The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 25, 2016 Session
DOROTHY HOLMES v. CHRIST COMMUNITY HEALTH
SERVICES, INC., ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-002855-12 James F. Russell, Judge
No. W2016-00207-COA-R3-CV – Filed November 29, 2016
The plaintiff filed this action alleging medical malpractice against a physician who
examined the plaintiff five days after injury to her shoulder, as well as the facility
wherein the physician practiced. The plaintiff alleged, inter alia, that the defendant
physician failed to properly diagnose a fracture dislocation in her shoulder, causing a
delay in appropriate treatment. The plaintiff‘s subsequent treating physician opined in
his deposition and via affidavit that if the plaintiff‘s injury had been diagnosed earlier, the
plaintiff would likely have avoided an extensive surgical procedure, resultant infection
stemming from such surgery, and residual impairment to her shoulder. The trial court
excluded this testimony as speculative, granting summary judgment in favor of the
defendant physician and hospital. The plaintiff has appealed. We determine that the trial
court erred in excluding the causation evidence as speculative. We therefore vacate the
court‘s grant of summary judgment in favor of the co-defendants.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
Everett B. Gibson, Memphis, Tennessee, for the appellant, Dorothy Holmes.
Joseph M. Clark and Samantha E. Bennett, Memphis, Tennessee, for the appellees, Christ
Community Health Services, Inc., and Bradley Carter, M.D.
OPINION
I. Factual and Procedural Background
This medical malpractice1 action arises from an incident that occurred on May 13,
2004, when the plaintiff, Dorothy Holmes, fell and injured her right shoulder. Ms.
Holmes did not seek treatment for her injury until May 18, 2004, when she visited Christ
Community Health Services, Inc. (―CCHS‖), and was examined by Dr. Bradley Carter.
According to Ms. Holmes, Dr. Carter examined her shoulder and diagnosed the cause of
her pain as bursitis. Dr. Carter never ordered an x-ray of Ms. Holmes‘s shoulder.
Instead, Dr. Carter sent Ms. Holmes home with a program of exercises.
When Ms. Holmes‘s shoulder pain worsened over time, she visited her
chiropractor, Dr. Eric Novack, on June 15, 2004. Upon taking an x-ray of Ms. Holmes‘s
shoulder, Dr. Novack referred Ms. Holmes to an orthopedic surgeon, Dr. Robert
Bourland, who saw Ms. Holmes the following day. Dr. Bourland ordered a CT scan,
which revealed a fracture dislocation in Ms. Holmes‘s shoulder. Dr. Bourland referred
Ms. Holmes to Dr. Kenneth Weiss, an orthopedic surgeon specializing in shoulder
injuries.
Upon examining Ms. Holmes on June 18, 2004, Dr. Weiss confirmed Dr.
Bourland‘s diagnosis. Three days later, Dr. Weiss treated Ms. Holmes by performing
open reduction surgery, during which he determined that Ms. Holmes‘s shoulder socket
(glenoid) was so badly damaged that it had to be repaired utilizing a cadaver bone piece
and surgical screws. Months following, after slow and incomplete healing, Dr. Weiss
discovered severe infection in Ms. Holmes‘s shoulder joint. Consequently, Dr. Weiss
performed irrigation and debridement surgery to ―wash out‖ Ms. Holmes‘s shoulder joint
and remove the surgical screws because of infection in the screw holes. A PICC line 2
was implanted so that antibiotics could be administered intravenously. Although Ms.
Holmes‘s shoulder eventually healed, she suffered a partial physical impairment.
It is undisputed that Ms. Holmes originally filed a medical malpractice action in
April 2005 against CCHS and Dr. Carter (―Defendants‖). During the pendency of that
1
In 2012, the Tennessee Legislature amended Tennessee Code Annotated sections 29-26-115 to -122 to
replace each occurrence of the phrase, ―medical malpractice,‖ with ―health care liability.‖ See
Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 44 (Tenn. 2013). Because the term
―medical malpractice‖ was used in the statutes at the time of the accrual of this action, we will continue to
use it throughout this opinion. See, e.g., Cright v. Overly, No. E2015-01215-COA-R3-CV, 2016 WL
6078563, at *8 (Tenn. Ct. App. Oct. 17, 2016).
2
PICC is a common acronym for a peripherally inserted central catheter.
2
action, on November 28, 2006, Dr. Weiss executed an affidavit, wherein he stated:
I do believe that an initial x-ray performed at the initial treatment would
have given me more options for treatment than were available by the time I
first saw her on June 15, 2004. I believe that I most likely could have
treated her with a more typical operation as opposed to hav[ing] to use a
bone block to her socket to obtain stability. I believe that this would have
decreased the amount of permanent impairment to the right shoulder and
could have even possibly eliminated the need for initial open treatment to
her shoulder. She is left with a permanent impairment to the right upper
extremity.
The original medical malpractice action was subsequently nonsuited and refiled in
2012. In 2015, Defendants deposed Dr. Weiss. During his deposition, Dr. Weiss
explained that he had determined that Ms. Holmes suffered from a ―chronic locked
anterior shoulder fracture dislocation.‖ Dr. Weiss also elucidated that because Ms.
Holmes was a ―month out‖ from her injury when he first examined her, he was required
to perform an open reduction surgery to correct the fracture and put the shoulder back in
place. Dr. Weiss opined that the surgery needed to be done as soon as possible in order
to obtain the best result. In his notes from his initial examination, Dr. Weiss stated that
he had discussed with Ms. Holmes that because her injury had occurred almost five
weeks prior, the results would be ―significantly tempered and that she would definitely
not have an ideal result as if done acutely.‖ Moreover, Dr. Weiss opined, ―if he had
taken care of it initially, we could have done . . . or may have gotten away without even
surgery or definitely a lesser surgery than we would have to do at this point.‖
Dr. Weiss further articulated that upon performing surgery on Ms. Holmes‘s
shoulder, he discovered that the ball of the shoulder joint manifested an indentation and
that ―basically half of the socket had been worn down.‖ Dr. Weiss stated that because of
this condition, he was constrained to perform a bone graft utilizing a piece of cadaver
bone to reconstruct the socket. According to Dr. Weiss, Ms. Holmes‘s surgical procedure
lasted a minimum of two hours but could have extended as long as three or four hours.
Ms. Holmes subsequently visited Dr. Weiss for numerous post-surgery check-ups, during
which Dr. Weiss noted that she sometimes experienced visible pain. Dr. Weiss testified
that by October 25, 2005, Ms. Holmes had developed swelling in her shoulder and was
experiencing drainage from her incision. Determining that she had developed an
infection due to her surgery, Dr. Weiss prescribed antibiotics for Ms. Holmes in order to
treat the condition.
Following the passage of several months with no response to the antibiotic
treatment, Dr. Weiss performed another surgery on Ms. Holmes to clean the shoulder
3
joint. Dr. Weiss described ―obvious purulence‖ within the joint and found infection in
the screw holes. Dr. Weiss then removed the screws and washed out the shoulder joint
and infected area. According to Dr. Weiss, a PICC line was implanted so that Ms.
Holmes could receive intravenous antibiotic treatment. Ultimately, the infection was
successfully treated, and Ms. Holmes‘s wound healed. However, she experienced
permanent impairment in her shoulder and arthritis due to the surgery and resultant
infection.
Dr. Weiss opined that in a majority of such cases, if the type of injury Ms. Holmes
had experienced were diagnosed shortly following the injury, surgery would not be
required. Dr. Weiss specifically testified that if Ms. Holmes had been ―diagnosed acutely
. . . immediately after the fall,‖ her injury could have been treated with a closed
reduction. He continued to explain that ―[e]ven if we catch it a little bit late, we could
probably do a lesser operation than . . . we ended up having to do.‖ According to Dr.
Weiss, a ―lesser‖ operation would include arthroscopy, which results in an infection rate
of ―close to zero.‖ Dr. Weiss explained that the infection rate increases in relation to the
length of the respective surgical procedure.
Dr. Weiss further noted that the wear of the glenoid rim in Ms. Holmes‘s shoulder
was caused by the length of time the shoulder had been dislocated. As he explained,
because Ms. Holmes‘s shoulder had been ―so long chronically locked,‖ she had worn out
the front part of the shoulder socket. Upon cross-examination, Dr. Weiss stated that
when Ms. Holmes fell, the impact of the humeral head hitting the glenoid caused the
indentation on the humeral head, which was referred to as a Hill-Sachs fracture. He
determined that this impact occurred at the time of the shoulder dislocation. Dr. Weiss
indicated that if ―we caught the diagnosis initially . . . we would hope she would not even
necessarily have to have any surgery.‖ According to Dr. Weiss, although these types of
injuries sometimes require open reduction, a majority of cases can be treated in closed
fashion.
Dr. Weiss acknowledged that once a surgical site infection was recognized, it was
prudent to attempt eradication of the infection as soon as possible because the infection
could damage the joint. He also acknowledged that by initially declining to treat the
infection surgically, Ms. Holmes had contributed to the damage to her shoulder joint. Dr.
Weiss again opined, however, that if Ms. Holmes‘s injury had been detected earlier, ―she
could have been handled with easier care and . . . significantly less disability.‖ When
questioned about what he meant by ―detected earlier,‖ Dr. Weiss explained that he was
referring to ―the original fracture.‖
Defendants subsequently filed a motion seeking to have Dr. Weiss‘s deposition
testimony regarding causation excluded, arguing that his opinions were speculative. The
4
trial court granted the motion and excluded Dr. Weiss‘s deposition testimony respecting
causation. Defendants thereafter filed a motion for summary judgment, asserting that
Ms. Holmes could not establish causation, an essential element of her claim. In response,
Ms. Holmes filed the above-referenced 2006 affidavit of Dr. Weiss. The trial court
granted summary judgment in favor of Defendants, stating:
On September 21, 2015, the first day of trial in this matter, the Court
heard argument on the Defendants‘ Motion to Preclude Testimony and
Limit Damages. The Court granted the Defendants‘ motion and excluded
the evidentiary deposition testimony of the Plaintiff‘s causation expert,
Kenneth Weiss, M.D. The Court concluded that Dr. Weiss‘[s] testimony
did not establish that any act or omission on the part of Dr. Carter was the
cause of the Plaintiff‘s initial surgery, the subsequent infection, or the
second, corrective surgery to treat the infection. As memorialized in the
Order Granting the Defendants‘ Motion to Preclude Testimony and Limit
Damages, the Court held:
The terminology used by Dr. Weiss when offering causation
opinions, specifically the terms ―immediately,‖ ―acutely,‖
―initially,‖ ―shortly,‖ and ―earlier,‖ is not defined by Dr.
Weiss. Because these terms are undefined and because the
Plaintiff did not receive medical treatment from Dr. Carter for
five (5) days after her fall, these terms may relate to the five
(5) day period of time between the fall and treatment by Dr.
Carter. Reasonable minds could do no more than speculate
on the meaning of Dr. Weiss‘[s] testimony, and the law does
not permit speculative evidence to be considered by the trier
of fact. Dr. Weiss‘[s] opinion testimony does not satisfy the
statutory causation element of Tenn. Code Ann. § 29-26-115,
which requires the Plaintiff to establish that, more likely than
not, some act or omission by Dr. Carter caused the Plaintiff to
suffer an injury that would not have otherwise occurred.
(Order Granting the Defendants‘ Motion to Preclude Testimony and Limit
Damages, entered November 5, 2015, at p. 2).
After excluding Dr. Weiss‘[s] causation opinions, the Court
excluded the remainder of Dr. Weiss‘[s] testimony as irrelevant.
On September 29, 2015, the Court entered an Order Granting
Defendants‘ Motion to Preclude Testimony by Plaintiff‘s Expert, Dr.
5
Jeffrey May, on the Issue of Causation. Plaintiff‘s counsel did not consent
to the Defendants‘ motion, but the Plaintiff did acknowledge that she did
not intend to offer any expert medical witness proof at trial on the cause of
the injury and related infection other than the evidentiary deposition of
Kenneth Weiss, M.D., taken in this cause on August 20, 2015, which was
previously excluded by the Court.
On September 29, 2015, the Defendants filed their Motion for
Summary Judgment on the grounds that the Plaintiff could not establish
causation, an essential element of her claim, and the Defendants were
entitled to summary judgment as a matter of law. In response to the Motion
for Summary Judgment, the Plaintiff filed the Affidavit of Everett Gibson,
which attached an excerpt of the April 15, 2015 discovery deposition of
Jeffrey May, M.D., and the November 28, 2006 Affidavit of Kenneth
Weiss, M.D. The Court finds that the November 28, 2006 Affidavit of
Kenneth Weiss, M.D., is superseded on all points raised therein by the
August 20, 2015 evidentiary testimony of Dr. Weiss.
The same reasons that were articulated by the Court in excluding the
deposition testimony of Dr. Weiss at the commencement of the trial of this
case form the basis for the analysis for the motion for summary judgment.
For the reasons set out in the above-quoted language from the Order
Granting Defendants‘ Motion to Preclude Testimony and Limit Damages
and the transcript of the September 21, 2015 hearing on the Motion to
Preclude Testimony and Limit Damages, which is incorporated by
reference into the Order, the Court rejects Dr. Weiss‘[s] testimony and
opinions for the purpose of opposing the Defendants‘ Motion for Summary
Judgment. The Plaintiff still cannot prove the essential element of
causation in this case, and the Defendants are entitled to summary judgment
as a matter of law.
(Footnotes omitted.) Ms. Holmes timely appealed.
II. Issues Presented
Ms. Holmes presents the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred by granting summary judgment based
on the absence of sufficient evidence establishing a genuine issue of
material fact regarding causation.
6
2. Whether the trial court erred by excluding the testimony of Ms.
Holmes‘s causation expert upon the finding that such testimony was
speculative and insufficient to establish causation.
Defendants present the following additional issue:
3. Whether the trial court properly exercised its discretion when it
assigned no weight to the affidavit of Ms. Holmes‘s expert that was
offered in opposition to the motion for summary judgment.
III. Standard of Review
The grant or denial of a motion for summary judgment is a matter of law;
therefore, our standard of review is de novo with no presumption of correctness. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick
Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013)
(citing Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court
must ―make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.‖ Rye, 477 S.W.3d at 250. As
our Supreme Court has explained concerning the requirements for a movant to prevail on
a motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56:
[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving party‘s claim
or (2) by demonstrating that the nonmoving party‘s evidence at the
summary judgment stage is insufficient to establish the nonmoving party's
claim or defense. We reiterate that a moving party seeking summary
judgment by attacking the nonmoving party‘s evidence must do more than
make a conclusory assertion that summary judgment is appropriate on this
basis. Rather, Tennessee Rule 56.03 requires the moving party to support
its motion with ―a separate concise statement of material facts as to which
the moving party contends there is no genuine issue for trial.‖ Tenn. R.
Civ. P. 56.03. ―Each fact is to be set forth in a separate, numbered
paragraph and supported by a specific citation to the record.‖ Id. When
such a motion is made, any party opposing summary judgment must file a
response to each fact set forth by the movant in the manner provided in
Tennessee Rule 56.03. ―[W]hen a motion for summary judgment is made
[and] . . . supported as provided in [Tennessee Rule 56],‖ to survive
summary judgment, the nonmoving party ―may not rest upon the mere
7
allegations or denials of [its] pleading,‖ but must respond, and by affidavits
or one of the other means provided in Tennessee Rule 56, ―set forth specific
facts‖ at the summary judgment stage ―showing that there is a genuine issue
for trial.‖ Tenn. R. Civ. P. 56.06. The nonmoving party ―must do more
than simply show that there is some metaphysical doubt as to the material
facts.‖ Matsushita Elec. Indus. Co. [v. Zenith], 475 U.S. [574,] 586, 106 S.
Ct. 1348 [(1986)]. The nonmoving party must demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in
favor of the nonmoving party. If a summary judgment motion is filed
before adequate time for discovery has been provided, the nonmoving party
may seek a continuance to engage in additional discovery as provided in
Tennessee Rule 56.07. However, after adequate time for discovery has
been provided, summary judgment should be granted if the nonmoving
party‘s evidence at the summary judgment stage is insufficient to establish
the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving party comes
forward with at the summary judgment stage, not on hypothetical evidence
that theoretically could be adduced, despite the passage of discovery
deadlines, at a future trial.
Rye, 477 S.W.3d at 264-65 (emphasis in original). Pursuant to Tennessee Rule of Civil
Procedure 56.04, the trial court must ―state the legal grounds upon which the court denies
or grants the motion‖ for summary judgment, and our Supreme Court has instructed that
the trial court must state these grounds ―before it invites or requests the prevailing party
to draft a proposed order.‖ See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316
(Tenn. 2014).
Furthermore, the ―substance of evidence in affidavits submitted by the parties to
support and to oppose a summary judgment motion must be admissible at trial.‖ Davis v.
McGuigan, 325 S.W.3d 149, 168 (Tenn. 2010) (citing Tenn. R. Civ. P. 56.06). As our
Supreme Court has elucidated regarding such affidavits:
When issues have been raised regarding the compliance of affidavits
with the standards prescribed by Tenn. R. Civ. P. 56 or the admissibility of
evidence contained in these affidavits, the threshold issue of admissibility
should be resolved before determining whether or not unresolved questions
of fact exist. After these threshold questions have been addressed, the trial
court may then determine whether, taking the strongest view of the
admissible evidence in favor of the non-moving party, there remain any
genuine issues of material fact to be decided at trial.
8
Id. (internal citations omitted). The Supreme Court also explained:
Decisions regarding the admissibility of evidence are discretionary,
and, therefore, the appellate courts review these decisions using the ―abuse
of discretion‖ standard. Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn.
2005); Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn.
2004). This standard applies to appellate review of decisions by a trial
court when it is acting as a gatekeeper with regard to the admissibility of an
expert witness‘s opinion testimony. Accordingly, the appellate courts
review decisions regarding the qualifications, admissibility, relevancy, and
competency of expert testimony using the abuse of discretion standard.
Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005);
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997).
This standard of review should also be used at the summary judgment
stage. General Electric Co. v. Joiner, 522 U.S. 136, 142-43, 118 S. Ct.
512, 139 L.Ed.2d 508 (1997).
Id. at 168-69.
IV. Exclusion of Dr. Weiss‘s Deposition Testimony
The trial court determined that Dr. Weiss‘s deposition testimony should be
excluded upon a finding that it was speculative and therefore inadmissible. The court
explained:
[T]erminology used by Dr. Weiss when offering causation opinions,
specifically the terms ―immediately,‖ ―acutely,‖ ―initially,‖ ―shortly,‖ and
―earlier,‖ is not defined by Dr. Weiss. Because these terms are undefined
and because the Plaintiff did not receive medical treatment from Dr. Carter
for five (5) days after her fall, these terms may relate to the five (5) day
period of time between the fall and treatment by Dr. Carter. Reasonable
minds could do no more than speculate on the meaning of Dr. Weiss‘[s]
testimony, and the law does not permit speculative evidence to be
considered by the trier of fact.
Ms. Holmes argues that the meaning of Dr. Weiss‘s opinion testimony is clear:
because her shoulder remained in an injured state for a period of weeks before being
properly diagnosed and treated, a more extensive surgery was required, which resulted in
a greater risk of infection and a greater level of impairment. Ms. Holmes asserts that
when Dr. Weiss stated that ―if he had taken care of it initially, we could have done no—
or may have gotten away without even surgery or definitely a lesser surgery than we
9
would have to do at this point,‖ there is no question that he was referring to Dr. Carter‘s
initial examination and misdiagnosis (emphasis added). Following our thorough review
of Dr. Weiss‘s deposition testimony, we agree.
With regard to speculative evidence and causation in fact, our Supreme Court has
explained:
[W]e must decide whether Plaintiffs have proven that the Defendant‘s
negligence caused ―injuries which would not otherwise have occurred.‖
T.C.A. § 29-26-115(a)(3). As the Sixth Circuit recently noted in Boburka
v. Adcock, 979 F.2d 424 (6th Cir. 1992), a plaintiff in a medical malpractice
case in Tennessee must ―prove that it is more likely than not that the
defendant‘s negligence caused plaintiff to suffer injuries which would have
not otherwise occurred.‖ Id. at 429. In this regard, we reaffirm our
observations made in Lindsey [v. Miami Dev. Corp., 689 S.W.2d 856, 861
(Tenn. 1985)]:
The plaintiff must introduce evidence which affords a
reasonable basis for the conclusion that it is more likely than
not that the conduct of the defendant was a cause in fact of
the result. A mere possibility of such causation is not
enough; and when the matter remains one of pure speculation
or conjecture or the probabilities are at best evenly balanced,
it becomes the duty of the court to direct a verdict for the
defendant . . . .
The plaintiff is not, however, required to prove
the case beyond a reasonable doubt. The
plaintiff need not negative entirely the
possibility that the defendant‘s conduct was not
a cause and it is enough to introduce evidence
from which reasonable persons may conclude
that it is more probable that the event was
caused by the defendant than that it was not . . .
. (Citation omitted). A doctor‘s testimony that a
certain thing is possible is no evidence at all.
His opinion as to what is possible is no more
valid than the jury‘s own speculation as to what
is or is not possible. Almost anything is
possible, and it is thus improper to allow a jury
to consider and base a verdict upon a ‗possible‘
10
cause of death. (Citation omitted). The mere
possibility of a causal relationship, without
more, is insufficient . . . .
Lindsey, 689 S.W.2d at 861-62. Thus, proof of causation equating to a
―possibility,‖ a ―might have,‖ ―may have,‖ ―could have,‖ is not sufficient,
as a matter of law, to establish the required nexus between the plaintiff‘s
injury and the defendant‘s tortious conduct by a preponderance of the
evidence in a medical malpractice case. Causation in fact is a matter of
probability, not possibility, and in a medical malpractice case, such must be
shown to a reasonable degree of medical certainty. White v. Methodist
Hosp. South, 844 S.W.2d 642, 648-49 (Tenn. App. 1992).
Kilpatrick v. Bryant, 868 S.W.2d 594, 601-02 (Tenn. 1993).
In the case at bar, Dr. Weiss testified unequivocally that Ms. Holmes‘s shoulder
repair surgery would have been less extensive or probably even unnecessary had it not
been for the delay in diagnosis. Dr. Weiss further testified that if the surgery required
had been less extensive, the risk of infection would have been greatly reduced. He
likewise opined that if open surgery had not been required, the risk of infection would
have been almost eliminated. Dr. Weiss expressed all opinions within a reasonable
degree of medical certainty.
Some specific examples of Dr. Weiss‘s deposition testimony include the following
on direct examination:
A. The fact that we were five weeks out from her injury, if he had taken
care of it initially, we could have done no—or may have gotten away
without even surgery or definitely a lesser surgery than we would have to
do at this point.
***
Q. Is there any—do you have an opinion based upon a matter of—of
probability shown to a reasonable degree of medical certainty as to the risk
of infection for the type of surgery you described if done acutely, shortly
after the trauma, as opposed to five weeks after the trauma as in Ms.
Holmes‘ case?
A. Yes. You know, I think the—so from an arthroscopic procedure, the
infection rate is not zero but close to zero. And then we know the infection
11
rate goes up by the length of the surgery. So if you could have done—we
could have done a smaller open surgery. The infection rate, the longer the
incision is open, the higher the infection rate.
Dr. Weiss additionally testified on cross examination:
Q. Okay. So if she fell on May the 13th –
A. Yeah.
Q. -- you would expect that she would have surgery approximately ten
days later?
A. So ideally if we caught the diagnosis initially and the right thing, we
would hope she would not even necessarily have to have any surgery.
***
A. Sure. I think that again unfortunately had this problem been
detected earlier, I do feel that she could have been—she could have been
handled with easier care and with significantly less—significantly less
disability.
Q. All right. And what could have been—what—what do you mean by
if this had been detected earlier?
A. The dislocation.
Q. The—the original?
A. The original dislocation.
Q. The original fracture?
A. Yeah, correct.
(Emphasis added.)
With regard to the purported ―vagueness‖ in Dr. Weiss‘s testimony regarding
time, this issue appears easily resolved by reading Dr. Weiss‘s statements
comprehensively and in proper context. For example, Dr. Weiss‘s statement that ―if he
12
had taken care of it initially,‖ clearly refers to Dr. Carter and his examination of Ms.
Holmes on May 18, 2004. There is no reasonable interpretation of this statement that
could lead the reader to the conclusion that Dr. Weiss was referring to the timeframe
before Dr. Carter examined Ms. Holmes, due to the use of the pronoun, ―he.‖ Although it
is true that Dr. Weiss disclosed in his deposition that he was not initially aware that Ms.
Holmes waited a few days before seeking treatment, the disclosure of this fact did not
change his testimony.
We further note that Dr. Weiss‘s testimony was consistently couched in terms of
―shortly after the trauma, as opposed to five weeks after the trauma‖ and detection of the
problem ―earlier.‖ Dr. Weiss expressly stated that inasmuch as Ms. Holmes was a
―month out‖ from her injury when he met with her, the treatment options were limited,
necessitating a longer and more invasive surgical procedure. Dr. Weiss testified that
even had Ms. Holmes‘s injury been diagnosed ―a little bit late,‖ he more than likely could
have treated her with less invasive methods. Clearly, Dr. Weiss was aware that he was
being asked to opine concerning whether the initial misdiagnosis by Dr. Carter had
worsened Ms. Holmes‘s injury and resulted in more extensive medical problems. We
determine that the trial court erred in ruling that Dr. Weiss‘s testimony was speculative
and inadmissible simply because he did not expressly state that he was not referring to
the time period during Ms. Holmes‘s five-day delay in seeking medical treatment. A
review of Dr. Weiss‘s entire deposition leads to the conclusion that Dr. Weiss was
referring not to the delay between Ms. Holmes‘s injury and her initial examination, but
rather to the delay in diagnosis as a result of Dr. Carter‘s actions as a probable cause of
Ms. Holmes‘s more extensive injury.
When read in proper context, Dr. Weiss‘s testimony constitutes ―evidence which
affords a reasonable basis for the conclusion that it is more likely than not that the
conduct of the defendant was a cause in fact of the result.‖ See Kilpatrick, 868 S.W.2d at
601. Furthermore, Dr. Weiss‘s testimony is not couched in terms of mere possibility, but
instead establishes his opinion of the probability, to a reasonable degree of medical
certainty, that Ms. Holmes would not have required such extensive treatment or suffered
such a significant injury and disability if her fracture dislocation had been diagnosed by
Dr. Carter upon examination on May 18, 2004. See id. at 602. We therefore conclude
that the trial court erred in determining that Dr. Weiss‘s deposition testimony regarding
causation was too speculative to be admissible.
V. Affidavit Evidence
Defendants argue that the trial court properly afforded no weight to Dr. Weiss‘s
2006 affidavit, filed in response to Defendants‘ motion for summary judgment, which
stated in pertinent part:
13
I do believe that an initial x-ray performed at the initial treatment would
have given me more options for treatment than were available by the time I
first saw [Ms. Holmes] on June 15, 2004. I believe that I most likely could
have treated her with a more typical operation as opposed to hav[ing] to use
a bone block to her socket to obtain stability. I believe that this would have
decreased the amount of permanent impairment to the right shoulder and
could have even possibly eliminated the need for initial open treatment to
her shoulder. She is left with a permanent impairment to the right upper
extremity.
Although the trial court did not exclude the affidavit, the court ruled that the 2006
affidavit was ―superseded on all points raised therein by the August 20, 2015 evidentiary
testimony of Dr. Weiss.‖
Although Defendants raise various arguments in support of the trial court‘s refusal
to consider this affidavit, none address the trial court‘s stated basis that the affidavit was
―superseded‖ by Dr. Weiss‘s later testimony. Neither the trial court nor Defendants have
provided authority for such a determination. In a similar circumstance when the trial
court issued an exclusionary ruling, this Court explained:
The first reason given for excluding the affidavit of Dr. Bayles was
that he gave depositions after signing the affidavit. The court held that the
depositions therefore superseded the affidavit. We disagree. We know of
no rule of law or case holding that allows a court to ignore testimony given
at one point in time for the sole reason that the same witness gave
testimony at a later point in time. We do not believe this to be the law nor
should it be.
Jacobs v. Nashville Ear, Nose & Throat Clinic, 338 S.W.3d 466, 479 (Tenn. Ct. App.
2010). We therefore conclude that the trial court erred in ruling that Dr. Weiss‘s affidavit
was superseded by his deposition testimony and therefore should not be considered.
VI. Summary Judgment
Ms. Holmes ultimately argues that the trial court erred by granting summary
judgment to Defendants based on a lack of causation evidence because Dr. Weiss‘s
deposition testimony and affidavit were improperly excluded/not considered. We agree.
Dr. Weiss‘s testimony presents a genuine issue of material fact concerning causation that
would preclude a grant of summary judgment in favor of Defendants.
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As our Supreme Court has explained regarding summary judgment proceedings,
―summary judgment should be granted if the nonmoving party‘s evidence at the summary
judgment stage is insufficient to establish the existence of a genuine issue of material fact
for trial.‖ Rye, 477 S.W.3d at 264-65 (emphasis in original) (quoting Tenn. R. Civ. P.
56.04, 56.06). Furthermore, with regard to evidentiary questions and summary judgment,
the Court has elucidated:
[T]he threshold issue of admissibility should be resolved before
determining whether or not unresolved questions of fact exist. After these
threshold questions have been addressed, the trial court may then determine
whether, taking the strongest view of the admissible evidence in favor of
the non-moving party, there remain any genuine issues of material fact to
be decided at trial.
See Davis, 325 S.W.3d at 168.
Having concluded that the trial court erred in excluding and failing to consider
respectively the deposition testimony and affidavit of Dr. Weiss regarding causation, this
Court must then review that evidence by taking the strongest view of it in favor of Ms.
Holmes. In doing so, we conclude that the causation evidence presented by Dr. Weiss
created a genuine issue of material fact regarding causation that must be determined at
trial. Viewing the evidence in the light most favorable to Ms. Holmes, Dr. Weiss opined
that it was probable that the delay in diagnosis was a cause of the additional injury to Ms.
Holmes‘s shoulder and a cause of the extensive treatment she had to endure. Dr. Weiss
also unequivocally opined that the failure to discover the fracture dislocation and delay in
treatment contributed to Ms. Holmes‘s overall shoulder joint impairment. Dr. Weiss‘s
testimonial evidence and affidavit evidence therefore establish a genuine issue of material
fact for trial regarding causation. We conclude that the trial court erroneously granted
summary judgment in favor of the Defendants when admissible causation evidence was
proffered, thereby warranting a trial. We therefore vacate the trial court‘s grant of
summary judgment.
VII. Conclusion
For the foregoing reasons, we reverse the trial court‘s decisions to exclude the
deposition testimony of Dr. Weiss and to not consider Dr. Weiss‘s 2006 affidavit.
Therefore, we must vacate the court‘s grant of summary judgment to Defendants and
remand this matter to the trial court for further proceedings. Costs on appeal are assessed
equally to the appellees, Christ Community Health Services, Inc., and Dr. Bradley Carter.
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THOMAS R. FRIERSON, II, JUDGE
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