In its opinion filed on November 29, 2016, the Court of Appeals of Tennessee at Jackson (“Appellate Court”) determined that the trial court erred in excluding and failing to consider respectively the deposition testimony and affidavit of the plaintiff’s medical expert (her subsequent treating physician) regarding causation in her Tennessee medical malpractice case because the plaintiff’s causation evidence presented by her medical malpractice expert created a genuine issue of material fact regarding causation that must be determined at trial.
The Alleged Underlying Facts
On May 13, 2004, the plaintiff fell and injured her right shoulder. She was not treated for her injury until May 18, 2004, when she was examined by the defendant physician who diagnosed the cause of her pain as bursitis, without ordering an x-ray of her shoulder, and instructed the plaintiff to perform exercises at home.
Because the plaintiff‘s shoulder pain worsened over time, she visited her chiropractor on June 15, 2004, who took an x-ray of her shoulder and referred the plaintiff to an orthopedic surgeon. The plaintiff was examined by the orthopedic surgeon the following day, who ordered a CT scan that revealed a fracture dislocation in the plaintiff’s shoulder. The orthopedic surgeon referred the plaintiff to a second orthopedic surgeon who specialized in shoulder injuries.
The second orthopedic surgeon (“shoulder specialist”) confirmed the first orthopedic surgeon’s diagnosis and performed open reduction surgery on the plaintiff three days later that found the plaintiff’s shoulder socket (glenoid) so badly damaged that it had to be repaired utilizing a cadaver bone piece and surgical screws. After the plaintiff’s slow and incomplete healing over a period of months, the shoulder specialist discovered severe infection in the plaintiff’s shoulder joint and performed irrigation and debridement surgery to wash out the plaintiff’s shoulder joint and remove the surgical screws because of infection in the screw holes. The plaintiff’s shoulder eventually healed, but she suffered a partial physical impairment.
The plaintiff subsequently filed her Tennessee medical malpractice action against the first physician who had examined her and misdiagnosed her as having bursitis in her shoulder. The plaintiff filed an affidavit from the shoulder specialist and the shoulder specialist was deposed in the medical malpractice action.
The shoulder specialist opined that in a majority of cases such as the plaintiff’s, if the type of injury was diagnosed shortly following the injury, surgery would not be required, and even if the injury was diagnosed “a little bit late, we could probably do a lesser operation than . . . we ended up having to do [such as arthroscopy that results in an infection rate of close to zero].” The shoulder specialist provided further detailed causation opinions as well as facts in support of his opinions.
The medical malpractice defendants subsequently filed a motion seeking to have the shoulder specialist’s deposition testimony regarding causation excluded, arguing that his opinions were speculative. The trial court granted the motion and excluded the plaintiff’s medical expert’s deposition testimony regarding causation. The defendants thereafter filed a motion for summary judgment, asserting that the plaintiff could not establish causation, an essential element of her claim. The trial court granted summary judgment in favor of the defendants, and the plaintiff appealed.
The Appellate Court held that the plaintiff’s medical expert’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, and that the 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 the plaintiff would not have required such extensive treatment or suffered such a significant injury and disability if her fracture dislocation had been diagnosed by the defendant physician upon his examination of the plaintiff on May 18, 2004.
The Appellate Court therefore reversed the trial court‘s decisions to exclude the deposition testimony of the plaintiff’s medical expert and to not consider his affidavit. Therefore, the Appellate Court vacated the court‘s grant of summary judgment to the defendants.
Source Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV.
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