                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  December 8, 2004 Session

           DARRELL MASSINGALE v. YUNG GIL LEE, P.C., ET AL.

                      Appeal from the Circuit Court for McMinn County
                             No. 23820    John B. Hagler, Judge



                   No. E2004-01364-COA-R3-CV - FILED APRIL 28, 2005


During surgery to repair a bilateral hernia, Yung Gil Lee, M.D. (“Defendant”) also performed an
orchiectomy and removed Darrell Massingale’s (“Plaintiff”) left testicle. Plaintiff sued Defendant
claiming, in part, that Defendant had committed both medical malpractice and medical battery. The
Trial Court granted Defendant’s motion for a directed verdict on the claim of medical battery. The
claim of medical malpractice went to the jury and resulted in a mistrial. The Trial Court then
reconsidered Defendant’s motion for a directed verdict on the claim of medical malpractice and
entered an order granting a directed verdict on that claim as well and dismissing the case. Plaintiff
appeals claiming that the Trial Court erred in directing a verdict as to both the medical battery claim
and the medical malpractice claim. We affirm the directed verdict on the medical malpractice claim,
reverse the directed verdict on the medical battery claim, and remand for a new trial on Plaintiff’s
medical battery claim.


           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                   Affirmed, in part, Reversed, in part; 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.

Dan Channing Stanley, Knoxville, Tennessee, for the Appellant, Darrell Massingale.

Sharel V. Hooper and Timothy J. Millirons, Chattanooga, Tennessee, for the Appellees, Yung Gil
Lee, P.C. and Yung Gil Lee, M.D.
                                               OPINION

                                              Background


               Given the nature of the issues raised on appeal, a detailed discussion of the evidence
presented to the jury is necessary. This is particularly so given the extensive expert testimony
presented to the jury in this medical malpractice and medical battery case as the issues on appeal
relate to whether the Trial Court erred in granting directed verdicts as to both of these claims.

                 On October 14, 1999, Defendant performed surgery on Plaintiff to repair a bilateral
inguinal hernia. During that surgery, Defendant performed an orchiectomy and removed Plaintiff’s
left testicle. Post-surgery, Plaintiff developed lymphedema and a recurrent hernia on the right side.
Plaintiff underwent several subsequent surgeries to repair the recurrent hernia and to reduce swelling
of the scrotum. Plaintiff sued Defendant claiming, in part, that “the inadequate hernia repair caused
the massive scrotal swelling, as well as other unusual complications” and that the removal of the left
testicle was unnecessary, done without proper consent, and negligent.

                Plaintiff filed a motion for partial summary judgment claiming, in part, that
Defendant was liable for medical battery for removing Plaintiff’s left testicle as Plaintiff was not
aware the testicle would be removed, did not consent to such removal, and Plaintiff’s condition did
not constitute an emergency situation necessitating the removal of the testicle. The Trial Court
entered an order on September 16, 2002, holding that a genuine issue of material fact existed as to
this issue and denying Plaintiff’s motion for partial summary judgment. The case was tried to a jury
in August of 2003.

                Plaintiff testified at trial that he first learned he had a hernia in 1997. Plaintiff stated
that the condition wasn’t that bad, but would come and go and that he was able to continue working.
Plaintiff decided in 1999 to undergo surgery to correct the hernia. Plaintiff testified that he asked
Defendant prior to the surgery if it would “affect me in any way in my manhood or anything happen
down there that I should need to know about.” Plaintiff testified that Defendant told him it was
minor surgery and he didn’t have anything to worry about.

                 Plaintiff signed a consent form prior to surgery. In pertinent part, the consent form
stated:

          I consent to the performance of operations and procedures in addition to or different
          from those contemplated, whether or not arising from presently unforseen conditions,
          which the above name physician or his associates or assistants may consider
          necessary or advisable in the course of the operation.




                                                    -2-
                 Plaintiff testified that he was given an epidural and was awake during the surgery.
He stated that after the surgery “I went home, and it was like a big basketball between my legs.”
Plaintiff testified that he could not get his clothes on after the surgery.

               In November of 1999, approximately one month after the surgery, Plaintiff went to
see Frederick A. Klein, M.D., the chief of urology at University of Tennessee Medical Center,
complaining of a very large scrotum. Dr. Klein testified that “[i]t’s relatively common to have
temporary swelling following almost any kind of surgery, especially hernia surgery,” but it usually
goes away in a couple of weeks. Plaintiff also developed a recurrent hernia on the right side.

               Dr. Klein performed surgery on Plaintiff to repair the recurrent hernia and reduce the
scrotal swelling. In total, Plaintiff underwent three surgeries after the surgery performed by
Defendant on Plaintiff. Plaintiff testified that after the first of these three surgeries, he had some
swelling but that it wasn’t bad and he was still able to get his clothes on. Plaintiff admitted that he
had swelling after each of the subsequent surgeries. The evidence shows that once lymphedema
develops, the way to get rid of it is to excise the tissue.

                James W. Taylor, M.D., a plastic and reconstructive surgeon, assisted Dr. Klein
during Plaintiff’s first subsequent surgery. Dr. Taylor testified that this was a difficult surgery. Dr.
Taylor explained that Plaintiff had massive scrotal edema or swelling, a large inguinal hernia, and
a penis buried in fat and tissue. Dr. Taylor testified that they resected a “heavy amount of tissue,”
around 12 to 25 pounds, from Plaintiff’s scrotum during that surgery.

                 Defendant testified at trial regarding the surgery at issue in this case and his treatment
of Plaintiff in general. He explained that in addition to the bilateral inguinal hernia surgery at issue,
he had performed a ventral hernia repair on Plaintiff in June of 1999. Plaintiff did not suffer a
recurrence of the ventral hernia.

                 As to the surgery at issue, Defendant testified that if a patient’s condition permits,
then a bilateral repair is appropriate. He further testified that Plaintiff’s bilateral inguinal hernia was
the largest hernia he has seen. Defendant explained that with any surgery, you expect four to six
weeks of swelling.

                 Defendant testified he did not inform Plaintiff prior to surgery that he might lose a
testicle because that was not an anticipated risk of this surgery. Defendant admitted that the removal
of the testicle was not an emergency situation, but stated he does not believe it is serious to remove
one testicle. He testified that in most patients, when one testicle is removed, the other takes over and
compensates.

               Defendant testified regarding his decision to remove Plaintiff’s testicle. Defendant
explained that in most cases the omentum, or fat in the hernia sac, and the spermatic cord are
completely separate, but in Plaintiff’s case inflammation made it impossible to separate them.
Defendant testified that the omentum and the spermatic cord in Plaintiff’s case “was glued together,


                                                   -3-
I mean glued, just inseparable.” Defendant stated that Plaintiff’s left testicle “[e]ither wasn’t
functioning or even functioning probably very low function.” Defendant testified he could tell by
the appearance that the blood was not circulating in the testicle and some of that fat removed was
necrotic and “[t]hat means that there is much inflammation around the spermatic cord.” Defendant
stated: “Is nearly 100 percent he’s probably - - his blood vessel circulation was damaged and either
he develop, we call it gangrene or abscess on that testicle. That means we have to go back, remove
that, even make it worse on the hernia repair.”

              Defendant testified that sometimes you find something unusual during surgery that
you weren’t prepared for and you know you will have to go back for surgery again. He stated:

       Sometimes you feel uncomfortable and feel you need more information, you just
       have to stop and come back later on. For example, like the right side, the reason why
       I only sacrifice left testicle, I don’t want to sacrifice on the right side if I can. This
       is one. Second one, his ureter, like I said, this is the first time. Ureter is all sliding
       through the hernia, which is extremely unusual. I never heard about it. I need
       information because the ureter is a touchy - - I was concerned about having some
       blockage, and so I needed more information before taking into surgery, so I just close
       the surgery. I fix him all I can, left a small weakening area. There is nothing wrong
       with that. I mean, if we do the rest, I have to sacrifice almost the other testicle.

                The operative report for the surgery at issue states: “Both inguinal walls were
completely attenuated. . . . No strong fascia or ligament was available because of the longstanding
hernia.” Defendant explained that attenuated means the fascia, or tissue, was thin. Defendant
testified that whenever a hernia occurs it is because the walls are weak already. Defendant testified
that he sometimes uses mesh, if the tissues are weak, but that he did not use mesh during the surgery
at issue.

               Defendant testified regarding his decision to not use mesh stating:

       The mesh gauze is not benign. This is a foreign material. You have a high risk for
       infection. Second of all, this make it stiff all the time. Some people just don’t like
       it. Every time you move a leg, it is aching like - - almost like a . . . . And also is
       sharp area, sometimes pinch nerves. You might have more nerve pressure on the
       pain on groin area after surgery, so this is all kind of - - it’s not benign. A lot of
       problems there, so you have to use it very carefully, not use in every hernia, only
       when you cannot repair. If you cannot make a tight repair, then you have to use
       them, not the routine.

               Defendant also stated:

       I feel like some day or somebody have to come back to repair again. If so, when you
       leave mesh gauze is going to be big mess, not only twice as hard dissecting, you have


                                                  -4-
       more chance to damage the tissues, more bleeding problems and the potential when
       you tear up all the mesh gauze you make a big defect, make a lot weaker, so make
       everything complicated. So for me, my best judgment is not use it, leave it alone,
       repair as best I can.

                 Roy Lawrence Kroovand, M.D., a retired pediatric adolescent reconstructive
urologist, testified as an expert witness for Plaintiff. Dr. Kroovand testified that his practice was
approximately 90 percent pediatric and 10 percent adult reconstructive. Dr. Kroovand explained that
he moved in 1986 to a hospital where he was the only urology faculty member with any experience
in adult reconstructive urology, and so he was given very complicated procedures that other faculty
members were unable to do and, as a result, he developed a reconstructive practice.

              Dr. Kroovand opined that Defendant breached the standard of care in several ways.
He opined that it fell below the standard of care to attempt to repair both hernias during the same
surgery, as Defendant did in this case. Dr. Kroovand also opined that Defendant did not have
informed consent to remove the testicle. He stated that there are “times when you find things that
you don’t expect to find, and in that situation, if it’s not life threatening, you need to get informed
consent from someone.”

                 Dr. Kroovand explained that the testicle has two primary functions, to produce
testosterone, and to form sperm. Dr. Kroovand testified that tests done on Plaintiff after the surgery
at issue in this case show that Plaintiff’s testosterone level is 92, while the normal range is 241 to
827. Dr. Kroovand stated Plaintiff is “severely testosterone deficient.” However, the evidence
shows that no tests of testosterone level were done on Plaintiff prior to the surgery at issue so there
is no way to know whether, or to what extent, the surgery at issue effected Plaintiff’s testosterone
level. Dr. Kroovand admitted that losing one testicle does not make a person sterile.

              Dr. Kroovand further opined that it was a breach of the standard of care for Defendant
not to use mesh when repairing the hernia. He stated:

       The standard of care, in my judgment, and I think in the judgment of most people, is
       if you have thin tissue, tissue that is not strong enough to hold sutures and hold
       together to prevent the hernia from recurring, you have to use something to
       supplement that, and I use a mesh graft called Marlex. . . . Marlex has been for years
       - - I think it was the original mesh graft, and for years it has been the standard of care.

                 Dr. Kroovand opined that the failure to use mesh on the right side and the recurrence
of the hernia on that side caused the lymphedema. However, Dr. Kroovand agreed that some
surgeons use mesh and some don’t and that there are risks associated with the use of mesh, including
infection. When asked whether going back into an area where mesh had been used previously would
be difficult because the foreign body of the mesh had become incorporated, Dr. Kroovand replied,
“It’s a disaster.”




                                                  -5-
               Dr. Kroovand testified that “with inguinal hernia repair, whether it’s a pediatric
patient or an adult, there may be some temporary irritation to the lymphatic drainage, which will
produce temporary scrotal swelling, but generally it is not bad.” Dr. Kroovand admitted that he
could not say with 100% certainty that the recurrent hernia on the right side was the predominant
cause of the lymphedema, but stated he believes that it was the probable cause. He stated: “I don’t
think anyone can point out absolutely what the lymphedema was due to. There’s certainly positive
relationships.” He explained further stating:

       I think the recurrent hernia on the right side was a proximate cause of the
       lymphedema. It may not have been the total cause. It was certainly high on the list
       of causes. . . . I cannot say that it was the only cause. That then takes me from being
       absolute and only into it must be contributory. Now, was it 90 percent contributory,
       20 percent contributory, I don’t know.

Dr. Kroovand did state that the hernia repair on the left side had no relation to the lymphedema.

               Dr. Kroovand explained that he believes the recurrent right hernia contributed to the
lymphedema

       because the size of the reoccurrence . . . was such that the entire scrotal compartment
       on the right side was filled with what subsequently turned out to be intestine, the
       ureter from the right kidney, which was almost a foot down into this area, and
       omentum. This produced the pressure on the lymphatic drainage from the right side
       and possibly influenced the left side, also, such that the normally formed lymph fluid
       could not drain into the lymph nodes and be reprocessed back into the bloodstream.
       With this tissue being filled with fluid, it is going to swell and it is going to become
       very thick and almost leather-like.

              Dr. Kroovand admitted it is possible that the lymphedema was related to Plaintiff’s
obesity. He explained that:

       omentum is a fatty tissue which drapes down off of the intestine that’s used
       something like a filter to pick up things that you want to filter out. It has lymph
       nodes in it. In some people who are extremely overweight, the omentum becomes
       very, very large and very problematic. . . . [W]hen a hernia occurs, a simple hernia
       with just a little bit of intestine sticking down through it, but not big like that, will
       enlarge the external ring. And with a larger hernia, obviously this becomes larger
       and larger, and that’s what you have there. With all of this being down there, you
       will have some constriction of the enlarged external ring. The more tissue down in
       there - - the ring can only stretch so far, and the more compression you have, then the
       higher the risk of having intestinal injury and compromised blood supply, having
       lymphedema because of a collection of fluid in the tissue down here, because the
       fluid forms all the time, and with this being obstructed, or partially obstructed, it
       can’t drain completely, so it swells.

                                                 -6-
                 William E. Kennedy, M.D., an orthopedic surgeon who currently limits his practice
to doing independent medical examinations, also testified as an expert witness for Plaintiff. Dr.
Kennedy examined Plaintiff and determined that Plaintiff “suffered 42 percent permanent physical
impairment to the whole person as a result of the combination of a urethral disorder, the inability to
perform sexually, and also partial loss of his scrotum and also the loss of his left testicle.” Dr.
Kennedy opined that he believes Plaintiff will have this percentage of impairment for the remainder
of his life. Dr. Kennedy testified that Plaintiff weighed 353 pounds when he came to see him. Dr.
Kennedy did not perform any specific tests on Plaintiff, but noted that Plaintiff’s “penis was still
largely buried and surrounded with enlarged and edematous . . . tissue that would make it difficult
for him to perform in a normal sexual manner.” Dr. Kennedy explained that “[e]dema is increased
fluid accumulation, and, therefore, enlargement of the soft tissue.” Dr. Kennedy opined:

       there was causal relationship between what I found and what was documented in the
       record on the surgery. . . . The findings of record, as well as my own findings,
       followed the known and well-established pathophysiological patterns that we
       generally expect following the type of surgery that [Plaintiff] underwent on October
       14th, 1999 and also following the necessity of the subsequent scrotoplasties.

               Dr. Kennedy recommended:

       [that Plaintiff’s] future activities of daily living and employment not require repeated
       bending, stooping or squatting, vigorous pushing or pulling, working over rough
       terrain or in rough vehicles, excessive ladder climbing or stair climbing or working
       with his hands raised above the level of his shoulders. Ideally, he should be able to
       control his posture with respect to sitting or standing. Sitting should not exceed 45
       minutes at a time for a maximum of about 3/4 of a workday. Standing and walking
       should not exceed 15 minutes at a time for or (sic) a maximum of about 1/4 of a
       workday. Maximum lifting should be no greater than about 20 pounds occasionally,
       meaning less than 1/3 of the time, or 7 pounds frequently, meaning up to 2/3 of the
       time, assuming a level lift, that is, assuming that he doesn’t have to bend and twist
       or stoop or squat in the process of doing the lifting.

               Dr. Kennedy also opined:

       [that the] massive edema and enlargement of the scrotum caused the urethral
       disorder, the difficulty in voiding. The absence of a testicle, of course, contributed
       a great deal to the inability to have normal sexual function, along with the massive
       edema of the scrotum and enlargement of the scrotum and the associated tissues even
       above the scrotum extending into the lower abdomen and into both groins, and all of
       that, I concluded, more likely than not, had been caused by the surgery of October
       14th, 1999.




                                                 -7-
                Dr. Kennedy was questioned regarding discrepancies in his testimony. Specifically,
when he was asked during his deposition if he could say which procedure caused the complaints, he
replied that he could not. At trial, he stated:

        It does appear that I have a different opinion today about that. And in further
        reviewing this case in preparation for this deposition, all I can say is that it appears
        clearer to me than it apparently did at the time of this discovery deposition, which
        was taken just a month ago; and I apologize for that, but that certainly is a
        discrepancy between the two depositions.

                Julian M. Nadolsky, Ed.D., a counselor with a doctoral degree in counselor education,
also testified as an expert witness for Plaintiff. Dr. Nadolsky testified he has “a small company
called The Rehabilitation and Wellness Corporation, which is concerned with vocational services.”
Dr. Nadolsky met with Plaintiff in October of 2001. He interviewed Plaintiff, gave him tests of
general intelligence, basic reading, and arithmetic ability, and reviewed Plaintiff’s medical records.
Dr. Nadolsky then prepared a vocational analysis report. Dr. Nadolsky testified that Plaintiff scored
in the below average range on the general intelligence test, the reading test, and the arithmetic test.
He opined that Plaintiff has “lost access to about 96 percent of the jobs in this local labor market that
he could have performed prior to developing the problems as a result of the bilateral inguinal hernia
surgery that was undertaken on October 14th of 1999.” Dr. Nadolsky testified that he based his
opinion, in part, on Dr. Kennedy’s restrictions and stated: “I think it is very unlikely that [Plaintiff]
would be able to perform the day-to-day duties of any occupation on a regular sustained basis. I
think realistically he’s 100 percent disabled for employment, and I think he’ll remain 100 percent
disabled for employment.” Dr. Nadolsky testified that he based his analysis on a 12 county area that
did not include Hamilton County or Knox County.

                Walter B. Rose, M.D., a general surgeon, testified as an expert witness for Defendant.
Dr. Rose opined that Defendant did nothing wrong during the surgery and stated: “In fact, I think
under the circumstances he did a lot of things right.” Dr. Rose testified that “there is no standard
way to fix a hernia. There’s some basic principles, but no standard way.” He stated that “[t]he goal
of hernia surgery is to fix the defect in a safe, efficient way and hopefully a permanent fix without
causing any undue stress or damage to the person during the course of the anesthesia and surgery.”
Dr. Rose testified that “there’s no way to guarantee that a hernia will never come back regardless of
any technique that one wants to utilize or think of.” When asked about performing operations on
both sides at the same time, Dr. Rose replied “there’s no standard. The vast majority of surgeons
including myself fix hernias on both sides, bilateral hernias at the same setting.”

               Dr. Rose explained that “[t]he basic hernia defect is a weakness in a muscle wall. It
can be in any muscle wall, the diaphragm, hiatal hernia.” Dr. Rose testified that

        sometimes a hernia that’s stuck in the - - through the defect can get twisted or kinked
        and the blood supply to whatever the herniated material is regardless of what it’s
        made up of can be compromised and when the blood supply is compromised, we call
        that ischemia, which is poor blood supply of the tissue. And if tissue remains

                                                  -8-
        ischemic long enough, then it dies and then goes necrosis. . . . So the biggest danger
        is tissue loss, tissue death.

                Dr. Rose opined that Defendant did not breach the standard of care by choosing not
to use mesh. He stated: “There is no standard to use mesh or not use mesh.” Dr. Rose testified that
he prefers to use mesh, but stated: “A huge area of controversy in surgery is do you use mesh or you
do not use mesh.” Dr. Rose further explained:

        I have had to go back in on recurrent hernias where there have been mesh and it is
        extremely difficult actually by design. Part of the mesh repair, the mesh itself is
        strong and that’s a good thing. Another part of the repair is the mesh engenders a
        severe inflammatory response from the body because it’s a foreign body and it’s not
        an allergic response. It’s not a rejection response. It’s just a healing response. . . .
        The mesh doesn’t dissolve. It’s that polypropylene plastic, but it engenders this
        incredible inflammatory response and scarring and I have taken hours sometimes to
        remove, revise mesh, not just in the groin area, but other parts of the body where we
        use mesh also. So no surgeon wants to go back in on a mesh hernia repair.

               Dr. Rose admitted that when you use mesh you have only a one-half percent chance
of recurrence and stated that if he had done the surgery on Plaintiff, he would have used mesh on
both sides because that is his routine. However, he stressed, there is no standard about using mesh.
Some surgeons never use it and some always use it.

                Dr. Rose testified that he, in his ten years of private practice and five years of surgical
residency, has had to perform an orchiectomy while doing a hernia repair five or six times. In those
cases, the orchiectomy was not listed on the consent form because it is

        not part of the intended conduct of the operation to remove the testicle. Because in
        cases where I’ve had to remove it and most general surgeons that find themselves,
        we’re not talking about removing the testicle because it’s malignant or a problem like
        that that you would know about before the surgery. The problem and the decision-
        making process arises during the conduct of the operation. To do the operation
        properly, to do the operation appropriately, the surgeon sometimes has to make that
        decision.

                Dr. Rose explained that:

        compromise to the blood supply causes tissue death and so if the blood supply to the
        testicle would be compromised during the course of an operation, the testicle would
        essentially die and it could cause some complications of chronic pain. It could cause
        infectious complications by leaving unhealthy tissue in a surgical site. And it could
        actually cause some scarring if one left it behind, chronic scarring in a hard firm area
        that would be uncomfortable for the patient.



                                                   -9-
               Dr. Rose testified that it would not be advisable to wake a patient up and then go back
the next day or next week in the same area. He stated:

        I can’t think of really any circumstance of waking a patient up and going back in a
        day or a week unless the patient was actually having problems from the anesthesia
        and was in danger of dying on the operating table. I can’t really think of any
        circumstance in a hernia repair of this nature where one would stop the operation,
        wake the patient up and go back. It’s actually counterproductive and a higher risk to
        go back later. You’ve got the anesthetic complications all over again. You’ve got
        the very upset, angry, irritated tissue that one has already dissected through, for
        example, that’s more prone to infection.

                 Dr. Rose testified that Plaintiff’s pathology report shows “that the testicle seemed to
have had some compromise of thrombosis in the blood supply to the veins of the testicle.” Dr. Rose
testified that there was a huge amount of omentum or adipose tissue removed. Fat necrosis and
constipation also were noted in the final diagnosis as the omentum had undergone some necrosis or
tissue death and calcification. Dr. Rose explained that

                [c]alcification occurs in tissue that’s undergone death and attempted at
        healing and actually calcium deposits just like the calcium in your teeth or bones kind
        of migrates into this tissue and so sometimes you’ll have . . . areas of calcification
        and it often occurs with fatty tissue death and it’s not something that’s a short-term
        issue.

                Dr. Rose opined that Defendant did not breach the standard of care when he removed
the testicle

        because a reasonable surgeon, well-trained is almost compelled to do what needs to
        be done at the time of an operation if one finds oneself in a situation where it’s in the
        best interest of the patient to remove tissue or structures that would endanger the
        patient down the road.

                Dr. Rose explained that

        in the normal male, loss of one testicle would not be noticed particularly in terms of
        the spermatogenesis, which is making the sperm, or in the hormonal production
        because two testicles are more than one needs to take care of these processes in the
        body. So in the normal male, the body wouldn’t really need to compensate, but the
        right testicle in this case would take up and keep producing the testosterone and the
        sperm.

                When asked whether Defendant could have stopped the operation before removing
the testicle and closed up, Dr. Rose replied:



                                                  -10-
       the point of where he had to do the removal of the testicle, just the sheer visualization
       and dissection necessary to define the hernia and the extent and the tissues involved,
       the testicle is already compromised. So if he had stopped the operation at that time
       and closed up and left dead tissue behind, that would have been, you know, a worse
       outcome that (sic) removing the testicle.

Dr. Rose further explained:

       In this situation, by the time the testicle is exposed and identified and all the tissue
       dissected off of it to see the nature of the problem, it had already been compromised
       because of the adherent tissue on it in the process of peeling it off, perhaps also some
       of the stretching from the weight of the massive omental tissue. At that point when
       you even have an idea to diagnose the exact nature of the problem, it’s already
       beyond the point of where you could close up because you were worried about
       damage or worried about its integrity. You’ve already gotten to that point.

               Dr. Rose also testified regarding the swelling that Plaintiff experienced stating:

       there’s a lot of swelling that accompanies hernias.

                The tissue down there is very loose. It’s very flimsy. It’s like a sponge. Just
       from the act of surgery and dividing these layers I’ve discussed earlier, you’re going
       to get a lot of swelling. . . . [T]hat’s called edema. That generally subsides over that
       six to eight-week period.

               Dr. Rose opined that Plaintiff would have developed lymphedema no matter who
performed the surgery. He further opined that the recurrent hernia on the right did not cause
Plaintiff’s lymphedema and stated that the use of “mesh has no bearing on lymphedema
development.” Dr. Rose stated that “[t]here’s very few things that will cause this degree of
lymphedema and the very few things would be division of the lymphatic channels, infiltration of the
lymphatic channels by malignancy.” Dr. Rose opined that the incisions did not cause the
lymphedema, but stated he believes that Plaintiff was “in a compensated state on the verge of
lymphedema.”

               Dr. Rose testified that chronic lymphedema or chronic swelling is “very
unpredictable” and there is no way to tell pre-surgery if a patient will have this problem. He stated
that

       sometimes one event, an illness, injury, surgery will actually bring out an underlying
       condition that was heretofore not really diagnosed or diagnosable. . . . Our body has
       an incredible ability to compensate for problems. . . . But by the time physicians or
       the individual knows about an illness, frequently the person has compensated for the
       illness to the most degree that they can and then one little nudge will tip them over
       the edge. Lymphedema is no different in many individuals.

                                                 -11-
Dr. Rose noted that in 1997, Plaintiff had lymphedema of the leg.

                Dr. Rose explained that

        [o]ne of the major lymphatic drainage areas of the body is in the groin or what’s
        called the inguinal nodes. . . . During the course of any incision for an inguinal
        hernia, some of these lymphatics have to be divided. You don’t see them. It’s
        impossible to see them. There’s no reason to. But during the course of going
        through these multiple layers I’ve talked about, lymphatic channels are entwined.


                  Michael Witt, M.D., who specializes in urology “with a specific focus on male
infertility and sexual dysfunction,” also testified as an expert witness for Defendant. Dr. Witt
testified that “[l]ymphedema is when that lymph fluid builds up and that can happen in any structure,
but when you get more fluid there, you know, coming into the system or unable to leave the system
than what should be there, then you get - - it builds up and it’s just fluid building up between the
tissues.” Dr. Witt testified that lymphedema is caused by one of two things, “[e]ither the fluid can’t
get out because it’s blocked or there’s an overproduction of fluid, so there’s just too much being
made for the system to handle.” He explained that blockages are caused by “anything that would
obstruct or sever those small channels. So things like incisions, malignancies, infection, trauma ….”

                Dr. Witt testified that hernia surgery can cause lymphedema “if the incision has
severed those channels that can take the lymph out of the skin and the scrotum to the site where it’s
deposited, then you will get obstruction of lymph flow or impairment of lymph flow out of those
tissues and the lymph can build up and you can develop lymphedema.” However, he testified that
there was no relationship between the disruption of the lymphatic system and the pressure from the
hernia and opined that recurrent hernia would not cause lymphedema.

                 Dr. Witt testified that the removal of a testicle would have no effect on the ability to
make sperm because the other testicle would compensate. He testified that the removal of a testicle
has no effect on the ability to achieve and maintain an erection or to ejaculate. Dr. Witt testified
there is no way of knowing whether the loss of the testicle in Plaintiff’s case had an effect on
testosterone level because we don’t know what his level was prior to surgery. Dr. Witt testified that
there are medications available including testosterone replacement therapy and drugs to stimulate
the testicle to make more testosterone.

                Dr. Witt spoke about problems with the use of mesh stating:

        there’s a growing awareness now that men who have had bilateral hernia repairs with
        mesh or a single hernia repair with mesh in a situation where there’s just a single
        testicle on that same side have a higher incidence of autovasectomizing themselves
        due to scarring that develops around the mesh . . . . It’s probably anywhere from five
        to ten percent that you can see men who will end up with no sperm in the ejaculate
        because the mesh performs a vasectomy.

                                                  -12-
However, Dr. Witt admitted he is not qualified to testify about hernia repairs because he does not
currently do hernia repairs.

                William Wray, Ed.D., a licensed clinical psychologist and board-certified professional
disability consultant, also testified as an expert witness for Defendant. Dr. Wray reviewed
documents, but did not work directly with Plaintiff. Dr. Wray determined that Plaintiff now has a
“74 percent loss of access to the job market.” Dr. Wray disagreed with Dr. Nadolsky’s opinion that
Plaintiff could not benefit from training.

                Dr. Wray testified that there are some limitations on the tests performed on Plaintiff
by Dr. Nadolsky. He explained that a simple error early in the math test could become compounded
and distort the true measure of math ability. Dr. Wray further stated that the reading test
administered by Dr. Nadolsky really is just a test of word attack, not a true measure of reading
ability. Dr. Wray admitted that he did not perform any tests on Plaintiff, but instead utilized Dr.
Nadolsky’s test results when formulating his opinions. Dr. Wray testified that the size of the
database used when doing an analysis would affect the final numbers and explained that he used data
from the entire state of Tennessee, not just certain specific counties, to come up with his impairment
rating.

                 Frederick A. Klein, M.D., the urologist who performed the subsequent surgeries on
Plaintiff testified at trial. Dr. Klein opined that Defendant did not breach the standard of care. Dr.
Klein testified it is within the standard of care to do bilateral repair in the same surgery and that he
has done this. However, Dr. Klein testified that in Plaintiff’s case, he would have done one side first
and then gone back later to do the other side.

                Dr. Klein testified he always uses mesh for “every inguinal hernia regardless of the
quality of the tissue.” He stated that if mesh had been used, the chance of recurrent hernia would
have been extremely low. However, Dr. Klein testified that there are numerous ways to fix hernias
and that some surgeons use mesh and some don’t. He stated:

       I think personally mesh is great, but I’ve seen complications from mesh also. They
       can get infected. If that happens it’s a huge disaster. It’s very difficult to take out.
       Patients wind up with draining sinus for a long time. I’ve actually seen mesh get
       infected and work it’s way into the bladder and cause a fistula or a connection
       between the bladder and the skin so somebody was draining urine out of their skin.
       So there are complications with basically whatever kind of operation you do for a
       hernia.

                Dr. Klein testified that if Defendant had used mesh, the recurrent hernia would not
have happened, but Plaintiff still would have developed lymphedema. Dr. Klein testified that he
could not say that Plaintiff’s lymphedema was related to anything Defendant did. Dr. Klein testified
that the recurrence of the hernia on the right could have been a contributing factor to the
lymphedema, but that there are other factors. These other factors include the fact that Plaintiff had
hernias on both sides repaired when he was a child that could have interrupted the lymphatic

                                                 -13-
drainage, and also include the fact that Plaintiff had “all of the material from his belly, fat, omentum,
ureter, that was down in the scrotum for quite a while, that causes a severe local reaction to the tissue
in the scrotum itself, and could have affected lymphatic drainage.” Dr. Klein testified that the
lymphedema also may have been congenital or related to Plaintiff’s size. He stated that “the
development of lymphedema is multifactorial. A lot of different causes.”

                 Finally, Dr. Klein testified that “if you have a very large hernia and not such good
tissue to fix it, once in a while you do have to remove the testicle to get a good repair. And it’s
certainly possible that testicles and the blood flow is injured by longstanding hernias.”

                 At the appropriate time, Plaintiff and Defendant each asked for a directed verdict on
the claim of medical battery. The Trial Court granted Defendant’s motion for a directed verdict as
to the medical battery claim holding, inter alia, that the unforseen orchiectomy was consented to by
Plaintiff as the form signed by Plaintiff consented to “the performance of operations and procedures
in addition to or different from those contemplated, whether or not arising from presently unforeseen
conditions, which the [Defendant] or his associates or assistants may consider necessary or advisable
in the course of the operation.” The Trial Court found that Defendant “concluded that it was
necessary and advisable to remove the organ as a precaution against gangrene” and that this decision
was supported by expert testimony. The Trial Court found that the instant case differed from
Blanchard v. Kellum, because there was no authorization in Blanchard. Blanchard v. Kellum, 24
S.W.3d 267 (Tenn. 2000). The Trial Court also found that the instant case differed from Bates v.
Metcalf, because the consent form in Bates required that any additional surgery be required
immediately on an emergency basis and no emergency was shown in Bates. Bates v. Metcalf, No.
E2001-00358-COA-R3-CV, 2001 Tenn. App. LEXIS 879 (Tenn. Ct. App. Dec. 3, 2001), appl. perm.
appeal denied May 6, 2002.

                Defendant also moved for a directed verdict on the issue of medical malpractice
claiming that Plaintiff’s standard of care expert, Dr. Kroovand, was “not properly qualified to testify”
and that “there was no evidence upon which a jury could have based a verdict that the alleged
negligence of [Defendant] was the proximate cause of injury to [Plaintiff] . . . .” The Trial Court
denied the motion for directed verdict on the claim of medical malpractice and submitted this claim
to the jury. The jury deadlocked, and the Trial Court declared a mistrial.

                 By memorandum order entered March 29, 2004, the Trial Court reconsidered the
Defendant’s motion for directed verdict on the issue of medical malpractice. The Trial Court found
that Plaintiff’s expert urologist testified that while many surgeons use mesh, many others never use
mesh and that the use of mesh carries its own risks. The Trial Court cited Ball v. Mallinkrodt Chem.
Works, 381 S.W.2d 563 (Tenn. Ct. App. 1964), stating:

        When there is more than one accepted method of diagnosis or treatment, and no one
        of them is used exclusively and uniformly by all physicians of good standing, a
        physician is not negligent for selecting an accepted method of diagnosis or treatment
        that later turns out to be unsuccessful. This is true even if the method is one not
        favored by certain other physicians.

                                                  -14-
The Trial Court held, inter alia, “[u]nless there is other competent evidence to prove that use of
mesh in this surgery in this or a similar community was negligence, a jury verdict could not rest on
evidence this inconclusive, contradictory, or speculative.”

                The Trial Court further found “[w]ith respect to whether the failure to use a brand
name mesh resulted in the recurrent hernia which resulted in the injury (lymphedema) which would
not otherwise have occurred . . . ,” Plaintiff’s expert urologist testified, in part, that both the failure
to use mesh and the recurrence of the hernia contributed to the lymphedema and that no one can say
with absolute certainty what caused the lymphedema, but that the recurrence was a probable
contributory cause, not the total cause. The Trial Court granted Defendant’s motion for a directed
verdict on the claim of medical malpractice.

                                               Discussion

                Although not stated exactly as such, Plaintiff raises two issues on appeal: 1) whether
the Trial Court erred in granting a directed verdict on the claim of medical battery; and, 2) whether
the Trial Court erred in granting a directed verdict on the claim of medical malpractice.

                As our Supreme Court has instructed:

                In ruling on a motion for directed verdict, trial courts must take the strongest
        legitimate view of the evidence in favor of the non-moving party, construing all
        evidence in that party’s favor and disregarding all countervailing evidence. Eaton
        v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994). A court may grant the motion only
        if reasonable minds could reach only one conclusion from the evidence. Id.
        Appellate courts apply the same standard in reviewing the trial court’s decision on
        a directed verdict. Sauls v. Evans, 635 S.W.2d 377, 379 (Tenn. 1982).

Gaston v. Tennessee Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003).

              We first will consider whether the Trial Court erred in granting a directed verdict on
the claim of medical battery. Our Supreme Court instructs that:

        A simple inquiry can be used to determine whether a case constitutes a medical
        battery: (1) was the patient aware that the doctor was going to perform the procedure
        (i.e., did the patient know that the dentist was going to perform a root canal on a
        specified tooth or that the doctor was going to perform surgery on the specified
        knee?); and, if so (2) did the patient authorize performance of the procedure? A
        plaintiff’s cause of action may be classified as a medical battery only when answers
        to either of the above questions are in the negative. If, however, answers to the above
        questions are affirmative and if the plaintiff is alleging that the doctor failed to
        inform of any or all risks or aspects associated with a procedure, the patient’s cause
        of action rests on an informed consent theory.



                                                   -15-
Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998).

                 The Blanchard Court further instructed that “[t]he primary consideration in a medical
battery case is simply whether the patient knew of and authorized a procedure. This determination
does not require the testimony of an expert witness.” Id.

                 In the instant case, the questions as to the claim for medical battery are: did Plaintiff
know Defendant was going to perform this procedure, the orchiectomy; and, if so, did Plaintiff
authorize performance of this procedure. The consent form signed by Plaintiff prior to the surgery
states, in pertinent part:

        I consent to the performance of operations and procedures in addition to or different
        from those contemplated, whether or not arising from presently unforseen conditions,
        which the above name physician or his associates or assistants may consider
        necessary or advisable in the course of the operation.

                If all that was presented to the jury on this medical battery claim was the signed
consent form, the issue before us of whether the Trial Court erred in granting a directed verdict on
the medical battery claim would be less complicated. However, the consent form was not the only
evidence on that issue presented to the jury as the Plaintiff testified that he specifically asked
Defendant prior to the surgery if the surgery would “affect me in any way in my manhood or
anything happen down there that I should need to know about.” Given this testimony and the
doctor’s response, we believe, even given the signed consent form, that reasonable minds could
disagree as to whether Plaintiff either was aware Defendant was going to perform this procedure or
whether Plaintiff authorized performance of this procedure.

                 We acknowledge that this is a very close question given the consent form signed by
Plaintiff. We note that the consent form, at least as applicable to the orchiectomy, is general and
nonspecific in its language. Plaintiff’s question to the Defendant and Defendant’s response, at least
as testified to by Plaintiff, is specific. Applying the very strenuous directed verdict standard, this is
not a situation where reasonable minds could reach only one conclusion from the evidence. We,
therefore, hold that the Trial Court erred in granting a directed verdict on the claim of medical
battery. We reverse the directed verdict on the claim of medical battery and remand this case for a
new trial on Plaintiff’s claim of medical battery.

              We next consider whether the Trial Court erred in granting a directed verdict on the
claim of medical malpractice. In a medical malpractice action in Tennessee, a plaintiff has the
burden of proving:

        (1) The recognized standard of acceptable professional practice in the profession and
        the speciality 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;



                                                  -16-
        (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) (2003).

                The Trial Court found that Plaintiff’s expert urologist testified that while many
surgeons use mesh, many others never use mesh and that the use of mesh carries its own risks. The
Trial Court cited Ball v. Mallinkrodt Chem. Works, 381 S.W.2d 563 (Tenn. Ct. App. 1964), stating:-

        When there is more than one accepted method of diagnosis or treatment, and no one
        of them is used exclusively and uniformly by all physicians of good standing, a
        physician is not negligent for selecting an accepted method of diagnosis or treatment
        that later turns out to be unsuccessful. This is true even if the method is one not
        favored by certain other physicians.

The Trial Court held, inter alia, “[u]nless there is other competent evidence to prove that use of
mesh in this surgery in this or a similar community was negligence, a jury verdict could not rest on
evidence this inconclusive, contradictory, or speculative.”

                The Trial Court further found “[w]ith respect to whether the failure to use a brand
name mesh resulted in the recurrent hernia which resulted in the injury (lymphedema) which would
not otherwise have occurred . . .”, Plaintiff’s expert urologist testified that both the failure to use
mesh and the recurrence of the hernia contributed to the lymphedema and that while no one can say
with absolute certainty what caused the lymphedema, the recurrence was a probable contributory
cause, but not the total cause. The Trial Court discussed in detail Plaintiff’s expert urologist’s
testimony on this issue. The Trial Court noted that “it’s important to recall that the expert [plaintiff’s
urologist] could not even say that the use of mesh would have more likely than not prevented the
recurrence and would not have resulted in a ‘disaster’ in this difficult surgery which he was familiar
with only from his residency.” After discussing this testimony in detail, the Trial Court specifically
found that Plaintiff’s expert testimony was insufficient to allow a “reasonable jury” to conclude that
Plaintiff had met his burden as to his medical malpractice claim.

                 After our thorough review of the evidence presented to the jury, we agree with the
Trial Court’s analysis and decision on the medical malpractice claim. Plaintiff failed to establish that
the standard of care required the use of mesh and further failed to establish that Defendant’s actions
or omissions caused Plaintiff to suffer damages that would not otherwise have occurred. In addition,
Plaintiff failed to establish that attempting to perform repairs on both sides during the same surgery
fell below the standard of care, or that it caused Plaintiff to suffer damages that would not otherwise
have occurred. Taking the strongest legitimate view of the evidence in favor of Plaintiff, construing
all evidence in Plaintiff’s favor and disregarding all countervailing evidence, as we must, we find,



                                                  -17-
as did the Trial Court, that reasonable minds could reach only one conclusion. We, therefore, affirm
the directed verdict on the claim of medical malpractice.

                                           Conclusion

               The judgment of the Trial Court is affirmed in part, reversed in part, and this cause
is remanded to the Trial Court for a new trial solely on Plaintiff’s claim for medical battery. The
costs on appeal are assessed against the Appellees, Yung Gil Lee, P.C. and Yung Gil Lee, M.D.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




                                               -18-
