University of Mississippi Medical Center v. Gore
University of Mississippi Medical Center v. Gore
Opinion of the Court
¶ 1. Joey Gore, who was the recipient of an unsuccessful kidney transplant at the University of Mississippi Medical Center (UMC), sued UMC, as well as several other entities, for medical negligence. The matter proceeded to trial against UMC and one other entity, LifeSouree Upper Midwest Organ Procurement Organization, Inc. (LifeSouree). The jury considered the liability of UMC and LifeSouree and returned a defense verdict in favor of both. The jury verdict was advisory as to UMC, and the trial court chose not to follow it. It found UMC liable and awarded Gore $326,678.13 in damages. UMC then timely appealed to this Court.
¶ 2. On appeal, UMC raises four issues: 1) whether the trial court’s findings of fact supporting its liability finding against UMC are against the overwhelming weight of the evidence; 2) whether the trial court abused its discretion in allowing Gore’s expert to testify regarding kidney-transplant surgery and whether UMC medical staff was negligent; 3) whether UMC is immune from liability pursuant to the Mississippi Anatomical Gift Law (specifically, Mississippi Code Section 41-39-135); and 4) whether the trial court’s findings supporting the damage award are against the overwhelming weight of the evidence.
¶ 3. We conclude that the trial court’s findings of fact supporting its liability finding against UMC are against the overwhelming weight of the evidence. Further, we find that this issue is dispositive and renders the other issues moot. Therefore, we reverse and render, finding UMC free of any liability.
FACTS AND PROCEDURAL HISTORY
¶ 4. This case arises out of an unsuccessful kidney-transplant procedure performed on Joey Gore by UMC surgeons in February 2002. It is undisputed that the transplant was unsuccessful because the renal artery connected to the donor kidney had an intimal tear (a tear of its inner lining) at the artery’s midpoint, which prevented the flow of arterial blood into the kidney at the time UMC surgeons attached the renal artery to Gore’s artery and attempted to reintroduce blood into the kidney.
¶ 5. At trial, through unrebutted defense-witness testimony, UMC explained how kidneys customarily are procured and transplanted. This defense-witness testimony was provided largely by Dr. James Wynn, UMC’s expert witness, who is board-certified in general surgery, completed a fellowship in transplantation surgery, has procured kidneys throughout his career, has transplanted approximately a thousand kidneys over the years, has regularly performed vascular surgery (i.e., surgery related to arteries or veins) outside the realm of transplant surgery, holds several leadership positions related to transplants, and has performed research and published papers about kidney transplants. Dr. William Henry Barber, the UMC surgeon who performed Gore’s unsuccessful transplant surgery, also provided testimony regarding customary kidney procurement and transplant procedures. Dr. Barber is board-certified in general surgery, has a specialty in transplantation surgery, began performing kidney transplants in 1986, has performed approximately eight-to-nine hundred kidney transplants over the years, belongs to professional associations related to transplants, and has performed research and authored approximately fifty articles in the field of transplantation.
¶ 6. Dr. Wynn testified that, in cases like the instant one, the transplant process begins with the procurement of organs from a donor who is brain-dead. To procure the organs from the body of the donor, sur
¶ 7. Dr. Wynn further explained that, after the heart, lungs, liver, and pancreas are removed, surgeons procure the two kidneys. In the process of removing the kidneys, a surgical assistant lifts the kidneys up outside the body while they are still attached to the donor’s body by blood vessels (including renal arteries) so that the surgeon can cut the kidneys free from the donor’s body (i.e., free from the donor’s aorta and vena cava), while being sure not to cut the blood vessels near where they enter the kidney.
¶8. According to Dr. Wynn, a natural consequence of the kidneys being held outside the donor’s body while the surgeon cuts the blood vessels free from the body is that there is some traction on the blood vessels, including the renal arteries. The renal arteries, which transport blood into the kidney, are composed of three layers: the outer layer called the adventitia, the middle layer called the media, and the innermost layer called the intima. Each layer has a different tolerance for being stretched. The adventitia and media can withstand more stretching than the intima, and thus there is more risk of intimal tearing than tearing to the other layers at this point in the procedure.
¶9. Dr. Barber testified that, at all times during the procurement procedure, the adventitia of the renal artery, including the area at the artery’s midpoint, is obscured by fatty tissue. In addition, as Dr. Wynn testified, if the renal artery were damaged as the surgeon removes the kidney from the donor’s body, there would be no possibility of adventitial hemorrhaging (i.e., blood staining visible from the outside of the renal artery) at the site of the damage, because all the blood would have been replaced by the clear preservation solution.
¶ 10. According to Dr. Wynn and Life-Source’s Director of Procurement, once the two kidneys are removed from the donor’s body, they are carefully packaged in a hard plastic jar containing more preservation solution and then placed in a box with ice. Each kidney is then shipped to the hospital(s) where the recipients of the donated kidneys will undergo kidney-transplant surgery.
¶ 11. Dr. Wynn and Dr. Barber testified that, at the hospital where the transplant is to be performed, in order to prevent any unnecessary warming of the kidney, the transplant surgeon prepares the recipient for the transplant procedure prior to removing the kidney from the packaging in which it was placed by the procurement surgeon.
¶ 12. Dr. Wynn and Dr. Barber explained that, after unpacking the kidney, the transplant surgeon inspects it. The surgeon removes most of the fatty tissue from around the surface or capsule of the kidney so the capsule can be inspected. He also inspects the renal artery; however, the surgeon does not remove the fatty tissue around the renal artery because of the risk of damaging the blood supply to the ureter and to unrecognized accessory blood vessels to the kidney. The surgeon frees up only enough tissue from around the renal artery so that the artery is mobile enough to reach and attach to the recipient’s artery without difficulty. Therefore, the transplant surgeon, looking at the length of the renal artery (including the midpoint), would not be able to see even the adventitia of the artery at the time of inspection of the kidney prior to transplant.
¶ 13. All expert witnesses who testified agreed that, in inspecting the kidney, the surgeon should inspect the ostium (i.e., the opening) of the renal arteiy. The experts disagreed, however, as to whether an inti-mal tear at the midpoint of the artery would be visible to a surgeon who properly examines the artery in preparation for transplant. Gore’s expert witness contended that the intimal tear would be visible by peering through the ostium into the lumen of the artery.
¶ 14. In the instant case, the donor was a woman who died in Minnesota as a result of an automobile accident. The donor’s family agreed to a donation of a number of her organs, including the kidneys. Two University of Minnesota doctors training to become transplant surgeons harvested the kidneys in the manner described above. One kidney was then transported to UMC.
¶ 15. At UMC, Dr. Barber and others participating in the procedure (hereinafter
¶ 16. The renal artery of the kidney at issue was eight millimeters (about one-third of an inch) in outside diameter and 4.5 centimeters (about two inches) long. The intimal tear was at the midpoint of the approximately two-inch-long artery.
¶ 17. Once the kidney was inspected and prepared for transplant, Dr. Barber attached the renal artery of the donor kidney to Gore’s artery (as well as attaching the renal vein). Dr. Barber then removed the clamps from Gore’s blood vessels to establish blood flow to the kidney.
¶ 18. From that point forward, the transplant did not go as planned. After the kidneys were flushed with preservation solution in Minnesota, the kidneys turned from their normal pink color to a tan color. Thus, the kidney transported to UMC was tan at the time Dr. Barber received it. Normally, once the clamps are removed from the recipient’s blood vessels and blood flow to the kidney is established, the kidney turns pink, which may happen immediately or take ten to fifteen minutes.
¶ 19. After several unsuccessful attempts to find and fix the problem, forty-five minutes had passed, and Dr. Barber made the decision, based on his experience and professional judgement, that this particular kidney was not going to function properly. Even if the problem interfering with the arterial blood flow was repaired (in or outside Gore’s body), the kidney still would not be a good kidney for Gore,
¶ 20. After determining that the kidney would not be a good kidney for Gore, Dr. Barber began to dissect — meaning to remove fatty tissue, not cut — along the renal artery to be able to see the adventitia. The dissection revealed to Dr. Barber what appeared to be (from the outside of the artery) an intimal dissection (i.e., a longitudinal tear that moves down the wall of the artery) at the midpoint of the artery.
¶ 21. The kidney was removed by cutting the renal artery of the donor kidney, leaving a section of the donor’s renal artery attached to Gore’s artery and thus shortening the length of the donor artery. In summary, in contrast to the appearance of the kidney when it was first removed from the packaging, there was now blood present in the renal artery, fatty tissue had been cut away from the renal artery, the renal artery had been shortened (making the tear now closer to ostium), and there was now an indication (due to adven-titial hemorrhaging) of an intimal tear.
¶ 22. Dr. Barber explained that, after removing the kidney, he took the kidney to UMC’s pathology department “to see if [they] could actually determine what the problem was beyond what [he] suspected, which was the intimal tear, and where that tear was.” In the pathology department, the renal artery was cut open and photographs were taken of the intimal tear.
¶ 23. Gore’s complaint (filed in 2002 and twice amended in 2004) listed numerous defendants; however, by the time this matter went to trial, the only remaining defendants were UMC and LifeSouree, a nonprofit organization that coordinates the process of organ and tissue donations, bridging the gap between the donation, procurement, and transplant processes. As a nongovernmental defendant, Life-Source was entitled to a jury trial.
¶ 24. Before trial, UMC filed a motion to submit the question of its liability to the jury for an advisory verdict. Gore agreed to this, and the trial court granted the motion. UMC, therefore, participated in the voir dire of the jury, submitted jury
¶ 25. The trial court chose not to follow the advisory jury verdict, and in March 2008, nearly a year after the trial, issued a judgment in favor of Gore against UMC, awarding Gore $326,678.13 in damages. The trial court based its liability finding against UMC on the following findings of fact:
If Dr. Barber had inspected the renal artery, he would have noticed the inti-mal tear because it was visible to the naked eye according to Dr. Allen [the UMC pathologist] and Dr. Galvez [Gore’s medical expert]. Therefore, ... Dr. Barber did not inspect the kidney prior to the transplant thereby breaching the standard of care.
DISCUSSION
Are the trial court’s findings of fact supporting its liability finding against UMC against the overwhelming weight of the evidence?
¶26. UMC argues that the trial court’s findings of fact supporting the liability finding against UMC are against the overwhelming weight of the evidence.
¶ 27. This Court has clearly established that, in order to make out a prima facie case of medical negligence, a plaintiff must prove that:
(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of duty was a proximate cause of the plaintiffs injury, and (4) the plaintiff was injured as a result.
Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 650 (Miss. 2009). “The general rule in Mississippi is that medical negligence may be established only by expert medical testimony, with an exception for instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.” /¿(internal quotations omitted). See also Barner v. Gorman, 605 So.2d 805, 809 (Miss. 1992) (“Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.”).
¶ 28. This Court will not disturb a trial court’s findings if they are supported by substantial evidence.
¶ 29. The trial court’s findings of fact supporting its ruling against UMC were not supported by substantial evidence and were manifestly wrong. The trial court’s Order and Opinion found:
The plaintiff established through expert testimony of Dr. Rodrigo Galvez that Dr. Barber should have inspected the kidney specifically the renal artery prior to the transplant. If Dr. Barber had inspected the renal artery, he would have noticed the intimal tear because it was visible to the naked eye according to Dr. Allen and Dr. Galvez.
Therefore, the Court finds that Dr. Barber did not inspect the kidney prior to transplant breaching the standard of care.12
¶ 30. The remainder of this opinion will explain the following: The overwhelming weight of the evidence indicates that, when the kidney was examined by Dr. Barber in preparation for the transplant, the intimal tear (assuming it existed at that time) would not have been visible to the naked eye. It is not clear that Dr. Allen’s deposition testimony was intended to indicate, nor does indicate, that the tear was visible to the naked eye at the time Dr. Barber was examining the kidney prior to the transplant. Thus, the only expert who testified that Dr. Barber would have been able to see the tear at the time he was examining the kidney prior to transplant (if the tear existed at that point) was Dr. Galvez, whose testimony revealed that he (Dr. Galvez) was uninformed about modern kidney procurement and transplant procedures.
¶ 31. The overwhelming weight of the evidence indicates that, when the kidney was examined by Dr. Barber in preparation for the transplant, the intimal tear in the renal artery would not have been visible to the naked eye. As explained above, the renal artery is a tube, composed of three layers: an outer layer called the adventitia, a middle layer called the media, and the innermost layer called the intima. As also explained above, the renal artery of the kidney at issue was about one-third of an inch in outside diameter and about two inches long. The intimal tear was at
¶ 32. As noted above, according to Dr. Wynn and Dr. Barber, a surgeon preparing a kidney for transplant into the body of a recipient does not remove or interfere with the fatty tissue surrounding the renal artery because of the risk of damaging the blood supply to the ureter and to unrecognized accessory arteries and veins to the kidney. The transplant surgeon removes only enough of the fatty tissue from around the artery as is necessary to allow the artery to reach and be attached to the recipient’s artery without difficulty. Therefore, as Dr. Barber explained, the transplant surgeon cannot see even the adventitia at the midpoint of the artery.
¶ 83. Moreover, Dr. Barber and Dr. Wynn, both very experienced kidney-transplant surgeons, testified that a surgeon would not be able to see the intimal tear located at the midpoint of the artery by peering through the ostium of the artery. As Dr. Barber testified, “[Y]ou’re looking into an opaque tube that’s about the size of a pencil there, and you cannot see far into the renal artery, and this area, [the area around the artery], is actually covered with fatty tissue that is normally not dissected away. So you can’t see it from the outside.” In later testimony, Dr. Barber explained that he could not see the tear “[bjecause it was too far down in the renal artery to actually see by looking into the opening of the renal artery.”
¶34. In addition, Dr. Wynn testified that Dr. Barber could not have avoided inspecting the renal artery. Dr. Wynn explained that this is because, aside from it being very common practice for surgeons to inspect the artery, Dr. Barber described creating a carrel patch,
¶ 35. Dr. Allen’s deposition testimony,
¶ 36. Thus, the only expert who testified that Dr. Barber would have been able to see the tear at the time he was examining the kidney prior to transplant (if the tear existed at that point) was Dr. Gal-vez,
¶ 39. For those reasons, we conclude that the trial court’s finding that the tear was visible to the naked eye at the time Dr. Barber inspected it prior to transplant is not supported by substantial evidence. Accordingly, we find that the trial court’s finding that Dr. Barber was negligent, and that UMC is liable, is not supported by substantial evidence and is manifestly wrong.
CONCLUSION
¶ 40. We find that the trial court’s findings of fact supporting its liability finding against UMC are against the overwhelming weight of the evidence. Finding this issue dispositive, we reverse and render the trial court’s judgment against UMC.
¶ 41. REVERSED AND RENDERED.
. When asked whether "the standard of care for a transplant surgeon” calls for preparing a recipient for transplant prior to removing the kidney from its packaging, Dr. Barber testified that "[i]t is the way that the majority of transplant surgeons in the United States, and I believe worldwide, do this operation.” No medical expert disputed that, in modern medicine, it is customary and advised to pre
. Gore's expert, Dr. Rodrigo Galvez, never exactly stated that the intimal tear would be visible by peering through the ostium into the lumen of the artery, but we will give Gore and Dr. Galvez the benefit of the doubt by assuming that this is what Dr. Galvez meant when he stated the following:
If this is a renal artery, okay, and you're going to do the grafting and you examine the inside, you are able to see whether there was a tear or not, whether there was a problem with the naked eye. You don't need a magnifying....
. All of the experts agreed that, if the inspection of the artery reveals an intimal tear at or adjacent to the ostium, the surgeon usually can repair the tear by making a stitch or cutting away the damaged portion of the artery (and then proceed to successfully transplant the kidney). The record does not establish in what circumstances, if any, an intimal tear at the midpoint of the renal artery would be repairable.
.Throughout this opinion, we will use Dr. Barber's name to refer to Dr. Barber and/or other UMC surgical staff who participated in the transplant procedure. This is because the record is not always clear regarding exactly who — whether it be Dr. Barber, the resident working under him, or someone else — performed different tasks in the operating room during the transplant procedure.
. Dr. Barber estimated that the tear was approximately three centimeters (1.2 inches) from the ostium of the blood vessel.
. Usually, before a kidney turns pink, it initially turns purple because of venous blood that backflows into the kidney. The kidney in the instant case did turn purple.
. The kidney, if left in Gore's body, may have kept Gore from having to receive dialysis treatments for a short while, but it never would have functioned properly, and Dr. Barber determined that Gore would be better off having this kidney removed and getting a new kidney at a later time that would function properly.
. In his trial testimony, Dr. Barber stated that the intimal dissection or tear appeared to be located beneath the bifurcation or branching of the main renal artery, which, to a listener, sounds like a location closer to the kidney than the midpoint of the artery. Because at other times Dr. Barber and UMC contended that the tear was at the midpoint, we will give Gore the benefit of the doubt that the tear was located at the midpoint and no closer to the bifurcation of the renal artery (i.e., no closer to the kidney itself). It should be noted that stating that the tear was beneath the bifurcation of the renal artery is not necessarily inconsistent with stating that it was at the midpoint because: 1) the midpoint is beneath the bifurcation, and 2) the tear may have started at the midpoint and extended to near the bifurcation. By elaborating and stating that the tear was about three centimeters (1.2 inches) from the ostium, Dr. Barber clarified that he believed the tear to be at or slightly past the midpoint of the artery (i.e., slightly closer to the bifurcation than to the ostium).
.The record is unclear as to whether the renal artery was already cut open when the UMC pathologist who examined it first saw it. It is clear, however, that at some point while the kidney was in the pathology department, the tear was visible to the naked eye, and UMC does not dispute this.
. This Court has defined “substantial evidence’’ as " ‘such relevant evidence as reasonable minds might accept as adequate to support a conclusion' or to put it simply, more than a ‘mere scintilla’ of evidence.” Hooks v. George County, 748 So.2d 678, 680 (Miss. 1999) (quoting Johnson v. Ferguson, 435 So.2d 1191, 1195 (Miss. 1983)).
. “The word ‘manifest,’ as defined in this context, means 'unmistakable, clear, plain, or indisputable.' " Transocean Enter., Inc. v. Ingalls Shipbuilding, Inc., 33 So.3d 459, 462 (Miss. 2010).
. The trial court implicitly found that the tear existed at the time Dr. Barber examined the kidney prior to the transplant.
The record does not definitively establish when the tear occurred. Whether the tear occurred before or after Dr. Barber inspected the kidney is a disputed fact to the extent Gore contends that the tear occurred during the transplant surgery itself. We agree with UMC that the testimony of Dr. Galvez was confusing and that Gore's theory for liability on the part of UMC is less than clear. Gore’s theory of liability, as expressed in his brief to this Court, is that "[t]he kidney was torn during surgery or not significantly inspected and as a result Joey Gore was severely injured.”
Dr. Galvez concluded that the tear occurred, or most likely occurred, during the transplant surgery itself, but he offered no explanation as to how the tear would have come about during the transplant surgery. Dr. Wynn, on the other hand, testified that it was most reasonable that the tear occurred during procurement when the surgical assistant was holding the kidneys outside the donor's body while the kidneys were still attached to the donor’s body by blood vessels and there was consequently traction on the blood vessels, including the renal arteries. Dr. Wynn further opined that it is highly unlikely that there was enough traction during the transplant procedure itself to cause the tear because Gore was a thin man at the time and thus the exposure of his blood vessels should not have been difficult — i.e., the grafting process would not have required that traction be placed on the kidney’s blood vessels. Dr. Wynn testified that "there was no indication that there were any unusual technical features or aspects of the operation that would have caused undue difficulty in fitting the kidney into where it needed to go and hooking the blood vessel together.”
.The fatty tissue surrounding the artery would also prevent a surgeon from being able to view adventitial hemorrhaging at the midpoint. However, recall that there would not have been adventitial hemorrhaging present at the time Dr. Barber was inspecting the kidney in preparation for the transplant because the kidney had been flushed of blood in Minnesota (even before the procurement doctors removed the kidney from the donor’s body). The only time at which there possibly could have been adventitial hemorrhaging would have been before the kidney was flushed of blood (although it is unlikely the tear occurred any time prior to procurement) or after the kidney was transplanted into Gore's body and blood was reintroduced into the renal artery.
. Creating a carrel patch "involves holding the aorta, using pickups and scissors to stabilize it away from the opening to the renal artery, and using the scissor to cut away the excess aorta and to leave a cuff of aorta attached to the renal artery.”
. Dr. Allen did not testify at the trial, but his deposition was taken and included in the record.
.While, at one point in his deposition, Dr. Allen said he could see the tear with his naked eye, at other times in his deposition, his answers suggested that what he meant when he said he could see the tear with his naked eye was that he could see evidence of the tear (e.g., adventitial hemorrhaging in the area of the tear) with his naked eye when he was called over by the resident working under him to look at the kidney for the first time. For example, he explained, "Well, you can tell that there’s a break in the continuity of the vessel, but specifically what portion of the wall of the vessel requires histology ... to be sure what you’re looking at, you would have to have histology to be sure are we in the media, are we in the intima, or have we gone all the way through, things like that....” He also stated, “When I got there, it was easily— it was easy enough for me to see grossly to agree that the artery had a disruption in it.”
Alternatively, Dr. Allen's deposition testimony at one point suggested that the tear itself was visible, but only because the artery had been cut open by the time he, Dr. Allen, saw it for the first time. At another point, Dr. Allen stated that the artery was not cut open at the time it was brought to the pathology department. Dr. Allen did state the kidney looked "sort of like” the photographs shown on the first page of Exhibit 11 when he first saw it, and both Dr. Galvez and Dr. Wynn testified at photographs on the first page of Exhibit 11 show the artery cut open. Dr. Allen testified that he does not know whether the resident working under him dissected the artery in any way before he (Dr. Allen) first looked at it.
. Notably, Dr. Allen never stated that he peered into the ostium of the artery and, by doing so, was able to see the tear with the naked eye. In other words, even though the artery had been shortened by the time it arrived at the pathology department, there is no indication in Dr. Allen’s deposition testimony that, even at that point, a surgeon would have been able to peer through the ostium of the artery and view the intimal tear with the naked eye.
. Gore called two medical experts to support his claims: Dr. Carl Blond and Dr. Galvez. Dr. Blond, a nephrologist, offered no criticism of Dr. Barber’s surgical care; rather, his testimony was concentrated on Gore’s claim against LifeSource.
. The examples of Dr. Galvez's lack of familiarity include the following: Dr. Galvez testified that he was certain that the tear did not happen at the time of the donor's car accident because, if it did, there would have been adventitial hemorrhaging that would have been visible to the procurement doctors.
Similarly, assuming the tear happened during the procurement of the kidney (after it had been flushed of blood), it would be incorrect to assert that there would have been adventitial hemorrhaging present at the time Dr. Barber inspected the kidney prior to transplant; this is because there was no blood in the kidney from the time the procurement doctors began the actual removal of the kidneys until the time the kidney was attached to Gore’s blood vessels. In addition, the artery remained surrounded by fatty tissue up until the time that Dr. Barber realized that the kidney was not a suitable kidney and began to dissect away the fatty tissue to tiy to identify the problem.
Dr. Barber explained that Dr. Galvez’s lack of familiarity with modern transplant procedures may stem from the fact that the single procurement procedure Dr. Galvez testified to having observed was performed about thirty years ago, when the flushing of the organs was not done prior to their removal. Therefore, at that time in the past, if the procurement doctor had created an intimal tear while removing the kidney, there would have been adventitial hemorrhaging; however, in modern times, and for the past twenty-plus years, the organs are flushed while in the donor’s body prior to removal, and thus an intimal tear created at the time of removal would not result in adventitial hemorrhaging.
Lastly, Dr. Galvez testified that, if the arteiy was damaged at some point prior to arriving at UMC, Dr. Barber should have detected the tear before "putfting] [Gore] through the surgery.” This evidences that Dr. Galvez was not aware that, as the testimony of Dr. Barber and Dr. Wynn revealed, in modern transplant procedures, the recipient’s body is opened and prepared for transplant prior to unpacking the kidney.
. See footnote 2, supra.
. Dr. Galvez’s primary testimony regarding whether the tear was "visible to the naked eye” was simply a statement that Dr. Allen's pathology report stated that the tear was visible to the naked eye — i.e., that, at some point when the kidney was in the possession of the UMC pathology department, the tear was visible without the aid of a microscope — a fact no one disputes. At a later point in Dr. Galvez’s testimony, he again discussed the tear being visible to the naked eye in the context of stating that the tear would have been visible to Dr. Barber at the time of inspection (had the tear existed at that time), but Dr. Galvez never elaborated as to how this would have been possible.
Some of Dr. Galvez’s testimony could be read as asserting that the tear was visible at the time Dr. Barber examined the kidney pri- or to transplant because adventitial hemorrhaging is visible to the naked eye. This would be an incorrect statement, because even Dr. Galvez agreed that the kidney was flushed of all blood prior to arriving at UMC. Furthermore, it was established that, prior to transplant, the artery was surrounded by fatty tissue that prevented the examining surgeon from viewing the adventitia.
. In UMC’s brief, it reminds us that:
The material question was the appearance of the kidney before grafting, at a time when a kidney transplant surgeon had prepared the end of the renal arteiy for grafting into the donee’s body and at a time when the kidney transplant surgeon must be careful not to disturb any parts of the kidney more than necessaiy. On this point,*557 the evidence showed no expertise on the part of Dr. Galvezf, who does not handle or examine "live” kidneys in his practice as a patito logist].
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