trial court gave curative instruction reminding jury that opening statements are not evidence and “the jury must only consider the presentation of testimony, depositions, exhibits, and stipulations as evidence”
How later courts described this case
- trial court gave curative instruction reminding jury that opening statements are not evidence and “the jury must only consider the presentation of testimony, depositions, exhibits, and stipulations as evidence”
Written by the judges who cited it.
The opinion
03/30/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 14, 2017 Session
CHRISTY L. BRADLEY, ET AL. v. LAURA BISHOP M.D., ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-002977-13 Rhynette N. Hurd, Judge
___________________________________
No. W2016-01668-COA-R3-CV
___________________________________
This is a health care liability action wherein a trial by jury resulted in judgment for the
defendants. Plaintiffs filed a motion for a new trial, asserting that: (1) the trial court erred
in granting defendants’ motions in limine, which restricted plaintiffs’ ability to
adequately cross-examine defendants’ expert witnesses regarding the “best possible
care”; (2) the trial court erred in granting defendants’ motions in limine, which restricted
plaintiffs’ ability to present evidence relating to medical expenses; (3) the trial court
failed to give a curative instruction after defendants’ opening statement; and (4) the
weight of the evidence was against the jury verdict. The trial court denied the post-trial
motion and affirmed the jury verdict as the thirteenth juror. Plaintiffs appealed. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY ARMSTRONG, J., joined.
Richard Glassman and Lauran G. Stimac, Memphis, Tennessee, for the appellants,
Christy L. Bradley and J. Anthony Bradley.
William H. Haltom, Jr., Margaret F. Cooper, and Laura L. Deakins, Memphis, Tennessee,
for the appellees, Laura Bishop, M.D. and Women’s Care Center of Memphis, MPLLC
dba Ruch Clinic.
OPINION
BACKGROUND
Prior to the events at issue in this case, in 2002, Plaintiff/Appellant Christy
Bradley (“Ms. Bradley”) had a blood clot in her portal vein,1 which blood clot impaired
her liver function. This condition required approximately three abdominal surgeries
between 2002 and 2003, wherein a shunt was eventually inserted from Ms. Bradley’s
sternum to two inches below her navel. Although the injuries healed, scars developed.
Thereafter, Ms. Bradley became a patient at Defendant/Appellee Ruch Clinic in 2004 for
treatment of abnormal uterine bleeding.
From 2004 to 2012, transvaginal ultrasounds performed on Ms. Bradley at the
Ruch Clinic revealed that she had a fibroid2 in her uterus. The treating physician
performed a conservative surgery called a hysteroscopic myomectomy3 on Ms. Bradley
on two separate occasions to remove the fibroid. Each time, this procedure would
temporarily alleviate the bleeding. However, Ms. Bradley’s heavy bleeding would
eventually resume, and the fibroid would return. Ms. Bradley was also prescribed
medication to treat the heavy bleeding issue, but this treatment was also unsuccessful.
During these years, Ms. Bradley would either experience no period at all or, if she did
experience a period, would bleed abnormally. Because of these bleeding issues, Ms.
Bradley had difficulty conceiving a child and was referred to a fertility clinic.4
On August 24, 2006, the fertility specialist performed a laparoscopy5 on Ms.
Bradley to address the various disorders related to her ovaries. The report noted findings
of “extensive adhesions of the bowel and omentum[6] to her abdomen with the pelvis
noticed to be ‘relatively free of adhesions. [7]’”
From early to mid-2012, Ms. Bradley’s bleeding issues worsened. On or around
October 2012, another physician at the Ruch Clinic performed a transvaginal ultrasound
and diagnosed Ms. Bradley with another large fibroid. The physician at the Ruch Clinic
referred Ms. Bradley to Defendant/Appellee Laura Bishop, M.D. (“Dr. Bishop,” or,
together with the Ruch Clinic, “Appellees”), a surgeon specializing in obstetrics and
gynecology (“OB/GYN surgeon”), who recommended several options, including a
1
A “portal vein” is “a vein from the small intestine that ramifies in the liver and ends in capillary-
like sinusoids that convey the blood to the inferior vena cava through the hepatic veins.” Mosby’s
Dictionary of Medicine, Nursing & Health Professions 1425 (9th ed. 2013).
2
A “fibroid” means “having fibers.” Id. at 695.
3
A “myomectomy” is “the surgical removal of muscle tissue.” Id. at 1189.
4
It appears that Ms. Bradley was eventually able to conceive. As of the date of trial, Ms. Bradley
had a six-year-old child.
5
A “laparoscopy” is “a technique to examine the abdominal cavity with a laparoscope through
one or more small incisions in the abdominal wall, usually at the umbilicus.”
6
An “omentum” is “an extension of the peritoneum that enfolds one or more organs adjacent to
the stomach.” Mosby’s Dictionary of Medicine, Nursing & Health Professions 1265 (9th ed. 2013).
7
An “adhesion” is “a band of scar tissue that binds anatomical surfaces that normally are separate
from each other.” Id. at 42. In addition, “[a]dhesions most commonly form in the abdomen after
abdominal surgery[.]” Id.
-2-
hysterectomy. Ms. Bradley chose instead to attempt yet another hysteroscopic
myomectomy to remove the fibroid conservatively; Dr. Bishop performed this procedure
at the end of October 2012.
However, the hysteroscopic myomectomy did not stop the bleeding because it was
found that the fibroid had grown into Ms. Bradley’s uterine wall. Dr. Bishop thereafter
recommended a laparoscopic robotic hysterectomy, which she described as the least
invasive option with the fastest recovery time. It is undisputed that Dr. Bishop also
informed Ms. Bradley of the possibility of converting to an open procedure during the
surgery. After Ms. Bradley was given some time to consider her options, Ms. Bradley
informed Dr. Bishop that she wished to proceed with the recommended procedure.
The hysterectomy occurred on December 26, 2012, at Baptist Memorial Hospital
for Women. Although the surgery initially began as a laparoscopic hysterectomy, Dr.
Bishop converted to an open hysterectomy rather than continue with the planned robotic
procedure. Prior to the conversion, Dr. Bishop noticed a superficial cut on Ms. Bradley’s
colon.8 At some point during the transition from the laparoscopic surgery to open
surgery Dr. Bishop sought assistance from two different surgical teams. Dr. Bishop,
however, made the decision to finish the open procedure herself by suturing the colon
and removing the uterus without help from another surgeon once she determined that
help was not readily available and that she was confident she could finish the procedure
herself. In the days following the hysterectomy, Ms. Bradley’s condition deteriorated.
On December 29, 2012, Ms. Bradley was transferred to the ICU at Baptist East, and
another surgeon, Stephen Behrman, M.D. performed an operation that revealed
contamination of the abdominal cavity and a “through-and-through injury” of the small
bowel, necessitating an “enterectomy[9] with primary anastomosis.[10]” Ms. Bradley
stayed at the hospital for approximately three weeks. Ms. Bradley’s medical records
reveal that it took Dr. Behrman approximately three hours to “completely free up and
delineate the small bowel” because of the “tremendous adhesions from the patient’s prior
surgery.” Ms. Bradley was able to return to work in April 2013. According to Ms.
Bradley, the injury and surgery resulted in three years of additional procedures, therapy,
and disfigurement.
Ms. Bradley and her husband, Plaintiff/Appellant J. Anthony Bradley (together
with Ms. Bradley, “Appellants”) filed a health care liability action on July 13, 2013
against Appellees in the Shelby County Circuit Court.11 The complaint alleged, inter
8
As discussed, infra, Dr. Bishop testified that this cut was one of the reasons why she converted
to an open procedure.
9
An “enterectomy” is “the surgical removal of a portion of intestine.” Mosby’s Dictionary of
Medicine, Nursing & Health Professions 622 (9th ed. 2013).
10
An “anastomosis” is the “surgical joining of two . . . bowel segments to allow flow from one to
the other.” Id. at 89.
11
The complaint filed by Appellants originally identified four defendants: Dr. Bishop, the Ruch
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alia, that Dr. Bishop negligently caused injury to Ms. Bradley’s small bowel. The
complaint also alleged that the Ruch Clinic was vicariously liable for Dr. Bishop’s
negligence. On August 12, 2013, Appellees filed an answer generally denying all
material allegations.
During discovery, on August 20, 2015, counsel for Appellants deposed one of
Appellees’ expert witnesses, Thomas Stovall, M.D. The portion of Dr. Stovall’s
testimony relevant to this appeal is as follows:
Q: What is the standard of care for Dr. Bishop on the day in question?
A: What a reasonable and prudent doctor with the same training and
background would have in this locale, in Memphis.
Q: Under similar circumstances?
A: Yes.
Q: And is that to do the best she can—
A: Oh, I think—
Q: —for the patient?
A: I think we always try to do the best we can for the patient.
Q: So then the standard of care requires that a physician like Dr. Bishop,
under the circumstances in his case, do the best she can for the patient?
A: I don’t believe the best she can is in the statute, no.
Q: What statute?
A: In the definition of what standard of care is legally.
* * *
Q: Well, let’s talk about all doctors in Memphis doing what Dr. Bishop was
doing on the day of this event. Are all doctors required to do the best they
can for their patients?
A: I believe so, but I don’t believe that that’s part of a standard of care
definition.
Q: Well, how do you apply the standard of care to all doctors?
A: Well, because that’s what a reasonable and prudent doctor, under similar
circumstances, would do in that situation.
* * *
Clinic, Diane Long, M.D., and Baptist Memorial Hospital for Women. On March 23, 2015, the trial court
entered a consent order dismissing without prejudice the claims asserted against Dr. Long and Baptist
Memorial Hospital for Women. Thus, our recitation of the facts will be confined only to claims against
Dr. Bishop and the Ruch Clinic, the remaining defendants in the lawsuit.
-4-
Q: . . . [D]o you agree with me that all doctors, on the day that these
services were rendered to [Ms.] Bradley by Dr. Bishop, should attempt as
best they can to do no harm to the patient?
A: Yes. As best they can, yes.
Q: And that’s every doctor?
A: Yes.
Q: And you agree with me that every doctor should do his or her best for
the patient under the circumstances presented?
A: Yes.
Q: There’s no exception to that, is there?
A: Not that I’m aware of.
Q: And there’s no exception to do the best you can to do no harm to the
patient, is there?
A: Not that I’m aware of.
Q: And you believe that Dr. Bishop did the best that she could to do no
harm in this case?
A: Yes.
Q: And you believe that she, Dr. Bishop, gave the best possible care and
services she could to [Ms.] Bradley under the circumstances?
A: Yes.
Q: And do you agree with me that a physician doing what she or he did
involving [Ms.] Bradley, on the day in question, should be well trained and
educated in the procedure before he or she attempts to do the procedure?
A: Yes.
Q: And they, he or she, the physicians, should do the best they can to know
everything that he or she can in order to provide that best care to the
patient?
A: Yes.
Q: And do you agree with me that physicians, on the day in question doing
the services that Dr. Bishop performed on [Ms.] Bradley, should render the
best care that that physician can for that patient?
A: Yes.
Q: There’s no exception to that, is there?
A: Not that I’m aware of.
On September 30, 2015, Appellees filed several motions in limine, only two of
which are relevant in the instant appeal. The first motion in limine sought to exclude any
references to “best possible care” or the “best that they can” that had been discussed
during the deposition of Dr. Stovall. The second motion in limine at issue sought to
exclude evidence of medical expenses beyond those actually paid by Appellants, their
immediate family, or any insurance provider.12 On January 25, 2016, Appellants filed
12
The amount charged by the health care providers totaled approximately $400,000.00, but the
-5-
responses in opposition to Appellees’ motions in limine. On February 16, 2016, the trial
court granted both motions in limine in favor of Appellees. With respect to the first
motion in limine, although the trial court forbade the parties from making references to
“best possible care” or the “best that they can,” Appellants were permitted to “make
references to a physician’s duty to exercise his or her best medical judgment and whether
or not that medical judgment fell outside the recognized standard of care.”
An eight-day trial began on February 15, 2016, and concluded on February 25,
2016. During opening statements, counsel for Appellees stated that the standard of care
did not require “perfection,” but noted that doctors “exercise their best judgment and they
do the best they can.” Counsel also referenced children dying of cancer at St. Jude.
Following this statement, counsel for Appellants requested a curative instruction
“generally stating that what jurors may or may not have done or experiences is not
evidence . . . and that there will be no proof in this case about St. Jude or children with
cancer.” The trial court denied the requested curative instruction but informed the jury
that arguments of counsel were not evidence.
Appellants then presented their case-in-chief. Ms. Bradley testified first. Ms.
Bradley recalled that she would miss days at work because of her bleeding issues. Ms.
Bradley described the extent of the bleeding, stating that she was “le[aving] a mess” onto
seats and was “passing clots.” Following the December 26, 2012 hysterectomy, Ms.
Bradley testified that she had to endure the uncomfortable and painful treatment and
physical therapy that she received during her three-week hospital stay. In addition, Ms.
Bradley testified that the bowel injury she sustained after the December 26, 2012
hysterectomy necessitated additional surgeries, including a hernia repair. Despite Dr.
Behrman’s efforts to close the incision, Ms. Bradley stated that the skin on her stomach
had not completely closed as of the date of trial.
Ms. Bradley also testified that taking care of her child and doing chores became
more difficult following the hysterectomy but acknowledged that family members helped
her with the adjustment. Ms. Bradley testified that as a result of her injuries stemming
from the hysterectomy, her marriage became strained, she had to seek therapy for her
depression, she became more withdrawn, she developed new gastrointestinal issues, and
she gained more weight.13 According to Ms. Bradley, the total amount that her insurance
company has paid for her medical expenses in this case is approximately $146,000.00.
Mr. Bradley; Becky Davidson, a retired employee of Mr. Bradley; and Robin
Nemati, Mr. Bradley’s sister, all generally testified to Ms. Bradley’s activity prior to the
December 26, 2012 surgery and her decreased activity in the aftermath of the
amount actually paid by Ms. Bradley’s insurance was approximately $160,000.00.
13
Ms. Bradley admitted on cross-examination that she suffered from weight gain, sleep apnea,
acid reflux, and hypertension prior to the hysterectomy.
-6-
hysterectomy. Mr. Bradley and Ms. Nemati testified that Dr. Bishop told them that
another doctor made the first cuts on Ms. Bradley in an attempt to blame someone else
for Ms. Bradley’s bowel injury. Appellants also played a portion of Dr. Bishop’s
deposition for the jury where she admitted that she caused Ms. Bradley’s bowel injury,
possibly when she retracted the bowel away from the uterus during surgery.
Appellants also presented testimony from three expert witnesses: Eric Colton,
M.D., an OB/GYN; Othon Wiltz, M.D., a colon and rectal surgeon; and Steven Berliner,
M.D., a gynecologic oncologist and urogynecologist. Dr. Colton testified that Dr. Bishop
first deviated from the standard of care by not offering a vaginal hysterectomy because,
according to Dr. Colton, vaginal hysterectomies are the most minimally-invasive
hysterectomy because it “allows for the shortest operating time, [allows for] the fastest
recovery, and [requires] no abdominal incision.” In addition, based on the existence of
Ms. Bradley’s known extensive bowel adhesions, Dr. Colton testified that Dr. Bishop did
not exercise her best medical judgment when she proceeded with the laparoscopic
procedure on December 26, 2012. Dr. Colton also believed that Dr. Bishop’s placement
of the trocar14 caused the bowel perforation. Although Dr. Colton conceded that bowel
perforations during these procedures are not by themselves determinative of a violation of
the standard of care, Dr. Colton testified that Dr. Bishop’s failure to recognize and treat
the bowel injury at the time of the hysterectomy violated the standard of care.
Dr. Wiltz’s testimony was limited to the appropriate placement of trocars.15
According to Dr. Wiltz, Ms. Bradley sustained the bowel injury because Dr. Bishop
improperly placed the initial trocar in an area where Ms. Bradley was known to have
bowel adhesions. Although Dr. Wiltz concedes that bowel injuries occasionally occur, he
believed that Dr. Bishop should have gone back and checked for such injuries.
Like Dr. Colton, Dr. Berliner testified that Dr. Bishop deviated from the standard
of care by not offering a vaginal hysterectomy, which according to Dr. Berliner, offers a
much lower risk of a bowel injury than any other approach. According to Dr. Berliner,
the trocars inserted at the time of the laparoscopic surgery caused the injury to the bowel.
Dr. Berliner, however, admitted on cross-examination that there is a recognized risk of
perforating the bowl regardless of the type of hysterectomy performed. Moreover, Dr.
Berliner believed that Dr. Bishop deviated from the standard of care in her decision to
make a transverse—also known as a Pfannenstiel incision—as opposed to a vertical
incision when she converted to an open procedure. The Pfannenstiel incision, according
to Dr. Berliner, limited the visibility of the upper abdominal contents including the
placement of the trocars and, as a result, Dr. Berliner believed that Dr. Bishop was unable
14
A trocar is a “sharp, pointed rod that fits inside a tube” that is “used to pierce the skin and the
wall of a cavity . . . in the body to . . . guide the placement of a soft catheter.” Mosby’s Dictionary of
Medicine, Nursing & Health Professions 1818 (9th ed. 2013).
15
Dr. Wiltz is a colon and rectal surgeon; therefore, he did not testify to the standard of care of an
OB/GYN surgeon. Dr. Wiltz, however, is familiar with the handling of laparoscopic procedures.
-7-
to determine whether the bowel had been “compromised.” In addition, Dr. Berliner
testified that Dr. Bishop violated the standard of care by not waiting for another surgeon
to help with evaluating Ms. Bradley in the operating room and that she should have
continued waiting despite the fact that the surgeons she attempted to call were
unavailable. Dr. Berliner denied that there was any risk “in a healthy young woman[] to
stay under anesthesia” until another surgeon became available.
On February 23, 2016, at the close of Appellants’ proof, Appellees moved for a
directed verdict, which the trial court ultimately denied. Appellees then presented
testimony from four medical experts: Guy Voeller, M.D., a general surgeon; Diane Long,
M.D., an OB/GYN; Dr. Bishop; and Dr. Stovall, an OB/GYN surgeon.
According to Dr. Voeller, a laparoscopic procedure was appropriate despite the
presence of bowel adhesions in Ms. Bradley’s abdomen. Dr. Voeller testified that, based
on the location of Ms. Bradley’s scars from prior surgeries, bowel adhesions are expected
to be located in the upper abdomen rather than in the pelvis, where Dr. Bishop planned to
operate. Dr. Voeller also testified that, had Dr. Bishop waited for a surgeon to come
assist, the outcome would have been the same because the standard of care required that
the assisting surgeon’s involvement in the hysterectomy be limited to addressing the
OB/GYN surgeon’s concerns rather than exploring the bowel extensively. In Ms.
Bradley’s case, because Dr. Bishop was concerned about the colon injury sustained
during the laparoscopic procedure, Dr. Voeller believed that Dr. Bishop would have only
sought the assisting surgeon’s assessment of the repair she made to Ms. Bradley’s colon.
Because no apparent evidence of injury to the small bowel existed, Dr. Voeller testified
that the assisting surgeon would not have made incisions in Ms. Bradley’s abdomen
solely to search for a bowel injury because such action would increase the risk of creating
a bowel injury due to the presence of extensive adhesions. Dr. Voeller further testified
that leaving Ms. Bradley under anesthesia for an extended period of time would have
increased the risk of clotting based on her medical history.
Dr. Long testified that she became involved in the case when a nurse contacted her
as the on-call doctor out of a concern that Ms. Bradley’s urine output had decreased on
the first postoperative day. Dr. Long denied that this was a symptom of bowel injury.
Dr. Long further testified that a nephrologist, an intensivist, and infectious disease
specialist were all involved in Ms. Bradley’s care during her hospital stay. When she
examined Ms. Bradley on December 27, 2012, Dr. Long recalled that she found neither
signs nor symptoms of a bowel injury. In addition, Dr. Long testified that the results of
the computerized tomography (“CT”) scan and ultrasound that she ordered that day
revealed no bowel injury. Dr. Long testified that laparoscopic procedures can be done on
patients with bowel adhesions and that she believed Dr. Bishop complied with the
standard of care.
-8-
Dr. Bishop testified that Ms. Bradley was consistently bleeding from June 2012 to
October 2012 despite efforts to control it with conservative surgery and different
hormonal medications. As a result, Dr. Bishop described that Ms. Bradley’s red blood
cell count had decreased from twelve to nine in just one month in the fall of 2012,
indicating that Ms. Bradley had lost a quarter of her blood volume. According to Dr.
Bishop, a vaginal hysterectomy was not a viable option for Ms. Bradley based on her
previous experience operating on Ms. Bradley and examining her anatomy; as a result,
Dr. Bishop did not even offer it to Ms. Bradley as an option. Dr. Bishop proffered that a
vaginal hysterectomy would require a blind incision to be made around the cervix in
order to enter the abdomen, with a risk of injuring any organ within the vicinity. Dr.
Bishop testified that she recommended the laparoscopic minimally invasive procedure
because of Ms. Bradley’s history with blood clotting disorder.
During the laparoscopic surgery, Dr. Bishop testified that she placed the first
trocar to the left of Ms. Bradley’s navel because her scar and therefore most of her
adhesions were on the right side.16 Shortly thereafter, Dr. Bishop noticed a tear in Ms.
Bradley’s colon. Dr. Bishop made the decision to switch to an open surgery because she
wanted to repair the tear and because of the presence of adhesions. Although she paged
for surgical help, no additional surgeon was available. According to Dr. Bishop, leaving
Ms. Bradley under anesthesia for too long was dangerous given her history of blood
clotting. As a result, Dr. Bishop testified that she repaired the colon and finished the
hysterectomy herself because the uterus, located in the pelvis, was free of the adhesions
that were prominent in Ms. Bradley’s upper abdomen. Due to the fact that Dr. Bishop
left the trocars in place while she proceeded with the open surgery, Dr. Bishop testified
that she was able to lift the abdominal wall and look back to the location of the trocars
and was satisfied that the trocars were not near the bowel. In addition, Dr. Bishop
testified that this visual examination revealed no evidence of a bowel leakage. According
to Dr. Bishop, the standard of care requires that the OB/GYN surgeon perform a visual
examination in the operating area at the end of the surgery.
Dr. Bishop denied that any report ever indicated that the injury to the bowel was a
“through-and-through cut” as suggested by Appellants; rather, the report indicates that it
was a “through-and-through injury” which she contended could mean through the several
layers of the bowel. Dr. Bishop pointed to a pathologist report of the perforated bowel,
which described one hole, rather than two holes, consistent with her interpretation. Dr.
Bishop opined that if there had been two holes, then the bowel contents should have
begun to leak immediately, and the results of the CT scan that was performed the next
day would have revealed the bowel injury. Dr. Bishop believed that the injury likely
occurred when she retracted the bowel out of the way of the uterus and that the injury
likely began as a small tear that enlarged over time. Dr. Bishop described the symptoms
16
Dr. Bishop testified that the first instrument always goes in blindly, and then a camera is
inserted so that the surgeon can visualize the next instrument coming down into the abdomen.
-9-
of a bowel injury to include fever, an elevated white blood count, a rigid abdomen, and
vomiting the first day. However, Dr. Bishop testified that Ms. Bradley’s symptoms two
days after the hysterectomy were consistent with kidney problems and not a bowel injury.
Dr. Bishop testified that the first evidence of a bowel injury occurred on the third
postoperative day, when Dr. Bishop was called by the ICU doctor regarding Ms.
Bradley’s kidney function, with suspicion of flesh-eating bacteria. Dr. Bishop denied
blaming anyone else for the injury and stated that she never disputed that she caused the
injury.
Dr. Stovall testified that Dr. Bishop’s preoperative care of Ms. Bradley conformed
to the standard of care by examining Ms. Bradley’s history and offering available
options. Because all of other options had been tried unsuccessfully, Dr. Stovall
contended that the only remaining option was to have a hysterectomy. According to Dr.
Stovall, Ms. Bradley’s laparoscopic hysterectomy was appropriate even given Ms.
Bradley’s adhesions because they were located in the upper abdomen and laparoscopic
hysterectomies are performed in the pelvis below the abdomen. Dr. Stovall testified that,
regardless of the type of hysterectomy, injury to the bowel is one of the most common
risks that are encountered. As such, Dr. Stovall testified that a bowel injury does not
necessarily mean that a doctor violated the standard of care, and it can occur even when a
surgeon operates pursuant to the standard of care. In fact, Dr. Stovall testified that a
bowel injury is not always recognizable when it occurs.
Dr. Stovall also testified that Dr. Bishop conformed to the standard of care in the
steps that she took in performing the hysterectomy. Specifically, Dr. Stovall testified that
the Pfannenstiel incision that Dr. Bishop used when she switched to the open procedure
was appropriate and within the standard of care because it is the incision of choice for all
obstetrical and gynecological surgery, providing the best visualization of the uterus in the
pelvis. In addition, this incision is the safest incision in terms of healing and hernia
prevention. Although Dr. Stovall believed that Dr. Bishop conformed with standard of
care in placing the trocar near the navel in order for her to be able to look down into
pelvis, Dr. Stovall opined that, in this case, Ms. Bradley’s bowel injury could have
occurred in one of two ways: (1) trocar placement; or (2) retraction of the bowel with a
lap sponge. Dr. Stovall opined that the injury was more likely to have been caused by the
trocar placement based on known statistics of how often such injuries occur.
Dr. Stovall further testified that Dr. Bishop conformed to the standard of care
postoperatively, which requires that the surgeon make assessments and address any
problems that could arise. Dr. Stovall believed that Dr. Long, the on-call doctor who
took care of Ms. Bradley one-and-a-half days after the hysterectomy, went beyond the
standard of care by ordering a CT scan even though no sign of a bowel injury had arisen.
Moreover, Dr. Stovall testified that the results of Ms. Bradley’s CT scan showed minimal
fluid and “free air” consistent with having had recent surgery and revealed no indication
of a bowel injury. Dr. Stovall admitted that, if a surgeon suspects an injury to the bowel
- 10 -
at the time of the hysterectomy, the surgeon would be required to “run the bowel” by
touching and squeezing the bowel in order to check for cuts or discharge; however, Dr.
Bishop never suspected an injury to the bowel in this case. Dr. Stovall contended that the
first sign of a bowel injury occurred when Ms. Bradley developed increased pain and
experienced drainage from her wound on December 29, 2012. Once the signs and
symptoms surfaced, Dr. Stovall testified that Dr. Bishop conformed to standard of care by
involving a general surgeon to address the issue.
At the conclusion of the proof, Appellees renewed their motion for a directed
verdict, which motion the trial court again denied. After deliberations, the jury returned a
verdict for Appellees, finding that Dr. Bishop “did not deviate from the recognized
standard of care.” In so finding, the jury never reached the issue of damages.
Subsequently, Appellants filed a motion for new trial, which hearing was held on May 9,
2016. As required by Rule 3(e) of the Tennessee Rules of Appellate Procedure,
Appellants’ motion specifies all of the issues raised in this appeal. The trial court orally
denied Appellants’ motion for a new trial and entered a written order on May 27, 2016,
reflecting the oral ruling.
ISSUES
Appellants present the following issues for our review, which we have slightly
restated and reordered:
1. Whether the trial court erred in denying Appellants’ motion for new
trial.
a. The trial court abused its discretion in limiting the Appellants’
cross-examination of the Appellees’ OB/GYN expert, Thomas
Stovall, M.D.
b. The trial court abused its discretion in declining to give a curative
instruction following counsel for the Appellees’ opening statement.
c. The verdict of the jury was contrary to the weight of the evidence.
d. The trial court abused its discretion in limiting Appellants’ proof
of medical expenses.
STANDARD OF REVIEW
This Court has previously set forth the standard of review in the context of the
denial of a motion for a new trial as follows:
Tenn. R. Civ. P. 59.02 affords a party a means to seek a new trial within
thirty days after judgment has been entered. See Whitworth v. Whitworth,
No. E2008-01521-COA-R3-CV, 2009 WL 2502002, at *5 (Tenn. Ct. App.
Aug. 17, 2009); see also Ferguson v. Brown, 291 S.W.3d 381, 387 (Tenn.
- 11 -
Ct. App. 2008). Under Rule 59, a trial court is afforded wide latitude in
granting a motion for a new trial, and this court will not overturn such a
decision absent an abuse of discretion. See Boggs v. Rhea, No. E2013-
02859-COA-R3-CV, 2014 WL 5780810, at *7 (Tenn. Ct. App. Nov. 6,
2014); see also Loeffler v. Kjellgren, 884 S.W.2d 463, 468 (Tenn. Ct. App.
1994).
Baugh v. Moore, No. M2013-02224-COA-R3-CV, 2015 WL 832589, at *4 (Tenn. Ct.
App. Feb. 25, 2015).
DISCUSSION
Exclusion of References Similar to “Best Possible Care”
Appellants’ first issue deals with the trial court’s decision to limit Appellants’
ability to cross-examine Dr. Stovall regarding the basis of his standard of care opinion,
thereby excluding evidence that Appellants believed was relevant under the Tennessee
Rules of Evidence. Under Rule 401 of the Tennessee Rules of Evidence, “relevant
evidence” means “evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence is generally
admissible unless a rule or law provides otherwise; however, evidence that is not relevant
is not admissible. Tenn. R. Evid. 402. Even if the evidence is relevant under Rule 401, it
could still be excluded “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R.
Evid. 403.
Decisions regarding the admission or exclusion of evidence are generally entrusted
to the sound discretion of the trial court, White v. Beeks, 469 S.W.3d 517, 527 (Tenn.
2015), and discretionary decisions are reviewed pursuant to the “abuse of discretion”
standard of review. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).
Moreover, although lawyers should be permitted “wide latitude in the cross-examining of
witnesses,” the trial court may use its discretion to limit cross-examinations to “avoid
unfair prejudice, confusion, or waste of time[.]” Overstreet v. Shoney’s, Inc., 4 S.W.3d
694, 708 (Tenn. Ct. App. 2008). In explaining the abuse of discretion standard, this Court
has stated:
A trial court abuses its discretion “only when it ‘applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999)). Under this standard, we will not substitute our judgment for
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the judgment of the trial court. Id. (citing Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998)). The abuse of discretion standard “‘reflects
an awareness that the decision being reviewed involved a choice among
several acceptable alternatives,’” and therefore “‘envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal.’” Henderson v. SAIA, Inc., 318
S.W.3d 328, 335 (Tenn. 2010) (quoting Lee Med[.], Inc. v. Beecher, 312
S.W.3d 515, 524 (Tenn. 2010)).
Allen v. Albea, 476 S.W.3d 366, 373 (Tenn. Ct. App. 2015), perm. app. denied (Sept. 16,
2015).
Here, the trial court ruled that any references to the “best possible care” in Dr.
Stovall’s deposition were inadmissible because they did not comply with the standard of
care as defined under Tennessee’s health care liability statute. Appellants do not dispute
that the “best possible care” is not the required the standard of care in a health care
liability action in Tennessee. Rather, Appellants argue that, because Dr. Stovall based his
standard of care opinion on whether Dr. Bishop gave the best possible care or did the best
she could, Appellants should be permitted to cross-examine him on the underlying basis
of his opinion. We agree that cross-examination of an expert regarding the basis of the
expert’s opinion may be both vigorous and broad. As we have previously explained:
[O]nce an expert has given an opinion, he or she may be vigorously cross-
examined to undermine the evidentiary weight of the opinion. Brown v.
Crown Equip. Corp., 181 S.W.3d 268, 275 (Tenn. 2005); Johnson v. John
Hancock Funds, 217 S.W.3d 414, 426 (Tenn. Ct. App. 2006). Opposing
counsel should be given broad latitude in their cross-examination. State v.
Farner, 66 S.W.3d 188, 208 (Tenn. 2001); McDaniel v. CSX Transp.,
Inc., 955 S.W.2d 257, 265 (Tenn. 1997). Thus, cross-examination may be
used to require an expert to disclose and explain the facts or data upon
which his or her opinion is based. Tenn. R. Evid. 705; State v. Thacker,
164 S.W.3d 208, 228 (Tenn.2005).
Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 197–98 (Tenn. Ct. App. 2008).
We cannot agree, however, that consideration of Dr. Bishop’s best efforts formed
the basis of Dr. Stovall’s standard of care opinion. Despite Appellants’ assertion
otherwise, Dr. Stovall never testified at his pretrial deposition that the basis of his
standard of care opinion rests on whether Dr. Bishop gave the “best possible care” or that
she did “the best she could.” Rather, Dr. Stovall testified that the standard of care
required by statute in Tennessee is defined as “[w]hat a reasonable and prudent doctor
with the same training and background would have in this locale[.]” Appellants’ counsel,
on the other hand, repeatedly alluded to the “best possible care,” to which Dr. Stovall
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steadfastly answered that the “best possible care” was not required by the statute. Thus,
we note that the references to “best possible care” were not advanced by Appellees;
rather, the Appellants interjected such references during the cross-examination of Dr.
Stovall at his deposition.
Moreover, regardless of how the issue of best possible care was raised in Dr.
Stovall’s deposition, we conclude that the trial court did not abuse its discretion in
excluding this evidence. As previously discussed, even relevant evidence may be
excluded where “its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay[.]” Tenn. R. Evid. 403. The Tennessee Rules of Evidence also place limits on the
admissibility of expert testimony—the testimony must “substantially assist the trier of
fact to understand the evidence or to determine a fact in issue[.]” Tenn. R. Evid. 702.
Here, the excluded portion of Dr. Stovall’s testimony creates serious confusion as to the
proper standard applicable in this case and therefore does not substantially assist the jury
in determining the dispositive question before it: whether Dr. Bishop breached the
standard of care in her treatment of Ms. Bradley. As such, this evidence was properly
excluded by the trial court.
In reaching this conclusion, it is helpful to first consider the law governing the
standard of care in healthcare liability actions. Tennessee Code Annotated section 29-26-
115(a) provides the following essential elements that a plaintiff must prove in order to
prevail in a health care liability case:
(1) The recognized standard of acceptable professional practice in the
profession and the specialty thereof, if any, that the defendant practices in
the community in which the defendant practices or in a similar community
at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and
reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the
plaintiff suffered injuries which would not otherwise have occurred.
Tenn. Code Ann. § 29-26-115(a).17 Thus. the law does not “presume that a health care
provider acted negligently simply because a treatment was unsuccessful.” Richardson v.
Miller, 44 S.W.3d 1, 15 (Tenn. Ct. App. 2000) (citing Tenn. Code Ann. § 29-26-115(c))
(1980)). This standard “judge[s the physician] by an objective community standard”
17
In 2012, the Tennessee General Assembly saw fit to amend sections of the Medical Malpractice
Act to change the term used to describe actions against doctors and hospitals for professional negligence
from “medical malpractice” to “health care liability.” See 2012 Tenn. Pub. Acts, ch. 798, § 1–59. The
2012 amendment to replace “medical malpractice” with “health care liability” had no substantive effect
on the operation of the statute. Therefore, we will cite to relevant authority discussing the standard of
care prior to the amendment.
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rather than by a subjective standard. Richardson v. Miller, 44 S.W.3d 1, 15 (Tenn. Ct.
App. 2000).
Appellants agree that the “best possible care” and “doing the best she could”
connote subjective standards. As such, any testimony regarding the “best possible care”
or Dr. Bishop “doing the best that she could” would require the jury to judge Dr. Bishop
by a more arbitrary subjective standard than required by Tennessee law. First, we note
that any evidence of whether Dr. Bishop did “the best she could” has little bearing on
whether Dr. Bishop acted with ordinary and reasonable case. In our view, a physician
could very well “do the best that she could” and yet still fall below the statutory standard
of care, while another doctor could fail to do his or her best and yet exceed the standard
of care required in a health care liability case. See Ashe v. Radiation Oncology Assocs., 9
S.W.3d 119, 122 (Tenn. 1999) (noting that “resolution . . . under a subjective standard is
premised elusively on the credibility of a [witness’s] testimony” and that the “subjective
standard engages in an abstract analysis”). Consequently, such evidence would only serve
to confuse the jury, whose crucial task is to determine whether Dr. Bishop met the
objective standard of care required under these circumstances.
Additionally, evidence regarding whether Dr. Bishop provided the “best care
possible” imposes upon Dr. Bishop far too stringent a standard. As is evident from the
above statute, the requisite standard of care does not require that a physician deliver the
best possible care but rather “ordinary and reasonable care” under the circumstances.
Tenn. Code Ann. § 29-26-115(a)(2); see also T.P.I. Civil § 6.12 (indicating in the title of
the jury instruction in a medical negligence action that “Perfection [is] Not Required”).
As this Court opined more than fifty years ago, the law “does not require perfect faculties
or perfect use of existent faculties, but only ‘ordinary care,’ which presupposes a margin
of error[.]” Coleman v. Byrnes, 242 S.W.2d 85, 89 (1950). In contrast, evidence
regarding whether Dr. Bishop failed to provide Ms. Bradley with the best possible care
holds Dr. Bishop to a standard closer to perfection. Thus, expert testimony concerning
whether Dr. Bishop did or did not give the “best possible care” to Ms. Bradley does not
“substantially assist” the jury in the determining the question of whether Dr. Bishop’s
efforts fell below the requisite standard of care. Tenn. R. Evid. 702.
Furthermore, we have previously upheld the trial court’s exclusion of a medical
expert’s testimony when the testimony refers to a standard that is “not analogous” to the
standard of care applicable in the case. Godbee v. Dimick, 213 S.W.3d 865, 896 (Tenn.
Ct. App. 2006) (holding that the trial court properly excluded testimony regarding the
practice of “most spinal surgeons” because “the practice of the majority of physicians in a
community is not analogous to the standard of care in a community” but that the trial
court erred when it excluded testimony referring to the “generally accepted approach”
and the “generally accepted practice” consistent with the standard of care); see also
Hopper v. Tabor, No. 03A01-9801-CV-00049, 1998 WL 498211, at *4 (Tenn. Ct. App.
Aug. 19, 1998) (affirming the trial court’s grant of summary judgment to defendants
- 15 -
because plaintiff failed to create a genuine issue of material fact when she presented only
one expert’s deposition testimony, and the expert failed to show his knowledge of the
required standard of care in Tennessee). But see Griffith v. Goryl, 403 S.W.3d 198, 210
(Tenn. Ct. App. 2012) (noting that the plaintiff’s expert’s one reference to what “the
majority of” well-trained urologists would do in response to a single question related
specifically to defendant’s failure to obtain imaging studies “does not undermine the
basis for his testimony or render his expert opinion untrustworthy” when the expert
repeatedly testified to his familiarity of the requisite standard of care). Likewise, any
testimony discussing the “best possible care” standard in this case is “not analogous” to
the requisite standard of care because its application would impose a much higher
standard on Dr. Bishop than required under Tennessee law.
Appellants nevertheless argue that the jury “heard only one side of a critical
issue[,]” similar to the Tennessee Supreme Court’s decision in White v. Beeks, 469
S.W.3d 517 (Tenn. 2015), as revised on denial of reh’g (Aug. 26, 2015). In support,
Appellants note that Appellees made two separate references to “the best [she] can” at
trial, while Appellants were precluded from making such references.18 In White, the trial
court limited plaintiff’s expert’s testimony by allowing the expert to discuss only the
risks that actually materialized and allegedly injured the plaintiff. Id. at 521. The
Tennessee Supreme Court ultimately held that the excluded testimony “had a significant
effect on the jury’s determination of whether [defendant] obtained [plaintiff]’s informed
consent . . . and whether a prudent person in [plaintiff]’s position, adequately informed,
would have consented to its use.” Id. Unlike White, however, the excluded portion of Dr.
Stovall’s testimony in this case would not have had a significant effect on the jury’s
determination that Dr. Bishop met the requisite standard of care because Dr. Stovall
unequivocally testified that Dr. Bishop not only complied with the requisite standard of
care but that she gave Ms. Bradley her best effort and the best possible care under the
circumstances. In our view, Dr. Stovall’s excluded testimony would have only bolstered
Appellees’ case rather than Appellants’. Therefore, even if we were to assume that
Appellees’ references to “the best [she] can” constituted error in the trial court,
Appellants still have not shown any reversible error—that but for the trial court’s
decision to limit their cross-examination of Dr. Stovall on the issue of whether Dr.
Bishop gave the best possible care, Appellants would have prevailed. See Tenn. R. App.
P. 36(b) (“A . . . judgment . . . shall not be set aside unless, considering the whole record,
error involving a substantial right more probably than not affected the judgment or would
result in prejudice to the judicial process.”). Thus, we cannot conclude that in excluding
Dr. Stovall’s opinion of whether Dr. Bishop exerted her best efforts in the care of Ms.
18
Specifically, Appellants take issue with the following references: (1) Appellees’
counsel’s reference to physicians “do[ing] the best they can” in opening statements; and (2) Dr.
Bishop’s unsolicited testimony that she “tried to do [her] best to take care of [Ms. Bradley] at
every single step[.]”
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Bradley, the trial court prevented the jury from hearing “both sides of th[e standard of
care] issue” or in any way gave Appellees an unfair advantage.
Based on the forgoing, we conclude that the trial court did not abuse its discretion
in precluding Appellants from raising the issue of “best possible care” during Dr.
Stovall’s cross-examination, and, as a result, the trial court did not err in denying
Appellants’ motion for a new trial on this basis.
Curative Instruction Following Appellees’ Opening Statement
Appellants also take issue with the trial court’s alleged failure to give a curative
instruction drafted by Appellants19 following Appellees’ opening statement, which
Appellants purport improperly compared Dr. Bishop to the physicians at St. Jude and Ms.
Bradley to the children with cancer. Specifically, Appellants take issue with the
following statement, in relevant part:
We all know—we’ve all been to doctors over the years and they exercise
their best judgment and they do the best they can, and it does not always—
you know, a few blocks from here they are trying to save—a miracle to
save children’s lives at St. Jude, and many times it happens, and many
times today some children are going to die, okay? It’s not perfection. It is
not perfection.
After considering each party’s arguments regarding the specific language of the curative
instruction and determining that both parties made statements that were “on edge,” the
trial court opted to provide the jury the following general instruction:
You have just heard the lawyers’ opening statements, and I would
like to remind you that those statements are not evidence in this case. The
only evidence that is—that you’re to consider in this case will consist of the
sworn testimony of the witnesses who have testified both on the witness
stand and by deposition, the exhibits that you’ll receive that will be marked
into evidence and any stipulations that the lawyers have agreed to. You are
the sole determiners of the facts and you are to use the law as I instruct you.
Is that—do you understand that?
19
Appellants raised three issues with Appellees’ opening statement at trial. However, on appeal,
Appellants raise only a single issue regarding Appellees’ opening statement—the reference to St. Jude.
Appellants proposed the following curative instruction targeted at Appellees’ counsel, in relevant part:
Mr. Haltom referred . . . to children at St. Jude receiving medical care and they die
regardless of the care. There will be no proof in this case about St. Jude or children with
cancer. You should disregard those comments by Mr. Haltom.
- 17 -
We note that Appellants never moved for a mistrial following this general instruction.
In their brief, Appellants argue that “no steps were taken by the [trial c]ourt to cure
the prejudicial effect [Appellees’ opening statements] had on the [j]ury” even though the
statements were “highly prejudicial to the Appellants.” We respectfully disagree.
Even though the trial court did not adopt Appellants’ exact wording of the curative
instruction, as previously discussed, the trial court reiterated to the jury that opening
statements are not evidence and that the jury must only consider the presentation of
testimony, depositions, exhibits, and stipulations as evidence. “Opening statements ‘are
intended merely to inform the trial judge and jury, in a general way, of the nature of the
case and to outline, generally, the facts each party intends to prove.’” State v. Gayden,
No. W2011-00378-CCA-R3-CD, 2012 WL 5233638, at *9 (Tenn. Crim. App. Oct. 23,
2012) (quoting Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 732 (Tenn. 1978)).
Thus, it is well-settled that “[o]pening statements are not stipulations or evidence.” Id.
(citing Harris, 574 S.W.2d at 732).
“Statements made by counsel can be cured by the use of curative instructions.”
Oldham v. Pickett, No. 01-A-01-9211-CV00441, 1993 WL 95590, at *2 (Tenn. Ct. App.
Apr. 2, 1993) (citing Mitchell v. Jennings, 836 S.W.2d 575, 581 (Tenn. App. 1992)).
“Whether to give a curative instruction under the circumstances is a matter within the
trial court’s discretion.” Marshall v. Cintas Corp., 255 S.W.3d 60, 75 (Tenn. Ct. App.
2007) (citing State ex rel. Farmer v. City of Townsend, No. 03A01–9306–CV–00200,
1993 WL 460336, at *2 (Tenn. Ct. App. Nov. 8, 1993). “On appellate review, we must
presume that the jury has followed [the trial court’s] instruction.” Payne v. CSX
Transportation, Inc., 467 S.W.3d 413, 443 (Tenn. 2015) (citing Johnson v. Tenn.
Farmers Mut. Ins. Co., 205 S.W.3d 365, 375 (Tenn. 2006)). “A verdict is not
overturned on appeal on this basis unless, ‘considering the whole record, error involving
a substantial right more probably than not affected the judgment or would result in
prejudice to the judicial process.’” Marshall, 255 S.W.3d at 75 (quoting Tenn. R. App. P.
36(b)).
Here, although Appellees’ reference to St. Jude and children with cancer during
opening statements is arguably indecorous, the trial court’s choice of instruction
effectively clarified any possible confusion that proof of St. Jude or children with cancer
would be introduced during the course of trial. Nothing in the record shows that the jury
did not follow the trial court’s curative instruction to consider only the proof at trial as
evidence rather than statements made by counsel in opening statements. Absent such
proof, we must presume that the jury followed the trial court’s directive to consider the
evidence, rather than statements by counsel. See Payne, 467 S.W.3d at 443.
Consequently, we cannot say that the trial court abused its discretion in its utilization of a
general curative instruction rather than specifically castigating Appellees’ counsel.
- 18 -
In addition, “appellate courts will not review the action of the trial court in
refusing to grant . . . a new trial based upon improper argument of counsel ‘unless the
argument is clearly unwarranted and made purely for the purpose of appealing to passion,
prejudices and sentiment, which cannot be removed by the trial judge’s sustaining the
objection of opposing counsel, or unless we affirmatively find that such argument affects
the results of the trial.’” Volner v. Vantreese Disc. Pharmacy, Inc., No. 02A01-9712-
GS-00298, 1999 WL 350899, at *2 (Tenn. Ct. App. May 28, 1999) (quoting Doochin v.
U.S. Fidelity & Guar. Co., 854 S.W.2d 109, 116 (Tenn. Ct. App. 1993)). “Appellate
courts have tended to reverse a trial court’s refusal to grant a new trial ‘where counsel’s
misconduct has been persistent.’” Id. (quoting Doochin, 854 S.W.2d at 116) (emphasis
added). Here, we note that no testimony or other evidence pertaining to the reference to
St. Jude was ever introduced during the nearly two weeks of trial. See, e.g., State v.
Banks, 271 S.W.3d 90, 137 (Tenn. 2008) (holding that, although the prosecutor’s
argument in closing argument stating that the victim begged for his life even though no
such evidence was ever presented during trial, the jury was presumed to have followed
the given instruction that arguments of counsel were not evidence and, as such, “had no
effect on the verdict”); State v. Barnett, No. 240, 1987 WL 13451, at *3 (Tenn. Crim.
App. July 8, 1987) (affirming the trial court’s denial of defendant’s motion for a mistrial
after he was convicted of aggravated sexual battery based on the state’s “improper”
reference to defendant’s demand for fellatio from his wife because the reference was
made only in opening statement, no testimony or other evidence at trial was presented to
support such reference, and “the state’s comments do not constitute evidence”).
Appellate courts have previously held that a brief, isolated, albeit improper statement
made by attorneys during the course of trial does not constitute reversible error where the
trial court gave a curative instruction. See, e.g., State v. Crump, No. M2006-02244-
CCA-R3-CD, 2009 WL 723524, at *37 (Tenn. Crim. App. Mar. 18, 2009) (“We note
particularly that the statements made [in opening statements] were brief and were not a
focal point[] [and] that the jury had been advised that the opening statements were not
evidence[.]”); Oldham v. Pickett, No. 01-A-01-9211-CV00441, 1993 WL 95590, at *2
(Tenn. Ct. App. Apr. 2, 1993) (noting that “one isolated question” during cross-
examination which the trial court instructed the jury to disregard “was harmless error at
best”). As such, we fail to see how one passing reference to St. Jude and children with
cancer during opening statements, after which the trial court specifically instructed the
jury to not consider opening statements as evidence, and which was not later mentioned
during any of the almost two weeks of trial, had any effect on the jury’s verdict.
Moreover, as discussed more in-depth infra, material evidence exists in the record to
support the jury’s verdict. See Cherry v. McCullough, No. 02A01-9201-CV-00005,
1992 WL 379074, at *5 (Tenn. Ct. App. Dec. 21, 1992) (holding that the trial court did
not abuse its discretion in denying defendant’s motion for a mistrial despite plaintiff’s
counsel’s allegedly improper remarks during opening statements because “[t]he jury was
specifically instructed that the opening statements of counsel were not to be considered as
evidence” and enough evidence existed in the record to support the jury’s verdict).
- 19 -
Additionally, as Appellees point out, Appellants never requested a mistrial once
the alleged prejudicial statement was made. “The failure to . . . move for a mistrial is
typically grounds for waiver of an issue on appeal.” State v. Lillard, No. M2008-00575-
CCA-R3-CD, 2009 WL 2951270, at *7 (Tenn. Crim. App. Sept. 15, 2009) (citing State v.
Walker, 910 S.W.2d 381, 386 (Tenn. 1995)); see also Oldham v. Pickett, No. 01-A-01-
9211-CV00441, 1993 WL 95590, at *2 (Tenn. Ct. App. Apr. 2, 1993) (citing Spain v.
Connolly, 606 S.W.2d 540, 544 (Tenn. Ct. App. 1980)) (“[F]ailure to request a mistrial
as soon as its grounds are known results in waiver.”).
Because of Appellants’: (1) failure to show how one reference during opening
statements, after which the trial court issued a curative instruction, affected the results of
trial; and (2) failure to request a mistrial after Appellees’ opening statements, we
conclude that the trial court did not abuse its discretion by declining to issue Appellant’s
requested curative instruction in response to Appellants’ objection. As a result, we hold
that the trial court did not err in denying Appellants’ motion for a new trial on this basis.
Whether the Jury Verdict Was Supported by the Evidence
Appellants also argue that “the [j]ury’s verdict for the Appellees was contrary to
the weight of the evidence, and the trial court abused its discretion by not properly
exercising its role as the thirteenth juror and granting a new trial.” We will consider
Appellants’ argument as two separate issues as follows: (1) whether the trial court
properly exercised its role as the thirteenth juror; and (2) whether material evidence
supports the jury’s verdict.
According to this Court:
When acting as the thirteenth juror in considering a motion for a new
trial, the trial court must independently weigh the evidence, determine the
issues presented, and decide whether the jury’s verdict is supported by the
evidence. See Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 717 (Tenn. Ct.
App. 1999). If, after weighing the evidence, the trial court is satisfied with
the jury’s verdict, the court must approve the verdict. See Ridings v.
Norfolk S[.] Ry. Co., 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994). If, on
the other hand, the trial court is not satisfied with the verdict, it must grant a
new trial. See id. “The trial court’s performance of its function as thirteenth
juror must be performed without regard to and without deference being
shown to the result reached by the jury.” See id. at 288–89. An appellate
court presumes the trial court properly performed its duty as the thirteenth
juror when the trial court approves the jury’s verdict without comment. See
id. at 289. Where . . . the trial court makes comments regarding the verdict
on the record, this Court examines such comments in order to determine
“whether the trial court properly reviewed the evidence, and was satisfied
- 20 -
or dissatisfied with the verdict.” Miller v. Doe, 873 S.W.2d 346, 347 (Tenn.
Ct. App. 1993). This Court may reverse the lower court’s judgment and
order a new trial only when the record contains statements that the trial
court was dissatisfied with or disapproved of the jury’s verdict or when the
trial court absolved itself of or misconstrued its function as the thirteenth
juror. See id.
Dickey v. McCord, 63 S.W.3d 714, 718–19 (Tenn. Ct. App. 2001). “We cannot review
the accuracy of the trial court’s determination as thirteenth juror.” Overstreet, 4 S.W.3d
at 718 (citing State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995)).
Here, the trial court, at the hearing on the motion for a new trial, considered each
argument advanced by Appellants, rejected each one in turn, and expressly “determined
that the verdict is not contrary to the evidence as [thirteenth] juror.” Nothing in the
record suggests that the trial court either did not independently weigh the evidence or was
dissatisfied with the verdict but nevertheless approved the verdict. Upon our review of
the transcript of the hearing on the motion, there is nothing in the trial court’s ruling or
comments from which we can conclude that the court failed to properly perform its
function as thirteenth juror; rather, the comments show that the court independently
weighed the evidence and decided that the verdict was supported by the evidence.
Further, nothing in the trial court’s comments indicates any dissatisfaction with or
disapproval of the verdict. As such, we cannot say that the trial court did not properly
exercise its role as the thirteenth juror in its approval of the jury verdict.
Having determined that the trial court properly exercised its role as the thirteenth
juror, we now turn to the issue of whether material evidence exists in the record to
support the jury verdict. “It is well established that once a trial court has approved a jury
verdict, the standard to be applied on appeal to review the jury verdict is stringent[.]”
Shropshire v. Roach, No. M2007-02593-COA-R3-CV, 2009 WL 230236, at *3 (Tenn.
Ct. App. Jan. 30, 2009). Although Appellants’ brief describes the standard as “the weight
of the evidence,” the Tennessee Supreme Court has articulated the standard that appellate
courts must apply when a jury verdict is challenged:
An appellate court shall only set aside findings of fact by a jury in a
civil matter if there is no material evidence to support the jury’s verdict.
Tenn. R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn.
2006). In determining whether there is material evidence to support a
verdict, we shall: “(1) take the strongest legitimate view of all the evidence
in favor of the verdict; (2) assume the truth of all evidence that supports the
verdict; (3) allow all reasonable inferences to sustain the verdict; and (4)
discard all [countervailing] evidence.” Barnes v. Goodyear Tire & Rubber
Co., 48 S.W.3d 698, 704 (Tenn. 2000) (citing Crabtree Masonry Co. v. C
& R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)). “Appellate courts shall
- 21 -
neither reweigh the evidence nor decide where the preponderance of the
evidence lies.” Barnes, 48 S.W.3d at 704. If there is any material evidence
to support the verdict, we must affirm it; otherwise, the parties would be
deprived of their constitutional right to trial by jury. Crabtree Masonry Co.,
575 S.W.2d at 5.
Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009). Our Supreme Court has
further provided:
Where the trial judge has approved the verdict in its role as
thirteenth juror—as the trial court did in this case—the Court of Appeals’
review of the verdict . . . is limited to a review of the record to determine
whether the verdict is supported by material evidence. Poole v. Kroger Co.,
604 S.W.2d 52, 54 (Tenn. 1980)[.] . . . Material evidence is “evidence
material to the question in controversy, which must necessarily enter into
the consideration of the controversy and by itself, or in connection with the
other evidence, be determinative of the case.” Knoxville Traction Co. v.
Brown, 115 Tenn. 323, 331, 89 S.W. 319, 321 (1905). . . . The material
evidence analysis is very deferential to the award by the jury and the
judgment of the trial court when it affirms the verdict as the thirteenth juror.
“It matters not a whit where the weight or preponderance of the evidence
lies under a material evidence review.” Hohenberg Bros. Co. v. Mo. Pac.
R.R. Co., 586 S.W.2d 117, 119–20 (Tenn. Ct. App. 1979). “It is simply a
search of the record to ascertain if material evidence is present to support
the verdict.” Id. Because the material evidence standard lies at the
foundation of the right to trial by jury, if there is material evidence to
support a jury verdict, the appellate courts must affirm it. See Tenn. Const.
art. I, § 6; Truan v. Smith, 578 S.W.2d 73, 74 (Tenn. 1979) (quoting D.M.
Rose & Co. v. Snyder, 185 Tenn. 499, 508, 206 S.W.2d 897, 901 (1947));
Crabtree Masonry Co., 575 S.W.2d at 5; City of Chattanooga v. Ballew,
49 Tenn. App. 310, 316–17, 354 S.W.2d 806, 808–09 (Tenn. App. 1961);
see also Grandstaff v. Hawks, 36 S.W.3d 482, 497 (Tenn. Ct. App. 2000)
(“We have a duty to uphold a jury’s verdict whenever possible.”).
Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 422–23 (Tenn. 2013) (some
internal citations omitted).
As previously discussed, in a health care liability action, the plaintiff must prove
each element, one of which includes whether “the defendant acted with less than or failed
to act with ordinary and reasonable care in accordance with” the standard of care for the
profession. Tenn. Code Ann. § 29-26-115(a)(2). If there is any material evidence to
support the jury’s finding that “Dr. Bishop did not deviate from the recognized standard
of care” for an OB/GYN surgeon, we must affirm. See Meals, 417 S.W.3d at 422–23.
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In this case, Appellees presented substantial testimony from medical experts who
testified that Dr. Bishop’s care of Ms. Bradley conformed to the applicable standard of
care preoperatively, during the hysterectomy, and postoperatively. Specifically, the jury
heard evidence that Dr. Bishop conformed to the standard of care of an OB/GYN surgeon
in her assessment of Ms. Bradley’s medical history, in her recommendation to Ms.
Bradley of the minimally invasive procedure, in her performance of the hysterectomy
including trocar placement away from the areas known to have bowel adhesions, in her
decision to proceed with the surgery when no assisting surgeon was available to help in
order to minimize blood clotting risks, and in her recognition of a bowel injury and taking
appropriate action on the third operative day once symptoms arose. The jury also heard
evidence that bowel injuries are the most common injuries that can occur during a
hysterectomy and that such injuries are not always immediately recognizable.
Although Appellants presented countervailing evidence suggesting that Dr. Bishop
deviated from the standard of care by not performing a vaginal hysterectomy and by not
examining the bowel immediately post-surgery in order to search for any perforation, it is
not our prerogative to re-weigh the evidence presented or assess the witnesses’
credibility. The jury chose to credit the evidence presented by Appellees. As such,
taking the strongest legitimate view of all the evidence in favor of the verdict, assuming
the truth of all evidence that supports the verdict, allowing all reasonable inferences to
sustain the verdict, and discarding all countervailing evidence, as we must, we conclude
that the record contains, at a minimum, material evidence to support the jury’s verdict.
Based on all of these circumstances, we conclude both that the trial court properly
exercised its role as the thirteenth juror and that material evidence supports the jury’s
verdict. Therefore, we affirm the trial court’s judgment entered on the verdict and its
denial of Appellants’ motion for a new trial on this basis.
Limitation on Proof of Medical Expenses
Our disposition of the issues at this juncture is sufficient to uphold the jury’s
verdict that Dr. Bishop did not breach the applicable standard of care for an OB/GYN
surgeon. Appellants’ remaining issue concerning limitation of proof of medical
expenses, or damages, is, therefore, pretermitted.
Conclusion
Based on the foregoing, we affirm the Shelby County Circuit Court’s denial of
Appellants’ motion for a new trial. Costs of this appeal are taxed to the Appellants,
Christy Bradley and J. Anthony Bradley, and their surety, for which execution may issue
if necessary.
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J. STEVEN STAFFORD, JUDGE
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