                                                                                                       10/05/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                    August 21, 2018 Session

                KATHERINE E. ANDERSON v. MING WANG, ET AL

                    Appeal from the Circuit Court for Davidson County
                        No. 15C1923 Thomas W. Brothers, Judge
                        ___________________________________

                              No. M2018-00184-COA-R3-CV
                          ___________________________________

This is a health care liability case. The trial court granted Appellees’ motion for
summary judgment on Appellant’s res ipsa loquitur claim under Tennessee Code
Annotated section 29-26-115(c). Appellant appeals. Because Appellant presented
sufficient evidence at the summary judgment stage to create a dispute of fact, we reverse
the trial court’s grant of summary judgment.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Reversed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

F. Dulin Kelly and Clinton L. Kelly, Hendersonville, Tennessee, for the appellant,
Katherine E. Anderson.

James E. Looper, Jr., H. Buckley Cole, and Zachary L. Gureasko, Nashville, Tennessee,
for the appellees, Dr. Ming Wang, and Wang Vision Institute, PLLC.

                                              OPINION

                                           I. Background

      On February 20, 2014, Appellant Katherine E. Anderson underwent femtosecond
(“femto”) laser cataract surgery on her left eye; on February 27, 2014, Ms. Anderson
underwent the same procedure on her right eye.1 Dr. Ming Wang (together with Wang

        1
         Ophthalmologists began using femto lasers for cataract surgery about five years ago. Studies
have shown that the benefit of the femto laser for cataract surgery is that the uncorrected visual acuity
obtained with it is better than what is obtained when doing manual cataract surgery. Some studies have
shown that endothelial cell loss is less when a femto laser is used to soften the cataract.
Vision Institute, PLLC, “Appellees”) performed both procedures.2 An ophthalmologist
performs cataract surgery by entering the cornea and pupil via an instrument, here a
femto laser, immediately behind the pupil. The natural lens in the eye is macerated and
then drawn out of the eye through another instrument. Once the natural cataract lens is
removed, the artificial cataract lens is inserted in its place.3 During this process, fluid is
introduced into the eye cavity to maintain pressure and to keep fluid from entering the
inside wall of the cornea. The endothelium in the eye consists of endothelial cells on the
inner surface of the cornea.4 These endothelial cells prohibit the fluid inside the eye from
entering the cornea.5 Most adults with healthy eyes have endothelial cell counts in the
mid-2,000s per eye.6

        The parties agree that, before the surgeries, Ms. Anderson had reasonably healthy
corneas and that her endothelial cell counts were normal. Prior to her surgeries, Ms.
Anderson had 2,481 endothelial cells in her left eye and 2,358 in her right eye. The
parties agree that some endothelial cell loss is common after cataract surgery. In his
deposition and affidavit, Ms. Anderson’s expert, Dr. Alan Kozarsky, stated that the
average endothelial cell loss in each eye during femto surgery is 5 to 15 percent. In his
deposition, Dr. Wang admitted that cataract surgery results in a “small percent” of
endothelial cell loss, “[p]robably anywhere between 5 to 15 percent.” However, when
questioned further, Dr. Wang stated that he was aware of studies that showed patients can
lose up to 90 percent of their endothelial cells from cataract surgery. In his affidavit, Dr.
Kozarsky stated that the study Dr. Wang provided was not conducted with “normal”
patients like Ms. Anderson; the patients in the study were people who “required a corneal
transplant, one third had known endothelial disease, and a quarter had glaucoma or other .
. . history of previous eye surgery.” Dr. Kozarsky’s affidavit also stated that Dr. Wang
provided no other study demonstrating that normal patients, such as Ms. Anderson, lost
up to 90 percent of their endothelial cells from cataract surgery. Furthermore, Dr. Wang
testified that he was not aware of a study where a patient lost up to 80 or 90 percent of his
or her endothelial cells after femto cataract surgery.

        After surgery, the endothelial cell count in Ms. Anderson’s left eye dropped to
739. The surgery on Ms. Anderson’s right eye resulted in a loss of all of the endothelial
cells.7 Furthermore, the surgery resulted in corneal decompensation in Ms. Anderson’s

        2
            Wang Vision Institute, PLLC is a Tennessee Professional Limited Liability Company. Its
registered agent is Dr. Ming Wang.
         3
            A Picture of the Eye, WEB MD.COM, https://www.webmd.com/eye-health/picture-of-the-eyes#2
(last visited September 18, 2018).
         4
            W.M. Bourne, Biology of the Corneal Endothelium in Health and Disease, NATURE.COM (Nov.
20, 2003), https://www.nature.com/articles/6700559.
         5
            Bourne, supra note 4.
         6
            Bourne, supra note 4.
         7
           Dr. Wang disputes that the cell count dropped to zero. He stated that he “expect[ed] the count
to be low, but that accurate measurements could not be obtained due to the swelling.”
                                                  -2-
right eye. Corneal decompensation occurs when the cornea swells and is no longer clear.
Corneal decompensation represents a devastating loss of almost all of the corneal
endothelium. At the recommendation of a second ophthalmologist, Ms. Anderson
underwent a corneal transplant on her right eye, but her vision remains impaired.

       On May 15, 2015, Ms. Anderson filed her complaint in the Davidson County
Circuit Court (“trial court”), alleging that Dr. Wang failed to act with ordinary and
reasonable care in accordance with the recognized standard of acceptable professional
practice. Further, Ms. Anderson alleged that, as a proximate result of Dr. Wang’s alleged
negligence, she was injured. On July 22, 2015, Ms. Anderson filed an Amended
Complaint, wherein she asserted an additional theory of recovery under the doctrine of
res ipsa loquitur. On August 13, 2015, Appellees filed an Answer to the Amended
Complaint. On November 8, 2017, Appellees filed a Motion for Summary Judgment on
the grounds that Ms. Anderson: (1) presented no direct evidence that Dr. Wang deviated
from the standard of care; (2) produced no evidence that Dr. Wang’s deviation from the
standard of care caused Ms. Anderson’s injuries; and (3) has not satisfied the statutory
requirements necessary to proceed under res ipsa loquitur as codified at Tennessee Code
Annotated section 29-26-115(c). Ms. Anderson filed a response in opposition to the
motion for summary judgment on December 5, 2017.

       By order of January 11, 2018, the trial court granted Appellees’ motion for
summary judgment. The trial court found that Ms. Anderson did not meet the essential
elements of res ipsa loquitur under Tennessee Code Annotated section 29-26-115(c), in
that she: (1) did not provide evidentiary support for her claim that the instrumentality that
caused her injury was within Dr. Wang’s exclusive control; and (2) did not provide
evidentiary support that her injury was one that ordinarily does not occur in the absence
of negligence. Specifically, the trial court found that Ms. Anderson’s expert, Dr.
Kozarsky, “never defined the applicable standard of care or how any instrumentality
could have been improperly used contrary to the applicable standard of care . . . .”
Furthermore, the trial court found that Ms. Anderson did not specifically state what
instrumentality was under Dr. Wang’s exclusive control. Ms. Anderson appeals.

                                         II. Issue

      The sole issue for review is whether the trial court erred in granting Appellees’
motion for summary judgment.

                                 III. Standard of Review

       Appellant appeals the grant of summary judgment on her health care liability
claim. A trial court’s decision to grant a motion for summary judgment presents a
question of law. Therefore, our review is de novo with no presumption of correctness
afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
                                           -3-
1997). This Court must make a fresh determination that all requirements of Tennessee
Rule of Civil Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-
Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary
judgment is made, the moving party has the burden of showing that “there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. The Tennessee Supreme Court has explained that when the party
moving for summary judgment does not bear the burden of proof at trial, “the moving
party may satisfy its burden of production either (1) by affirmatively negating an
essential element of the nonmoving party’s claim or (2) by demonstrating that the
nonmoving party’s evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim or defense.” Rye v. Women’s Care Center of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015) (italics omitted). Furthermore,

       “When a motion for summary judgment is made [and] . . . supported as
       provided in [Tennessee Rule 56],” to survive summary judgment, the
       nonmoving party “may not rest upon the mere allegations or denials of [its]
       pleading,” but must respond, and by affidavits or one of the other means
       provided in Tennessee Rule 56, “set forth specific facts” at the summary
       judgment stage “showing that there is a genuine issue for trial.” Tenn. R.
       Civ. P. 56.06. The nonmoving party “must do more than simply show that
       there is some metaphysical doubt as to the material facts.” Matsushita
       Elec. Indus. Co., [Ltd. v. Zenith Radio Corp.], 475 U.S. [574,] 586, 106 S.
       Ct. 1348 [(1986)]. The nonmoving party must demonstrate the existence of
       specific facts in the record which could lead a rational trier of fact to find in
       favor of the nonmoving party.

Rye, 477 S.W.3d at 265.

                                        IV. Analysis

      The plaintiff’s burden in a health care liability action is set out in Tennessee Code
Annotated section 29-26-115(a) and (b), to-wit:

       (a) In a health care liability action, the claimant shall have the burden of
       proving by evidence as provided by subsection (b):

         (1) The recognized standard of acceptable professional practice in the
         profession and the specialty thereof, if any, that the defendant
         practices in the community in which the defendant practices or in a
         similar community at the time the alleged injury or wrongful action
         occurred;


                                             -4-
          (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.

       (b) No person in a health care profession requiring licensure under the laws
       of this state shall be competent to testify in any court of law to establish the
       facts required to be established by subsection (a), unless the person was
       licensed to practice in the state or a contiguous bordering state a profession
       or specialty which would make the person’s expert testimony relevant to
       the issues in the case and had practiced this profession or specialty in one
       (1) of these states during the year preceding the date that the alleged injury
       or wrongful act occurred. This rule shall apply to expert witnesses
       testifying for the defendant as rebuttal witnesses. The court may waive this
       subsection (b) when it determines that the appropriate witnesses otherwise
       would not be available.

Tenn. Code Ann. § 29-26-115(a), (b).

      Where a plaintiff is unable to allege a specific act of negligence, the statute
provides that a plaintiff may rely on the doctrine of res ipsa loquitur to create a rebuttable
presumption of a defendant’s negligence:

       (c) In a health care liability action as described in subsection (a), there shall
       be no presumption of negligence on the part of the defendant; provided,
       that 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.

Tenn. Code Ann. § 29-26-115(c).

       In Gilreath v. Chattanooga-Hamilton Cty. Hosp. Auth., No. E2015-02058-COA-
R3-CV, 2016 WL 3435788, at *8 (Tenn. Ct. App. June 15, 2016), this Court explained
the origin of res ipsa loquitur in health care liability claims as follows:

       Historically, res ipsa loquitur, defined, in pertinent part, by Black’s Law
       Dictionary, 10th ed., as “the thing speaks for itself,” was reserved for cases
       where the act was so obviously negligent that a layperson’s common
       knowledge allowed an inference of negligence. German v. Nichopoulos,
                                            -5-
       577 S.W.2d 197, 202 (Tenn. Ct. App. 1978), overruled by Seavers v.
       Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86 (Tenn. 1999). Our
       Supreme Court later expanded the reach of the doctrine to include cases
       that concern complex medical issues that are beyond the layperson’s
       general understanding and that require expert testimony to prove causation,
       the standard of care, and/or that the injury does not ordinarily occur in the
       absence of negligence. Seavers, 9 S.W.3d at 97.

Gilreath, 2016 WL 3435788, at *8.

       In its order granting summary judgment, the trial court stated:

       10. Defendants have established the insufficiency of [Ms. Anderson’s]
       evidence regarding Dr. Wang’s exclusive control over the instrumentality
       that caused the injury, an essential element of [Ms. Anderson’s] claim.
       [Ms. Anderson’s] expert, Dr. Kozarsky, never stated to any degree of
       medical certainty which instrumentation in the exclusive control of Dr.
       Wang probably caused [Ms. Anderson’s] injuries, nor did he indicate a
       probable breach of the standard of care occurred by Dr. Wang’s
       implementation of any instrumentality. Dr. Kozarsky never defined the
       applicable standard of care or how any instrumentality could have been
       improperly used contrary to the applicable standard of care, as required by
       Tenn. Code Ann. § 29-26-115(a).

Respectfully, the trial court’s ruling conflates the requirements of section 29-26-115(a)
with the res ipsa loquitur requirements of section 29-26-115(c). Because Ms. Anderson
was proceeding on res ipsa loquitur grounds, her expert was not required to: (1) “state[]
to any degree of medical certainty which instrumentation in the exclusive control of Dr.
Wang probably caused [Ms. Anderson’s] injuries;” (2) “indicate a probable breach of the
standard of care;” or (3) “define[] the applicable standard of care.”

       A plaintiff proceeding under a res ipsa loquitur claim is only required to prove the
elements in Tennessee Code Annotated section 29-26-115(c). As explained by this
Court:

       Under the doctrine of res ipsa loquitur, a plaintiff need not prove specific
       acts of negligence by the defendant in order to get his case to the jury.
       Burton v. Warren Farmers Coop., 129 S.W.3d 513, 523 (Tenn. Ct. App.
       2002) (citing Summit Hill Assocs. v. Knoxville Utils. Bd., 667 S.W.2d 91,
       96 (Tenn. Ct. App. 1983); Parker v. Warren, 503 S.W.2d 938, 942 (Tenn.
       Ct. App. 1973)). The elements usually required for application of the
       doctrine are:

                                           -6-
          (1) the event must be of a kind which ordinarily does not occur in the
          absence of someone’s negligence;

          (2) it must be caused by an agency or instrumentality within the
          exclusive control of the defendant; [and]

          (3) it must not have been due to any voluntary action or contribution
          on the part of the plaintiff.

       W. Page Keeton, Prosser and Keeton on Torts 244 (5th ed. 1984 & Supp.
       1988); see Seavers, 9 S.W.3d at 91 (“The plaintiff must demonstrate that he
       or she was injured by an instrumentality that was within the defendant’s
       exclusive control and that the injury would not ordinarily have occurred in
       the absence of negligence.”).

       “[T]he doctrine of res ipsa loquitur is . . . a rule of circumstantial evidence,
       not a substantive rule of negligence law.” Keeton, supra, at 244 (Supp.
       1988); accord Burton, 129 S .W.3d at 525 (“Res ipsa loquitur is a rule of
       evidence, not a rule of law.”). The doctrine is primarily used in jury trials to
       provide a framework to determine whether the plaintiff’s evidence is
       sufficient to entitle him to get his case to the jury. Burton, 129 S.W.3d at
       526 (citing N. Memphis Sav. Bank v. Union Bridge & Constr. Co., 196
       S.W. 492, 498 (Tenn. 1917); Ford v. Roddy Mfg. Co., 448 S.W.2d 433,
       437 (Tenn. Ct. App. 1969); John Bouchard & Sons, Co. v. Keaton, 9
       Tenn. App. 467, 480 (1928)). Under the common law, if the requirements
       of res ipsa loquitur are met, it “permits, but does not compel, a jury to infer
       negligence from the circumstances of an injury.” Seavers, 9 S.W.3d at 91
       (citing Poor Sisters of St. Francis v. Long, 230 S.W.2d 659, 663 (Tenn.
       1950); Lewis v. Casenburg, 7 S.W.2d 808, 811 (Tenn. 1928); Armes v.
       Hulett, 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992)). Application of the
       doctrine allows an inference of negligence, but it does not “dispense with
       the plaintiff’s burden of proof.” Id. (citing Summit Hill Assocs. v.
       Knoxville Utils. Bd., 667 S.W.2d 91, 96 (Tenn. Ct. App. 1983); Oliver v.
       Union Transfer Co., 71 S.W.2d 478, 480 (Tenn. Ct. App. 1934); 57B Am.
       Jur. 2d Negligence § 1920 (1989)).

Deuel v. Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV, 2010 WL 3237297, at
*10 (Tenn. Ct. App. Aug. 16, 2010).

       The elements of res ipsa loquitur are: (1) “that the instrumentality causing injury
was in the defendant’s (or defendants’) exclusive control . . . ;” and (2) “that the accident
or injury was one which ordinarily doesn’t occur in the absence of negligence.” To
survive summary judgment, Ms. Anderson is required to “set forth specific facts,” for
                                          -7-
each element of her res ipsa loquitur claim, “showing that there [was] a genuine issue for
trial.” Rye, 477 S.W.3d at 265; Tenn. R. Civ. P. 56.06. On appeal, Ms. Anderson argues
that she provided enough evidence, through deposition and affidavit testimony, to
demonstrate a genuine issue for trial. We agree.

       Concerning the first element of a res ipsa loquitur claim, i.e., “that the
instrumentality causing injury was in the defendant’s (or defendants’) exclusive control . .
.,” Tenn. Code Ann. § 29-26-115(c), the trial court found:

       11. [Ms. Anderson] asserts that she has met the “exclusive control”
       element because she was under Dr. Wang’s exclusive care and control
       throughout both surgeries; however, the statute specifically speaks to the
       instrumentality causing the injury as what is within Dr. Wang’s exclusive
       control, not whether [Ms. Anderson] herself was in Dr. Wang’s exclusive
       control. To hold otherwise would allow every patient who is sedated
       during a procedure and who has an unexpected outcome to rely upon res
       ipsa loquitur.

       12. Because [Ms. Anderson] has not provided any evidentiary support
       substantiating her claim that an instrumentality under the exclusive control
       of [Appellees] more likely than not caused her injury, as required by Tenn.
       Code Ann. § 29-26-115(c), [Appellees] have demonstrated the
       insufficiency of [Ms. Anderson’s] evidence regarding this prong and
       negated an essential element of [Appellant’s] res ipsa loquitur claim.

        Turning to the record, during Dr. Wang’s deposition, opposing counsel asked
whether Dr. Wang “had exclusive control of the instrumentation throughout both surgical
procedures.” Dr. Wang answered, “That’s correct.” Appellees argued, and the trial court
agreed, that because Ms. Anderson could not prove the exact instrumentality that caused
her harm, she did not meet the first element of res ipsa loquitur. Respectfully, the way in
which the trial court construes the first element of a Tennessee Code Annotated section
29-26-115(c) res ipsa loquitur claim is contrary to the doctrine itself. “Application of the
doctrine [of res ipsa loquitur] is precluded in cases where evidence of a specific act of
negligence is introduced at trial.” Gilreath, 2016 WL 3435788, at *8 (citing Hughes v.
Hastings, 469 S.W.2d 378, 397 (Tenn. 1971)). If Ms. Anderson was aware of the exact
instrumentality that caused her harm, she would not have a res ipsa loquitur claim. The
purpose of the doctrine is to provide patients with an avenue to the jury when they have
been harmed during a medical procedure while either unaware or unconscious.
“Claimants often have no knowledge of what happened during the course of medical
treatment, aside from the fact that an injury occurred during that time.” Seavers, 9
S.W.3d at 95. Dr. Wang’s own admission that he had exclusive control of the
instrumentation during the procedures was sufficient evidence to create a dispute of fact
for the jury. The trial court erred when it held otherwise.
                                             -8-
       Concerning the second element of res ipsa loquitur, i.e., “that the accident or
injury was one which ordinarily doesn’t occur in the absence of negligence,” Tenn. Code
Ann. § 29-26-115(c), the trial court found:

       13. [Appellees] have also established the insufficiency of [Ms. Anderson’s]
       evidence that this injury would not ordinarily occur absent negligence.
       Thus, [Appellees] have negated an essential element of [Ms. Anderson’s]
       claim.

       14. Dr. Kozarsky agreed in his deposition that endothelial cell loss can
       occur following the type of procedure that Dr. Wang performed on [Ms.
       Anderson]. Dr. Kozarsky also stated in his deposition that one of the most
       plausible scenarios is that something got inside [Ms. Anderson’s] eye that
       the endothelium just did not like. Dr. Wang and Dr. Kozarsky both
       acknowledged that endothelial cell loss can occur in cataract surgeries
       without negligence.

       Ms. Anderson’s expert, Dr. Kozarsky, is a board certified ophthalmologist who
has performed numerous eye surgeries, including LASIK, cataract, corneal transplant,
and femtosecond. Dr. Kozarsky’s deposition testimony demonstrated that the type of
corneal decompensation Ms. Anderson experienced after her cataract surgery ordinarily
does not occur absent negligence. Specifically, Dr. Kozarsky explained that “[i]n the
absence of a known corneal abnormality, permanent swelling of the cornea is very, very,
very uncommon.” Further, he was “totally surprise[ed] and flabbergast[ed] [to see]
corneal decompensation in what you thought was a normal cornea.” He testified that, to
see this type of corneal decompensation in a normal cornea “is as close to never as you
can imagine, not zero, but as close to never as you can imagine.” When asked whether
permanent, post-surgical corneal edema occurs in the absence of a deviation from the
applicable standard of care, Dr. Kozarsky answered: “That’s not one of the things that
generally happens without a cause.” Dr. Kozarsky listed a few possible reasons for
corneal decompensation and concluded by stating that he could not “think of a plausible
reason why [Ms. Anderson] ended up[] with the corneas that she has under normal
circumstances. And with all the information we have, [he couldn’t] imagine why she is
where she is.” Finally, in his affidavit, Dr. Kozarsky stated: “Dr. Wang testified cell loss
could have been caused by unusually rough handling of the cornea, improperly applying
the laser to the cornea, high fluid introduced into the eye during surgery, or putting the
wrong fluid in the eye which would be toxic.8 In my opinion, any one of these would be

       8
          Appellees argue that the most probable cause of Ms. Anderson’s corneal damage is the result of
the nurses injecting the wrong solution into Ms. Anderson’s eye. Further, Appellees argue that, because
the nurses are not Dr. Wang’s employees, he is not responsible for their actions. Appellees are free to
make this argument to the jury to rebut the presumption of Appellees’ negligence. However, accepting
                                                 -9-
the product of operator negligence.” Further, he stated “that the astounding cell loss
would not have occurred but for [Dr. Wang’s] surgery. The injury occurred at some
point during the surgery.” Dr. Kozarsky’s testimony that the type of injury Ms. Anderson
suffered does not occur absent negligence provides sufficient evidence to create a factual
dispute for the jury. Having presented specific facts to support both elements of her res
ipsa loquitur claim, Ms. Anderson has demonstrated that there are genuine issues of
material fact to be resolved. Therefore, the trial court erred in granting summary
judgment.

                                         V. Conclusion

       For the foregoing reasons, we reverse the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against the Appellees, Ming Wang, M.D. and Wang
Vision Institute, PLLC, for all of which execution for costs may issue if necessary.


                                                       _________________________________
                                                       KENNY ARMSTRONG, JUDGE




this argument as true is premature at the summary judgment stage, where we must give all reasonable
inference in favor of the non-moving party. Bain, 936 S.W.2d at 622 (citing Byrd v. Hall, 847 S.W.2d
208, 201-11) (“Courts must view the evidence in the light most favorable to the nonmoving party and
must also draw all reasonable inferences in the nonmoving party’s favor.”).
                                              - 10 -
