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Graham v. Family Cancer Center PLLC

Court of Appeals of Tennessee, Jackson

June 5, 2017

SAMUEL L. GRAHAM, JR., ET AL.
v.
THE FAMILY CANCER CENTER PLLC, ET AL.

          Session January 17, 2017 [1]

         Appeal from the Circuit Court for Shelby County No. CT-004144-14 Donna M. Fields, Judge

         This is a medical malpractice action.[2] 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.

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

          Bill 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.

          John W. McClarty, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE

         I. BACKGROUND

         The 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[3] 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 action.

         Mr. 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 referral.

         Approximately 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).[4] On April 25, 2008, Mr. Graham received a radical prostatectomy.[5] 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."

         On 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").[6] 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.

         Discovery 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. Weeks?
Dr. Rast: That is correct.
Defense: And now when did you form that opinion?
Dr. Rast: Probably after going back over Dr. Week's records.
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. ...

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