                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CA-01087-SCT

THE UNIVERSITY OF MISSISSIPPI MEDICAL
CENTER a/k/a UNIVERSITY HOSPITAL a/k/a UMC

v.

JOEY GORE


DATE OF JUDGMENT:                          03/13/2008
TRIAL JUDGE:                               HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   LANNY R. PACE
                                           JAMES SETH McCOY
ATTORNEYS FOR APPELLEE:                    ROBERT FARLEY WILKINS
                                           JOHN P. FOX
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               REVERSED AND RENDERED – 08/05/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE GRAVES, P.J., LAMAR AND KITCHENS, JJ.

       GRAVES, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Joey Gore, who was the recipient of an unsuccessful kidney transplant at the

University of Mississippi Medical Center (UMC), sued UMC, as well as several other

entities, for medical negligence. The matter proceeded to trial against UMC and one other

entity, LifeSource Upper Midwest Organ Procurement Organization, Inc. (LifeSource). The

jury considered the liability of UMC and LifeSource and returned a defense verdict in favor

of both. The jury verdict was advisory as to UMC, and the trial court chose not to follow it.
It found UMC liable and awarded Gore $326,678.13 in damages. UMC then timely appealed

to this Court.

¶2.    On appeal, UMC raises four issues: 1) whether the trial court’s findings of fact

supporting its liability finding against UMC are against the overwhelming weight of the

evidence; 2) whether the trial court abused its discretion in allowing Gore’s expert to testify

regarding kidney-transplant surgery and whether UMC medical staff was negligent; 3)

whether UMC is immune from liability pursuant to the Mississippi Anatomical Gift Law

(specifically, Mississippi Code Section 41-39-135); and 4) whether the trial court’s findings

supporting the damage award are against the overwhelming weight of the evidence.

¶3.    We conclude that the trial court’s findings of fact supporting its liability finding

against UMC are against the overwhelming weight of the evidence. Further, we find that this

issue is dispositive and renders the other issues moot. Therefore, we reverse and render,

finding UMC free of any liability.

                        FACTS AND PROCEDURAL HISTORY

¶4.    This case arises out of an unsuccessful kidney-transplant procedure performed on Joey

Gore by UMC surgeons in February 2002.            It is undisputed that the transplant was

unsuccessful because the renal artery connected to the donor kidney had an intimal tear (a

tear of its inner lining) at the artery’s midpoint, which prevented the flow of arterial blood

into the kidney at the time UMC surgeons attached the renal artery to Gore’s artery and

attempted to reintroduce blood into the kidney.




                                              2
¶5.    At trial, through unrebutted defense-witness testimony, UMC explained how kidneys

customarily are procured and transplanted. This defense-witness testimony was provided

largely by Dr. James Wynn, UMC’s expert witness, who is board-certified in general surgery,

completed a fellowship in transplantation surgery, has procured kidneys throughout his

career, has transplanted approximately a thousand kidneys over the years, has regularly

performed vascular surgery (i.e., surgery related to arteries or veins) outside the realm of

transplant surgery, holds several leadership positions related to transplants, and has

performed research and published papers about kidney transplants. Dr. William Henry

Barber, the UMC surgeon who performed Gore’s unsuccessful transplant surgery, also

provided testimony regarding customary kidney procurement and transplant procedures. Dr.

Barber is board-certified in general surgery, has a specialty in transplantation surgery, began

performing kidney transplants in 1986, has performed approximately eight-to-nine hundred

kidney transplants over the years, belongs to professional associations related to transplants,

and has performed research and authored approximately fifty articles in the field of

transplantation.

¶6.    Dr. Wynn testified that, in cases like the instant one, the transplant process begins

with the procurement of organs from a donor who is brain-dead. To procure the organs from

the body of the donor, surgeons make a long incision from the breast bone to the pubic bone

to expose all the organs. The surgeons then take steps to preserve the organs in preparation

for the eighteen-to-twenty-four-hour period that the organs will be outside a body. These

steps include flushing or perfusing the organs (while still in the donor’s body) with a

                                              3
preservation solution that replaces all of the blood that the organs previously contained.

Thus, even before the procuring surgeons handle the kidneys, or even see the kidneys and

renal arteries (which are located behind other organs), the kidneys are flushed of all blood.

The steps taken to preserve the organs also include filling the abdominal cavity with an icy

slush that keeps the organs cold.

¶7.    Dr. Wynn further explained that, after the heart, lungs, liver, and pancreas are

removed, surgeons procure the two kidneys. In the process of removing the kidneys, a

surgical assistant lifts the kidneys up outside the body while they are still attached to the

donor’s body by blood vessels (including renal arteries) so that the surgeon can cut the

kidneys free from the donor’s body (i.e., free from the donor’s aorta and vena cava), while

being sure not to cut the blood vessels near where they enter the kidney.

¶8.    According to Dr. Wynn, a natural consequence of the kidneys being held outside the

donor’s body while the surgeon cuts the blood vessels free from the body is that there is some

traction on the blood vessels, including the renal arteries. The renal arteries, which transport

blood into the kidney, are composed of three layers: the outer layer called the adventitia, the

middle layer called the media, and the innermost layer called the intima. Each layer has a

different tolerance for being stretched. The adventitia and media can withstand more

stretching than the intima, and thus there is more risk of intimal tearing than tearing to the

other layers at this point in the procedure.

¶9.    Dr. Barber testified that, at all times during the procurement procedure, the adventitia

of the renal artery, including the area at the artery’s midpoint, is obscured by fatty tissue. In

                                               4
addition, as Dr. Wynn testified, if the renal artery were damaged as the surgeon removes the

kidney from the donor’s body, there would be no possibility of adventitial hemorrhaging (i.e.,

blood staining visible from the outside of the renal artery) at the site of the damage, because

all the blood would have been replaced by the clear preservation solution.

¶10.    According to Dr. Wynn and LifeSource’s Director of Procurement, once the two

kidneys are removed from the donor’s body, they are carefully packaged in a hard plastic jar

containing more preservation solution and then placed in a box with ice. Each kidney is then

shipped to the hospital(s) where the recipients of the donated kidneys will undergo kidney-

transplant surgery.

¶11.    Dr. Wynn and Dr. Barber testified that, at the hospital where the transplant is to be

performed, in order to prevent any unnecessary warming of the kidney, the transplant

surgeon prepares the recipient for the transplant procedure prior to removing the kidney from

the packaging in which it was placed by the procurement surgeon.1 Dr. Wynn explained that

readying the recipient involves anesthetizing the recipient, inflating the recipient’s bladder,

opening the abdominal cavity, exposing blood vessels down to the recipient’s leg, and

preparing the recipient’s blood vessels to receive the kidney. Only after these steps are taken

to prepare the recipient for transplant is the kidney removed from its packaging. Thus,




        1
           When asked whether “the standard of care for a transplant surgeon” calls for preparing a
recipient for transplant prior to removing the kidney from its packaging, Dr. Barber testified that
“[i]t is the way that the majority of transplant surgeons in the United States, and I believe worldwide,
do this operation.” No medical expert disputed that, in modern medicine, it is customary and
advised to prepare the recipient for transplant prior to removing the kidney from its packaging.

                                                   5
should the surgeon discover that there is a problem with the kidney (that makes the kidney

unsuitable for transplant) at the time he unpacks it, unfortunately, the recipient already will

have undergone a surgical procedure from which he must recover.

¶12.   Dr. Wynn and Dr. Barber explained that, after unpacking the kidney, the transplant

surgeon inspects it. The surgeon removes most of the fatty tissue from around the surface

or capsule of the kidney so the capsule can be inspected. He also inspects the renal artery;

however, the surgeon does not remove the fatty tissue around the renal artery because of the

risk of damaging the blood supply to the ureter and to unrecognized accessory blood vessels

to the kidney. The surgeon frees up only enough tissue from around the renal artery so that

the artery is mobile enough to reach and attach to the recipient’s artery without difficulty.

Therefore, the transplant surgeon, looking at the length of the renal artery (including the

midpoint), would not be able to see even the adventitia of the artery at the time of inspection

of the kidney prior to transplant.

¶13.   All expert witnesses who testified agreed that, in inspecting the kidney, the surgeon

should inspect the ostium (i.e., the opening) of the renal artery. The experts disagreed,

however, as to whether an intimal tear at the midpoint of the artery would be visible to a

surgeon who properly examines the artery in preparation for transplant. Gore’s expert

witness contended that the intimal tear would be visible by peering through the ostium into

the lumen of the artery. 2 Dr. Barber and Dr. Wynn, on the other hand, contended that it


       2
         Gore’s expert, Dr. Rodrigo Galvez, never exactly stated that the intimal tear would be
visible by peering through the ostium into the lumen of the artery, but we will give Gore and Dr.

                                               6
would be impossible to view the intimal tear by peering through the ostium, because the tear

was located at the midpoint of the artery, not at or adjacent to the ostium (where intimal tears

usually occur).3

¶14.   In the instant case, the donor was a woman who died in Minnesota as a result of an

automobile accident. The donor’s family agreed to a donation of a number of her organs,

including the kidneys. Two University of Minnesota doctors training to become transplant

surgeons harvested the kidneys in the manner described above. One kidney was then

transported to UMC.

¶15.   At UMC, Dr. Barber and others participating in the                   procedure (hereinafter

collectively referred to simply as Dr. Barber4 ) prepared Gore for the transplant. Dr. Barber

made an incision on Gore’s right side. He then readied Gore’s blood vessels to be connected

to the renal artery and renal vein of the donor kidney, and clamped Gore’s blood vessels to



Galvez the benefit of the doubt by assuming that this is what Dr. Galvez meant when he stated the
following:

       If this is a renal artery, okay, and you’re going to do the grafting and you examine
       the inside, you are able to see whether there was a tear or not, whether there was a
       problem with the naked eye. You don’t need a magnifying . . . .
       3
         All of the experts agreed that, if the inspection of the artery reveals an intimal tear at or
adjacent to the ostium, the surgeon usually can repair the tear by making a stitch or cutting away the
damaged portion of the artery (and then proceed to successfully transplant the kidney). The record
does not establish in what circumstances, if any, an intimal tear at the midpoint of the renal artery
would be repairable.
       4
        Throughout this opinion, we will use Dr. Barber’s name to refer to Dr. Barber and/or other
UMC surgical staff who participated in the transplant procedure. This is because the record is not
always clear regarding exactly who – whether it be Dr. Barber, the resident working under him, or
someone else – performed different tasks in the operating room during the transplant procedure.

                                                  7
prevent blood flow through them while the kidney was being connected. Dr. Barber then

removed the kidney from its packaging. He inspected the kidney and removed excess fatty

tissue from around the kidney and from around the ends of the blood vessels to the extent

necessary to prepare the blood vessels to be attached to Gore’s blood vessels. Dr. Barber

testified that, as he customarily does, he inspected the renal artery, which included “look[ing]

down” the artery. Dr. Wynn testified that, in preparing the kidney for transplant, Dr. Barber

could not have helped but examine the ostium of the artery, because he had to prepare the

ostium for grafting. Gore (although, significantly, not Gore’s expert) alleged that Dr. Barber

did not inspect the renal artery.

¶16.   The renal artery of the kidney at issue was eight millimeters (about one-third of an

inch) in outside diameter and 4.5 centimeters (about two inches) long. The intimal tear was

at the midpoint of the approximately two-inch-long artery.5 The tear itself (which was a

longitudinal tear that moved down the wall of the artery) was one to two centimeters (about

.4 to .8 inches).

¶17.   Once the kidney was inspected and prepared for transplant, Dr. Barber attached the

renal artery of the donor kidney to Gore’s artery (as well as attaching the renal vein). Dr.

Barber then removed the clamps from Gore’s blood vessels to establish blood flow to the

kidney.




       5
         Dr. Barber estimated that the tear was approximately three centimeters (1.2 inches) from
the ostium of the blood vessel.

                                               8
¶18.   From that point forward, the transplant did not go as planned. After the kidneys were

flushed with preservation solution in Minnesota, the kidneys turned from their normal pink

color to a tan color. Thus, the kidney transported to UMC was tan at the time Dr. Barber

received it. Normally, once the clamps are removed from the recipient’s blood vessels and

blood flow to the kidney is established, the kidney turns pink, which may happen

immediately or take ten to fifteen minutes.6 In the instant case, the kidney did not turn pink

as it should have. Dr. Barber felt the renal artery for a pulse and, finding one, knew there

was blood flow into at least part of the renal artery. After about fifteen minutes from the time

the clamps were released, Dr. Barber began trying to identify and correct the problem that

was preventing arterial blood flow to the kidney.

¶19.   After several unsuccessful attempts to find and fix the problem, forty-five minutes had

passed, and Dr. Barber made the decision, based on his experience and professional

judgement, that this particular kidney was not going to function properly. Even if the

problem interfering with the arterial blood flow was repaired (in or outside Gore’s body), the

kidney still would not be a good kidney for Gore, because the kidney had warmed too much

while it was filled with the blood that had flowed in from the renal vein and while it had sat

in Gore’s abdominal cavity for forty-five minutes.7


       6
        Usually, before a kidney turns pink, it initially turns purple because of venous blood that
backflows into the kidney. The kidney in the instant case did turn purple.
       7
         The kidney, if left in Gore’s body, may have kept Gore from having to receive dialysis
treatments for a short while, but it never would have functioned properly, and Dr. Barber determined
that Gore would be better off having this kidney removed and getting a new kidney at a later time
that would function properly.

                                                 9
¶20.   After determining that the kidney would not be a good kidney for Gore, Dr. Barber

began to dissect – meaning to remove fatty tissue, not cut – along the renal artery to be able

to see the adventitia. The dissection revealed to Dr. Barber what appeared to be (from the

outside of the artery) an intimal dissection (i.e., a longitudinal tear that moves down the wall

of the artery) at the midpoint of the artery.8

¶21.   The kidney was removed by cutting the renal artery of the donor kidney, leaving a

section of the donor’s renal artery attached to Gore’s artery and thus shortening the length

of the donor artery. In summary, in contrast to the appearance of the kidney when it was first

removed from the packaging, there was now blood present in the renal artery, fatty tissue had

been cut away from the renal artery, the renal artery had been shortened (making the tear now

closer to ostium), and there was now an indication (due to adventitial hemorrhaging) of an

intimal tear.

¶22.   Dr. Barber explained that, after removing the kidney, he took the kidney to UMC’s

pathology department “to see if [they] could actually determine what the problem was

beyond what [he] suspected, which was the intimal tear, and where that tear was.” In the


        8
          In his trial testimony, Dr. Barber stated that the intimal dissection or tear appeared to be
located beneath the bifurcation or branching of the main renal artery, which, to a listener, sounds
like a location closer to the kidney than the midpoint of the artery. Because at other times Dr.
Barber and UMC contended that the tear was at the midpoint, we will give Gore the benefit of the
doubt that the tear was located at the midpoint and no closer to the bifurcation of the renal artery
(i.e., no closer to the kidney itself). It should be noted that stating that the tear was beneath the
bifurcation of the renal artery is not necessarily inconsistent with stating that it was at the midpoint
because: 1) the midpoint is beneath the bifurcation, and 2) the tear may have started at the midpoint
and extended to near the bifurcation. By elaborating and stating that the tear was about three
centimeters (1.2 inches) from the ostium, Dr. Barber clarified that he believed the tear to be at or
slightly past the midpoint of the artery (i.e., slightly closer to the bifurcation than to the ostium).

                                                  10
pathology department, the renal artery was cut open and photographs were taken of the

intimal tear.9

¶23.   Gore’s complaint (filed in 2002 and twice amended in 2004) listed numerous

defendants; however, by the time this matter went to trial, the only remaining defendants

were UMC and LifeSource, a nonprofit organization that coordinates the process of organ

and tissue donations, bridging the gap between the donation, procurement, and transplant

processes. As a nongovernmental defendant, LifeSource was entitled to a jury trial.

¶24.   Before trial, UMC filed a motion to submit the question of its liability to the jury for

an advisory verdict. Gore agreed to this, and the trial court granted the motion. UMC,

therefore, participated in the voir dire of the jury, submitted jury instructions, and argued the

case to the jury. The jury was not informed that its verdict was advisory as to UMC. On

April 13, 2007, after the week-long trial, the jury returned a verdict (voting nine to three) in

favor of both LifeSource and UMC.

¶25.   The trial court chose not to follow the advisory jury verdict, and in March 2008,

nearly a year after the trial, issued a judgment in favor of Gore against UMC, awarding Gore

$326,678.13 in damages. The trial court based its liability finding against UMC on the

following findings of fact:




       9
         The record is unclear as to whether the renal artery was already cut open when the UMC
pathologist who examined it first saw it. It is clear, however, that at some point while the kidney
was in the pathology department, the tear was visible to the naked eye, and UMC does not dispute
this.

                                                11
       If Dr. Barber had inspected the renal artery, he would have noticed the intimal
       tear because it was visible to the naked eye according to Dr. Allen [the UMC
       pathologist] and Dr. Galvez [Gore’s medical expert]. Therefore, . . . Dr.
       Barber did not inspect the kidney prior to the transplant thereby breaching the
       standard of care.

                                       DISCUSSION

Are the trial court’s findings of fact supporting its liability finding against UMC against
the overwhelming weight of the evidence?

¶26.   UMC argues that the trial court’s findings of fact supporting the liability finding

against UMC are against the overwhelming weight of the evidence.

¶27.   This Court has clearly established that, in order to make out a prima facie case of

medical negligence, a plaintiff must prove that:

        (1) the defendant had a duty to conform to a specific standard of conduct for
       the protection of others against an unreasonable risk of injury; (2) the
       defendant failed to conform to that required standard; (3) the defendant’s
       breach of duty was a proximate cause of the plaintiff’s injury, and (4) the
       plaintiff was injured as a result.

Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645, 650 (Miss. 2009). “The general rule in

Mississippi is that medical negligence may be established only by expert medical testimony,

with an exception for instances where a layman can observe and understand the negligence

as a matter of common sense and practical experience.” Id. (internal quotations omitted).

See also Barner v. Gorman, 605 So. 2d 805, 809 (Miss. 1992) (“Not only must this expert

identify and articulate the requisite standard that was not complied with, the expert must also

establish that the failure was the proximate cause, or proximate contributing cause, of the

alleged injuries.”).


                                              12
¶28.   This Court will not disturb a trial court’s findings if they are supported by substantial

evidence.10 Miss. Dep’t of Envtl. Quality v. Weems, 653 So. 2d 266, 274 (Miss. 1995).

Stated differently, this Court will not disturb a trial court’s findings unless they are against

the overwhelming weight of the evidence. Id. This Court will not hesitate to reverse if the

trial court’s decision is manifestly wrong.11 Id. “A court’s ruling is not based on substantial

evidence if glaringly obvious evidence is ignored.” Univ. of Miss. Med. Ctr. v. Pounders,

970 So. 2d 141, 147 (Miss. 2007).

¶29.    The trial court’s findings of fact supporting its ruling against UMC were not

supported by substantial evidence and were manifestly wrong. The trial court’s Order and

Opinion found:

               The plaintiff established through expert testimony of Dr. Rodrigo
       Galvez that Dr. Barber should have inspected the kidney specifically the renal
       artery prior to the transplant. If Dr. Barber had inspected the renal artery, he
       would have noticed the intimal tear because it was visible to the naked eye
       according to Dr. Allen and Dr. Galvez.
               Therefore, the Court finds that Dr. Barber did not inspect the kidney
       prior to transplant breaching the standard of care.12


       10
           This Court has defined “substantial evidence” as “‘such relevant evidence as reasonable
minds might accept as adequate to support a conclusion’ or to put it simply, more than a ‘mere
scintilla’ of evidence.” Hooks v. George County, 748 So. 2d 678, 680 (Miss 1999) (quoting
Johnson v. Ferguson, 435 So. 2d 1191, 1195 (Miss. 1983)).
       11
         “The word ‘manifest,’ as defined in this context, means ‘unmistakable, clear, plain, or
indisputable.’” Transocean Enter., Inc. v. Ingalls Shipbuilding, Inc., 2010 WL 817328, at *3
(Miss. Mar. 11, 2010).
       12
          The trial court implicitly found that the tear existed at the time Dr. Barber examined the
kidney prior to the transplant.
       The record does not definitively establish when the tear occurred. Whether the tear occurred
before or after Dr. Barber inspected the kidney is a disputed fact to the extent Gore contends that

                                                13
¶30.    The remainder of this opinion will explain the following: The overwhelming weight

of the evidence indicates that, when the kidney was examined by Dr. Barber in preparation

for the transplant, the intimal tear (assuming it existed at that time) would not have been

visible to the naked eye. It is not clear that Dr. Allen’s deposition testimony was intended

to indicate, nor does indicate, that the tear was visible to the naked eye at the time Dr. Barber

was examining the kidney prior to the transplant. Thus, the only expert who testified that Dr.

Barber would have been able to see the tear at the time he was examining the kidney prior

to transplant (if the tear existed at that point) was Dr. Galvez, whose testimony revealed that

he (Dr. Galvez) was uninformed about modern kidney procurement and transplant

procedures.

¶31.    The overwhelming weight of the evidence indicates that, when the kidney was

examined by Dr. Barber in preparation for the transplant, the intimal tear in the renal artery




the tear occurred during the transplant surgery itself. We agree with UMC that the testimony of Dr.
Galvez was confusing and that Gore’s theory for liability on the part of UMC is less than clear.
Gore’s theory of liability, as expressed in his brief to this Court, is that “[t]he kidney was torn during
surgery or not significantly inspected and as a result Joey Gore was severely injured.”
        Dr. Galvez concluded that the tear occurred, or most likely occurred, during the transplant
surgery itself, but he offered no explanation as to how the tear would have come about during the
transplant surgery. Dr. Wynn, on the other hand, testified that it was most reasonable that the tear
occurred during procurement when the surgical assistant was holding the kidneys outside the
donor’s body while the kidneys were still attached to the donor’s body by blood vessels and there
was consequently traction on the blood vessels, including the renal arteries. Dr. Wynn further
opined that it is highly unlikely that there was enough traction during the transplant procedure itself
to cause the tear because Gore was a thin man at the time and thus the exposure of his blood vessels
should not have been difficult – i.e., the grafting process would not have required that traction be
placed on the kidney’s blood vessels. Dr. Wynn testified that “there was no indication that there
were any unusual technical features or aspects of the operation that would have caused undue
difficulty in fitting the kidney into where it needed to go and hooking the blood vessel together.”

                                                   14
would not have been visible to the naked eye. As explained above, the renal artery is a tube,

composed of three layers: an outer layer called the adventitia, a middle layer called the

media, and the innermost layer called the intima. As also explained above, the renal artery

of the kidney at issue was about one-third of an inch in outside diameter and about two

inches long. The intimal tear was at the midpoint of the approximately two-inch-long artery.

The tear itself was .4 to .8 inches in length.

¶32.   As noted above, according to Dr. Wynn and Dr. Barber, a surgeon preparing a kidney

for transplant into the body of a recipient does not remove or interfere with the fatty tissue

surrounding the renal artery because of the risk of damaging the blood supply to the ureter

and to unrecognized accessory arteries and veins to the kidney. The transplant surgeon

removes only enough of the fatty tissue from around the artery as is necessary to allow the

artery to reach and be attached to the recipient’s artery without difficulty. Therefore, as Dr.

Barber explained, the transplant surgeon cannot see even the adventitia at the midpoint of the

artery.13

¶33.   Moreover, Dr. Barber and Dr. Wynn, both very experienced kidney-transplant

surgeons, testified that a surgeon would not be able to see the intimal tear located at the



       13
          The fatty tissue surrounding the artery would also prevent a surgeon from being able to
view adventitial hemorrhaging at the midpoint. However, recall that there would not have been
adventitial hemorrhaging present at the time Dr. Barber was inspecting the kidney in preparation for
the transplant because the kidney had been flushed of blood in Minnesota (even before the
procurement doctors removed the kidney from the donor’s body). The only time at which there
possibly could have been adventitial hemorrhaging would have been before the kidney was flushed
of blood (although it is unlikely the tear occurred any time prior to procurement) or after the kidney
was transplanted into Gore’s body and blood was reintroduced into the renal artery.

                                                 15
midpoint of the artery by peering through the ostium of the artery. As Dr. Barber testified,

“[Y]ou’re looking into an opaque tube that’s about the size of a pencil there, and you cannot

see far into the renal artery, and this area, [the area around the artery], is actually covered

with fatty tissue that is normally not dissected away. So you can’t see it from the outside.”

In later testimony, Dr. Barber explained that he could not see the tear “[b]ecause it was too

far down in the renal artery to actually see by looking into the opening of the renal artery.”

¶34.      In addition, Dr. Wynn testified that Dr. Barber could not have avoided inspecting the

renal artery. Dr. Wynn explained that this is because, aside from it being very common

practice for surgeons to inspect the artery, Dr. Barber described creating a carrel patch,14 and

in the process of doing that, a surgeon cannot avoid looking right at the opening of the renal

artery – i.e., “if a tear occurred at a point where it could be seen, it would be seen.” No

expert testified that Dr. Barber failed to inspect the artery.

¶35.      Dr. Allen’s deposition testimony,15 read as a whole, does not clearly communicate that

the tear was visible to the naked eye at the time Dr. Barber was examining the kidney prior

to the transplant. First, Dr. Allen’s deposition does not clearly indicate that, at the time the

kidney was brought to the pathology department, the intimal tear itself (as opposed to an

indication of the tear visible from looking at the adventitia of the artery) was visible to the



          14
          Creating a carrel patch “involves holding the aorta, using pickups and scissors to stabilize
it away from the opening to the renal artery, and using the scissor to cut away the excess aorta and
to leave a cuff of aorta attached to the renal artery.”
          15
               Dr. Allen did not testify at the trial, but his deposition was taken and included in the
record.

                                                    16
naked eye. Moreover, even if Dr. Allen’s deposition were to be interpreted as clearly stating

that the intimal tear itself was visible to the naked eye when Dr. Allen first saw the kidney,

this would not indicate that the tear would have been visible to Dr. Barber at the time he

inspected the kidney prior to transplant because: 1) the resident working under Dr. Allen may

have cut open the artery before Dr. Allen looked at it for the first time; and/or 2) Dr. Allen

may have been able to see the tear by peering through the ostium of the artery because part

of the artery had been left in Gore’s body and the artery was now shorter than it had been

when Dr. Barber had examined the kidney before beginning the transplant procedure (i.e.,

the tear was now closer to the ostium).16     17
                                                   Therefore, the trial court was wrong to suggest


       16
           While, at one point in his deposition, Dr. Allen said he could see the tear with his naked
eye, at other times in his deposition, his answers suggested that what he meant when he said he
could see the tear with his naked eye was that he could see evidence of the tear (e.g., adventitial
hemorrhaging in the area of the tear) with his naked eye when he was called over by the resident
working under him to look at the kidney for the first time. For example, he explained, “Well, you
can tell that there’s a break in the continuity of the vessel, but specifically what portion of the wall
of the vessel requires histology . . . to be sure what you’re looking at, you would have to have
histology to be sure are we in the media, are we in the intima, or have we gone all the way through,
things like that. . . .” He also stated, “When I got there, it was easily – it was easy enough for me
to see grossly to agree that the artery had a disruption in it.”
         Alternatively, Dr. Allen’s deposition testimony at one point suggested that the tear itself was
visible, but only because the artery had been cut open by the time he, Dr. Allen, saw it for the first
time. At another point, Dr. Allen stated that the artery was not cut open at the time it was brought
to the pathology department. Dr. Allen did state the kidney looked “sort of like” the photographs
shown on the first page of Exhibit 11 when he first saw it, and both Dr. Galvez and Dr. Wynn
testified at photographs on the first page of Exhibit 11 show the artery cut open. Dr. Allen testified
that he does not know whether the resident working under him dissected the artery in any way before
he (Dr. Allen) first looked at it.
       17
         Notably, Dr. Allen never stated that he peered into the ostium of the artery and, by doing
so, was able to see the tear with the naked eye. In other words, even though the artery had been
shortened by the time it arrived at the pathology department, there is no indication in Dr. Allen’s
deposition testimony that, even at that point, a surgeon would have been able to peer through the
ostium of the artery and view the intimal tear with the naked eye.

                                                   17
that, by stating the tear was visible to the naked eye, Dr. Allen necessarily meant that the tear

would have been visible to Dr. Barber at the time Dr. Barber inspected the kidney prior to

grafting. UMC does not dispute that the tear was visible to the naked eye in the pathology

department.

¶36.   Thus, the only expert who testified that Dr. Barber would have been able to see the

tear at the time he was examining the kidney prior to transplant (if the tear existed at that

point) was Dr. Galvez,18 a pathologist and psychiatrist, whose testimony revealed that he (Dr.

Galvez) was uninformed about modern kidney procurement and transplant procedures. Dr.

Galvez acknowledged that he does not perform any type of surgery in his practice, has never

procured a kidney for transplant, has never performed a kidney transplant, and has not been

trained in nephrology. Further, the trial transcript includes several specific examples of Dr.

Galvez’s lack of familiarity with modern kidney procurement and transplant procedures.19


       18
         Gore called two medical experts to support his claims: Dr. Carl Blond and Dr. Galvez.
Dr. Blond, a nephrologist, offered no criticism of Dr. Barber’s surgical care; rather, his testimony
was concentrated on Gore’s claim against LifeSource.
       19
           The examples of Dr. Galvez’s lack of familiarity include the following: Dr. Galvez
testified that he was certain that the tear did not happen at the time of the donor’s car accident
because, if it did, there would have been adventitial hemorrhaging that would have been visible to
the procurement doctors. However, assuming the car accident caused a small, partial tear that
became a more complete, larger tear at the time of procurement (as Dr. Barber suggested may have
been the case), and the artery still allowed passage of the flushing solution into the kidney, any
hemorrhaging caused by the accident would not have been visible to the procurement doctors
because the artery would have been flushed of blood by the time the procurement doctors removed
the kidney. Moreover, the entire time the kidney was in Minnesota, the artery was still surrounded
by fatty tissue that would have obscured the outside of the artery.
         Similarly, assuming the tear happened during the procurement of the kidney (after it had
been flushed of blood), it would be incorrect to assert that there would have been adventitial
hemorrhaging present at the time Dr. Barber inspected the kidney prior to transplant; this is because

                                                 18
¶37.   Dr. Galvez’s testimony, while less than clear, states that, if the tear existed prior to

transplant, then a surgeon examining the renal artery prior to transplant “from within” or

“inside” (which we surmise means by peering into the ostium 20 ) would have been able to see

the intimal tear. However, Dr. Galvez did not explain how this would have been possible,

given that the tear was located at the midpoint of the artery, not at or adjacent to the ostium,

where intimal tears usually occur.21    22




there was no blood in the kidney from the time the procurement doctors began the actual removal
of the kidneys until the time the kidney was attached to Gore’s blood vessels. In addition, the artery
remained surrounded by fatty tissue up until the time that Dr. Barber realized that the kidney was
not a suitable kidney and began to dissect away the fatty tissue to try to identify the problem.
         Dr. Barber explained that Dr. Galvez’s lack of familiarity with modern transplant procedures
may stem from the fact that the single procurement procedure Dr. Galvez testified to having
observed was performed about thirty years ago, when the flushing of the organs was not done prior
to their removal. Therefore, at that time in the past, if the procurement doctor had created an intimal
tear while removing the kidney, there would have been adventitial hemorrhaging; however, in
modern times, and for the past twenty-plus years, the organs are flushed while in the donor’s body
prior to removal, and thus an intimal tear created at the time of removal would not result in
adventitial hemorrhaging.
         Lastly, Dr. Galvez testified that, if the artery was damaged at some point prior to arriving
at UMC, Dr. Barber should have detected the tear before “put[ting] [Gore] through the surgery.”
This evidences that Dr. Galvez was not aware that, as the testimony of Dr. Barber and Dr. Wynn
revealed, in modern transplant procedures, the recipient’s body is opened and prepared for transplant
prior to unpacking the kidney.
       20
            See footnote 2, supra.
       21
          Dr. Galvez’s primary testimony regarding whether the tear was “visible to the naked eye”
was simply a statement that Dr. Allen’s pathology report stated that the tear was visible to the naked
eye – i.e., that, at some point when the kidney was in the possession of the UMC pathology
department, the tear was visible without the aid of a microscope – a fact no one disputes. At a later
point in Dr. Galvez’s testimony, he again discussed the tear being visible to the naked eye in the
context of stating that the tear would have been visible to Dr. Barber at the time of inspection (had
the tear existed at that time), but Dr. Galvez never elaborated as to how this would have been
possible.
        Some of Dr. Galvez’s testimony could be read as asserting that the tear was visible at the
time Dr. Barber examined the kidney prior to transplant because adventitial hemorrhaging is visible
to the naked eye. This would be an incorrect statement, because even Dr. Galvez agreed that the

                                                  19
¶38.   In summary, the overwhelming weight of the evidence indicates that, assuming the

tear existed prior to the kidney arriving at UMC, careful inspection of the renal artery by Dr.

Barber prior to grafting did not, or would not have, alerted him that there was a tear, because

the tear was not visible at that time. The tear was not visible because the tear was at the

midpoint of the artery, not at or adjacent to the ostium where tears usually are, and Dr.

Barber could not see that far into the artery by peering through the ostium. In addition, there

would not have been any adventitial hemorrhaging at the time Dr. Barber examined the

kidney, because all blood had been flushed out of the kidney back in Minnesota prior to the

kidney being removed from the donor’s body. Furthermore, had there been, by some stretch

of the imagination, any adventitial hemorrhaging, Dr. Barber would not have been able to

see it, because there was fatty tissue encasing the artery (and it is neither customary nor safe

to remove the fatty tissue from around the artery (aside from at the area around the ostium)).

Therefore, whether or not Dr. Barber breached the established standard of care requiring

inspection of the renal artery is irrelevant because, even if a surgeon thoroughly inspected




kidney was flushed of all blood prior to arriving at UMC. Furthermore, it was established that, prior
to transplant, the artery was surrounded by fatty tissue that prevented the examining surgeon from
viewing the adventitia.
       22
            In UMC’s brief, it reminds us that:

       The material question was the appearance of the kidney before grafting, at a time
       when a kidney transplant surgeon had prepared the end of the renal artery for
       grafting into the donee’s body and at a time when the kidney transplant surgeon must
       be careful not to disturb any parts of the kidney more than necessary. On this point,
       the evidence showed no expertise on the part of Dr. Galvez[, who does not handle
       or examine “live” kidneys in his practice as a pathologist].

                                                  20
the renal artery prior to transplant, the tear would not have been visible to him/her. Thus,

given that Gore did not establish any other standard of care, it is impossible for him to make

out a prima facie case for medical negligence.

¶39.   For those reasons, we conclude that the trial court’s finding that the tear was visible

to the naked eye at the time Dr. Barber inspected it prior to transplant is not supported by

substantial evidence. Accordingly, we find that the trial court’s finding that Dr. Barber was

negligent, and that UMC is liable, is not supported by substantial evidence and is manifestly

wrong.

                                      CONCLUSION

¶40.   We find that the trial court’s findings of fact supporting its liability finding against

UMC are against the overwhelming weight of the evidence. Finding this issue dispositive,

we reverse and render the trial court’s judgment against UMC.

¶41.   REVERSED AND RENDERED.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.




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