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

Transcription

1 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 e Claims Commission for e Eastern Division No Vance W. Cheek, Jr., Commissioner No. E COA-R3-CV - FILED MARCH 14, 2005 Shawn Smi died of aspiration of gastric contents while a patient at e University of Tennessee Medical Center. Shawn Smi s moer, Patsy Smi ( Plaintiff ), sued e State of Tennessee ( e State ). The case was transferred to e Claims Commission ( e Commission ). After trial, e Commission entered a judgment for e State holding, inter alia, at ere was no breach of e standard of care. Plaintiff appeals claiming at e Commission erred in holding ere was no breach of e standard of care, at e Commission erred in making certain factual findings, and at e Commission erred in refusing to find at e integrity of e medical record had been compromised. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of e Claims Commission Affirmed; Case Remanded D. MICHAEL SWINEY, J., delivered e opinion of e 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 e Appellant, Patsy Smi, as next of kin and moer of Shawn Smi. Ronald C. Leadbetter, Associate General Counsel, for e Appellee, State of Tennessee.

2 OPINION Background This appeal results from e trial of a complicated medical malpractice lawsuit. Because of e issues raised on appeal, a detailed discussion of e facts as reflected in e record is necessary. Shawn Smi ( Mr. Smi ) was hospitalized in October of 1993 for oropedic surgery to correct problems at developed as a result of an automobile accident in This surgery was performed on October 6, 1993 at e University of Tennessee Medical Center ( e Hospital ). Plaintiff stayed at e Hospital wi her son during his admission. While recuperating on e oropedic surgery recovery floor, Mr. Smi aspirated vomitus and died some time during e early morning hours of October 8, Mr. Smi was twenty-six years old at e time of his dea. Plaintiff sued e State. The case was transferred to e Commission and tried in late January and early February of Mr. Smi s surgery on October 6 was uneventful and post-surgery, at approximately 6:15 or 6:30 p.m., Mr. Smi was moved to e oropedic surgery recovery floor. At approximately 3 a.m. on October 7, Mr. Smi vomited. The evidence at trial showed it is not unusual for a patient to vomit post-surgery. In fact, Mr. Smi s doctor gave post-surgery medication orders for Phenergan to combat nausea in addition to e morphine prescribed for pain. The evidence showed at is is a common combination of drugs prescribed post-surgery. The morphine was administered rough a patient controlled analgesia pump, or PCA pump, set wi a lock-out to prevent Mr. Smi from utilizing more an e prescribed amount. The Phenergan was prescribed on an as needed basis and had to be administered each time by a nurse. Mr. Smi was given Phenergan after vomiting at 3 a.m. Mr. Smi vomited a second time around 10 a.m. on October 7 and again was given Phenergan. The post-surgery orders also included an order to [a]dvance to regular diet. Plaintiff testified at trial at Mr. Smi had no solid food during e day of October 7, 1993, but later admitted she could not remember if he had anying to eat such as Jell-O or applesauce during e day or not. Plaintiff testified at at dinner time on e 7, Mr. Smi was given a food tray, but did not want to eat what was on e tray. Plaintiff stated at Mr. Smi asked for a cheeseburger. Plaintiff testified at someone on e hospital staff brought Mr. Smi a cheeseburger around 5 or 6 p.m. and he ate most of it. Mr. Smi went to sleep around 8 p.m. Plaintiff testified at she slept in a chair-bed next to Mr. Smi s hospital bed and at she went to sleep around 10 p.m. Registered Nurse Ronald George Baer ( Nurse Baer ) came on duty on October 7 at 7 p.m. and cared for Mr. Smi during e relevant time period involved in is case. Nurse Baer performed an assessment of Mr. Smi at e beginning of his shift. Thereafter, e medical record reflects at at 10 p.m. Nurse Baer made a note at Mr. Smi was resting quietly wi no complaints. -2-

3 At approximately 1 a.m. on October 8, Mr. Smi again vomited. Plaintiff testified at after Mr. Smi vomited is time she called for e nurse, assisted Nurse Baer in cleaning up Mr. Smi, and asked if Nurse Baer was going to call e doctor. Plaintiff testified at e amount of vomitus was large and explained we changed e sheets, washed him up, put a clean gown on him.... Plaintiff testified at she en cleaned up e vomitus at had dripped on e floor. Plaintiff testified at Nurse Baer told her ere was no need to call e doctor and at Mr. Smi would be all right. Plaintiff testified at Nurse Baer gave Mr. Smi a shot of Phenergan around 1:30 a.m. and some Sprite. Plaintiff spoke to Mr. Smi briefly after he was cleaned up and testified [h]e acted like he felt better. Mr. Smi en went back to sleep. After assuring herself at Mr. Smi was resting comfortably, Plaintiff went back to sleep. Nurse Baer made an entry in e medical record at 4 a.m. at Mr. Smi was resting quietly and using his PCA morphine pump moderately. The medical record shows Nurse Baer recorded at by 1 a.m. on October 8, Mr. Smi had used 27.2 milligrams of morphine, and at 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. Smi and it appeared he was sleeping. She stated [h]is chest was all right. I mean, he was breaing okay. She testified she could see him breaing 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. Smi had gagged or coughed, but she did not hear anying like at. Plaintiff stated at alough she could see noing wrong she had a feeling someing was wrong so she buzzed for e nurse. She testified at when e nurse did not respond, she left e room and went to e nurse s station to find him. Plaintiff testified at while she was out looking for e nurse, a group of nurses and doctors rushed into Mr. Smi s room. They were ere when Plaintiff returned to e room and she was escorted out of e room. Plaintiff testified at she was told around 6:30 a.m. at her son had died. Nurse Baer testified at trial and stated he only remembers two specific instances during his care of Mr. Smi, at 1 a.m. when Mr. Smi vomited and at 5:45 a.m. when Mr. Smi was found to be in respiratory distress. Nurse Baer relied upon e medical chart for e remainder of his testimony. Nurse Baer testified he was not aware at Mr. Smi had been given a hamburger and stated at if is 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. Smi vomited and at he remembers finding Mr. Smi sitting up in bed and talking at at time. Nurse Baer testified at he and Mr. Smi had a conversation about school while Mr. Smi was being cleaned up. Nurse Baer testified at Mr. Smi never said anying about experiencing pain or nausea at at time. Nurse Baer also testified at he observed no respiratory distress at at time. Nurse Baer testified it was his determination at Mr. Smi did not aspirate at 1 a.m. because Mr. Smi was holding a normal conversation wi him. Nurse Baer stated he could tell if someone aspirated by observing eir outward appearance. He explained at if someone aspirated, eir color would change, eir respiratory status would change, and ey would gasp or gag. Nurse -3-

4 Baer testified at Mr. Smi did not exhibit ese signs. Nurse Baer does not remember using a steoscope at 1 a.m. to listen to Mr. Smi s lungs to check for aspiration. He testified at he uses e steoscope for initial assessments and ereafter uses it if he inks ere is a need to do so. Nurse Baer did not ink ere was a need to check Mr. Smi for aspiration at 1 a.m. Nurse Baer also testified at ere was no need to call e doctor as Mr. Smi s vomiting had resolved and was not continuous. Instead, Nurse Baer explained, ere were long time periods between e vomiting episodes. Nurse Baer testified at he remembers at at approximately 5:45 a.m., e LPN came out to e nurse s station and told him Mr. Smi was in distress. At at time, Mr. Smi was found unresponsive and a code was called. As part of e CPR process, Mr. Smi 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. Smi s mou. Nurse Baer was questioned regarding e doctor s orders and entries in e chart. He explained at e order in e chart to advance to regular diet meant Mr. Smi could have anying he wanted. Nurse Baer stated at if he had been required to start wi liquids or do a progression, e order would have stated liquid diet en advance to regular. Nurse Baer explained at a patient s vital signs are typically taken by an LPN, who is to notify e nurse of anying unusual. Nurse Baer testified at a respiratory rate of 20, which is what Mr. Smi 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 oer ings, Ms. Wiseman had criticisms regarding Mr. Smi s having been given a hamburger to eat. She explained at Mr. Smi s doctor gave orders to advance diet as tolerated and at to her, is order: means you start em out on clear liquids. If ey tolerate at and don t get nauseated or vomit, en you advance em to soft foods like apple sauce, Jello. Jello is usually e cardinal soft food and en advance em on to a soft diet, a regular diet and... Very, wi very bland items. You don t want to give em anying greasy or spicy or fried. Ms. Wiseman testified at e record shows Mr. Smi came to e floor after his surgery around 6:15 or 6:30 on October 6 and at ere is no note from at time until 7 p.m. on October 7 showing Mr. Smi received any sustenance or at he was tolerating anying. A notation in e medical record wi e 7 p.m. assessment on October 7 stated at Mr. Smi was tolerating liquids, but, Ms. Wiseman testified, at was e only note in e chart regarding diet. There is no mention in e medical record at Mr. Smi ever received a hamburger and fries. However, Plaintiff did testify at her son received a cheeseburger and ate most of it. Ms. Wiseman testified at e general practice would be to note at e patient was tolerating liquids, or was given Jello or applesauce wiout nausea or vomiting so e nursing staff -4-

5 on e next shift would know. Ms. Wiseman stated at giving Mr. Smi a hamburger and french fries was not in keeping wi e doctor s orders because it was approximately four hours after e last bout of vomiting. Ms. Wiseman stated at Mr. Smi 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 ere is no written guideline to look at to determine how many hours should pass between a vomiting episode, e giving of liquid, e giving of soft food, and e giving of regular food. Raer, is is a judgment call and e judgment of e nurse is based in part on interaction wi e patient and how e patient reports feeling. Ms. Wiseman was also critical regarding e nursing assessments of Mr. Smi. The doctor had written an order to do an assessment every four hours for 72 hours. Ms. Wiseman stated ere was no assessment done after e 3 a.m. or 10 a.m. vomiting episodes on October 7. Ms. Wiseman stated: I would have gone in, I would have talked to e patient. I would have assessed his lungs sounds. I would have assessed his bowel sounds. I would have asked, if ere was anybody in e room I would have asked em if he had eaten anying, because sometimes well meaning family members can bring ings in at e nursing staff have no idea about and en you have to be aware of at. Ms. Wiseman also stated she would assess e lungs and bowels using a steoscope. However, she admitted ere is no written standard of care at says you have to use a steoscope every time a patient vomits. Ms. Wiseman stated a nurse should have checked on Mr. Smi at least hourly. She stated she would have done is and she bases is assertion on her own experience. Notations in e medical record show at Nurse Baer made rounds at least every oer 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, at e practice on e oropedic surgery recovery floor at e Hospital at at time was to chart by exception, which means at only ings out of e ordinary needed to be noted. The medical record shows at Mr. Smi s vital signs were taken, including his temperature, pulse, and blood pressure, wi some regularity. Mr. Smi s doctor had ordered at his vital signs were to be taken every four hours. The medical record shows is was done except for one instance when e vital signs should have been taken at 4 p.m. on October 7 and were not. Ms. Wiseman admitted at e medical record shows Mr. Smi s vital signs were taken at 4 a.m. on October 8, after e 1 a.m. vomiting episode at issue in is case and before Mr. Smi was found unresponsive at 5:45 a.m. Ms. Wiseman acknowledged at e readings of Mr. Smi s temperature, pulse, respiratory rate, and blood pressure as recorded were normal and show no indication at Mr. Smi was in distress of any sort at at time. The readings of Mr. Smi s respiratory rate did not change roughout his hospitalization, up to, and including, e reading taken at 4 a.m. on October 8, shortly before his dea. Victoria Henson, ( Ms. Henson ), is e LPN who -5-

6 allegedly made various entries, including e vital signs, in Mr. Smi s chart during e time period after 1:00 a.m. and prior to Mr. Smi being found unresponsive at 5:45 a.m. The State did not have Ms. Henson testify at trial. Neier did Plaintiff. Ms. Wiseman stated at she believes Mr. Smi s dea was preventable. She stated at e nurses should have upped e assessments. They should have raised e 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 paology, testified as an expert witness for Plaintiff. Dr. Blake testified at e cause of dea stated in e autopsy was aspiration asphyxia, which means Mr. Smi vomited en aspirated vomitus at went into his trachea bronchial tree and caused e presence of fluid filling in e lungs and plugging e bronchioles. Dr. Blake explained at e acid from e stomach causes a burning irritation injury of e bronchial passages. Dr. Blake testified at neutrophils, a sign of inflammatory insult, were present in e lungs upon autopsy and at is is abnormal. He explained at neutrophils would be caused by [s]ome element of injury, wheer 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 e lungs or chest cavity, or acute bronchial pneumonia. Dr. Blake believes e neutrophils were caused by aspiration of gastric contents. He stated at neutrophils would begin to be seen in twenty to irty minutes after injury. Dr. Blake also testified regarding e medications Mr. Smi was given. He explained at morphine is a central nervous system suppressant used as a pain killer and at Phenergan is used to control nausea. Dr. Blake stated at when used togeer, ese two drugs have a potentiating effect, which means at e Phenergan exaggerates e effect of e morphine causing more of a central nervous system suppression. Dr. Blake opined at Mr. Smi took vomitus into his lungs after e 1 a.m. vomiting episode and at is began e gradual compromise of e lungs. He opined at e process at caused Mr. Smi s dea happened in response to e 1 a.m. vomiting episode. In support of his eory, Dr. Blake stated it is his understanding at Mr. Smi s respiratory rate went up and at he had breaing difficulties and tacycardia after e 1 a.m. vomit. Dr. Blake stated at Mr. Smi would have had difficulty breaing after e 1 one a.m. vomit and his respiratory rate would have gone up to compensate. Dr. Blake testified at a patient who aspirates would have immediate knowledge of it as ey would experience a burning sensation and eir chest muscles would struggle to get air in. Dr. Blake furer opined at by 4 a.m. Mr. Smi was unconscious and would have had a weak pulse. Dr. Blake admitted at he did not see e vital signs in e medical record, but at if Mr. Smi s vital signs were taken at 4 a.m. and were e same as ey had been, at would most likely indicate at his condition was good. -6-

7 According to e medical record, Mr. Smi s vital signs were taken at 4 a.m. and were e same as ey had been. In addition, Plaintiff s testimony regarding Mr. Smi s condition belies Dr. Blake s opinion at Mr. Smi aspirated as a result of e 1 a.m. vomiting episode. Plaintiff testified she spoke to Mr. Smi briefly after e 1 a.m. vomiting episode and testified [h]e acted like he felt better. She also testified at Mr. Smi went back to sleep and at at 4 a.m. she observed [h]is chest was all right. I mean, he was breaing okay. She testified she could see Mr. Smi breaing and never heard any gagging, coughing, or rasping sounds. Terri Allison Donaldson, a licensed nurse practitioner, testified as an expert witness for e State and opined ere was no breach of e standard of care related to nursing. Ms. Donaldson stated ere are no hard rules regarding how many hours to wait before giving liquid en soft food en regular food. She stated at since Mr. Smi had gone rough e, e mid-day and afternoon wiout any episodes of nausea and vomiting... and had not vomited since 10 a.m., it was not inappropriate or below e standard of care to give him a hamburger. Ms. Donaldson testified she believes ere is no evidence in e medical record showing at Mr. Smi aspirated vomitus after his 1 a.m. vomiting episode. Ms. Donaldson explained at usually when someone aspirates vomitus ey cough or sputter, unless ey immediately lose consciousness. Ms. Donaldson also stated at if Mr. Smi had aspirated, she would expect at his respiratory rate would have gone up, his blood pressure might have changed, and his heart rate may have increased. None of ese ings happened. Ms. Donaldson testified at noing about e vital signs taken at 4 a.m. indicates Mr. Smi had a respiratory problem prior to at time. In addition, Ms. Donaldson testified ere is noing in e record to suggest at Mr. Smi s gag reflex was suppressed, he was unconscious, or at he was unable to recognize any respiratory problems he may have been experiencing. Ms. Donaldson opined it was not benea e standard of care for a nurse to choose not to use a steoscope after Mr. Smi s 1 a.m. vomiting episode. Furermore, Ms. Donaldson testified ere is no indication at e combination of morphine and Phenergan affected Mr. Smi s vital signs, which remained stable during his hospitalization. Dr. Paul Bunton Googe, who specializes in skin paology and surgical paology, testified at trial at he was in charge of Mr. Smi s autopsy. Dr. Googe concluded at Mr. Smi died of aspiration of gastric contents. Dr Googe testified it is his opinion, and e opinion of e oer physicians involved in e autopsy, at Mr. Smi died of acute gastric aspiration into e lungs in a matter of minutes or probably not more an an hour from when he died. Dr. Googe testified he does not believe at an event at 1 a.m. caused e dea. Raer, Dr. Googe believes e aspirations at led to dea occurred sometime in e ten to twenty minutes before 5:45 a.m. Dr. Googe explained at e neutrophils could have been present eier from traveling wi e vomitus or from e blood vessels in e lung and stated to see neutrophils in response to injury coming from e blood stream, it s usually a matter of hours, four, six, eight hours or longer. He stated ere were just a few tiny areas of neutrophils... I don t believe ey are sufficient to have caused symptoms and certainly [were] not sufficient to cause dea. -7-

8 The record on appeal shows at e medical record in is case apparently was lost by e Hospital for approximately five years before it finally was produced to Plaintiff. No adequate explanation appears in e record as to where e medical record was during is time period or why it was not produced sooner. In addition, for a variety of reasons having noing to do wi e Commission at eventually heard e case, e case took approximately ten years from e filing of e Complaint until e time of trial. The case was tried in late January and early February of The Commission entered a judgment on February 26, In its memorandum order incorporated into e judgment, e 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 e point where her testimony became damaging to her claim and stated much of is Commission s decision is based upon her testimony.... The Commission also found Ms. Wiseman to be a credible witness but found at many of Ms. Wiseman s criticisms regarding e nursing care admittedly were related to judgment calls. In addition, e Commission found at e deviations Ms. Wiseman claims occurred, specifically e failures to properly advance diet, to adequately maintain e medical chart, and to properly follow physician s orders, were not a direct and proximate cause of Mr. Smi s dea. Raer, e Commission found at: The body of evidence presented at trial and contained in e entire record proves by a preponderance of e evidence at [Mr. Smi] aspirated on his own vomitus quickly and quietly, so quickly and so quietly, in fact, at it would have taken a nurse providing [Mr. Smi] wi a level of care akin to a critical care patient in order to have any remote possibility of catching e aspiration and saving [Mr. Smi s] life. The Commission found at e nursing techniques testified to by Ms. Wiseman did not establish e standard of care at was required of a registered nurse on a general oropaedic recovery floor at UT Hospital. Furer, alough e Commission found Dr. Blake to be a credible witness, it found at Dr. Blake s testimony was not supported by e facts. Dr. Blake opined at Mr. Smi aspirated after e 1 a.m. vomit and at he would have begun to have noticeable problems immediately. The medical record and e testimony of e two witnesses, including e Plaintiff, who observed Mr. Smi after e 1 a.m. vomiting episode show, however, at Mr. Smi was not experiencing any respiratory problems at at time and, in fact, he stated he felt better. The Commission stated: Dr. Blake testified beyond a reasonable degree of medical certainty at e failure of [Nurse] Baer to listen to [Mr. Smi s] lungs was, in essence, e sole, direct and approximate (sic) cause of [Mr. Smi s] dea. As was Ms. Wiseman s testimony, is opinion is not consistent wi e entire body of evidence presented at trial and e record as a whole. Specifically, e reaction of [Mr. Smi] after e vomiting episode would not cause a reasonable healcare professional to take e drastic -8-

9 measures at Dr. Blake suggests, which is suctioning [Mr. Smi s] lungs or obtaining a new airway via a tracheotomy. Alough Dr. Blake testifies at suctioning is necessary in accordance wi e standard of care, e Commission finds under e facts of e circumstances presented at such action was not necessary and did not equate to standard of care. In contrast to its credibility determinations regarding e oer witnesses, e Commission found Nurse Baer to be a horrible, evasive, and elusive witness. The Commission, however, also stated at while ere may have been some inadequacies in e care he rendered to Mr. Smi, ere is no evidence at such shortfalls were e direct and proximate cause of [Mr. Smi s] dea by aspiration. Alough e Commission found Nurse Baer s testimony not to be credible, it noted at it still found at ere was a conversation between Mr. Smi and Nurse Baer after e 1 a.m. vomiting episode and at Mr. Smi exhibited no signs of distress whatsoever at at time because Plaintiff, who was a credible witness, also testified to ese facts. The Commission stated ere is no evidence at e 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 e autopsy on [Mr. Smi]. He stated wiout reservation at (1) vegetable matter was found deep in e lungs of [Mr. Smi]. This is a medical finding of a previous aspiration occurring some time prior to [Mr. Smi s] hospitalization on October 6, Secondly, e neutrophils in [Mr. Smi s] lungs appeared to have come from such prior aspiration. Thirdly, [Mr. Smi] died of acute aspiration of gastric contents into e lungs, and finally, e aspiration at caused [Mr. Smi s] dea occurred less an one hour prior to e dea. Dr. Googe stated at ere s no credible evidence to prove Dr. Blake s eory at [Mr. Smi] aspirated at 1:00 A.M. and slowly suffocated as his lungs shut down and filled up wi fluid. The Commission found at Dr. Blake s testimony and his opinion at Mr. Smi aspirated as a result of e 1 a.m. vomit also were rebutted by e fact at Mr. Smi did not choke, cough, or complain of any burning in his lungs after e 1 a.m. vomit; at Mr. Smi carried on conversations wi his moer and wi Nurse Baer after e 1 a.m. vomit; at e anesesiologist trying to intubate Mr. Smi during e code found secretions in Mr. Smi s roat, mou, and upper airways; and at coffee ground emesis was found in Mr. Smi s mou during e code. The Commission stated at ese facts show, and e Commission so found, at a final vomiting episode took place an hour prior to [Mr. Smi s] dea, somewhere around 5:00 o clock, 5:15 or e like and stated at is eory is more logical an Dr. Blake s eory. The Commission found at Dr. Googe s testimony fit e factual circumstance by a preponderance of e evidence. The Commission stated it would have liked to have heard from e doctor who performed e surgery on e issue of wheer Mr. Smi suffered a suppressed gag reflex. Several witnesses at trial testified to e potentiating effect of morphine and Phenergan. However, e -9-

10 Commission stated [i]f allegedly ere was a problem wi a suppressed gag reflex due to over medication... en we have to look to e fault going back - - e genesis of at fault being e original doctor order... ordering e Phenergan and e morphine combined and e dosage at he assigned to each drug. There is no evidence at e nursing staff failed to give medications in accordance wi e doctor s orders. The Commission furer noted at it would have liked to have heard testimony from Victoria Henson, e LPN who supposedly checked and charted Mr. Smi s vital signs during e critical period of time. The Commission made e finding at e State did not offer Ms. Henson s testimony, but declined to make any furer findings regarding is issue. The Commission also addressed e issues surrounding e lost chart stating: The chart in is case was lost for five and a half years. There s absolutely positively no way is Commission can find anying but at such an act, if you will, such an occurrence is unacceptable. There is no proof at e integrity of is chart was maintained. However, ere is also no proof at is chart was altered. The [Plaintiff] made it out for an inference to be drawn at it could have happened. The Commission acknowledges at it could have happened. The Commission finds at ere is no evidence supporting at it happened. That having been said, is Commission cannot let it go by wiout stating at e hospital s failure to find e file for five and a half years is an abomination, and we would hope at such an event would not be repeated.... There was an inference laid before e Commission, which e Commission respects, for e Commission to make of it as it would. And I find at while e integrity of e chart was not proven, at alteration was not proven eier. So, in essence, it s a wash. The Commission entered judgment in favor of e State. Discussion Alough not stated exactly as such, Plaintiff raises ree issues on appeal: 1) wheer e Commission erred in refusing to find at e integrity of e medical record had been compromised; 2) wheer e evidence preponderates against e Commission s factual findings; and, 3) wheer e evidence preponderates against e Commission s holding at ere was no deviation from e standard of care. Our review is de novo upon e record, accompanied by a presumption of correctness of e findings of fact of e trial court, here e Commission, unless e preponderance of e evidence is oerwise. 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 wi no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). -10-

11 We first will discuss wheer e Commission erred in refusing to find at e integrity of e medical record had been compromised. Plaintiff argues at she should have received a presumption at e medical record was altered. Plaintiff s argument rests upon e doctrine of spoliation of evidence, which permits a court to draw a negative inference against a party at has intentionally, and for an improper purpose, destroyed, mutilated, lost, altered, or concealed evidence. Leaerwood v. Wadley, 121 S.W.3d 682, 703 (Tenn. Ct. App. 2003). To begin, we note at e record in is case is devoid of evidence showing at e medical record was destroyed, mutilated, or altered. There is evidence in e record, however, showing at e medical record was lost and not produced for a period of approximately five years before being produced by e Hospital. More importantly, however, e record is devoid of evidence showing at e Hospital intentionally, and for an improper purpose lost or concealed e medical record during is time period. Id. The medical record eventually was produced and was made available to Plaintiff and, as e Commission noted, Plaintiff relied on e medical record at trial. As ere is noing in e record showing e intent necessary to support an inference under e doctrine of spoliation of evidence, Plaintiff was not entitled to such an inference. The Commission, however, did state: There is no proof at e integrity of is chart was maintained. However, ere is also no proof at is chart was altered. The [Plaintiff] made it out for an inference to be drawn at it could have happened. The Commission acknowledges at it could have happened. The Commission finds at ere is no evidence supporting at it happened. That having been said, is Commission cannot let it go by wiout stating at e hospital s failure to find e file for five and a half years is an abomination, and we would hope at such an event would not be repeated.... There was an inference laid before e Commission, which e Commission respects, for e Commission to make of it as it would. And I find at while e integrity of e chart was not proven, at alteration was not proven eier. So, in essence, it s a wash. Plaintiff argues at she need not prove alteration in order to impeach e medical record and cites to Richardson v. Miller, which states at [s]eldom will parties be able to prove at eir adversary maliciously destroyed or secreted a missing document. Richardson v. Miller, 44 S.W.3d 1, 28 (Tenn. Ct. App. 2000). Richardson, however, dealt wi allegations regarding a specific allegedly missing document and stated at a factual issue is created when e party seeking e missing evidence instruction puts on evidence showing (1) at e document exists, (2) at e document is relevant, and (3) at e opposing party had exclusive control of e document and e party possessing e document proffers an explanation for not producing it. Id. In e instant case, ere are no allegations regarding a specific missing document or documents. Plaintiff did not show at any specific document existed and was not produced at or before trial. Plaintiff apparently argues at e five year delay in producing e medical record is equivalent to having maliciously destroyed or totally failed to produce e record. Plaintiff en argues at because of is delay, an -11-

12 alteration of e record by e Hospital should be presumed. We fail to see any correlation between a delay, even an unreasonable five year delay, in producing e medical record and a claim of alteration of e medical record. There has been no reason presented as to why e Hospital or any individual allegedly wanting to alter e medical record would have required a five year period in which to make e claimed alteration. In short, e fact at e State or e Hospital unreasonably delayed for five years e production of e medical record does not necessarily mean at e medical record was altered in any way. The record on appeal presented to us does not show any causal relationship between e delay, even an unreasonable five year delay, in producing e medical record and e claimed alteration to at medical record, and we find no reason to believe at such a causal relationship automatically exists. Therefore, Plaintiff s reliance upon Richardson is misplaced. Additionally, we note at Plaintiff did not bring e matter of e missing medical record to e attention of e Commission until after e State had been granted an Order of Dismissal for failure to prosecute two years after e filing of suit. Plaintiff filed a Motion to Reconsider and e Commission did enter an Order Setting Aside Order of Dismissal. However, e only relief requested by Plaintiff was to have e Order of Dismissal set aside. Plaintiff did not ask for any oer relief at at time. Plaintiff did not seek any relief relative to e once missing medical record until trial and, as e Commission noted, Plaintiff relied upon e medical record at trial. We are unpersuaded by e Plaintiff s argument at, basically, ose portions of e medical record at are helpful to Plaintiff s case are reliable and ose portions of e medical record at are harmful to Plaintiff s are unreliable. The Commission did acknowledge at an inference had been laid before it, wheer Plaintiff was entitled to one or not, and clearly considered e matter. We hold e Commission did not err in refusing to find at e integrity of e medical record had been compromised as no alteration of e medical record eier was proven or properly presumed to have occurred. We next consider, in light of our discussion above, wheer e evidence preponderates against e 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 e 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 e evidence preponderates against e Commission s factual findings because e medical record was unauenticated and uncorroborated; Nurse Baer s testimony was found to be elusive, evasive, and not credible; e State did not offer e testimony of Ms. Henson, e LPN; and e State s experts relied upon e medical record to opine at ere were no deviations below e standard of care. This argument breaks down into several main points. First, Plaintiff complains about e 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-

13 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 at e Commission s findings and ultimate decision were, in large part, based upon [Plaintiff s] testimony... and e testimony of Dr. Googe, testimony which strongly supports e Commission s factual findings even if e medical record itself were discounted. Plaintiff s claim at e testimony of e State s experts should be given no weight because ey relied upon e medical record to opine at ere were no deviations below e standard of care also must fail given our resolution of Plaintiff s issue concerning e medical record. Second, it is true at e Commission found Nurse Baer s testimony to be evasive, elusive, and not credible. However, e Commission specifically stated at even if Nurse Baer s testimony were discounted, it could and did still find at ere was a conversation between Mr. Smi and Nurse Baer after e 1 a.m. vomiting episode and at Mr. Smi exhibited no signs of distress whatsoever at at time because Plaintiff, who was a credible witness, also testified to ese facts. Finally, Plaintiff argues at because e State did not offer e testimony of Ms. Henson, e LPN, Plaintiff should have been entitled to an inference at e testimony at would have been given by Ms. Henson would not sustain e contention of [e 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 e benefit of e missing witness rule. This Court discussed e missing witness rule in Dickey v. McCord, stating: The missing witness rule provides at [f]ailure of a party to call an available witness possessing peculiar knowledge concerning e facts essential to a party s case, direct or rebutting, or to examine such witness as to e facts covered by his special knowledge, especially if e witness would naturally be favorable to e party s contention, relying instead upon e evidence of witnesses less familiar wi e matter, gives rise to an inference at e testimony of such uninterrogated witness would not sustain e contention of e party. No such inference arises where e 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 oer 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, (Tenn. 1984). As a prerequisite to commenting on a missing witness, e evidence must show at e witness had knowledge of material facts, at a relationship exists between e witness and e party at would naturally incline e witness to favor e party and -13-

14 at e missing witness was available to e process of e Court for e 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 at e State did not offer Ms. Henson s testimony. We note, however, at ere is absolutely noing in e record to show at at e time of trial, more an ten years after Mr. Smi s tragic dea, Ms. Henson still was employed by e Hospital or at she even still was alive. There is noing in e record to show at a relationship exists between Ms. Henson and e Hospital at would incline Ms. Henson to favor e Hospital. It may be at Ms. Henson still works for e Hospital, or it may just as likely be at Ms. Henson quit or was fired and maintains some hostility toward e Hospital. There simply is noing in e record to show at Ms. Henson was uniquely under e State s control or at she was not as equally available to Plaintiff as to e State. In fact, ere is noing in e record to show at Ms. Henson was available to e process of e Court for e trial. Id. For all we know, Ms. Henson may no longer be living, or may no longer be residing wiin e jurisdiction. We simply have noing in e record to show e prerequisites at would entitle Plaintiff to e missing witness rule. If Plaintiff wanted to call Ms. Henson as a witness, Plaintiff was as free to do so as was e State. This being so, we find no error by e Commission as to is issue raised by Plaintiff. In her reply brief, Plaintiff also argues at e testimony of Dr. Fulkerson, offered by e State, was not credible and was not sufficient to support e verdict. We find noing in e record showing at e Commission relied in any significant way upon e testimony of Dr. Fulkerson in support of its holding. Instead, e Commission held at Plaintiff did not establish e standard of care, and, erefore, failed to establish any breach of e standard of care. In its memorandum opinion, e Commission simply mentions at [t]he gist of Dr. Fulkerson s testimony was at [Mr. Smi] was not high risk. The Commission en noted: [Mr. Smi] was - I hate e 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 e compressed chest cavity of [Mr. Smi]. He stated at in his opinion [Mr. Smi] was a high risk candidate,.... The Commission observed e witnesses and made very specific credibility determinations and, as we must, we afford considerable deference to e Commission s credibility determinations and e resulting impact of ese determinations on e Commission s factual findings. The evidence does not preponderate against e Commission s factual findings and, erefore, we will not disturb ose findings upon appeal. We next consider, given our holdings above, wheer e evidence preponderates against e Commission s findings and resulting decision at ere was no deviation from e standard of care. Medical malpractice actions in Tennessee, such as is case, are governed by Tenn. Code Ann , which provides, in pertinent part: -14-

15 (a) In a malpractice action, e claimant shall have e burden of proving by evidence as provided by subsection (b): (1) The recognized standard of acceptable professional practice in e profession and e specialty ereof, if any, at e defendant practices in e community in which e defendant practices or in a similar community at e time e alleged injury or wrongful action occurred; (2) That e defendant acted wi less an or failed to act wi ordinary and reasonable care in accordance wi such standard; and (3) As a proximate result of e defendant s negligent act or omission, e plaintiff suffered injuries which would not oerwise have occurred. Tenn. Code Ann (a) (Supp. 2004). To begin, e Commission found at e nursing techniques testified to by Ms. Wiseman did not establish e standard of care at was required of a registered nurse on a general oropaedic recovery floor at UT Hospital. The Commission found Ms. Wiseman s criticisms regarding e nursing care admittedly concerned judgment calls. In addition, e Commission found at e drastic measures of suctioning Mr. Smi s lungs or obtaining a new airway via a tracheotomy after e 1 a.m. vomiting episode at Dr. Blake testified were necessary in accordance wi e standard of care were, under e facts and circumstances presented in is case, not reasonable and necessary and did not equate to e standard of care. Thus, e Commission found at Plaintiff did not prove [t]he recognized standard of acceptable professional practice in e profession and e specialty ereof, if any, at e defendant practices in e community in which e defendant practices or in a similar community at e time e alleged injury or wrongful action occurred.... Tenn. Code Ann (a)(1) (Supp. 2004). The evidence does not preponderate against is finding as previously discussed in is Opinion. Additionally, e Commission found at e deviations Ms. Wiseman claims occurred, specifically e failure to properly advance diet, to adequately maintain e medical chart, and to properly follow physician s orders, were not a direct and proximate cause of Mr. Smi s dea. The Commission stated at ere is no evidence at such shortfalls [on e part of Nurse Baer] were e direct and proximate cause of [Mr. Smi s] dea by aspiration. The Commission stated ere is no evidence at e standard of care dictated [Nurse] Baer to have acted differently. In addition, alough Dr. Blake opined beyond a reasonable degree of medical certainty at e failure of [Nurse] Baer to listen to [Mr. Smi s] lungs was, in essence, e sole, direct and approximate (sic) cause of [Mr. Smi s] dea, e Commission found at is opinion was not consistent wi e entire body of evidence presented at trial and e record as a whole. Thus, e Commission found at Plaintiff failed to prove [t]hat e defendant acted wi less an or failed to act wi ordinary and reasonable care in accordance wi such standard; and... [at] [a]s a proximate result of e defendant s negligent act or omission, e plaintiff suffered injuries which -15-

16 would not oerwise have occurred. Tenn. Code Ann (a)(2 & 3) (Supp. 2004). For ese reasons, and e reasons discussed earlier in is Opinion, e evidence does not preponderate against is finding by e Commission. Plaintiff en argues at e Commission erred by assigning fault to e doctor who performed e surgery because e Commission stated it would have liked to have heard from is doctor and [i]f allegedly ere was a problem wi a suppressed gag reflex due to over medication... en we have to look to e fault going back - - e genesis of at fault being e original doctor order... ordering e Phenergan and e morphine combined and e dosage at he assigned to each drug. However, e Commission never assigned any fault to is doctor. We find no merit to is issue. The reality of e situation is at Plaintiff, despite e excellent work of her lawyers, was unable to make e required showings regarding e applicable standard of care and e breach of such standard. The evidence does not preponderate against e Commission s factual findings and, after a orough review of e record, we hold at e Commission reached e correct conclusions of law. As we find no error by e Commission, we affirm e Commission s grant of judgment to e State. Conclusion The judgment of e Claims Commission is affirmed, and is case is dismissed wi is cause being remanded to e Claims Commission solely for collection of e costs below. The costs on appeal are assessed against e Appellant, Patsy Smi, and her surety. D. MICHAEL SWINEY, JUDGE -16-