SAMUEL L. GRAHAM, JR., ET AL.
THE FAMILY CANCER CENTER PLLC, ET AL.
Session January 17, 2017 
from the Circuit Court for Shelby County No. CT-004144-14
Donna M. Fields, Judge
a medical malpractice action. The plaintiffs timely filed suit
against the defendants concerning the failure to timely
diagnose the husband's prostate cancer. After voluntarily
dismissing the initial suit, the plaintiffs provided pre-suit
notice before filing a second suit pursuant to the saving
statute. The defendants moved for summary judgment, arguing
that the plaintiffs lacked sufficient expert testimony to
establish their claim. The court agreed and granted summary
judgment. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
M. Wade, Memphis, Tennessee, for the appellants, Samuel L.
Graham, Jr. and Velma Graham.
Katherine M. Anderson, W. Bradley Gilmer, and Hugh Francis,
Memphis, Tennessee, for the appellees, the Family Cancer
Center, PLLC and Earle Weeks, M.D.
W. McClarty, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J.,
W. McCLARTY, JUDGE
pertinent facts of this case are not in dispute. In the
1990s, Samuel L. Graham, Jr. received treatment for
non-Hodgkin's lymphoma from Earle Weeks, M.D. Mr. Graham
returned periodically for continued monitoring after the
initial treatment was successful. Throughout the years, Dr.
Weeks measured Mr. Graham's prostate specific antigen
("PSA"). Mr. Graham's PSA rose from 2.0 ng/mL
in 2000 to 4.8 ng/mL in December 2002 and to 8.5 ng/mL in
April 2005. Additionally, Mr. Graham complained of dizziness
and hematuria in April 2002, hematuria in July 2004, and
lower abdominal pain in April 2005, prompting Dr. Weeks to
order an ultrasound. The ultrasound revealed findings
consistent with "benign prostate hypotrophy." Dr.
Weeks referred Mr. Graham to an urologist but took no further
Graham returned to Dr. Weeks for six follow-up visits from
November 2005 to August 2007, when his PSA was measured at
12.0 ng/mL. Dr. Weeks never inquired whether Mr. Graham had
met with an urologist and did not make an additional
six months later, in February 2008, Mr. Graham presented to
Lynn Conrad, M.D. again complaining of hematuria. His PSA was
then measured at 26.660 ng/mL. Dr. Conrad ordered further
testing and a biopsy, which revealed adenocarcinoma with a
Gleason score of 7 (4 3). On April 25, 2008, Mr. Graham
received a radical prostatectomy. Pathology revealed an
"extensive adenocarcinoma of the prostate with a Gleason
score of 9 (5 4)" and that the disease was
"locally advanced" with "several high risk
features including seminal vesicles involvement,
lymphovascular involvement, and several positive
margins." Mr. Graham was considered "at high risk
for a local recurrence and distant metastatic disease."
January 9, 2009, Mr. Graham and his wife, Velma Graham
(collectively "Plaintiffs"), filed suit against Dr.
Weeks and the Family Cancer Center, PLLC (collectively
"Defendants"). They alleged that Defendants'
failure to timely diagnose Mr. Graham's condition caused
further injury and a less favorable outcome. As pertinent to
this appeal, Plaintiffs alleged that Defendants failed to
perform a prostate biopsy when Mr. Graham's PSA level
rose to 4.8 ng/ML in 2002. Plaintiffs further alleged that
Dr. Weeks was negligent from November 2005 through August
2007 by not following up with him about his PSA scores or
referring him to an urologist.
ensued. Plaintiffs identified Philip Rast, M.D. and Stephan
Allen, M.D. as expert witnesses. These witnesses were
deposed. Defendants filed a motion in limine to exclude
expert testimony or opinions regarding any negligence that
occurred prior to January 9, 2006, pursuant to the applicable
statute of repose. The court granted the motion. Further, the
parties entered into a consent order prohibiting Dr. Rast or
any expert witness other than Dr. Allen from offering
opinions relating to Dr. Weeks's care of Mr. Graham. The
agreement was reached based upon the following exchange
during Dr. Rast's deposition in August 2012:
Defense: Would you agree with me that the affidavit that you
signed in 2010, and the only document that gives me your
opinions does not mention any deviation from the recognized
acceptable standard of professional practice from Dr. Weeks?
Dr. Rast: That is correct.
Defense: Yet today you said that you had an opinion about Dr.
Dr. Rast: That is correct.
Defense: And now when did you form that opinion?
Dr. Rast: Probably after going back over Dr. Week's
Defense: Was it today or yesterday in the last week?
Dr. Rast: I have not actually thought about this case for two
years, so it has probably been within the last week or so.
Defense: I will object to him expressing any opinions as to
Dr. Weeks given that I was given absolutely no notice of an
opinion and no way to prepare for him to express an opinion,
and we will have to come back and depose him at your expense,
Mr. Wade, if indeed he is going to express an opinion --
Plaintiff: How harsh.
Defense: -- since you failed to give me notice.
Plaintiff: How about I'm not going to offer to express
any opinions of
Dr. Weeks at trial. That is what Dr. [Allen] will be doing
when we depose him on Friday, so if that is the case then we
won't need to go further.
Defense: Then if that is the case, we have no other questions
if he is not going to express any opinion to Dr. ...