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Holmes v. Christ Community Health Services Inc.

Court of Appeals of Tennessee, Jackson

November 29, 2016


          Session Date: October 25, 2016

          Appeal from the Circuit Court for Shelby County No. CT-002855-12 James F. Russell, Judge

          The plaintiff filed this action alleging medical malpractice against a physician who examined the plaintiff five days after injury to her shoulder, as well as the facility wherein the physician practiced. The plaintiff alleged, inter alia, that the defendant physician failed to properly diagnose a fracture dislocation in her shoulder, causing a delay in appropriate treatment. The plaintiff's subsequent treating physician opined in his deposition and via affidavit that if the plaintiff's injury had been diagnosed earlier, the plaintiff would likely have avoided an extensive surgical procedure, resultant infection stemming from such surgery, and residual impairment to her shoulder. The trial court excluded this testimony as speculative, granting summary judgment in favor of the defendant physician and hospital. The plaintiff has appealed. We determine that the trial court erred in excluding the causation evidence as speculative. We therefore vacate the court's grant of summary judgment in favor of the co-defendants.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Case Remanded

          Everett B. Gibson, Memphis, Tennessee, for the appellant, Dorothy Holmes.

          Joseph M. Clark and Samantha E. Bennett, Memphis, Tennessee, for the appellees, Christ Community Health Services, Inc., and Bradley Carter, M.D.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.



         I. Factual and Procedural Background

         This medical malpractice[1] action arises from an incident that occurred on May 13, 2004, when the plaintiff, Dorothy Holmes, fell and injured her right shoulder. Ms. Holmes did not seek treatment for her injury until May 18, 2004, when she visited Christ Community Health Services, Inc. ("CCHS"), and was examined by Dr. Bradley Carter. According to Ms. Holmes, Dr. Carter examined her shoulder and diagnosed the cause of her pain as bursitis. Dr. Carter never ordered an x-ray of Ms. Holmes's shoulder. Instead, Dr. Carter sent Ms. Holmes home with a program of exercises.

         When Ms. Holmes's shoulder pain worsened over time, she visited her chiropractor, Dr. Eric Novack, on June 15, 2004. Upon taking an x-ray of Ms. Holmes's shoulder, Dr. Novack referred Ms. Holmes to an orthopedic surgeon, Dr. Robert Bourland, who saw Ms. Holmes the following day. Dr. Bourland ordered a CT scan, which revealed a fracture dislocation in Ms. Holmes's shoulder. Dr. Bourland referred Ms. Holmes to Dr. Kenneth Weiss, an orthopedic surgeon specializing in shoulder injuries.

         Upon examining Ms. Holmes on June 18, 2004, Dr. Weiss confirmed Dr. Bourland's diagnosis. Three days later, Dr. Weiss treated Ms. Holmes by performing open reduction surgery, during which he determined that Ms. Holmes's shoulder socket (glenoid) was so badly damaged that it had to be repaired utilizing a cadaver bone piece and surgical screws. Months following, after slow and incomplete healing, Dr. Weiss discovered severe infection in Ms. Holmes's shoulder joint. Consequently, Dr. Weiss performed irrigation and debridement surgery to "wash out" Ms. Holmes's shoulder joint and remove the surgical screws because of infection in the screw holes. A PICC line[2]was implanted so that antibiotics could be administered intravenously. Although Ms. Holmes's shoulder eventually healed, she suffered a partial physical impairment.

         It is undisputed that Ms. Holmes originally filed a medical malpractice action in April 2005 against CCHS and Dr. Carter ("Defendants"). During the pendency of that action, on November 28, 2006, Dr. Weiss executed an affidavit, wherein he stated:

I do believe that an initial x-ray performed at the initial treatment would have given me more options for treatment than were available by the time I first saw her on June 15, 2004. I believe that I most likely could have treated her with a more typical operation as opposed to hav[ing] to use a bone block to her socket to obtain stability. I believe that this would have decreased the amount of permanent impairment to the right shoulder and could have even possibly eliminated the need for initial open treatment to her shoulder. She is left with a permanent impairment to the right upper extremity.

         The original medical malpractice action was subsequently nonsuited and refiled in 2012. In 2015, Defendants deposed Dr. Weiss. During his deposition, Dr. Weiss explained that he had determined that Ms. Holmes suffered from a "chronic locked anterior shoulder fracture dislocation." Dr. Weiss also elucidated that because Ms. Holmes was a "month out" from her injury when he first examined her, he was required to perform an open reduction surgery to correct the fracture and put the shoulder back in place. Dr. Weiss opined that the surgery needed to be done as soon as possible in order to obtain the best result. In his notes from his initial examination, Dr. Weiss stated that he had discussed with Ms. Holmes that because her injury had occurred almost five weeks prior, the results would be "significantly tempered and that she would definitely not have an ideal result as if done acutely." Moreover, Dr. Weiss opined, "if he had taken care of it initially, we could have done . . . or may have gotten away without even surgery or definitely a lesser surgery than we would have to do at this point."

         Dr. Weiss further articulated that upon performing surgery on Ms. Holmes's shoulder, he discovered that the ball of the shoulder joint manifested an indentation and that "basically half of the socket had been worn down." Dr. Weiss stated that because of this condition, he was constrained to perform a bone graft utilizing a piece of cadaver bone to reconstruct the socket. According to Dr. Weiss, Ms. Holmes's surgical procedure lasted a minimum of two hours but could have extended as long as three or four hours. Ms. Holmes subsequently visited Dr. Weiss for numerous post-surgery check-ups, during which Dr. Weiss noted that she sometimes experienced visible pain. Dr. Weiss testified that by October 25, 2005, Ms. Holmes had developed swelling in her shoulder and was experiencing drainage from her incision. Determining that she had developed an infection due to her surgery, Dr. Weiss prescribed antibiotics for Ms. Holmes in order to treat the condition.

         Following the passage of several months with no response to the antibiotic treatment, Dr. Weiss performed another surgery on Ms. Holmes to clean the shoulder joint. Dr. Weiss described "obvious purulence" within the joint and found infection in the screw holes. Dr. Weiss then removed the screws and washed out the shoulder joint and infected area. According to Dr. Weiss, a PICC line was implanted so that Ms. Holmes could receive intravenous antibiotic treatment. Ultimately, the infection was successfully treated, and Ms. Holmes's wound healed. However, she experienced permanent impairment in her shoulder and arthritis due to the surgery and resultant infection.

         Dr. Weiss opined that in a majority of such cases, if the type of injury Ms. Holmes had experienced were diagnosed shortly following the injury, surgery would not be required. Dr. Weiss specifically testified that if Ms. Holmes had been "diagnosed acutely . . . immediately after the fall, " her injury could have been treated with a closed reduction. He continued to explain that "[e]ven if we catch it a little bit late, we could probably do a lesser operation than . . . we ended up having to do." According to Dr. Weiss, a "lesser" operation would include arthroscopy, which results in an infection rate of "close to zero." Dr. Weiss explained that the infection rate increases in relation to the length of the respective surgical procedure.

         Dr. Weiss further noted that the wear of the glenoid rim in Ms. Holmes's shoulder was caused by the length of time the shoulder had been dislocated. As he explained, because Ms. Holmes's shoulder had been "so long chronically locked, " she had worn out the front part of the shoulder socket. Upon cross-examination, Dr. Weiss stated that when Ms. Holmes fell, the impact of the humeral head hitting the glenoid caused the indentation on the humeral head, which was referred to as a Hill-Sachs fracture. He determined that this impact occurred at the time of the shoulder dislocation. Dr. Weiss indicated that if "we caught the diagnosis initially . . . we would hope she would not even necessarily have to have any surgery." According to Dr. Weiss, although these types of injuries sometimes require open reduction, a majority of cases can be treated in closed fashion.

         Dr. Weiss acknowledged that once a surgical site infection was recognized, it was prudent to attempt eradication of the infection as soon as possible because the infection could damage the joint. He also acknowledged that by initially declining to treat the infection surgically, Ms. Holmes had contributed to the damage to her shoulder joint. Dr. Weiss again opined, however, that if Ms. Holmes's injury had been detected earlier, "she could have been handled with easier care and . . . significantly less disability." When questioned about what he meant by "detected earlier, " Dr. Weiss explained that he was referring to "the original fracture."

         Defendants subsequently filed a motion seeking to have Dr. Weiss's deposition testimony regarding causation excluded, arguing that his opinions were speculative. The trial court granted the motion and excluded Dr. Weiss's deposition testimony respecting causation. Defendants thereafter filed a motion for summary judgment, asserting that Ms. Holmes could not establish causation, an essential element of her claim. In response, Ms. Holmes filed the above-referenced 2006 affidavit of Dr. Weiss. The trial court granted summary judgment in favor of Defendants, stating:

On September 21, 2015, the first day of trial in this matter, the Court heard argument on the Defendants' Motion to Preclude Testimony and Limit Damages. The Court granted the Defendants' motion and excluded the evidentiary deposition testimony of the Plaintiff's causation expert, Kenneth Weiss, M.D. The Court concluded that Dr. Weiss'[s] testimony did not establish that any act or omission on the part of Dr. Carter was the cause of the Plaintiff's initial surgery, the subsequent infection, or the second, corrective surgery to treat the infection. As memorialized in the Order Granting the Defendants' Motion to Preclude Testimony and Limit Damages, the Court held:
The terminology used by Dr. Weiss when offering causation opinions, specifically the terms "immediately, " "acutely, " "initially, " "shortly, " and "earlier, " is not defined by Dr. Weiss. Because these terms are undefined and because the Plaintiff did not receive medical treatment from Dr. Carter for five (5) days after her fall, these terms may relate to the five (5) day period of time between the fall and treatment by Dr. Carter. Reasonable minds could do no more than speculate on the meaning of Dr. Weiss'[s] testimony, and the law does not permit speculative evidence to be considered by the trier of fact. Dr. Weiss'[s] opinion testimony does not satisfy the statutory causation element of Tenn. Code Ann. § 29-26-115, which requires the Plaintiff to establish that, more likely than not, some act or omission by Dr. Carter caused the Plaintiff to suffer an injury that would not have otherwise occurred.
(Order Granting the Defendants' Motion to Preclude Testimony and Limit Damages, entered November 5, 2015, at p. 2).
After excluding Dr. Weiss'[s] causation opinions, the Court excluded the remainder of Dr. Weiss'[s] testimony as irrelevant.
On September 29, 2015, the Court entered an Order Granting Defendants' Motion to Preclude Testimony by Plaintiff's Expert, Dr. 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 ...

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