                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 September 21, 2004 Session

  PATSY SMITH, AS NEXT OF KIN AND MOTHER OF SHAWN SMITH
                   v. STATE OF TENNESSEE

                Appeal from the Claims Commission for the Eastern Division
                    No. 401372    Vance W. Cheek, Jr., Commissioner


                   No. E2004-0737-COA-R3-CV - FILED MARCH 14, 2005


Shawn Smith died of aspiration of gastric contents while a patient at the University of Tennessee
Medical Center. Shawn Smith’s mother, Patsy Smith (“Plaintiff”), sued the State of Tennessee (“the
State”). The case was transferred to the Claims Commission (“the Commission”). After trial, the
Commission entered a judgment for the State holding, inter alia, that there was no breach of the
standard of care. Plaintiff appeals claiming that the Commission erred in holding there was no
breach of the standard of care, that the Commission erred in making certain factual findings, and that
the Commission erred in refusing to find that the integrity of the medical record had been
compromised. We affirm.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
CHARLES D. SUSANO , JR., J., joined.

Leslie A. Muse and Gary E. Brewer, Morristown, Tennessee, for the Appellant, Patsy Smith, as next
of kin and mother of Shawn Smith.

Ronald C. Leadbetter, Associate General Counsel, for the Appellee, State of Tennessee.
                                               OPINION

                                             Background

              This appeal results from the trial of a complicated medical malpractice lawsuit.
Because of the issues raised on appeal, a detailed discussion of the facts as reflected in the record
is necessary.

                Shawn Smith (“Mr. Smith”) was hospitalized in October of 1993 for orthopedic
surgery to correct problems that developed as a result of an automobile accident in 1992. This
surgery was performed on October 6, 1993 at the University of Tennessee Medical Center (“the
Hospital”). Plaintiff stayed at the Hospital with her son during his admission. While recuperating
on the orthopedic surgery recovery floor, Mr. Smith aspirated vomitus and died some time during
the early morning hours of October 8, 1993. Mr. Smith was twenty-six years old at the time of his
death. Plaintiff sued the State. The case was transferred to the Commission and tried in late January
and early February of 2004.

               Mr. Smith’s surgery on October 6th was uneventful and post-surgery, at approximately
6:15 or 6:30 p.m., Mr. Smith was moved to the orthopedic surgery recovery floor. At approximately
3 a.m. on October 7th, Mr. Smith vomited. The evidence at trial showed it is not unusual for a patient
to vomit post-surgery. In fact, Mr. Smith’s doctor gave post-surgery medication orders for
Phenergan to combat nausea in addition to the morphine prescribed for pain. The evidence showed
that this is a common combination of drugs prescribed post-surgery. The morphine was
administered through a patient controlled analgesia pump, or PCA pump, set with a lock-out to
prevent Mr. Smith from utilizing more than the prescribed amount. The Phenergan was prescribed
on an as needed basis and had to be administered each time by a nurse. Mr. Smith was given
Phenergan after vomiting at 3 a.m. Mr. Smith vomited a second time around 10 a.m. on October 7th
and again was given Phenergan.

                  The post-surgery orders also included an order to “[a]dvance to regular diet.”
Plaintiff testified at trial that Mr. Smith had no solid food during the day of October 7, 1993, but later
admitted she could not remember if he had anything to eat such as Jell-O or applesauce during the
day or not. Plaintiff testified that at dinner time on the 7th, Mr. Smith was given a food tray, but did
not want to eat what was on the tray. Plaintiff stated that Mr. Smith asked for a cheeseburger.
Plaintiff testified that someone on the hospital staff brought Mr. Smith a cheeseburger around 5 or
6 p.m. and he ate most of it. Mr. Smith went to sleep around 8 p.m. Plaintiff testified that she slept
in a chair-bed next to Mr. Smith’s hospital bed and that she went to sleep around 10 p.m.

                Registered Nurse Ronald George Baer (“Nurse Baer”) came on duty on October 7th
at 7 p.m. and cared for Mr. Smith during the relevant time period involved in this case. Nurse Baer
performed an assessment of Mr. Smith at the beginning of his shift. Thereafter, the medical record
reflects that at 10 p.m. Nurse Baer made a note that Mr. Smith was resting quietly with no
complaints.


                                                   -2-
                 At approximately 1 a.m. on October 8th, Mr. Smith again vomited. Plaintiff testified
that after Mr. Smith vomited this time she called for the nurse, assisted Nurse Baer in cleaning up
Mr. Smith, and asked if Nurse Baer was going to call the doctor. Plaintiff testified that the amount
of vomitus was large and explained “we changed the sheets, washed him up, put a clean gown on
him . . . .” Plaintiff testified that she then cleaned up the vomitus that had dripped on the floor.
Plaintiff testified that Nurse Baer told her there was no need to call the doctor and that Mr. Smith
would be all right. Plaintiff testified that Nurse Baer gave Mr. Smith a shot of Phenergan around 1:30
a.m. and some Sprite. Plaintiff spoke to Mr. Smith briefly after he was cleaned up and testified “[h]e
acted like he felt better.” Mr. Smith then went back to sleep. After assuring herself that Mr. Smith
was resting comfortably, Plaintiff went back to sleep.

                 Nurse Baer made an entry in the medical record at 4 a.m. that Mr. Smith was resting
quietly and using his PCA morphine pump moderately. The medical record shows Nurse Baer
recorded that by 1 a.m. on October 8th, Mr. Smith had used 27.2 milligrams of morphine, and that
between 1 a.m. and 5 a.m. he had used 5.1 milligrams of morphine. Plaintiff testified she woke
again around 4 a.m. and looked at Mr. Smith and it appeared he was sleeping. She stated “[h]is chest
was all right. I mean, he was breathing okay.” She testified she could see him breathing and did not
hear any gagging, coughing, or rasping sounds. In addition, Plaintiff testified she is a light sleeper
and she would have heard it if Mr. Smith had gagged or coughed, but she did not hear anything like
that.

                Plaintiff stated that although she could see nothing wrong she had a feeling something
was wrong so she buzzed for the nurse. She testified that when the nurse did not respond, she left
the room and went to the nurse’s station to find him. Plaintiff testified that while she was out
looking for the nurse, a group of nurses and doctors rushed into Mr. Smith’s room. They were there
when Plaintiff returned to the room and she was escorted out of the room. Plaintiff testified that she
was told around 6:30 a.m. that her son had died.

                 Nurse Baer testified at trial and stated he only remembers two specific instances
during his care of Mr. Smith, at 1 a.m. when Mr. Smith vomited and at 5:45 a.m. when Mr. Smith
was found to be in respiratory distress. Nurse Baer relied upon the medical chart for the remainder
of his testimony. Nurse Baer testified he was not aware that Mr. Smith had been given a hamburger
and stated that if this happened it occurred before his shift, which started at 7 p.m. Nurse Baer
testified he remembers being called at 1 a.m. when Mr. Smith vomited and that he remembers
finding Mr. Smith sitting up in bed and talking at that time. Nurse Baer testified that he and Mr.
Smith had a conversation about school while Mr. Smith was being cleaned up. Nurse Baer testified
that Mr. Smith never said anything about experiencing pain or nausea at that time. Nurse Baer also
testified that he observed no respiratory distress at that time.

               Nurse Baer testified it was his determination that Mr. Smith did not aspirate at 1 a.m.
because Mr. Smith was holding a normal conversation with him. Nurse Baer stated he could tell if
someone aspirated by observing their outward appearance. He explained that if someone aspirated,
their color would change, their respiratory status would change, and they would gasp or gag. Nurse


                                                 -3-
Baer testified that Mr. Smith did not exhibit these signs. Nurse Baer does not remember using a
stethoscope at 1 a.m. to listen to Mr. Smith’s lungs to check for aspiration. He testified that he uses
the stethoscope for initial assessments and thereafter uses it if he thinks there is a need to do so.
Nurse Baer did not think there was a need to check Mr. Smith for aspiration at 1 a.m. Nurse Baer
also testified that there was no need to call the doctor as Mr. Smith’s vomiting had resolved and was
not continuous. Instead, Nurse Baer explained, there were long time periods between the vomiting
episodes.

                Nurse Baer testified that he remembers that at approximately 5:45 a.m., the LPN came
out to the nurse’s station and told him Mr. Smith was in distress. At that time, Mr. Smith was found
unresponsive and a code was called. As part of the CPR process, Mr. Smith was rolled on to his side
so a bed board could be placed. When he was rolled over, coffee ground emesis came out of Mr.
Smith’s mouth.

                  Nurse Baer was questioned regarding the doctor’s orders and entries in the chart. He
explained that the order in the chart to advance to regular diet meant Mr. Smith could have anything
he wanted. Nurse Baer stated that if he had been required to start with liquids or do a progression,
the order would have stated liquid diet then advance to regular. Nurse Baer explained that a patient’s
vital signs are typically taken by an LPN, who is to notify the nurse of anything unusual. Nurse Baer
testified that a respiratory rate of 20, which is what Mr. Smith’s respiratory rate was each time it was
checked, is normal.

                 Ruby S. Wiseman, a registered nurse, testified as an expert witness for Plaintiff.
Among other things, Ms. Wiseman had criticisms regarding Mr. Smith’s having been given a
hamburger to eat. She explained that Mr. Smith’s doctor gave orders to advance diet as tolerated and
that to her, this order:

       means you start them out on clear liquids. If they tolerate that and don’t get
       nauseated or vomit, then you advance them to soft foods like apple sauce, Jello. Jello
       is usually the cardinal soft food and then advance them on to a soft diet, a regular diet
       and . . . Very, with very bland items. You don’t want to give them anything greasy
       or spicy or fried.

                Ms. Wiseman testified that the record shows Mr. Smith came to the floor after his
surgery around 6:15 or 6:30 on October 6th and that there is no note from that time until 7 p.m. on
October 7th showing Mr. Smith received any sustenance or that he was tolerating anything. A
notation in the medical record with the 7 p.m. assessment on October 7th stated that Mr. Smith was
tolerating liquids, but, Ms. Wiseman testified, that was the only note in the chart regarding diet.
There is no mention in the medical record that Mr. Smith ever received a hamburger and fries.
However, Plaintiff did testify that her son received a cheeseburger and ate most of it.

                Ms. Wiseman testified that the general practice would be to note that the patient was
tolerating liquids, or was given Jello or applesauce without nausea or vomiting so the nursing staff


                                                  -4-
on the next shift would know. Ms. Wiseman stated that giving Mr. Smith a hamburger and french
fries was not in keeping with the doctor’s orders because it was “approximately four hours after the
last bout of vomiting.” Ms. Wiseman stated that Mr. Smith never should have been given a
hamburger “[b]ecause every time a patient vomits, you’ve got to go back to Step 1, clear liquids.”
However, Ms. Wiseman admitted there is no written guideline to look at to determine how many
hours should pass between a vomiting episode, the giving of liquid, the giving of soft food, and the
giving of regular food. Rather, this is a judgment call and the judgment of the nurse is based in part
on interaction with the patient and how the patient reports feeling.

               Ms. Wiseman was also critical regarding the nursing assessments of Mr. Smith. The
doctor had written an order to do an assessment every four hours for 72 hours. Ms. Wiseman stated
there was no assessment done after the 3 a.m. or 10 a.m. vomiting episodes on October 7th. Ms.
Wiseman stated:

       I would have gone in, I would have talked to the patient. I would have assessed his
       lungs sounds. I would have assessed his bowel sounds. I would have asked, if there
       was anybody in the room I would have asked them if he had eaten anything, because
       sometimes well meaning family members can bring things in that the nursing staff
       have no idea about and then you have to be aware of that.

Ms. Wiseman also stated she would assess the lungs and bowels using a stethoscope. However, she
admitted there is no written standard of care that says you have to use a stethoscope every time a
patient vomits. Ms. Wiseman stated a nurse should have checked on Mr. Smith at least hourly. She
stated she would have done this and she bases this assertion on her own experience. Notations in
the medical record show that Nurse Baer made rounds at least every other hour.

                Ms. Wiseman was critical of what she referred to as “sketchy” charting and stated,
“[i]f it’s not documented, it wasn’t done.” Ms. Wiseman did acknowledge, however, that the
practice on the orthopedic surgery recovery floor at the Hospital at that time was to chart by
exception, which means that only things out of the ordinary needed to be noted.

                The medical record shows that Mr. Smith’s vital signs were taken, including his
temperature, pulse, and blood pressure, with some regularity. Mr. Smith’s doctor had ordered that
his vital signs were to be taken every four hours. The medical record shows this was done except
for one instance when the vital signs should have been taken at 4 p.m. on October 7th and were not.

                Ms. Wiseman admitted that the medical record shows Mr. Smith’s vital signs were
taken at 4 a.m. on October 8th, after the 1 a.m. vomiting episode at issue in this case and before Mr.
Smith was found unresponsive at 5:45 a.m. Ms. Wiseman acknowledged that the readings of Mr.
Smith’s temperature, pulse, respiratory rate, and blood pressure as recorded were normal and show
no indication that Mr. Smith was in distress of any sort at that time. The readings of Mr. Smith’s
respiratory rate did not change throughout his hospitalization, up to, and including, the reading taken
at 4 a.m. on October 8th, shortly before his death. Victoria Henson, (“Ms. Henson”), is the LPN who


                                                 -5-
allegedly made various entries, including the vital signs, in Mr. Smith’s chart during the time period
after 1:00 a.m. and prior to Mr. Smith being found unresponsive at 5:45 a.m. The State did not have
Ms. Henson testify at trial. Neither did Plaintiff.

                Ms. Wiseman stated that she believes Mr. Smith’s death was preventable. She stated
that the nurses should have “upped the assessments. They should have raised the head of his bed.
They should have taken him back to clear liquids . . . .”

                 Cleland Blake, M.D., F.C.A.P., who stated his work is almost totally forensic
pathology, testified as an expert witness for Plaintiff. Dr. Blake testified that the cause of death
stated in the autopsy was aspiration asphyxia, which means Mr. Smith vomited then aspirated
vomitus that went into his trachea bronchial tree and caused the presence of fluid filling in the lungs
and plugging the bronchioles. Dr. Blake explained that the acid from the stomach causes a “burning
irritation injury of the bronchial passages.”

               Dr. Blake testified that neutrophils, a sign of inflammatory insult, were present in the
lungs upon autopsy and that this is abnormal. He explained that neutrophils would be caused by
“[s]ome element of injury, whether it is chemical, meaning acid particulate, aspiration, food
particles. Some extrinsic toxins or bacteria which causes a, a purulent substantive reaction which
we know as empyema, pus in the lungs or chest cavity, or acute bronchial pneumonia.” Dr. Blake
believes the neutrophils were caused by aspiration of gastric contents. He stated that neutrophils
would begin to be seen in twenty to thirty minutes after injury.

                Dr. Blake also testified regarding the medications Mr. Smith was given. He explained
that morphine is a central nervous system suppressant used as a pain killer and that Phenergan is
used to control nausea. Dr. Blake stated that when used together, these two drugs have a potentiating
effect, which means that the Phenergan exaggerates the effect of the morphine causing more of a
central nervous system suppression.

                 Dr. Blake opined that Mr. Smith took vomitus into his lungs after the 1 a.m. vomiting
episode and that this began the gradual compromise of the lungs. He opined that the process that
caused Mr. Smith’s death happened in response to the 1 a.m. vomiting episode. In support of his
theory, Dr. Blake stated it is his understanding that Mr. Smith’s respiratory rate went up and that he
had breathing difficulties and tacycardia after the 1 a.m. vomit. Dr. Blake stated that Mr. Smith
would have had difficulty breathing after the 1 one a.m. vomit and his respiratory rate would have
gone up to compensate. Dr. Blake testified that a patient who aspirates would have immediate
knowledge of it as they would experience a burning sensation and their chest muscles would struggle
to get air in. Dr. Blake further opined that by 4 a.m. Mr. Smith was unconscious and would have had
a weak pulse. Dr. Blake admitted that he did not see the vital signs in the medical record, but that
if Mr. Smith’s vital signs were taken at 4 a.m. and were the same as they had been, that would most
likely indicate that his condition was good.




                                                 -6-
                  According to the medical record, Mr. Smith’s vital signs were taken at 4 a.m. and
were the same as they had been. In addition, Plaintiff’s testimony regarding Mr. Smith’s condition
belies Dr. Blake’s opinion that Mr. Smith aspirated as a result of the 1 a.m. vomiting episode.
Plaintiff testified she spoke to Mr. Smith briefly after the 1 a.m. vomiting episode and testified “[h]e
acted like he felt better.” She also testified that Mr. Smith went back to sleep and that at 4 a.m. she
observed “[h]is chest was all right. I mean, he was breathing okay.” She testified she could see Mr.
Smith breathing and never heard any gagging, coughing, or rasping sounds.

                Terri Allison Donaldson, a licensed nurse practitioner, testified as an expert witness
for the State and opined there was no breach of the standard of care related to nursing. Ms.
Donaldson stated there are no hard rules regarding how many hours to wait before giving liquid then
soft food then regular food. She stated that since Mr. Smith “had gone through the, the mid-day and
afternoon without any episodes of nausea and vomiting . . .” and had not vomited since 10 a.m., it
was not inappropriate or below the standard of care to give him a hamburger.

                Ms. Donaldson testified she believes there is no evidence in the medical record
showing that Mr. Smith aspirated vomitus after his 1 a.m. vomiting episode. Ms. Donaldson
explained that usually when someone aspirates vomitus they cough or sputter, unless they
immediately lose consciousness. Ms. Donaldson also stated that if Mr. Smith had aspirated, she
would expect that his respiratory rate would have gone up, his blood pressure might have changed,
and his heart rate may have increased. None of these things happened. Ms. Donaldson testified that
nothing about the vital signs taken at 4 a.m. indicates Mr. Smith had a respiratory problem prior to
that time. In addition, Ms. Donaldson testified there is nothing in the record to suggest that Mr.
Smith’s gag reflex was suppressed, he was unconscious, or that he was unable to recognize any
respiratory problems he may have been experiencing. Ms. Donaldson opined it was not beneath the
standard of care for a nurse to choose not to use a stethoscope after Mr. Smith’s 1 a.m. vomiting
episode. Furthermore, Ms. Donaldson testified there is no indication that the combination of
morphine and Phenergan affected Mr. Smith’s vital signs, which remained stable during his
hospitalization.

                  Dr. Paul Bunton Googe, who specializes in skin pathology and surgical pathology,
testified at trial that he was in charge of Mr. Smith’s autopsy. Dr. Googe concluded that Mr. Smith
died of aspiration of gastric contents. Dr Googe testified it is his opinion, and the opinion of the
other physicians involved in the autopsy, that Mr. Smith died of acute gastric aspiration into the
lungs in “a matter of minutes or probably not more than an hour from when he died.” Dr. Googe
testified he does not believe that an event at 1 a.m. caused the death. Rather, Dr. Googe believes the
aspirations that led to death occurred “sometime in the ten to twenty minutes before 5:45 a.m.”

                Dr. Googe explained that the neutrophils could have been present either from
traveling with the vomitus or from the blood vessels in the lung and stated “to see neutrophils in
response to injury coming from the blood stream, it’s usually a matter of hours, four, six, eight hours
or longer.” He stated there were “just a few tiny areas of neutrophils . . . I don’t believe they are
sufficient to have caused symptoms and certainly [were] not sufficient to cause death.”


                                                  -7-
               The record on appeal shows that the medical record in this case apparently was lost
by the Hospital for approximately five years before it finally was produced to Plaintiff. No adequate
explanation appears in the record as to where the medical record was during this time period or why
it was not produced sooner. In addition, for a variety of reasons having nothing to do with the
Commission that eventually heard the case, the case took approximately ten years from the filing
of the Complaint until the time of trial. The case was tried in late January and early February of
2004.

               The Commission entered a judgment on February 26, 2004. In its memorandum order
incorporated into the judgment, the Commission made specific findings of fact and conclusions of
law. The Commission found Plaintiff to be “a very honest witness, a very credible witness . . .
honest to the point where her testimony became damaging to her claim” and stated “much of this
Commission’s decision is based upon her testimony . . . .” The Commission also found Ms.
Wiseman to be a credible witness but found that many of Ms. Wiseman’s criticisms regarding the
nursing care admittedly were related to judgment calls. In addition, the Commission found that the
deviations Ms. Wiseman claims occurred, specifically the failures to properly advance diet, to
adequately maintain the medical chart, and to properly follow physician’s orders, were not a direct
and proximate cause of Mr. Smith’s death. Rather, the Commission found that:

       The body of evidence presented at trial and contained in the entire record proves by
       a preponderance of the evidence that [Mr. Smith] aspirated on his own vomitus
       quickly and quietly, so quickly and so quietly, in fact, that it would have taken a
       nurse providing [Mr. Smith] with a level of care akin to a critical care patient in order
       to have any remote possibility of catching the aspiration and saving [Mr. Smith’s]
       life.

The Commission found that the nursing techniques testified to by Ms. Wiseman did not establish
“the standard of care that was required of a registered nurse on a general orthopaedic recovery floor
at UT Hospital.”

                 Further, although the Commission found Dr. Blake to be a credible witness, it found
that Dr. Blake’s testimony was not supported by the facts. Dr. Blake opined that Mr. Smith aspirated
after the 1 a.m. vomit and that he would have begun to have noticeable problems immediately. The
medical record and the testimony of the two witnesses, including the Plaintiff, who observed Mr.
Smith after the 1 a.m. vomiting episode show, however, that Mr. Smith was not experiencing any
respiratory problems at that time and, in fact, he stated he felt better. The Commission stated:

       Dr. Blake testified beyond a reasonable degree of medical certainty that the failure
       of [Nurse] Baer to listen to [Mr. Smith’s] lungs was, in essence, the sole, direct and
       approximate (sic) cause of [Mr. Smith’s] death. As was Ms. Wiseman’s testimony,
       this opinion is not consistent with the entire body of evidence presented at trial and
       the record as a whole. Specifically, the reaction of [Mr. Smith] after the vomiting
       episode would not cause a reasonable healthcare professional to take the drastic


                                                 -8-
       measures that Dr. Blake suggests, which is suctioning [Mr. Smith’s] lungs or
       obtaining a new airway via a tracheotomy. Although Dr. Blake testifies that
       suctioning is necessary in accordance with the standard of care, the Commission
       finds under the facts of the circumstances presented that such action was not
       necessary and did not equate to standard of care.

                 In contrast to its credibility determinations regarding the other witnesses, the
Commission found Nurse Baer to be a horrible, evasive, and elusive witness. The Commission,
however, also stated that while there may have been some inadequacies in the care he rendered to
Mr. Smith, “there is no evidence that such shortfalls were the direct and proximate cause of [Mr.
Smith’s] death by aspiration.” Although the Commission found Nurse Baer’s testimony not to be
credible, it noted that it still found that there was a conversation between Mr. Smith and Nurse Baer
after the 1 a.m. vomiting episode and that Mr. Smith exhibited no signs of distress whatsoever at that
time because Plaintiff, who was a credible witness, also testified to these facts. The Commission
stated “there is no evidence that the standard of care dictated [Nurse] Baer to have acted differently.”

               The Commission also found Dr. Googe’s testimony to be credible and stated:

       He conducted the autopsy on [Mr. Smith]. He stated without reservation that (1)
       vegetable matter was found deep in the lungs of [Mr. Smith]. This is a medical
       finding of a previous aspiration occurring some time prior to [Mr. Smith’s]
       hospitalization on October 6th, 1993. Secondly, the neutrophils in [Mr. Smith’s]
       lungs appeared to have come from such prior aspiration. Thirdly, [Mr. Smith] died
       of acute aspiration of gastric contents into the lungs, and finally, the aspiration that
       caused [Mr. Smith’s] death occurred less than one hour prior to the death. Dr. Googe
       stated that there’s no credible evidence to prove Dr. Blake’s theory that [Mr. Smith]
       aspirated at 1:00 A.M. and slowly suffocated as his lungs shut down and filled up
       with fluid.

                The Commission found that Dr. Blake’s testimony and his opinion that Mr. Smith
aspirated as a result of the 1 a.m. vomit also were rebutted by the fact that Mr. Smith did not choke,
cough, or complain of any burning in his lungs after the 1 a.m. vomit; that Mr. Smith carried on
conversations with his mother and with Nurse Baer after the 1 a.m. vomit; that the anesthesiologist
trying to intubate Mr. Smith during the code found secretions in Mr. Smith’s throat, mouth, and
upper airways; and that coffee ground emesis was found in Mr. Smith’s mouth during the code. The
Commission stated that these facts show, and the Commission so found, “that a final vomiting
episode took place an hour prior to [Mr. Smith’s] death, somewhere around 5:00 o’clock, 5:15 or
the like”and stated that this theory is more logical than Dr. Blake’s theory. The Commission found
that “Dr. Googe’s testimony fit the factual circumstance by a preponderance of the evidence.”

               The Commission stated it would have liked to have heard from the doctor who
performed the surgery on the issue of whether Mr. Smith suffered a suppressed gag reflex. Several
witnesses at trial testified to the potentiating effect of morphine and Phenergan. However, the


                                                  -9-
Commission stated “[i]f allegedly there was a problem with a suppressed gag reflex due to over
medication . . . then we have to look to the fault going back - - the genesis of that fault being the
original doctor order . . . ordering the Phenergan and the morphine combined and the dosage that he
assigned to each drug.” There is no evidence that the nursing staff failed to give medications in
accordance with the doctor’s orders.

                 The Commission further noted that it would have liked to have heard testimony from
“Victoria Henson, the LPN who supposedly checked and charted Mr. Smith’s vital signs during the
critical period of time.” The Commission made the finding that the State did not offer Ms. Henson’s
testimony, but declined to make any further findings regarding this issue.

               The Commission also addressed the issues surrounding the lost chart stating:

       The chart in this case was lost for five and a half years. There’s absolutely positively
       no way this Commission can find anything but that such an act, if you will, such an
       occurrence is unacceptable. There is no proof that the integrity of this chart was
       maintained. However, there is also no proof that this chart was altered. The
       [Plaintiff] made it out for an inference to be drawn that it could have happened. The
       Commission acknowledges that it could have happened. The Commission finds that
       there is no evidence supporting that it happened. That having been said, this
       Commission cannot let it go by without stating that the hospital’s failure to find the
       file for five and a half years is an abomination, and we would hope that such an event
       would not be repeated. . . . There was an inference laid before the Commission,
       which the Commission respects, for the Commission to make of it as it would. And
       I find that while the integrity of the chart was not proven, that alteration was not
       proven either. So, in essence, it’s a wash.

               The Commission entered judgment in favor of the State.

                                             Discussion

              Although not stated exactly as such, Plaintiff raises three issues on appeal: 1) whether
the Commission erred in refusing to find that the integrity of the medical record had been
compromised; 2) whether the evidence preponderates against the Commission’s factual findings;
and, 3) whether the evidence preponderates against the Commission’s holding that there was no
deviation from the standard of care.

                 Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the trial court, here the Commission, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of correctness.
S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).



                                                -10-
                 We first will discuss whether the Commission erred in refusing to find that the
integrity of the medical record had been compromised. Plaintiff argues that she should have received
a presumption that the medical record was altered. Plaintiff’s argument rests upon the doctrine of
spoliation of evidence, which “permits a court to draw a negative inference against a party that has
intentionally, and for an improper purpose, destroyed, mutilated, lost, altered, or concealed
evidence.” Leatherwood v. Wadley, 121 S.W.3d 682, 703 (Tenn. Ct. App. 2003).

               To begin, we note that the record in this case is devoid of evidence showing that the
medical record was destroyed, mutilated, or altered. There is evidence in the record, however,
showing that the medical record was lost and not produced for a period of approximately five years
before being produced by the Hospital. More importantly, however, the record is devoid of evidence
showing that the Hospital “intentionally, and for an improper purpose” lost or concealed the medical
record during this time period. Id. The medical record eventually was produced and was made
available to Plaintiff and, as the Commission noted, Plaintiff relied on the medical record at trial.
As there is nothing in the record showing the intent necessary to support an inference under the
doctrine of spoliation of evidence, Plaintiff was not entitled to such an inference.

               The Commission, however, did state:

       There is no proof that the integrity of this chart was maintained. However, there is
       also no proof that this chart was altered. The [Plaintiff] made it out for an inference
       to be drawn that it could have happened. The Commission acknowledges that it
       could have happened. The Commission finds that there is no evidence supporting
       that it happened. That having been said, this Commission cannot let it go by without
       stating that the hospital’s failure to find the file for five and a half years is an
       abomination, and we would hope that such an event would not be repeated. . . . There
       was an inference laid before the Commission, which the Commission respects, for
       the Commission to make of it as it would. And I find that while the integrity of the
       chart was not proven, that alteration was not proven either. So, in essence, it’s a
       wash.

                 Plaintiff argues that she need not prove alteration in order to impeach the medical
record and cites to Richardson v. Miller, which states that “[s]eldom will parties be able to prove that
their adversary maliciously destroyed or secreted a missing document.” Richardson v. Miller, 44
S.W.3d 1, 28 (Tenn. Ct. App. 2000). Richardson, however, dealt with allegations regarding a
specific allegedly missing document and stated that a factual issue “is created when the party seeking
the missing evidence instruction puts on evidence showing (1) that the document exists, (2) that the
document is relevant, and (3) that the opposing party had exclusive control of the document and the
party possessing the document proffers an explanation for not producing it. Id. In the instant case,
there are no allegations regarding a specific missing document or documents. Plaintiff did not show
that any specific document existed and was not produced at or before trial. Plaintiff apparently
argues that the five year delay in producing the medical record is equivalent to having maliciously
destroyed or totally failed to produce the record. Plaintiff then argues that because of this delay, an


                                                 -11-
alteration of the record by the Hospital should be presumed. We fail to see any correlation between
a delay, even an unreasonable five year delay, in producing the medical record and a claim of
alteration of the medical record. There has been no reason presented as to why the Hospital or any
individual allegedly wanting to alter the medical record would have required a five year period in
which to make the claimed alteration. In short, the fact that the State or the Hospital unreasonably
delayed for five years the production of the medical record does not necessarily mean that the
medical record was altered in any way. The record on appeal presented to us does not show any
causal relationship between the delay, even an unreasonable five year delay, in producing the medical
record and the claimed alteration to that medical record, and we find no reason to believe that such
a causal relationship automatically exists. Therefore, Plaintiff’s reliance upon Richardson is
misplaced.

                 Additionally, we note that Plaintiff did not bring the matter of the missing medical
record to the attention of the Commission until after the State had been granted an Order of
Dismissal for failure to prosecute two years after the filing of suit. Plaintiff filed a Motion to
Reconsider and the Commission did enter an Order Setting Aside Order of Dismissal. However, the
only relief requested by Plaintiff was to have the Order of Dismissal set aside. Plaintiff did not ask
for any other relief at that time. Plaintiff did not seek any relief relative to the once missing medical
record until trial and, as the Commission noted, Plaintiff relied upon the medical record at trial. We
are unpersuaded by the Plaintiff’s argument that, basically, those portions of the medical record that
are helpful to Plaintiff’s case are reliable and those portions of the medical record that are harmful
to Plaintiff’s are unreliable.

                The Commission did acknowledge that an inference had been laid before it, whether
Plaintiff was entitled to one or not, and clearly considered the matter. We hold the Commission did
not err in refusing to find that the integrity of the medical record had been compromised as no
alteration of the medical record either was proven or properly presumed to have occurred.

              We next consider, in light of our discussion above, whether the evidence
preponderates against the Commission’s factual findings. “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are involved,
considerable deference must be accorded to the trial court's factual findings.” Seals v.
England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999) (quoting Collins v.
Howmet Corp., 970 S.W.2d 941, 943 (Tenn.1998)).

               Plaintiff claims the evidence preponderates against the Commission’s factual findings
because the medical record was unauthenticated and uncorroborated; Nurse Baer’s testimony was
found to be elusive, evasive, and not credible; the State did not offer the testimony of Ms. Henson,
the LPN; and the State’s experts relied upon the medical record to opine that there were no
deviations below the standard of care. This argument breaks down into several main points.

               First, Plaintiff complains about the medical record, which she asserts should not have
been relied upon because it was not produced for approximately five years. Plaintiff again cites to


                                                  -12-
Richardson in support of her contention. Richardson, 44 S.W.3d 1. As we discussed above,
Plaintiff’s reliance upon Richardson is misplaced. In addition, we note that the Commission’s
findings and ultimate decision were, in large part, “based upon [Plaintiff’s] testimony...” and the
testimony of Dr. Googe, testimony which strongly supports the Commission’s factual findings even
if the medical record itself were discounted. Plaintiff’s claim that the testimony of the State’s
experts should be given no weight because they relied upon the medical record to opine that there
were no deviations below the standard of care also must fail given our resolution of Plaintiff’s issue
concerning the medical record.

               Second, it is true that the Commission found Nurse Baer’s testimony to be evasive,
elusive, and not credible. However, the Commission specifically stated that even if Nurse Baer’s
testimony were discounted, it could and did still find that there was a conversation between Mr.
Smith and Nurse Baer after the 1 a.m. vomiting episode and that Mr. Smith exhibited no signs of
distress whatsoever at that time because Plaintiff, who was a credible witness, also testified to these
facts.

               Finally, Plaintiff argues that because the State did not offer the testimony of Ms.
Henson, the LPN, Plaintiff should have been entitled to an inference that the testimony that would
have been given by Ms. Henson “would not sustain the contention of [the State].” Raines v. Shelby
Williams Indus., 814 S.W.2d 346, 349 (Tenn. 1991) (quoting Delk v. State, 590 S.W.2d 435, 448
(Tenn. 1979) (dissenting opinion)). In essence, Plaintiff argues she was entitled to the benefit of the
missing witness rule. This Court discussed the missing witness rule in Dickey v. McCord, stating:

                       The missing witness rule provides that

               [f]ailure of a party to call an available witness possessing peculiar
               knowledge concerning the facts essential to a party’s case, direct or
               rebutting, or to examine such witness as to the facts covered by his
               special knowledge, especially if the witness would naturally be
               favorable to the party’s contention, relying instead upon the evidence
               of witnesses less familiar with the matter, gives rise to an inference
               that the testimony of such uninterrogated witness would not sustain
               the contention of the party. No such inference arises where the only
               object of calling such witness would be to produce corroborative,
               cumulative, or possibly unnecessary evidence; or when an adverse
               inference would be improper for any other reason . . . .

       Stevens v. Moore, 24 Tenn. App. 61, 139 S.W.2d 710, 717 (Tenn. Ct. App. 1940)
       (citation omitted); see also State v. Francis, 669 S.W.2d 85, 88-90 (Tenn. 1984). As
       a prerequisite to commenting on a missing witness, the evidence must show “that the
       witness had knowledge of material facts, that a relationship exists between the
       witness and the party that would naturally incline the witness to favor the party and



                                                 -13-
        that the missing witness was available to the process of the Court for the trial.” Delk
        v. State, 590 S.W.2d 435, 440 (Tenn. 1979).

Dickey v. McCord, 63 S.W.3d 714, 721 (Tenn. Ct. App. 2001).

                 It is true that the State did not offer Ms. Henson’s testimony. We note, however, that
there is absolutely nothing in the record to show that at the time of trial, more than ten years after
Mr. Smith’s tragic death, Ms. Henson still was employed by the Hospital or that she even still was
alive. There is nothing in the record to show that a relationship exists between Ms. Henson and the
Hospital that would incline Ms. Henson to favor the Hospital. It may be that Ms. Henson still works
for the Hospital, or it may just as likely be that Ms. Henson quit or was fired and maintains some
hostility toward the Hospital. There simply is nothing in the record to show that Ms. Henson was
uniquely under the State’s control or that she was not as equally available to Plaintiff as to the State.
In fact, there is nothing in the record to show that Ms. Henson “was available to the process of the
Court for the trial.” Id. For all we know, Ms. Henson may no longer be living, or may no longer be
residing within the jurisdiction. We simply have nothing in the record to show the prerequisites that
would entitle Plaintiff to the missing witness rule. If Plaintiff wanted to call Ms. Henson as a
witness, Plaintiff was as free to do so as was the State. This being so, we find no error by the
Commission as to this issue raised by Plaintiff.

                In her reply brief, Plaintiff also argues that the testimony of Dr. Fulkerson, offered
by the State, was not credible and was “not sufficient to support the verdict.” We find nothing in the
record showing that the Commission relied in any significant way upon the testimony of Dr.
Fulkerson in support of its holding. Instead, the Commission held that Plaintiff did not establish the
standard of care, and, therefore, failed to establish any breach of the standard of care. In its
memorandum opinion, the Commission simply mentions that “[t]he gist of Dr. Fulkerson’s
testimony was that [Mr. Smith] was not high risk.” The Commission then noted:

        [Mr. Smith] was - I hate the term, but it’s a medical term - morbidly obese. He was
        300 pounds, had gastric reflux disease as well as he had been injured in an accident
        prior. Dr. Blake testified as to the compressed chest cavity of [Mr. Smith]. He stated
        that in his opinion [Mr. Smith] was a high risk candidate, . . . .

               The Commission observed the witnesses and made very specific credibility
determinations and, as we must, we afford considerable deference to the Commission’s credibility
determinations and the resulting impact of these determinations on the Commission’s factual
findings. The evidence does not preponderate against the Commission’s factual findings and,
therefore, we will not disturb those findings upon appeal.

                We next consider, given our holdings above, whether the evidence preponderates
against the Commission’s findings and resulting decision that there was no deviation from the
standard of care. Medical malpractice actions in Tennessee, such as this case, are governed by Tenn.
Code Ann. § 29-26-115, which provides, in pertinent part:


                                                  -14-
       (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 the defendant 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 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 (a) (Supp. 2004).

                To begin, the Commission found that the nursing techniques testified to by Ms.
Wiseman did not establish “the standard of care that was required of a registered nurse on a general
orthopaedic recovery floor at UT Hospital.” The Commission found Ms. Wiseman’s criticisms
regarding the nursing care admittedly concerned judgment calls. In addition, the Commission found
that the drastic measures of suctioning Mr. Smith’s lungs or obtaining a new airway via a
tracheotomy after the 1 a.m. vomiting episode that Dr. Blake testified were necessary in accordance
with the standard of care were, under the facts and circumstances presented in this case, not
reasonable and necessary and did not equate to the standard of care. Thus, the Commission found
that Plaintiff did not prove “[t]he 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 . . . .” Tenn. Code Ann. § 29-26-115 (a)(1) (Supp. 2004). The evidence does not
preponderate against this finding as previously discussed in this Opinion.

                 Additionally, the Commission found that the deviations Ms. Wiseman claims
occurred, specifically the failure to properly advance diet, to adequately maintain the medical chart,
and to properly follow physician’s orders, were not a direct and proximate cause of Mr. Smith’s
death. The Commission stated that “there is no evidence that such shortfalls [on the part of Nurse
Baer] were the direct and proximate cause of [Mr. Smith’s] death by aspiration.” The Commission
stated “there is no evidence that the standard of care dictated [Nurse] Baer to have acted differently.”
In addition, although Dr. Blake opined “beyond a reasonable degree of medical certainty that the
failure of [Nurse] Baer to listen to [Mr. Smith’s] lungs was, in essence, the sole, direct and
approximate (sic) cause of [Mr. Smith’s] death”, the Commission found that this opinion was not
“consistent with the entire body of evidence presented at trial and the record as a whole.” Thus, the
Commission found that Plaintiff failed to prove “[t]hat the defendant acted with less than or failed
to act with ordinary and reasonable care in accordance with such standard; and . . . [that] [a]s a
proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which


                                                 -15-
would not otherwise have occurred.” Tenn. Code Ann. § 29-26-115 (a)(2 & 3) (Supp. 2004). For
these reasons, and the reasons discussed earlier in this Opinion, the evidence does not preponderate
against this finding by the Commission.

                  Plaintiff then argues that the Commission erred by assigning fault to the doctor who
performed the surgery because the Commission stated it would have liked to have heard from this
doctor and “[i]f allegedly there was a problem with a suppressed gag reflex due to over medication
. . . then we have to look to the fault going back - - the genesis of that fault being the original doctor
order . . . ordering the Phenergan and the morphine combined and the dosage that he assigned to each
drug.” However, the Commission never assigned any fault to this doctor. We find no merit to this
issue.

               The reality of the situation is that Plaintiff, despite the excellent work of her lawyers,
was unable to make the required showings regarding the applicable standard of care and the breach
of such standard. The evidence does not preponderate against the Commission’s factual findings
and, after a thorough review of the record, we hold that the Commission reached the correct
conclusions of law. As we find no error by the Commission, we affirm the Commission’s grant of
judgment to the State.

                                              Conclusion

               The judgment of the Claims Commission is affirmed, and this case is dismissed with
this cause being remanded to the Claims Commission solely for collection of the costs below. The
costs on appeal are assessed against the Appellant, Patsy Smith, and her surety.




                                                         ___________________________________
                                                         D. MICHAEL SWINEY, JUDGE




                                                  -16-
