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McConkey v. State9/4/2003
Background
Plaintiff filed his claim against Barton Warner, M.D. ("Dr. Warner") with the Division of Claims Administration. The claim was transferred to the Tennessee Claims Commission. The State answered the complaint claiming that Dr. Warner was not a proper Defendant as Dr. Warner is entitled to state-employee immunity and that the proper defendant was the State of Tennessee. The claim proceeded with the State of Tennessee as the defendant with the claim being heard before the Tennessee Claims Commission.
Plaintiff went to the Rutherford County Health Center in Murfreesboro to have a vasectomy. Dr. Warner performed the operation. After the procedure, Dr. Warner told Plaintiff that there had been some complications. Plaintiff stated Dr. Warner told him he " ad a hard time getting to the left side to - - what he had to do on the left side and had accidentally cut the varicose vein in the process."
Plaintiff's wife at the time of the operation, Terry Lee Adcock, testified that Dr. Warner told Plaintiff after the operation not to drink alcohol for 48 hours. Ms. Adcock claims that Plaintiff stopped on the way home from the surgery and purchased a liter of Crown Royal, which he started drinking as soon as he got home. Ms. Adcock further stated that Plaintiff finished the entire bottle before the end of the day. Plaintiff, however, claims he did not drink alcohol the night of the surgery, but that he simply went home and slept.
Plaintiff experienced swelling and pain after the operation. Plaintiff stated his " esticles were basically the size of - - I'd say tomatoes." He further claims the left one stayed at that size, but the right one was not as bad. Plaintiff attempted to go back to work "that following Monday," but was unable to do so due to the pain and swelling. Plaintiff's wife called the doctor's office and was told Plaintiff should stay in bed for another week, apply ice, and continue taking medicine the doctor had prescribed. Plaintiff did not return to Dr. Warner's office. Plaintiff and his wife did talk to Dr. Warner on the phone regarding the problems Plaintiff was having.
A couple of weeks after the surgery, Dr. Warner went to Plaintiff's home and examined him. Dr. Warner then took Plaintiff to see another physician, Dr. Cleveland, at his office. The two doctors conferred and Dr. Cleveland admitted Plaintiff to the Murfreesboro Medical Center. At the Murfreesboro Medical Center, Plaintiff had a second surgery. Plaintiff continued to experience pain following this surgery. Plaintiff stated he was unable to work "when the pain would hit me." At some point following the second surgery, Plaintiff's wife moved out and the parties subsequently divorced.
Over one year after the vasectomy, Plaintiff had a third operation, which Plaintiff claims was " ecause of the pain." During that surgery, Plaintiff's left testicle was removed. Plaintiff stated that his pain never completely stopped. He stated the pain is less than it was, but that it does not change. Plaintiff admitted that he is capable of having normal sexual relations.
Plaintiff claims that Dr. Warner said "he had accidentally cut the varicose vein, and that was mainly the problem. That was the cause of . . . all the swelling and the bruising that I had."
At trial, Plaintiff attempted to use Dr. Warner as his expert witness. The State objected on the ground that Plaintiff never identified Dr. Warner as an expert witness in Plaintiff's answers to interrogatories. Plaintiff did identify two other doctors as experts that Plaintiff planned to use at trial, but Plaintiff called neither of these two doctors to testify at trial.
Dr. Wa
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