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Smith v. Portera5/27/2005
The Appellee/Defendant in this matter, Charles A. Portera, M.D., is a licensed physician engaged in the specialty practice of gynecologic oncology in Chattanooga, Tennessee. The Appellant/Plaintiff, Gloria Kim Smith, became Dr. Portera's patient in 1980. Several years prior to becoming Dr. Portera's patient, Ms. Smith was involved in an automobile accident which left her in a paraplegic condition and she remained in that condition at all times relevant to the matters herein.
Dr. Portera saw Ms. Smith as a patient on multiple occasions between 1980 and 2000. At some point during this period, Dr. Portera diagnosed Ms. Smith with uterine fibroid tumors. He recommended that these fibroid tumors be removed by surgery and, in 1996, he and Ms. Smith discussed available surgical options in that regard, including the option of an abdominal hysterectomy. Ms. Smith chose not to undergo a hysterectomy at that time and chose, instead, to undergo a less radical procedure known as dilation and curettage, also referred to as "D and C", which involves the scraping of the lining of the uterus and does not involve the removal of reproductive organs.
In June of 2000, Ms. Smith presented herself at Dr. Portera's office complaining of problems she was experiencing because of the previously diagnosed uterine fibroid tumors. As they had in 1996, Dr. Portera and Ms. Smith discussed the possibility of her having a hysterectomy. Shortly thereafter, on July 28, 2000, Ms. Smith signed a form at Dr. Portera's office whereby she consented to a dilation and curettage, a total abdominal hysterectomy, a bilateral salpingo- oophorectomy, an appendectomy, and a possible exploratory laparotomy. The surgery was scheduled to be performed at Memorial Hospital in Chattanooga, Tennessee, on August 14, 2000.
Ms. Smith attests that on August 14, 2000, while she was waiting in a surgical holding area at Memorial Hospital, shortly before the scheduled surgery, she signed a Memorial Hospital form styled "REQUEST FOR OPERATIVE/SPECIAL PROCEDURE." This form includes the following language pertinent to this appeal:
I, GLORIA KIM SMITH , request that TOTAL ABDOMINAL HYSTERECTOMY, BILATERAL SALPINGO-OOPHORECTOMY, APPENDECTOMY, POSSIBLE: EXPLORATORY LAPAROTOMY be performed upon me at Memorial Hospital, Chattanooga, Tennessee.
I REQUEST AND AUTHORIZE my physician, Dr. CHARLES A PORTERA , and other physicians of his/her choice to assist in the performance of this operation or procedure.
I understand that during the course of the operation/procedure, unforseen conditions may be discovered which require an extension of the original procedure or a different procedure from that described above. I REQUEST AND AUTHORIZE my physician or other physicians who may be assisting to perform such additional surgical procedures as are indicated by good medical practice which they deem to be in my best interest by exercise of their medical judgment.
The surgery ensued and, in the course of performing the dilation and curettage, Dr. Portera observed what he refers to as a "lesion" which, he asserts, was "located in or near the same area in which he had treated other lesions on Ms. Smith" and lateral to the labia majora. Dr. Portera testifies that he felt this lesion "needed to be removed because it could be cancerous." Dr. Portera excised the lesion, sent it to the pathology laboratory for examination and, after receiving a report that the lesion was not malignant, sutured the site of excision. Dr. Portera testifies that this procedure extended the planned surgery by a total of thirty or forty minutes. Thereafter, the hysterectomy and remaining scheduled procedures were apparently concl
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