Exclusion of Expert Testimony Reversed – New Trial Ordered

In Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016), the Court of Appeals overturned the exclusion of expert testimony in an HCLA case.

In 2004, plaintiff fell and hurt her right shoulder, and she did not seek treatment until five days after her fall. When she visited defendant doctor, he examined her shoulder and diagnosed her with bursitis, never ordering an x-ray or other scan. Defendant doctor recommended an exercise program to plaintiff. Plaintiff’s pain continued to worsen, and she saw a different doctor a month later. This doctor took an x-ray of her shoulder and referred her to an orthopedic surgeon, who ordered a CT scan. The scan showed that plaintiff had a fracture dislocation. She was then sent to Dr. Weiss, a surgeon specializing in shoulder injuries, who performed open reduction surgery on plaintiff. During surgery, Dr. Weiss determined that plaintiff’s shoulder socket was “so badly damaged that it had to be repaired utilizing a cadaver bone piece and surgical screws.” Plaintiff suffered many complications, including a severe infection, an additional surgery, and a PICC line for antibiotics. After her shoulder healed, plaintiff was left with a “partial physical impairment.”

Plaintiff brought this action against the doctor she saw five days after her fall and his clinic, alleging that he “failed to properly diagnose a fracture dislocation in her shoulder, causing a delay in appropriate treatment.” During her first action, Dr. Weiss (plaintiff’s surgeon) filed an affidavit stating 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” plaintiff. The first action was subsequently nonsuited and refiled, and Dr. Weiss was deposed during this current action, as he served as plaintiff’s expert witness.

During his deposition, Dr. Weiss testified: “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 stated that “in a majority of such cases, if the type of injury [plaintiff] had experienced were diagnosed shortly following the injury, surgery would not have been required.” He opined that if plaintiff had been “diagnosed acutely…immediately after the fall, her injury could have been treated with a closed reduction.” He stated that even if the injury had been caught “a little bit late,” the surgery could have been less invasive and used a method that has a “close to zero” infection rate. Dr. Weiss further testified that damage to plaintiff’s should socket “was caused by the length of time the shoulder had been dislocated.”

Defendants filed a motion to have Dr. Weiss’s testimony excluded as speculative. The trial court granted this motion, and then granted defendants’ motion for summary judgment, as plaintiff was without an expert to prove causation. The trial noted in its ruling that Dr. Weiss’s testimony used the terms “immediately, acutely, initially, shortly, and earlier,” and held that because there was a five day delay in plaintiff obtaining treatment from defendant, Dr. Weiss’s testimony was unclear and could “relate to the five day period of time between the fall and treatment by defendant” or to the delay in treatment due to the alleged misdiagnosis.

On appeal, the Court overturned the exclusion of Dr. Weiss’s testimony and thus overturned the grant of summary judgment. The Court determined that when looking at the surgeon’s testimony as a whole, his testimony was clear, was not speculative, and was expressed within a reasonable degree of medical certainty. According to the Court of Appeals, “Dr. Weiss testified unequivocally that [plaintiff’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.”

In support of its finding that Dr. Weiss’s testimony was not speculative, the Court pointed to some specific question and answer portions of his deposition. The Court noted the use of the pronoun “he,” which was clearly referring to the defendant doctor and his initial diagnosis and treatment, and found that “[w]ith regard to the purported ‘vagueness,’…this issue appears easily resolved by reading Dr. Weiss’s statements comprehensively and in proper context.” The Court also pointed out that “Dr. Weiss was aware that he was being asked to opine concerning whether the initial misdiagnosis by [defendant] had worsened [plaintiff’s] injury and resulted in more extensive medical problems.” The Court ultimately ruled that Dr. Weiss’s testimony regarding the delayed diagnosis was clearly referring to the misdiagnosis by defendant and not to the five day period between the fall and plaintiff’s treatment by defendant.

The Court of Appeals also briefly analyzed the trial court’s decision to exclude Dr. Weiss’s affidavit, which was filed long before his deposition. The trial court had “ruled that the 2006 affidavit was ‘superseded on all points raised therein by the August 20, 2015 evidentiary testimony of Dr. Weiss.’” The Court of Appeals overturned this holding, finding that there was no authority for such a ruling, and stating that it “knew 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.” (internal citation omitted).

Because the expert’s testimony should not have been excluded, summary judgment was overturned and the case was remanded to the trial court.

The Court of Appeals clearly got this case right. Defendants tried to play on a few of plaintiff’s expert’s words to make his testimony appear unclear, and somehow got the trial court to agree. Plaintiff’s counsel here presented the necessary evidence and record to the Court of Appeals to allow for a reasoned analysis, and the Court correctly overturned a bad trial court ruling.

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