White v. Vanderbilt University

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
December 30, 1999
MARGARET WHITE and )
MURL WHITE, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Plaintiffs/Appellants, )
)
VS. )
)
THE VANDERBILT UNIVERSITY, ) Davidson Circuit
THE VANDERBILT UNIVERSITY d/b/a ) No. 92C-2740
VANDERBILT UNIVERSITY MEDICAL )
CENTER and VANDERBILT UNIVERSITY )
HOSPITAL, DAN SPENGLER, M.D., ) Appeal No.
R. BRADLEY WYRSCH, M.D., ) M1997-00105-COA-R3-CV
MICHAEL CHMELL, M.D., and )
CLEMENT JONES, M.D., )
)
Defendants/Appellees. )

IN THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE THOMAS W. BROTHERS, JUDGE

For Plaintiffs/Appellants: For Defendants/Appellees:

Jeffrey A. Garrety H. Lee Barfield
LAW OFFICES OF JEFFREY A. GARRETY Steven E. Anderson
Jackson, Tennessee E. Clifton Knowles
BASS, BERRY & SIMS
Larry D. Ashworth Nashville, Tennessee
David E. High
ASHWORTH & HIGH
Nashville, Tennessee

REVERSED IN PART AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
 OPINION

This medical malpractice action stems from a rare post-operative complication of back
surgery called the cauda equina syndrome. A patient diagnosed with the syndro me filed su it
in the Circuit Court for Davidson County alleging that four physicians and the hospital where
her back surgery w as perform ed had ca used her p ermane nt injury by n egligently failing to
monitor, diagnose, and treat her post-operative cond ition. The trial court granted sum mary
judgment for one physician and directed verdicts for two others, and a jury returned a verdict
for the rem aining p hysicia n and th e hosp ital. We have dete rmined th at the directed verdicts
for two of the physicians and the jury’s verdict for the hospital and one other physician must
be set aside because the court erroneously preven ted the patient from using at trial the
depos itions of one of t he defe ndants ’ design ated ex pert wi tnesses .

I.

Margaret White and her husband of almost fifty years live in Jackson , Tennessee. M r.
White is a retired railroad conductor, and Ms. White retired as a salesperson in 1983 to take
care of her moth er. Prior to the e vents giving rise to this lawsuit, M s. White h ad genera lly
been in good health and had been devoting most of her time and energy to homemaking,
garden ing, chu rch activ ities, and serving as a Re d Cros s volun teer at a lo cal hos pital.

After Ms. White began to experience lower back pain, she consulted several Jackson-
area physicians who determined that surgery was indicated but who also recommended that
the surgery be postponed for a time. As Ms. White’s back pain worsened, she consulted Dr.
Dan M. Spengler, a Nashville orthopaedic surgeon. Dr. Spengler diagnosed Ms. W hite’s
condition as spinal stenosis 1 and recomm ended surgery. O n October 25, 19 91, Dr. Spengler
and Dr. Clement K. Jones, a fellow in spinal surgery, performed the surgery at Vand erbilt
University Med ical Ce nter. The surgery w as a succes s and is not th e subject of th is
litigation.

Ms. White’s post-operative recovery was uneventful for the first two days following
surgery. At 11:00 p.m. on Sunday, October 27, 1991, Catalina Baun, Ms. White’s nurse,
conducted a neurovascular examination with normal results. However, four hours later at

1
Spinal stenosis is the narrowing or compression of the portion of the vertebral canal where
the cauda equina is located. The cauda equina is the “bundle of spinal nerve roots arising from the
lumbar enlargement and conus medullaris and running through the lower part of the subarachnoid
space within the vertebral canal below the first lumbar vertebra; it comprises the roots of all the
spinal nerves below the first lumbar vertebra.” Stedman’s Medical Dictionary 238 (5th unabr. law.
ed. 1982).

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approxim ately 4:00 a.m. on October 28, 1991, Ms. White asked her husband to sum mon Ms.
Baun because she was suffering from pain in her lower buttocks and right leg that “was just
so bad , I could hardly stand it.”

Ms. Baun, following standard physician’s orders, gave Ms. White pain medication.
At 4:18 a.m., Ms. Baun paged Dr. Robert B radley W yrsch, the jun ior resident or thopaedic
physician on duty , becau se Ms . White ’s pain h ad not le ssened . A dispute exists concerning
whether Ms. Baun told Dr. Wyrsch that Ms. White’s symptoms were new and progressive.
Dr. Wyrsch simply instructed Ms. Baun to give Ms. White more pain medication.
Approx imately two hours later, between 6:00 and 6:30 a.m., Ms. White was examined for
the first time by Dr. Michael J. Chmell, a second-ye ar orthopae dic resident. D r. Chme ll
ordered more pain m edicatio n and a sked D r. Jones , who had assisted Dr. Spengler during
Ms. White’s surgery, to examine Ms. White.

Dr. Jones eventually examined Ms. White between 8:15 and 8:30 a.m. and diagnosed
her condition as cauda equina syndrome,2 a rare complication of spinal surgery. Dr. Jones
summoned Dr. Spengler who conducted his own examination and ordered an emergency
myelogram to confirm the location of the compression. At 11:30 a.m., the physicians
review ed the m yelogr am, an d at 12:3 5 p.m., M s. Wh ite unde rwent e merg ency su rgery.

Because of these post-operative complications, Ms. White lost bowel and bladder
control and suffere d back pain fo r severa l mon ths. She still experiences pain and discomfort
that interferes with daily activities such as sitting, standing, walking, and sexual relations.
She also underwent a colostomy and has been required to c atheterize he rself because of her
bladder problems.

The Whites filed a malpractice suit in the Circuit Court for Davidson County against
Drs. Spengler, Jones, Wyrs ch, and Chm ell and Vanderbilt U niversity Medical C enter,
seeking to recover d amage s for the delay in diagnosing and treating the causa equina
syndrome. The trial court granted Dr. Chmell a summary judgment prior to trial and directed
verdicts for Drs. Sp engler and Wyrsc h at the close of the plaintiff’s proof. Thereafter, the
jury returned a verdict for Dr. Jone s and Va nderbilt Un iversity M edical Cen ter. On this

2
Cauda equina compression syndrome is caused by “either a herniated disc, or an epidural
hematoma or abscess that is compressing the caudal sack. Emergent surgical intervention is required
to prevent permanent neurologic damage. Symptoms include incontinence, bilateral sciatica and
motor weakness of the lower extremities, saddle anesthesia (partial or complete loss of sensation in
the portion of the buttocks, perineum and thighs that would come into contact with a saddle when
riding a horse) and even paraplegia.” 5 Attorneys’ Textbook of Medicine ¶ 15.33 (Roscoe N. Gray
& Louise J. Gordy eds. 3d ed. 1999). Ms. White’s compression was the result of an epidural
hematoma.

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appeal, the Whites take issue with the trial court’s refusal to permit them to use the
deposition testimony of one of the defendan ts’ experts designated as a testifying witness, the
directed verdicts for Drs. Spengler and Wyrsch, and the trial court’s refusal to strike the
testimony of one of the defendants’ experts.3

II.
T HE E XCLUSION OF D R. J OHN P. K OSTUIK ’S D EPOSITION T ESTIMONY

We first take up the question regarding the Whites’ efforts to introduce portions of the
depositions of one of the defend ants’ design ated expe rts during the ir case-in-chie f, as well
as their desire to use these depositions in rebuttal and to cross-examine the defendants’ other
expert witnesses. The trial court held that the Whites could not use these depositions for any
purpose until the defendants actually called the expert as a witness. We disagree.

A.

After the Whites fil ed suit, the defendants enlisted the assistance of Dr. John P.
Kostuik, an orthopaedic surgeon recognized nationally as an expert on the development and
treatment of cauda equina syndrome.4 Because Dr. Kostuik lives and practices in Maryland,
the defendan ts sought an d obtained a judicial w aiver of the lo cality rule 5 to enable h im to
testify.6 The W hites first depo sed Dr. K ostuik by telep hone o n Aug ust 21, 1 996. During th is
deposition, Dr. Kostuik o pined that M s. Baun an d Dr. W yrsch sho uld have c onducted their
own neurovascular exam ination of Ms. W hite after she began complaining of pain at 4:00
a.m. on October 28, 1991. In addition, he stated that Ms. White’s condition should have been
diagnosed earlier than 8:30 a.m. and tha t obtaining the myelog ram caused an unnecessary
delay of the remedial surgery.

3
The Whites are not taking issue with the summary judgment for Dr. Chmell.
4
Dr. Kostuik has published numerous articles on the cauda equina syndrome. See, e.g., John
P. Kostuik, Cauda Equina Syndrome: The Lumbar Spine (1996); John Kostuik, Controversies in
Cauda Equina Syndrome and Lumbar Disk Herniation, 4(2) Spine 125 (Apr. 1993); John P. Kostuik
et al., Cauda Equina Syndrome and Lumbar Disk Herniation, 68A Journal of Bone and Joint
Surgery 386 (March 1986).
5
See Tenn. Code Ann. § 29-26-115(b) (1980).
6
In their motion to waive the locality rule, the defendants represented to the trial court that
Dr. Kostuik has written the “preeminent medical article on the development and treatment of cauda
equina syndrome” and that the “results of Kostuick’s [sic] study are of great significance in refuting
plaintiff’s [sic] theory in this case that the defendants acted too slowly in conducting surgery in
response to plaintiff’s presentation of cauda equina syndrome.” In a supporting affidavit, Dr.
Spengler stated that Dr. Kostuik’s study “may affect a determination as to the applicable standard
of care in this case and may help refute plaintiffs’ theory that earlier surgical intervention on Ms.
White would have spared her any injury.”

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 Despite Dr. Kostuik’s seemingly adverse testimony during the telephone deposition,
the defendants decided to obtain a videotaped deposition from Dr. Kostuik for possible use
at trial. Accordingly, the parties’ lawyers traveled to Baltimore a nd again depose d Dr.
Kostuik on Aug ust 29, 199 6. On this o ccasion, D r. Kostuik re peated that M s. Baun sh ould
have performed a nursing neurovascular examination on Ms. White at 4:00 a.m. and that Dr.
Wyrsch should have examined Ms. White when he first received Ms. Baun’s call. He also
stated that Dr. Jones’s response had not been prom pt and that th ere was n o “absolu te
indicatio n” than a mye logram neede d to be p erform ed.

The Whites liste d Dr. Ko stuik as one of their poten tial witnesses on their witness list
filed on September 3, 1996, and also disclosed that Dr. Kostuik’s tw o depositions were
among the exhibits they planned to introduce at trial. On the following day, the de fendants
filed their witness and exhibit list stating that Dr. Kostuik was among the witnesses “who
may be called to testify.”

When the trial commenced on September 9, 1996, the W hites requested the trial court
to limit the num ber of exp ert witnesse s called by th e defenda nts. The de fendants so ught to
head off the Whites’ use of Dr. Kostuik’s testimony by filing motions in limine to prevent
the Whites from using Dr. Kostuik’s depositions and from alluding to the substance of any
of their experts’ testimony during voir dire, opening statements, or during the cross-
examination of any other defense witness. During a hearing o n these m otions, the de fendants
informed the trial court that Dr. Kostuik was “particularly important in terms of causation”
and that Dr . Kostuik wo uld testify in person if called as a witness. Based on these
representations, the trial court declined to grant the Whites’ motion to limit the number of
the defendants’ witnesses. The cou rt also ruled tha t the Wh ites could not use Dr. Kostu ik’s
depositions in their case-in-chief but reserved deciding whether to permit them to use th e
depositions in rebuttal or during their cross-examination of the defendants’ expert witnesses.

The subject of Dr. Kostuik’s deposition resurfaced on Sep tember 13, 1996 before the
defendan ts began to present their evidence. The trial court inquired whether the parties had
found any additional authorities regarding the permissible use of the dep ositions . After the
parties restated their positions, the trial court decided that it was not ready to rule on the use
of Dr. Kos tuik’s depo sitions but ind icated that it was inclined to permit the Whites to use
them f or cross -exam ination a nd rebu ttal with some limitatio ns.

At the beginning of the next day of trial, the trial court ruled definitively that the
Whites could not u se Dr. Ko stuik’s depo sitions for rebu ttal if the defend ants did not call him
as a witness. However, the trial court held that the Whites could use the depositions during

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their cross-examination of the defendants’ experts as long as they established that the witness
had read Dr. Kostuik’s depositions and they avoided mentioning that Dr. Kostuik had
originally been the defendants’ witness. Later, the trial court modified its holding by stating
that “unless that expert is going to be called to testify at trial, a party h as the right to
designate . . . [him] as a consultant at any point. And once they [the defend ants] elect no t to
utilize . . . [the expert] at trial, the other party may not . . . discover the opinions. And if they
have been discovered, if there have been depositions, [the other party] . . . may not utilize
those d epositio ns at trial.”

B.
S TANDARDS FOR R EVIEWING E VIDENTIARY D ECISIONS

The admissio n or exclus ion of evid ence is within the trial co urt’s disc retion. See
Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn. 1998); Otis v. Cambridge
Mut. Fire In s. Co., 850 S.W.2d 439, 442 (Tenn. 1992). The discretionary nature of the
decision does not shield it completely from appellate review but does result in subje cting it
to less rigo rous ap pellate s crutiny . See Tennessee Dep’t of Health v. Frisbee, No. 01A01-
9511-CH-00540, 1998 WL 4718, at *2 (Tenn. Ct. App. Jan. 9, 1998) (No Tenn. R. App. P.
11 application file d); BIF v. Service Constr. Co., No. 87 -136-II , 1988 W L 724 09, at *2
(Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed) . Because, by their
very nature, discretionary decisions involve a choice among acceptable alternatives,
reviewin g courts will n ot second -guess a trial co urt’s exercise of its discretion s imply
because the trial court chose an alternative that the appellate courts would not have chosen.
See Overstreet v. Shoney’s, Inc., ___ S.W.3d _ __, ___ (Tenn. C t. App. 1999). 7

Discretionary decisio ns requ ire cons cientiou s judgm ent. See BIF v. Service Constr.
Co., 1988 WL 72409, at *2. They must take the applicable law into account and must also
be con sistent w ith the fa cts befo re the co urt. See Overstreet v. Shoney’s, Inc., ___ S.W.3d
at ___. Appellate cou rts will set aside a discretionary decision on ly when the trial court has
misconstrued or misapp lied the con trolling legal prin ciples or has acted incon sistently with
the substantial weight of the evidence. See Overstreet v. Shoney’s, Inc., ___ S.W.3d at ___.
Thus, a trial court’s discretionary decision should be reviewed to determine: (1) whether the
factual basis for the decision is supported by the evidence, (2) whether the trial cou rt
identified and applied the applicable legal principles, and (3) wheth er the trial court’s
decision is within the ra nge of acc eptable alternativ es. See BIF v. Service Constr. Co., 1988

7
See Overstreet v. Shoney’s, Inc., No. 01A01-9612-CV-00566, 1999 WL 355912, at *11
(Tenn. Ct. App. June 4, 1999) (Tenn. R. App. P. 11 application denied Oct. 4, 1999).

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WL 72409, at *3. Appellate courts should permit a discretionary decision to stand if
reasonab le judicial minds can differ conce rning its sound ness. See Overstreet v. Shoney’s,
Inc., ___ S .W.3d at ___.

Concluding that a trial court improperly excluded otherwise admissible evidence does
not end the inquiry . The erroneous exclusion of evidence will not require reversal of the
judgment if the evidence would not have affected the outcome of the trial even if it had been
admitted. See Hen sley v. Har bin, 782 S.W.2d 480, 482 (Tenn. C t. App. 198 9); Pankow v.
Mitchell, 737 S.W.2d 2 93, 298 (Tenn. C t. App. 1987).

C.
T HE D ISCOVERY OF THE O PINIONS OF AN O PPONENT’S E XPERT

The Tennessee Rules of Civil Procedure permit the discovery of relevant, non-
privileged inform ation. See Wright v. U nited Servs. Auto Ass’n , 789 S.W.2d 911, 915 (Tenn.
Ct. App. 19 90); Duncan v. Duncan, 789 S.W.2d 557, 560 (Tenn. Ct. App. 1990). They strike
a balance between two important policies. The first, and perhaps most importan t, policy is
that discovery should en able the par ties and the c ourts to seek the truth so tha t disputes w ill
be decided by facts rather than by legal maneuvering. See Harrison v. Greeneville Ready-
Mix, Inc., 220 Ten n. 293, 302 , 417 S.W .2d 48, 52 (1 967); Pettus v. Hurst, 882 S.W.2d 783,
786 (Tenn. Ct. App. 1993). The second policy is that the discovery rules should no t permit
less diligent lawyers to benefit from th e work of their m ore dilig ent opp onents . See
Vythoulkas v. Vanderbilt Univ. Hosp., 693 S.W.2d 350, 357 (Tenn. Ct. App. 19 85). Both
these policies are evident in the rules governing the discovery of experts.

The courts and commentators generally divide experts into four classifications for
discovery purposes.8 The first classification includes experts a pa rty expects to c all at trial.
At the time of this proceeding, Tenn. R. Civ. P. 2 6.02(4)(A ) permitted the party’s o pponen ts
to learn by interrogatories the names of these experts and the substance of their testimony.
Further discovery of these experts could be obtained only by agreement or on motion and
court order. 9

8
See 8 Charles A. Wright, et al., Federal Practice and Procedure § 2029, at 428-29 (2d ed.
1994). This treatise notes that Fed. R. Civ. P. 26 draws a distinction between experts who have been
retained or specifically employed in anticipation of litigation or preparation for trial but who are not
expected to testify and experts who have been consulted informally but who have not been retained.
Tenn. R. Civ. P. 26 does not draw this distinction.
9
In 1997, the Tennessee Supreme Court amended Tenn. R. Civ. P. 26.02(4)(A)(ii) to permit
depositions of experts as a matter of right.

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 The second classification includes experts, whether retained or not, who have been
consulted by a party in anticipation of litigation or in preparation for trial but who will not
be called as a witness. Except as provided in Tenn. R. Civ. P. 35 pertainin g to examining
physicians, Tenn. R . Civ. P. 26.0 2(4)(B) pro vides that neither the identity of the se experts
nor their opinion s can be d iscovered w ithout a show ing that “the party seeking discovery
cannot obtain facts or opinions on the same subject by other means.”

The third classification includes experts who were not specifically retained in
anticipation of litigation or in preparation for trial, such as regular employees of a party or
treating physicians. Because these experts do not fit within Tenn. R. Civ. P. 26.02(4)(A) or
26.02(4)(B), their identity, as w ell as their facts an d opinion s, are freely disc overable a s with
any ordina ry witn ess. See Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 258 (Tenn. Ct. App.
1990); Alessio v. Crook, 633 S.W.2d 7 70, 779-80 (Ten n. Ct. App. 1982).

The fourth classification includes experts designated by a party as a witness expected
to testify at trial but whose designation is subsequently withdrawn.10 The designation of
these experts as testifying witnesses, even if that designation is subsequently withdrawn,
takes an opposing party’s demand to depose and use the expert at trial out of the
requirem ents of Tenn. R. Civ. P. 26.02(4)(B). However, the Tenn. R. Civ. P. 26.02(4)(A)
designation does not automatically entitle the opposing party to depose or use another party’s
expert at trial. Rather, the trial court must use its discretion, guided by Tenn. R. Evid. 403 's
balancing of probative value against prejudice, to determine whether the op posing pa rty
should be permitted to call or depose or use the other party’s expert a t trial. See House v.
Combined Ins. Co. of Am., 168 F .R.D. 2 36, 245 -46 (N .D. Iow a 1996 ).

Shielding consulting experts from discovery runs contrary to the broad policy favoring
the discovery of non-priv ileged inform ation; how ever, it serves several o ther legitima te

10
Courts construing rules similar to Tenn. R. Civ. P. 26 have held that a party may place a
previously designated testifying expert beyond the reach of an opposing party by redesignating the
expert from a testifying witness to a consultant prior to the witness’s deposition. See Ross v.
Burlington Northern R.R., 136 F.R.D. 638, 638-39 (N.D. Ill. 1991); County of Los Angeles v.
Superior Court, 271 Cal. Rptr. 698, 703-04 (Ct. App. 1990); Reeves v. Boyd & Sons, Inc., 654
N.E.2d 864, 874-75 (Ind. Ct. App. 1995); General Motors Corp. v. Jackson, 636 So. 2d 310, 313-14
(Miss. 1992). Some courts, however, will not give this effect to the redesignation of a testifying
expert if they determine that the parties are undertaking to suppress evidence or seeking to shield the
expert witness from discovery for any other improper purpose that violates the clear purpose and
intent of the discovery rules. See In re Doctors’ Hosp. of Loredo, 2 S.W.3d 504, 506 (Tex. App.
1999); Castellanos v. Littlejohn, 945 S.W.2d 236, 239-40 (Tex. App. 1997). Likewise, courts have
held that the redesignation of an expert witness does not affect right of discovery for examining
physicians under Tenn. R. Civ. P. 35, see Kennedy v. Superior Court, 75 Cal. Rptr. 2d 373, 375 (Ct.
App. 1998); Pinkett v. Brittingham, 567 A.2d 858, 860 (Del. 1989), and that an expert cannot be
designated as a testifying expert for some purposes and a consulting expert for others. See Furniture
World, Inc. v. D.A.V. Thrift Stores, Inc., 168 F.R.D. 61, 63 (D.N.M. 1996).

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interests. It encourag es lawye rs to seek expert adv ice to prope rly evaluate a nd presen t their
client’s position . See Rocky Mountain Nat’l Gas Co. v. Cooper Indus., Inc., 166 F.R.D. 481,
482 (D. Colo. 1996); McKinnon v. Smock, 445 S.E.2d 526, 52 8 (Ga. 1994); Tom L . Scott,
Inc. v. McIlhaney, 798 S.W .2d 556, 55 9 (Tex. 19 90). With out this protection, p arties wou ld
be reluctant to co nsult exper ts because th ey wou ld be forced to live or die based on the
unknown opinio n of the expert c onsulte d. See General Motor Corp. v. Gayle, 924 S.W.2d
222, 230 (Tex. Ap p. 1996). It also prevents the un fairness of permitting a pa rty to benefit
from the oppos ing par ty’s effo rts and e xpens e. See Durflinger v. Artiles, 727 F.2d 888, 891
(10th Cir. 1984). In addition, shielding consulting witnesses from discovery helps assure the
availability of experts who will assist with litigated disputes and minimizes the prejudice
caused by revealing the prior retentio n of an e xpert b y the op posing party. See Rubel v. Eli
Lilly & Co., 160 F.R.D. 458 , 460 (S.D.N.Y . 1995).

Most of the reasons in favor of shielding a consulting expert from discovery become
attenuated once a party identifies or designates an expert as a witness expected to testify at
trial. Identifying an expert as a testifying w itness in accordance with Tenn. R. Civ. P.
26.02(4)(A) has the practical effect of waiving the protection of Tenn. R. Civ. P. 26.02(4)(B),
see Brown v. Ham id, 856 S.W.2d 51, 54 (M o. 1993), an d of mak ing the exp ert available to
be depos ed. See Brown v. Ringstad, 142 F.R.D. 461, 465 (S.D. Iow a 1992); In re Shell O il
Refinery, 132 F.R.D. 437, 440 (E.D. La. 1990). Once an expert has been deposed, the
limitation on the discovery of consulting ex perts ha s little or no applic ation, see Agron v.
Trustees of Columbia Univ., 176 F.R.D. 445, 449 (S.D.N.Y. 1997), and the expert is
recognized as presenting part of the common body of discoverab le and gen erally adm issible
information and tes timon y availa ble to all p arties. See House v. Combined Ins. Co. of Am.,
168 F.R.D. at 245.

While Dr. Kostuik may once hav e been a c onsulting ex pert, the defend ants eventu ally
designated him as a testifying expert pursuant to Tenn. R. Civ. P. 26.02(4)(A ). Not only did
they designate him as a testifying expert, they voluntarily made him available for two
depositions – one of the depositions to preserve his testimony because of his legal
unavailability. In addition, the lawyers representing the defendants participated in these
depositions without objection. Instead of attempting to redesignate Dr. Kostuik as a
consulting expert following his depositions, the defendants repeatedly reinforced D r.
Kostuik’s status as a testify ing expert b y including him on th eir list of potential trial
witnes ses and alluding to his ex pected appea rance in court to testify in p erson.

Based on these facts, we find that Tenn. R. Civ. P. 26.02(4)(B) is inapplicable to the
defendants’ motion in limine for two reasons. First, Tenn. R. Civ. P. 26.02(4)(B) governs

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limitations on discovery, not on the admissibility of properly discovered evidence. Second,
this record contains no evidence that the Whites abused the discovery process or that they
learned of Dr. Kostuik’s identity or opinions through any means inconsistent with either the
letter or the spirit of the discovery rules. Because Tenn . R. Civ. P. 26 .02(4)(B) is
inapplicable, all that is left for the c ourt to do is to determin e the adm issibility of Dr.
Kostuik’s depositions under the applicable provisions of the Tennessee Rules of Civil
Procedure and the Tenn essee R ules of E videnc e. See Argon v. Trustees of Columbia Univ.,
176 F.R.D. at 449-50; Rubel v. Eli Lilly & Co., 160 F.R.D. at 460-61 (both cases finding that
in the absence of discovery abuse, the admissibility of expert testimony is governed by Fed.
R. Evi d. 403) .

D.
T HE A DMISSIBILITY OF D R. K OSTUIK ’S T ESTIMONY AT T RIAL

The Whites’ re quest to read portions of Dr. Kostuik’s depositions into evidence and
to use the depositions to cross-examine the defendants’ experts triggers the consideration of
three issues. First, we must determine whether, under the facts of this case, Tenn. R. Civ. P.
32 permitted th e use of de position testim ony at trial. Second, we must decide whether the
portions of Dr. Kostuik’s testimony that the Whites’ desired to use were relevant. Third, we
must determine whether the probative value of the portions of the depositions the Whites
proposed to use outweighs the possible prejudice to the defendants. We decide each of these
questions in the W hites’ favor.

1.
U SE OF D R. K OSTUIK ’S D EPOSITIONS

We turn first to the question of whether the Whites could have used Dr. Kostuik’s
deposition at trial. Tenn. R. Civ. P. 32.01(3) provides that the deposition of a witness may
be used at trial for any purpose if the court find s that the witn ess is either at a greater distance
than one hundred miles from the place of the trial or that the witness is out of the state. Dr.
Kostuik meets both criteria because he resides and works in Baltimore, Maryland.
Accord ingly, because there is no eviden ce that the Whites pro cured his absence, D r.
Kostuik’s status as a witness satisfies the distance and geographic requirements in Tenn. R.
Civ. P. 32.01(3).

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 Tenn. R. Civ. P. 32.01(3) also provides that depositio ns of expe rts taken pu rsuant to
the provisio ns of T enn. R. Civ . P. 26.02(4) may only be used at trial to impeach the
testimony of the d epone nt. The comm ents to T enn. R . Civ. P. 3 2.01 make clear that this
restriction applies only to discovery depositions o f an adversary’s expert. See Tenn. R. Civ.
P. 32.01 advisory commission cmt. to 1986 amendment. Dr. Kostuik’s videotaped
deposition of August 29, 1996 was not a discovery deposition taken by the Whites but rather
was a deposition taken at the defendants’ insistence to preserve Dr. Kostuik’s testimony.
Accordingly, this deposition meets the requirements of Tenn. R. Civ. P. 32.01(3). Dr.
Kostuik’s telephone deposition of August 21, 1996 was a discovery deposition taken by the
Whites. Rather tha n being co mpletely in admissib le, howev er, it can be used to im peach Dr.
Kostuik’s testimony in his August 29, 1996 deposition.

Having determined that Dr. Kostuik’s depositions satisfy the conditions for use at trial
in Tenn. R . Civ. P. 32.0 1, we m ust still determin e whethe r the depos ition testimon y would
be admissible under the applicable ru les of eviden ce if Dr. K ostuik we re to have given the
same testimony live in the courtroom.11 The answer to this question requires us to consider
two ru les of ev idence – Ten n. R. Ev id. 401 a nd 403 .

2.
T HE R ELEVANCE OF D R. K OSTUIK ’S T ESTIMONY

This is a medical malpractice action. To prevail, the Whites had to present expert
evidence (1) establishing the applicable standard of care, (2) demonstrating that the
defendants’ conduct fell below that standard of care, and (3) that the defendants’ conduct was
the proxima te cause of injuries th at wou ld not o therwi se have occurr ed. See Tenn. Code
Ann. § 29-26-1 15(a) (198 0); Moon v. Saint Thomas Hosp., 983 S.W.2d 225, 229 (Tenn.
1998); Hurst v. D ougherty , 800 S.W.2d 183, 185 (Tenn . Ct. App. 1990). 12 Accordingly, it
was incumbent on the Whites to present expert testimony regarding the standard of care of
the nurse and the four ph ysicians treatin g Ms. W hite on Oc tober 27 and 28, 1991 and
whether the conduct o f these health care provid ers at that time fell below th e applicable

11
The deposition is not subject to a hearsay objection. See Tenn. R. Evid. 804(b)(1).
12
Negligence and causation are normally required to be established by expert medical
testimony. See Kennedy v. Holder, 1 S.W.3d 670, 672 (Tenn. Ct. App. 1999); Stokes v. Leung, 651
S.W.2d 704, 706 (Tenn. Ct. App. 1982). However, the need for expert medical proof can be
dispensed with when the acts of negligence are so obvious that they come within the common
knowledge of laypersons. See Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 160 (Tenn. Ct. App.
1984). The common knowledge exception to Tenn. Code Ann. § 29-26-115 is inapplicable in this
case.

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standard of care and caused Ms. White to sustain injuries that she would not otherwise have
suffered.

In light of the Whites’ burden of proof, there is little need for a prolonged discussion
concerning whether Dr. Kostuik’s testimony is relevant to their case. Tenn. R. Evid. 401
defines relevant evidence as “evidence having an y tendenc y to make the existence of any fact
that is of consequence to the determin ation of the a ction mo re probab le or less probable than
it would be withou t the evidence.” Dr. Kostuik’s testimony relates to the issues of the
applicable standard of care for the hea lth care providers tre ating Ms . White, as w ell as to the
issues of breach of this standard of care and causation. Because each of these issues was
hotly contested, there is no question tha t Dr. Kostu ik’s testimon y was rele vant to the issues
at trial.

3.
B ALANCING U NDER T ENN. R. E VID. 403

We now turn to the balancing of the probative value of Dr. Kostuik’s testimony
against the countervailing factors identified in Tenn. R. Evid. 403. This balancing process
has several general ground rules. It begins by recognizing that the rules of evidence favor
the admissibility of relevant evidence, see 10 James W. Moore et al., Moore’s Federal
Practice § 403.02 [3] (2d ed. 1 995), and th at relevant ev idence is admissible unless otherwise
provided. See Tenn. R . Evid. 402 ; Phillips v. F.W. Woolworth Co., 867 S.W.2d 316, 318
(Tenn. Ct. App. 1992). Thus, excluding relevant evidence under Tenn. R. Evid. 403 is an
extraordinary remedy that should be used sp aringly , see United States v. Rodriguez, 192 F.3d
946, 949 (10th C ir. 1999); Caparotta v. Entergy Corp., 168 F.3d 754, 75 8 (5th Cir. 1999);
Westcott v. Crinklaw, 68 F.3d 1 073, 107 7-78 (8th C ir. 1995); Trevino v. Texas Dep’t of
Protective & Regulatory Servs., 893 S.W.2d 243, 248 (Tex. Ap p. 1995); Towner v. State, 685
P.2d 45, 49 (Wyo. 1984), and persons seeking to exclude otherwise admissible and relevant
evidence have a significa nt burd en of pe rsuasio n. See Neil P. C ohen e t al., Tennessee Law
of Evidence § 403.3 , at 152 ( 3d ed. 1 995) (“ Tenn essee L aw of E videnc e”).

Each Tenn . R. Evi d. 403 q uestion must b e decid ed on its own f acts, see Tennessee
Law of Evidence § 403.7, at 156, and the trial court must be careful not to usurp the function
of the jury in the pr ocess. See 22 Ch arles A . Wrig ht & K enneth W. G raham , Jr., Federal
Practice and Procedure § 5220, at 306 (1978) (“Wright & Graham”). The balancing process
under Tenn. R. Evid. 403 is a two-step process. The trial court must first balance the
probative value of the evidence sought to be excluded against the countervailing factors.
After the co urt has eng aged in the balancing analysis, it m ay then ex ercise its discretio n to

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determine whether the evidence should be excluded if the prejudice substantially outweighs
the pro bative v alue of th e evide nce. See Wright & Graham § 5214, at 264.

During the first phase of the analysis, the court must determine whether the
countervailing factors in Tenn. R. Evid. 403 “substantially outweigh” the probative value of
the evidence. The trial court has no discretion to exclude evidence under Tenn. R. Evid. 403
unless it con cludes that th e probative worth of th e evidenc e is substantially outweighed by
one or mo re of the counte rvailing factors. See Wrig ht & G raham § 5214 , at 263. T hus, a
trial court should not exclude evidence under Tenn. R. Evid. 403 when the balance between
the probative worth of the evidence and the c ountervailing factors is fairly debatable . See
Wright & Graham § 5221, at 309.

The trial court’s decision to exclude D r. Kostuik’s deposition must be viewed in light
of the circumstances at the trial. When the trial began, the W hites had ind icated that the ir
case would rest on the expert testimony of a Knoxville neurosurgeon, a nurse from Jackson,
and portions of Dr. Kostuik’s depositions.13 At the same time, the defendant physicians and
the hospital had signaled their intention to call three out-of-state physicians, including Dr.
Kostuik, and three n urses to testify a bout the stan dard of car e and cau sation issues . In
addition to these experts, each of the defendants intended to give their expert opinion that
they were not negligent and that their actions or inactions did not cause Ms. White to suffer
an injury she would not otherwise have suffered.

The probative value of Dr. Kostuik’s opinions regarding the actions of Ms. Baun, D r.
Wyrsch, Dr. Jones, and D r. Spengler is significant because it is consistent w ith the expert
opinion of the only neurosurgeon testifying for the Whites. Dr. Kostuik questioned Ms.
Baun’s a nd Dr. W yrsch’s failure to exam ine Ms. W hite when she reported the new p ain in
her legs. He also observed that Dr. Jones’s two-hour delay in examining Ms. White was
“probably” not prompt and that Dr. Spengler could have proceeded to perform the emergency
surgery without the myelogram.

The value of this evidence mus t now be w eighed against the six cou ntervailing factors
in Tenn. R. Evid. 403. Three of these, undue delay, waste of time, and the needless
presentation of cumulative evidence, can be quickly discou nted. Perm itting the W hites to
use Dr. Kostuik’s depositions would not have delayed the trial or wasted time. The Whites
already had the de positions in h and and r eading the relevant po rtions into the record w ould

13
The Whites also indicated that they intended to rely on either the testimony of or portions
of the depositions of the defendant physicians. It is obvious that the Whites did not intend to use
these depositions with regard to the issues of standard of care or causation.

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not have taken an appreciable amount of time. Likewise, Dr. Kostuik’s deposition testimony
would not have been cumulative. The trial court had earlier concluded, at the defendants’
insistence, that Dr. Kostuik’s testimony was not cumulative when it declined to grant the
Whites’ motion at the beginning of the trial to require the defendants to limit the number of
their expert witnesses. Just as Dr. Kostuik’s testimony would not have been cumulative had
it been used by the defendants, it would not have been cumulative if used by the Whites.

Two of the remaining Te nn. R. Evid. 403 co untervailing factors are confusion of the
issues and misleading the jury. Dr. Kostuik’s testimony does not run afoul of these factors
either. His testimony concerning the applicable s tandard of c are and ca usation is focused and
directly on point. H is answers are responsive to the questions and are couched in terms that
can be easily understood by the lay persons on the jury. Considering both his testimony as
a whole, as well as the portions of the testimony the Wh ites sought to use at trial, we find that
Dr. Kos tuik’s testimo ny wou ld have m aterially assisted the trier of fact.

The final countervailing factor in Tenn. R. Evid. 403 is the danger of unfair prejudice.
At the outset, we find that the substance of m uch of Dr. Kostuik’s deposition testimony does
not create a danger of unfair prejudice to the defendants. This is certainly th e case with
regard to his testimony concerning the standard of care and causation issues. However, the
Whites argue in the ir brief that in ad dition to presenting Dr. Ko stuik’s opinions regarding the
matters at issue in the c ase, they sho uld have b een perm itted to disclose to the jury that Dr.
Kostuik had originally been retained by the defendants. That information raises substantial
fairness concerns.

Informing the jury that an ex pert witnes s was orig inally retained by the opp osing party
creates a danger that the jury will draw two unwarra nted conc lusions. First, it cou ld create
the unwarranted impression that the opposing party is suppressing evidence that it had an
obligation to prese nt. See Granger v. Wisner, 656 P.2d 1238, 12 42-43 (A riz. 1982); 8
Charles A. W right et a l., Federal Practice and Procedure § 2032, at 447 (2d ed. 1994)
(characterizing this information as “explosive”). Second, it could induce the jury to believe
that the exp ert is som ehow more credible than the other ex perts. Accordingly, we have held
that the info rmatio n conc erning who o riginally hired an expert w itness is ir relevan t. See
State v. Wilkinson-Snowden-McGehee, Inc., 571 S.W.2d 842, 843 (Tenn. C t. App. 1978).
A majority of jurisdictions considering the question have held that it is improper to elicit on
direct examin ation of an e xpert witne ss that the exp ert was orig inally retained by the
opposing party. See Peter son v. W illie, 81 F.3d 1033, 1037-38 (11th Cir. 1996); House v.
Combined Ins. Co. of Am., 168 F.R.D. at 248; Rubel v. Eli Lilly & Co., 160 F.R.D. at 460;

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Granger v. Wisner, 656 P.2d at 1242; General Motors Corp. v. Jackson, 636 So. 2d at 314-
15; Seeber v. H owlette, 586 N.W .2d 445, 451 (N eb. 1998). 14

We have determin ed that the majority rule that disfavors informing the jury that an
expert witness was originally retained by an opposing party is most consistent with the
balancing requirements of Tenn. R. Evid. 403. Accordingly, the trial court should have
permitted the Whites to use Dr. Kostuik’s deposition at trial but should have required them
to edit the portions of the depos ition they plan ned to use to remove any reference to the fact
that Dr. Kos tuik had be en initially con sulted by the defendants. R emova l of reference s to
this information eliminates any real risk of danger of unfair prejudice to the defendants by
permitting th e Whites to use Dr. K ostuik’s dep ositions at trial. 15

Under the facts of this c ase, we fin d that the possible harm to the defendants from
permitting the Whites to use Dr. Kostuik’s deposition at trial does not substantially outweigh
the probative value of the evidence. The defendants designated Dr. Kostuik as a testifying
expert witness in accordance with Tenn. R. C iv. P. 26.02(4 )(A) and n ever withd rew this
designation. The manner in which the Whites obtained Dr. Kostuik’s deposition complied
with the letter and the spirit of the discovery rules. Accordingly, the trial court erred by
refusing to a llow them to rely on D r. Kostuik’s d eposition at trial.

Finally, we must de termine whethe r the trial court’s error in excluding Dr. K ostuik’s
deposition has harm less. Under the facts of this case, the trial court’s decision worked an
injustice on the Whites by pre venting them from introducing relevant eviden ce to support
their medical malpractice claim. Given the closeness of the case and the weight of the expert
proof against their claim, we conclude that the trial court’s e rror, more p robably tha n not,

14
But see Cogdell v. Brown, 531 A.2d 1379, 1382 (N.J. Super. Ct. Law. Div. 1987); Fenlon
v. Thayer, 506 A.2d 319, 323 (N.H. 1986) (holding that the identity of who originally retained an
expert is material to the weight and credibility of the expert’s testimony).
15
The parties made Dr. Kostuik a central figure in this case whether he testified or not. His
articles were mentioned in the presence of the jury on at least six occasions while Drs. Spengler and
Jones and their physician expert were on the stand. During cross-examination, one of the Whites’
lawyers asked Dr. Chmell if he was aware that the defendants had retained Dr. Kostuik to render an
opinion in this case. While the trial court found that the question was improper, it concluded that
the lawyer’s reference to Dr. Kostuik’s original employment had not been intentional. Simply
mentioning which party originally retained a particular expert witness does not necessarily require
reversal. See Peterson v. Willie, 81 F.3d at 1038. Other remedial action, such as curative or limiting
instructions, may also be warranted in appropriate circumstances. In this case, the defendants did
not request the trial court to give a curative instruction after the trial court admonished the Whites’
lawyer about the question. Accordingly, we perceive no basis for holding that the Whites’ lawyer’s
inadvertent statement should prevent them from obtaining relief from the trial court’s erroneous
decision to prevent them from using Dr. Kostuik’s deposition at trial.

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affected the outcome of the case. Therefore, we decline to find that the trial court’s wrongful
exclusion of Dr. K ostuik’s testimony w as harmless error. 16

III.
D R. T HOMAS W HITESIDES’S T ESTIMONY

The Whites a lso argue th at the trial court should have stricken Dr. Thomas
Whitesides’s testimony because he did not demonstrate sufficient knowledge and
understanding of the key facts of the case. Decisions regarding the admission or exclusion
of expert te stimon y are dis cretiona ry. See McDaniel v. CSX Transp., Inc., 955 S.W.2d 257,
263 (Tenn. 1997); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 406-
07 (Tenn. 19 91); Smith County v. Eatherly , 820 S.W.2d 3 66, 368 (Tenn. C t. App. 1991).
Accordingly, we will not overturn a trial court’s decision either to adm it or to exclude expert
testimony unless it was arbitrary or an abuse of discretion . See Buc hanan v . Harris, 902
S.W.2d 941, 945 (Tenn. C t. App. 199 5); Thomas v. Harper, 53 Tenn. App. 549, 561, 385
S.W.2d 130 , 136 (1964).

An expert witness qualified by “knowledge, skill, experience, training, or education”
may testify to scientific, tech nical, or other s pecialized k nowled ge if it “will sub stantially
assist the trier of fact to understand the evidence or to determine a fact in issue.” See Tenn.
R. Evid. 702. A trial court may disallow expert testimony if the underlyin g facts or da ta
show a lack o f trustw orthine ss. See Tenn. R. Evid. 703. Though there is little Tennessee
case law interpreting Tenn. R. Evid. 703, one pan el of this court has suggested tha t an expert
opinion with a weak fac tual foundation ma y be excluded if there is a danger that the jury
might give the opinion more weigh t than it d eserve s. See Knight v. Hospital Corp. Of Am.,
No. 01A01-9509-CV-00408, 1997 WL 5161, at *6 (Tenn. Ct. App. Jan. 8, 1997) (No Tenn.
R. App. P. 11 application filed). Another panel has stated that “the obvious meaning of the
rule is that an opinion may be excluded if it is bas ed upon facts which are not ade quately
shown to be true.” Seffernick v. Saint Thomas Hospital, No. 01A01-9606-CV-00282, 1996
WL 724914, at *3 (Tenn. Ct. App. Dec. 18, 1996) , rev’d on other grounds, 969 S.W.2d 391
(Tenn. 1998).

16
We must address a rather disingenuous argument in the defendants’ brief to uphold the
exclusion of Dr. Kostuik’s testimony. The defendants argue that the trial court properly excluded
the testimony because the Whites had not obtained a waiver of the locality rule. The Whites had no
obligation to obtain this waiver because the defendants had already obtained the waiver from the trial
court over the Whites’ objections. The trial court based its decision to exclude Dr. Kostuik’s
testimony on a misapplication of Tenn. R. Civ. P. 26.02(4)(B) and Tenn. R. Evid. 403, not by
applying the locality rule. By successfully seeking a waiver of the locality rule for their own benefit,
the defendants effectively hoisted themselves on their own petard.

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 We are convinced that Dr. Whitesides’s testimony, taken as a whole, meets the
threshold requirements of adm issibility. Though Dr. Whitesides stated on several occasions
that he did not reme mber sp ecific facts, his testimony indicates he was m erely attem pting to
be careful in rendering his opinion . Dr. Whitesid es’s statem ents and questions show that he
wanted to ensure th at his testimo ny was n ot taken ou t of context. In no way does the rec ord
reflect a lack of knowle dge and u nderstand ing of the fac ts such that h is testimony should be
stricken. An inability to remember specific facts goes to the weight of the evidence and not
to its admissibility.

IV.
T HE D IRECTED V ERDICTS FOR D RS. S PENGLER AND W YRSCH

In their fina l issue, the Whites assert that the trial court erred by granting directed
verdicts for Drs. Spengler and Wyrsch at the close of the plaintiffs’ proof. The outcome of
this issue is inextricably linked to the trial court’s decision to ex clude Dr. Kostuik’s
deposition. We have determined that Drs. Spengler and Wyrsch would not have been
entitled to a directed verdict had Dr. Kostuik’s deposition been considered.

A motion for directed verdict requires the trial court to determine wh ether, as a matter
of law, the evid ence is s ufficien t to create an issue for the ju ry to de cide. See Underwood v.
Waterslides of Mid-America, Inc., 823 S.W.2d 171, 176 (Tenn. C t. App. 1991). When faced
with a motio n for dire cted ve rdict, a trial court must take the strongest legitimate view of the
evidence and allow all reasonable inferences in favor of the non-m oving par ty, while
discarding all evidence to the contrar y. See Conatser v. Clarksville Coca-Cola Bottling Co.,
920 S.W.2d 646, 647 (Tenn. 19 95); Dobso n v. Shortt, 929 S.W.2d 347, 349-50 (Tenn. Ct.
App. 1996) . Directed verdicts are proper only when reasonable minds, after considering the
evidence, could reach only one conclusion. See Eato n v. McC lain, 891 S.W.2d 587, 590
(Tenn. 1994); Williams v. Brown, 860 S .W.2d 854, 85 7 (Ten n. 1993 ). Thus, if there is any
dispute as to material determinative evidence or any doubt as to conclusions to be drawn
from the evidence, the motion must be denied. See Hurley v. Tennessee Farmers Mut. Ins.
Co., 922 S.W.2d 887, 891 (Tenn. C t. App. 199 5); Souter v. Cracker Barrel Old Country
Store, Inc., 895 S .W.2d 681, 68 3 (Ten n. Ct. A pp. 199 4).

Reviewing courts do not weigh the evid ence, see Con atser v. Clar ksville Coca-C ola
Bottling Co., 920 S.W .2d at 647; Benton v. Snyder, 825 S.W.2d 409, 413 (Tenn. 1992), or
evaluate the credibility of the witnesses. See Benson v. Tennessee Valley Elec. Coop., 868
S.W.2d 630, 63 8-39 (T enn. Ct. App. 1993). Instead, they review the evidence most
favorably to the party a gainst wh om the m otion is ma de, give that p arty the ben efit of all

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reasonable inferences from the evidence, and also disregard all evidence contrary to that
party’s position . See Eato n v. McC lain, 891 S.W .2d at 590; Gann v. International Harvester
Co., 712 S.W.2d 1 00, 105 (Tenn. 19 86).

The combin ed testimo ny of Drs . Kostuik a nd Natels on is sufficient to enable the
Whites’ claims against Drs. Spengler and W yrsch to survive a directed verdict m otion. Dr.
Kostuik is a recognized authority on cauda equina syndrome and is also one of the few
experts who has conducted research regarding the effect of the timing of decompressive
surgery on a patient’s outcome. He testified that Dr. Wyrsch violated the applicable standard
of care when he did not examine M s. White after Ms. Baun described h er new sy mptom s to
him. He also testified that ordering a co nfirmatory myelog ram wa s not neces sarily indicated
and that Dr. Spengler’s decision to do so delayed Ms. White’s corrective surgery.

Dr. Natelson testified that Dr. Wyrsch violated the applicable standard of care by
failing to inqu ire abou t Ms. White’s neurovascular status wh en Ms. Bau n informed D r.
Wyrsch of her c ompl aints ab out pain . He also testified that Dr. Wyrsch’s oversight caused
Ms. White to suffer damages that she would not otherwise have suffered. In addition, Dr.
Natelson testified that Dr. Spengler fell below the applicable standard of care by contributing
to the delay in Ms. White’s treatment and caused her to suffer dam ages beca use of his
actions.

Construing the testimony of Drs. Kostuik and Natelson in a light most fa vorable to
the Whites, we cannot say that the only conclusion that a reasonable person can draw is that
Drs. Spengler and Wyrsch were not negligent and that the ir conduct d id not cause Ms. W hite
to suffer damages that she would not otherwise have suffered. Accordingly, we reverse the
directed verdicts in favor of Drs. Spengler and Wyrsch.

V.
T HE A DEQUACY OF THE P ROOF OF C AUSATION

The defendant physicians and Vanderbilt University Medical Center argue that the
Whites should no t be entitled to a new trial be cause they failed to prov e that any o f their acts
or omissions were a cause-in-fact of Ms. W hite’s injuries. Specifically, they assert that the
Whites failed to prove with expert testimony exactly which injuries we re caused b y their
delay in performing the decompre ssive surgery rather than by the causa equina itself.

A plaintiff in a medical malpractice action must prove that he or she suffered injuries
that would not otherwise have occurred as a result of the defendant’s negligent act or

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omission. See Tenn. Code Ann. § 29-26-115(a)(3) (1980). A plaintiff must show that the
negligent act or omission “more likely than not was the cause in fact of the harm.” Kilpatrick
v. Bryant, 868 S.W.2d 594, 602 (Tenn . 1993) . Causation in fact is a matter of probability and
not possibility, and must be shown to a reasonable degree of medic al certain ty. See Volz v.
Ledes, 895 S.W .2d 677, 67 9 (Tenn. 1 995); White v. Methodist Hosp. S., 844 S.W.2d 642,
648-49 (Tenn. Ct. App. 1992). Once cause-in-fact is proven, the focus sh ifts to proxim ate
cause -- whether the law, as a matter of policy, will hold the defendant responsible for the
neglige nt cond uct and its conse quenc es. See Kilpatrick v. Bryant, 868 S.W.2d at 598.

Dr. Natelson, the Whites’ medical expert, testified that it is more likely than not that
the defendants’ negligence caused Ms. White to suffer injuries that she would not have
otherwise suffered. He also stated that the defendants could have diagnosed and evacuated
the hematoma before Ms. White developed cauda equin a syndrome a nd that “[i]t’s more
likely than not that the sooner that the blood clot was re moved, the better off the patient
would end up.” This testimony is sufficient evidence of causatio n to overcome a directed
verdict. Dr. Natelson testified to a reason able degree of medical certainty that M s. White
suffered damages because of the defendants’ negligence. The law does not require the level
of specificity and certainty that the defendants advocate, but instead dictates that the plaintiff
produce evidence showing that it is more lik ely than no t that the defendant’s negligence
caused his or he r injuries .

VI.

We reverse the directed verdicts for Drs. Spengler and Wyrsch and the judgment for
Dr. Jones and Vanderbilt University Medical Center and remand the case to the trial court
for a new trial con sistent w ith this op inion. W e also tax the c osts of this appeal, jointly and
severally to Vand erbilt University Me dical Center, Dan M. Spengler, Clement K. Jones, and
Robe rt Brad ley W yrsch, fo r which execu tion, if ne cessary , may is sue.

______________________________
WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_______________________________
BEN H. CANTRELL, JUDGE

_______________________________

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WALTER W. BUSSART, JUDGE

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