IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ______________________________________________
SYLVIA HUDSON,
Plaintiff-Appellee, FILED Shelby Circuit No. 78879 T.D. Vs. C.A. No. 02A01-9709-CV-00232 June 9, 1998 DAVE SHORTER, JR., Cecil Crowson, Jr. Defendant-Appellant. Appellate C ourt Clerk ____________________________________________________________________________
FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONORABLE JAMES E. SWEARENGEN, JUDGE
Jerry Stokes of Memphis For Plaintiff-Appellee
C. J. Barnett, McNabb, Holley & Waldrop PLLC of Memphis For Defendant-Appellant
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This is an automobile personal injury case. The defendant, David Shorter, Jr., appeals
from the judgment of the trial court in a bench trial awarding plaintiff, Sylvia Hudson, $9,000.00
damages. Shorter’s responsibility for the accident was stipulated, and the trial concerned only
the issue of damages. Although the collision caused relatively minor damage to the parties’ vehicles,1 Hudson
was taken to the emergency room of Methodist Hospital in Memphis immediately after the
accident. She was examined and released without being referred to any health care professional.
Hudson admitted that shortly thereafter she retained an attorney and was referred to Bellevue
Clinic for treatment of alleged lower back and neck pain. Hudson visited the clinic on fourteen
occasions, and her treatment included the application of hot and cold packs and the
administration of ultrasound to her lower back and neck. Bellevue Clinic’s bill totaled $2,655.00
for these visits.2 Subsequently, Bellevue Clinic referred Hudson to Dr. Paul Williams, an
orthopedist. Dr. Williams administered similar conservative treatment to Hudson during the
course of nine visits and charged her a total of $528.00.
Hudson sued Shorter for damages in general sessions court, and Shorter appealed to
circuit court for a trial de novo. The case was tried in the circuit court by a judge without a jury,
and the bills for medical expenses were introduced into evidence by stipulation. Hudson also
presented the deposition testimony of Dr. Williams concerning his care and treatment and also
as proof that the major medical bill from Bellevue Clinic was reasonable and necessary. The
trial court considered the deposition testimony in reaching its decision to award plaintiff
$9,000.00 as damages. Shorter has appealed and presents in his brief these issues for review:
Under the surrounding circumstances, were the appellee’s physician’s opinions too speculative, and not within a sufficient degree of certainty to be admitted into evidence at trial:
a. With respect to his treatment of the appellee? And/Or
b. With respect to the treatment and bill allegedly incurred by the appellee with another physician?
In his deposition, Dr. Williams testified about Hudson’s initial visit with him as follows:
Q. What were your findings after this physical examination?
A. My opinion was that she sustained a strain and sprain of a generalized nature of her lumbar spine.
Q. Was that consistent, Doctor, with an automobile accident that she gave a history of?
A. It could and might be caused by an automobile accident.
1 Photographs reveal that the rear of Hudson’s car was only slightly damaged, whereas the front of Shorter’s pick-up truck was not damaged at all. 2 There was a dispute at trial concerning whether the clinic triple-charged Hudson for certain treatments.
2 When asked whether his treatment rendered to Hudson during the course of her visits was
“necessary,” Dr. Williams stated:
She might have lived without the treatment, but I feel that the treatment was advised based on her medical complaints. And it was my thought that this treatment was what I would like to have done to me if I had the same complaint.
Dr. Williams, after reviewing Hudson’s other related medical bills that itemized the treatments
by Bellevue Clinic, testified:
Q. Do you have an opinion whether the treatment that Ms. Hudson received was necessary?
A. Again, these were treatments to relieve her complaints. She could live without the treatments but these would shorten the course of her -- the treatments rendered here would shorten the course of her complaints and make her more comfortable while she was getting better.
Q. Would those treatments be necessary to relieve those complaints?
A. These treatments would be helpful in relieving the complaints.
Q. Did you see the bills that were charged as a result of those treatments?
A. Yes, sir.
Q. Do you think they’re fair and reasonable and in keeping with what other physicians who treat soft tissue injuries would charge in this community?
A. They appear to be fair and reasonable and within normal limits for similar groups that render this type of physical therapy treatment.
At the conclusion of his deposition, Dr. Williams was asked:
Q. Doctor, all that you’ve testified to you’ve testified to within a reasonable degree of medical certainty?
Q. And the treatment you rendered Ms. Hudson, was that consistent with the complaints that she gave in her history stemming from a motor vehicle accident?
Shorter asserts that the trial court erred in admitting Dr. Williams’s medical opinions
since they are not within the requisite degree of certainty. In addition to responding that Dr.
Williams’s opinions were within a sufficient degree of certainty, Hudson counters that Shorter
failed to make a timely objection at trial.
3 The trial court is afforded wide discretion in the admission or rejection of evidence, and
the trial court's action will be reversed on appeal only when there is a showing of an abuse of
discretion. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992); Davis
v. Hall, 920 S.W.2d 213, 217 (Tenn. App. 1995).
W e f i r s t a d d r e s s H u d s o n ’ s a r g u m e n t t h a t S h o r t e r i s b a r r e d f r o m a s s e r ti n g t h i s i s s u e s i n c e h e f a i l e d t o o b j e c t
a t tr ia l . H u d s o n c i te s T e n n . R . C i v . P . 3 2 .0 2 , w h i c h s t a te s :
S u b j e c t t o t h e p r o v i s io n s o f R u l e 2 8 .0 2 a n d R u l e 3 2 . 0 4 ( 3 ) , o b j e c ti o n m a y b e m a d e a t th e tr ia l o r h e a rin g to r e c e iv in g in e v id e n c e a n y d e p o sitio n o r p a rt th e re o f f o r a n y r e a s o n w h i c h w o u l d r e q u i r e t h e e x c l u s i o n o f t h e e v i d e n c e i f t h e w i tn e s s w e r e th e n p re s e n t a n d te s tif y in g .
H u d s o n a r g u e s t h a t S h o r te r d i d n o t o b j e c t t o t h e a d m i s s i b i l i t y o f D r . W i l l i a m s ’ s d e p o s i t io n b e f o r e h e r p r o o f w a s c l o s e d .
T e c h n i c a ll y , S h o r te r d i d n o t r e g i s te r a n o b j e c ti o n b e f o r e t h e d e p o s i t i o n w a s p r e s e n t e d , b u t a f t e r t h e c o u r t r e a d th e
d e p o s i t i o n , S h o r te r s ta t e d :
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ______________________________________________
SYLVIA HUDSON,
Plaintiff-Appellee, FILED Shelby Circuit No. 78879 T.D. Vs. C.A. No. 02A01-9709-CV-00232 June 9, 1998 DAVE SHORTER, JR., Cecil Crowson, Jr. Defendant-Appellant. Appellate C ourt Clerk ____________________________________________________________________________
FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONORABLE JAMES E. SWEARENGEN, JUDGE
Jerry Stokes of Memphis For Plaintiff-Appellee
C. J. Barnett, McNabb, Holley & Waldrop PLLC of Memphis For Defendant-Appellant
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This is an automobile personal injury case. The defendant, David Shorter, Jr., appeals
from the judgment of the trial court in a bench trial awarding plaintiff, Sylvia Hudson, $9,000.00
damages. Shorter’s responsibility for the accident was stipulated, and the trial concerned only
the issue of damages. Although the collision caused relatively minor damage to the parties’ vehicles,1 Hudson
was taken to the emergency room of Methodist Hospital in Memphis immediately after the
accident. She was examined and released without being referred to any health care professional.
Hudson admitted that shortly thereafter she retained an attorney and was referred to Bellevue
Clinic for treatment of alleged lower back and neck pain. Hudson visited the clinic on fourteen
occasions, and her treatment included the application of hot and cold packs and the
administration of ultrasound to her lower back and neck. Bellevue Clinic’s bill totaled $2,655.00
for these visits.2 Subsequently, Bellevue Clinic referred Hudson to Dr. Paul Williams, an
orthopedist. Dr. Williams administered similar conservative treatment to Hudson during the
course of nine visits and charged her a total of $528.00.
Hudson sued Shorter for damages in general sessions court, and Shorter appealed to
circuit court for a trial de novo. The case was tried in the circuit court by a judge without a jury,
and the bills for medical expenses were introduced into evidence by stipulation. Hudson also
presented the deposition testimony of Dr. Williams concerning his care and treatment and also
as proof that the major medical bill from Bellevue Clinic was reasonable and necessary. The
trial court considered the deposition testimony in reaching its decision to award plaintiff
$9,000.00 as damages. Shorter has appealed and presents in his brief these issues for review:
Under the surrounding circumstances, were the appellee’s physician’s opinions too speculative, and not within a sufficient degree of certainty to be admitted into evidence at trial:
a. With respect to his treatment of the appellee? And/Or
b. With respect to the treatment and bill allegedly incurred by the appellee with another physician?
In his deposition, Dr. Williams testified about Hudson’s initial visit with him as follows:
Q. What were your findings after this physical examination?
A. My opinion was that she sustained a strain and sprain of a generalized nature of her lumbar spine.
Q. Was that consistent, Doctor, with an automobile accident that she gave a history of?
A. It could and might be caused by an automobile accident.
1 Photographs reveal that the rear of Hudson’s car was only slightly damaged, whereas the front of Shorter’s pick-up truck was not damaged at all. 2 There was a dispute at trial concerning whether the clinic triple-charged Hudson for certain treatments.
2 When asked whether his treatment rendered to Hudson during the course of her visits was
“necessary,” Dr. Williams stated:
She might have lived without the treatment, but I feel that the treatment was advised based on her medical complaints. And it was my thought that this treatment was what I would like to have done to me if I had the same complaint.
Dr. Williams, after reviewing Hudson’s other related medical bills that itemized the treatments
by Bellevue Clinic, testified:
Q. Do you have an opinion whether the treatment that Ms. Hudson received was necessary?
A. Again, these were treatments to relieve her complaints. She could live without the treatments but these would shorten the course of her -- the treatments rendered here would shorten the course of her complaints and make her more comfortable while she was getting better.
Q. Would those treatments be necessary to relieve those complaints?
A. These treatments would be helpful in relieving the complaints.
Q. Did you see the bills that were charged as a result of those treatments?
A. Yes, sir.
Q. Do you think they’re fair and reasonable and in keeping with what other physicians who treat soft tissue injuries would charge in this community?
A. They appear to be fair and reasonable and within normal limits for similar groups that render this type of physical therapy treatment.
At the conclusion of his deposition, Dr. Williams was asked:
Q. Doctor, all that you’ve testified to you’ve testified to within a reasonable degree of medical certainty?
Q. And the treatment you rendered Ms. Hudson, was that consistent with the complaints that she gave in her history stemming from a motor vehicle accident?
Shorter asserts that the trial court erred in admitting Dr. Williams’s medical opinions
since they are not within the requisite degree of certainty. In addition to responding that Dr.
Williams’s opinions were within a sufficient degree of certainty, Hudson counters that Shorter
failed to make a timely objection at trial.
3 The trial court is afforded wide discretion in the admission or rejection of evidence, and
the trial court's action will be reversed on appeal only when there is a showing of an abuse of
discretion. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992); Davis
v. Hall, 920 S.W.2d 213, 217 (Tenn. App. 1995).
W e f i r s t a d d r e s s H u d s o n ’ s a r g u m e n t t h a t S h o r t e r i s b a r r e d f r o m a s s e r ti n g t h i s i s s u e s i n c e h e f a i l e d t o o b j e c t
a t tr ia l . H u d s o n c i te s T e n n . R . C i v . P . 3 2 .0 2 , w h i c h s t a te s :
S u b j e c t t o t h e p r o v i s io n s o f R u l e 2 8 .0 2 a n d R u l e 3 2 . 0 4 ( 3 ) , o b j e c ti o n m a y b e m a d e a t th e tr ia l o r h e a rin g to r e c e iv in g in e v id e n c e a n y d e p o sitio n o r p a rt th e re o f f o r a n y r e a s o n w h i c h w o u l d r e q u i r e t h e e x c l u s i o n o f t h e e v i d e n c e i f t h e w i tn e s s w e r e th e n p re s e n t a n d te s tif y in g .
H u d s o n a r g u e s t h a t S h o r te r d i d n o t o b j e c t t o t h e a d m i s s i b i l i t y o f D r . W i l l i a m s ’ s d e p o s i t io n b e f o r e h e r p r o o f w a s c l o s e d .
T e c h n i c a ll y , S h o r te r d i d n o t r e g i s te r a n o b j e c ti o n b e f o r e t h e d e p o s i t i o n w a s p r e s e n t e d , b u t a f t e r t h e c o u r t r e a d th e
d e p o s i t i o n , S h o r te r s ta t e d :
Y o u r h o n o r , I ’ m o p p o s in g a n y a r g u m e n t a b o u t t h e c e r t a i n t y o f t h e s e o p i n i o n s in c l o s in g a r g u m e n t s . W i t h o u t a j u r y I d id n ’ t s e e a n y p o i n t i n t r y in g t o r a i s e th a t a t th is p o in t.
I n a b e n c h t ri a l , w e w i l l c o n s t r u e th i s s t a t e m e n t a s a f o r m a l o b j e c ti o n .
I n a c a s e s u c h a s t h i s , w h e n t h e m e d i c a l o r d o c t o r b i l l s e x c e e d $ 2 , 5 0 0 . 0 0 , t h e l a w i m p o s e s th e d u t y u p o n t h e
p l a i n t if f t o s h o w b y c o m p e t e n t p r o o f th a t t h e s e r v i c e s r e n d e r e d w e r e n e c e s s a r y a n d t h a t t h e c h a r g e s f o r th e s e r v i c e s w e r e
r e a s o n a b l e . Ogle v. Brandon, C . A . N o . 1 2 4 7 , 1 9 8 9 W L 4 8 4 6 0 , a t * 2 ( T e n n . A p p . M a y 1 2 , 1 9 8 9 ) a n d West v.
Hudson, H a m i l t o n C i r c u i t C . A . N o . 8 2 7 , 1 9 8 8 W L 1 2 2 4 3 1 , a t * 3 ( T e n n . A p p . N o v . 1 8 , 1 9 8 8 ) . S h o r t e r a r g u e s t h a t
D r . W i l l i a m s ’ s te s ti m o n y c o n c e r n i n g h i s b il l f o r m e d i c a l s e rv i c e s d id n o t p r o v e t h a t t h e e x p e n s e s w e r e n e c e s s a ry . A s
p r e v i o u s ly n o t e d , D r . W i l l i a m s s t a t e d t h a t h e f e lt t h e t r e a t m e n t h e g a v e t o H u d s o n w a s a d v i s e d b a s e d o n h e r m e d i c a l
c o m p l a i n t s , a n d h e f u r t h e r s t a t e d t h a t i t w a s t h e t y p e o f t r e a t m e n t h e w o u l d w a n t if h e h a d t h e s a m e c o m p l a i n t s .
V ie w in g D r. W illia m s’ s te stim o n y a s a w h o le , w e c o n str u e h is o p in io n th a t su c h tre a tm e n t w a s a d v i se d to b e e s s e n tia lly
t h e s a m e a s o p i n i n g t h a t s u c h t r e a t m e n t w a s n e c e s s a r y t o a s s i s t H u d s o n in h e r r e c o v e r y . C e r t a i n l y a n i n j u r e d p a r t y i s
e n t i t l e d t o t r e a tm e n t t h a t w i l l a ll e v ia te o r l e s s e n d i s c o m f o r t a n d s h o rt e n th e d u r a ti o n o f a n y p a in a n d s u f f e r i n g . P e r h a p s
t h e h u m a n b o d y i s c o n s tr u c t e d s o t h a t , f o r m o s t m a l a d i e s , n a t u r e w i l l e v e n tu a l l y o v e r c o m e t h e p r o b l e m a n d t h e b o d y
w i l l b e r e s t o r e d t o f u l l h e a l t h . H o w e v e r , t h e l a w s h o u l d n o t r e q u i r e t h a t a p e r s o n m u s t r e l y o n n a t u r e a lo n e b u t , i n s te a d ,
s h o u l d e m b r a c e th e n o t i o n t h a t a p e r s o n i s e n t i t l e d t o u t i l i z e th e m a r v e lo u s a d v a n c e s m a d e in t h e t r e a t m e n t o f h u m a n
ills.
A l t h o u g h i t m a y n o t u s e t h e “ m a g i c l a n g u a g e , ” D r . W i ll ia m s ’ s t e s t i m o n y d o e s s u f f i c i e n t l y p r o v e t h a t h i s
r e n d e re d tr e atm e n t to H u d s o n w a s n e c e s sa r y .
I n a d d it i o n t o t e s t i f y i n g c o n c e r n i n g h i s o w n t re a tm e n t, D r . W i l l i a m s w a s q u e s t i o n e d c o n c e r n i n g t h e i t e m i z e d
4 t r e a t m e n t s l i s t e d o n B e l l e v u e C l i n i c ’ s b i l l . I n Long v. Mattingly, 7 9 7 S . W . 2 d 8 8 9 ( T e n n . A p p . 1 9 9 0 ) , t h i s C o u r t
c o n s i d e r e d t h e te s t i m o n y o f a p h y s i c ia n c o n c e r n i n g t h e n e c e s s it y o f a n o t h e r p h y s ic i a n ’ s s e r v i c e s a n d t h e r e a s o n a b l e n e s s
o f h is ch a rg e s. T h e C o u rt s aid :
A p h y s ic i a n w h o i s f a m i l i a r w i t h t h e e x t e n t a n d n a tu r e o f t h e m e d i c a l t r e a tm e n t a p a r t y h a s r e c e i v e d m a y g iv e a n o p in i o n c o n c e r n i n g t h e n e c e s s it y o f a n o t h e r p h y s i c i a n 's s e r v i c e s a n d t h e r e a s o n a b l e n e s s o f t h e c h a r g e s . T o b e q u a l i f i e d t o r e n d e r t h e s e o p i n i o n s , t h e p h y s i c i a n m u s t f ir s t d e m o n s t r a te ( 1 ) k n o w l e d g e o f t h e p a r t y ' s c o n d it i o n , ( 2 ) k n o w l e d g e o f t h e tr e a tm e n t t h e p a r t y r e c e i v e d , ( 3 ) k n o w l e d g e o f th e c u s t o m a r y tr e a t m e n t o p t io n s f o r t h e c o n d i t i o n i n th e m e d i c a l c o m m u n i t y w h e r e th e tr e a tm e n t w a s r e n d e r e d , a n d ( 4 ) k n o w l e d g e o f t h e c u s t o m a r y c h a r g e s f o r t h e tr e a tm e n t.
Id. a t 8 9 3 ( i n t e r n a l c i t a t i o n s o m i t t e d ) .
D r . W i l l i a m s ’ s t e s t i m o n y r e v e a l s t h a t h e c o m p o r t s t o t h e r e q u i r e m e n t s s e t o u t i n Mattingly a n d , t h u s , i s
q u a l i f i e d t o t e s t i f y a c c o r d i n g l y . H i s t e s t i m o n y c o n c e r n i n g t h e n e c e s s it y o f B e l l e v u e C l i n i c ’ s t r e a t m e n t w a s e s s e n t i a l l y
t h e s a m e a s f o r h i s o w n , i . e ., t r e a tm e n ts t o r e li e v e H u d s o n ’s c o m p l a in t s . H u d s o n w a s c e r t a in l y e n ti t l e d to r e li e f f r o m
a n y p a i n a n d s u f f e r i n g t h a t s h e m i g h t h a v e b e e n e n d u r i n g . D r . W i l l i a m s t e s t i f ie d t h a t t h e c o m p l a i n t s t h a t H u d s o n h a d
w h e n h e w a s tr e a t i n g h e r w e r e c o n s i s te n t w i t h t h e h i s t o r y o f a n a u t o m o b i le a c c i d e n t a n d , t h e r e f o r e , c o u l d h a v e b e e n
c a u s e d i n t h a t m a n n e r . H u d s o n t e s t i f ie d t h a t s h e w a s f r e e o f a n y i n j u r y p r i o r t o t h e a c c i d e n t a n d t h a t t h e p r o b l e m s s h e
i n c u r r e d r e s u l t e d a f te r th e a c c i d e n t . U n d e r t h e c i r c u m s t a n c e s o f th i s c a s e , t h e t r ia l c o u r t d i d n o t e r r i n c o n s i d e r i n g D r .
W illia m s’ s te stim o n y .
T h e j u d g m e n t o f t h e t r ia l c o u r t i s a f f ir m e d , a n d t h i s c a s e i s r e m a n d e d t o t h e t r ia l c o u r t f o r s u c h f u r t h e r
p r o c e e d in g s a s m a y b e n e c e s sa r y . C o s ts o f th e a p p e a l a r e a s se s se d a g a i n s t th e a p p e lla n t.
_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
____________________________________ ALAN E. HIGHERS, JUDGE
____________________________________ DAVID R. FARMER, JUDGE