Educational Association v. Bush, 298 S.W.2d 761 (Tenn. App. 1956). On the

other hand, leaving a medicated sponge pack similar in nature and purpose to a

tampon in a patient’s vagina after a hysterectomy is not so obvious that a lay person

could identify the conduct as negligence. St. Martin v. Doty, 493 S.W.2d 95 (Tenn.

App. 1972). The difference lies in the fact that the medicated sponge pack is “in the

nature of a bandage and . . . is removable without surgery.” Id. at 98.



              The plaintiff’s attempt to distinguish St. Martin from this case is on the

ground that in St. Martin the sponge pack was intentionally left in the plaintiff’s vagina.

But that distinction is refuted by the opinion in St. Martin itself. The opinion points out

that the doctor “intended to remove the pack, but was unable to locate it and thought

that it had fallen out.” We see no distinction between the two cases.



              The plaintiff also contends that developments in medical knowledge

subsequent to 1972, when the St. Martin case was decided, especially the emergence

of toxic shock syndrome as a possible result of tampon retention, renders that case

                                           -4-
outdated and its holdings questionable. However, we do not have the authority (or the

competence) to take judicial notice that the medical standard of care has changed or

that it needs to be changed. Under Tenn. Code Ann. § 29-26-115(c) expert testimony

is required to establish the applicable standard of care.



              So, we conclude that this is not a case where the plaintiff can establish

the elements of a medical malpractice case through lay testimony.



                     B. IS THIS A CASE OF RES IPSA LOQUITUR?



              The plaintiff also contends that the case may proceed without expert

proof because of the doctrine of res ipsa loquitur. Under this rule, “the facts of the

occurrence evidence negligence and . . . the circumstances, unexplained, justify an

inference of negligence.” Shivers v. Ramsey, 937 S.W.2d 945, 949 (Tenn. App.

1996). A revised version of this rule is incorporated into the Medical Malpractice Act

at Tenn. Code Ann. § 29-26-115(c):

                     In a malpractice action as described in subsection
              (a) of this section there shall be no presumption of
              negligence on the part of the defendant. Provided,
              however, there shall be a rebuttable presumption that the
              defendant was negligent where it is shown by the proof
              that the instrumentality causing injury was in the
              defendant’s (or defendants’) exclusive control and that the
              accident or injury was one which ordinarily doesn’t occur
              in the absence of negligence.



              The application of res ipsa to a medical malpractice case has been

addressed in Murphy v. Schwartz, 739 S.W.2d 777 (Tenn. App. 1986). The court

compared res ipsa and the “common knowledge exception” and concluded (1) that

they were essentially the same and (2) that expert opinion evidence could not be

refuted by lay opinions.



              We think the analysis in Murphy v. Schwartz leads to the obvious

conclusion that in medical malpractice cases you cannot infer negligence in a case

where there is expert testimony that no negligence occurred.



                                         -5-
                     C. IS THERE A DISPUTED QUESTION OF FACT
                         ON TH E HOS PITAL ’S NEGLIGENCE?



             Finally, Mrs. Kennedy alleges that her affidavit makes a disputed

question of fact on the hospital’s negligence. She states that after the gauze was

removed in the emergency room an unidentified nurse said that the nurses had a duty

to do a sponge count both before and after the surgery. This proof, however, fails to

meet the test of admissibility required by Tenn. Code Ann. § 29-26-115(b) and Rule

56.06, Tenn. R. Civ. Proc. We have no way of knowing whether the declarant was

qualified to give that opinion and Rule 56.06 requires that affidavits be made on

personal knowledge. Therefore, the unknown declarant’s statement does not make

a disputed question of fact.



             The judgment entered below is reversed and judgment will be entered

here granting summary judgment of dismissal to both defendants. The cause is

remanded to the Circuit Court of Franklin County for any further action that may be

necessary. Tax the costs on appeal to the appellee.




                                         _________________________________
                                         BEN H. CANTRELL,
                                         PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
PATRICIA J. COTTRELL, JUDGE




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