Session Date: October 25, 2016
from the Circuit Court for Shelby County No. CT-002855-12
James F. Russell, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated; Case Remanded
Everett B. Gibson, Memphis, Tennessee, for the appellant,
M. Clark and Samantha E. Bennett, Memphis, Tennessee, for the
appellees, Christ Community Health Services, Inc., and
Bradley Carter, M.D.
R. Frierson, II, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
medical malpractice 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.
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
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
linewas implanted so that antibiotics could be
administered intravenously. Although Ms. Holmes's
shoulder eventually healed, she suffered a partial physical
undisputed that Ms. Holmes originally filed a medical
malpractice action in April 2005 against CCHS and Dr. Carter
("Defendants"). During the pendency of that 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
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."
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.
the passage of several months with no response to the
antibiotic treatment, Dr. Weiss performed another surgery on
Ms. Holmes to clean the shoulder 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.
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.
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.
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."
subsequently filed a motion seeking to have Dr. Weiss's
deposition testimony regarding causation excluded, arguing
that his opinions were speculative. The 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
(Order Granting the Defendants' Motion to Preclude
Testimony and Limit Damages, entered November 5, 2015, at p.
After excluding Dr. Weiss'[s] causation opinions, the
Court excluded the remainder of Dr. Weiss'[s] testimony
On September 29, 2015, the Court entered an Order Granting
Defendants' Motion to Preclude Testimony by
Plaintiff's Expert, Dr. 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