IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
April 30, 1998
SHANNON RUSSELL, Cecil Crowson, Jr.
) C/A NO. 03A01-9708-CV-00329
Appellate C ourt Clerk
)
Plaintiff, ) CAM PBELL CIRCU IT
)
v. ) HON. JAMES B. SCOTT,
) JUDGE
DR. JAMES CRUTCHFIELD, )
) AFFIRMED AND
Defend ant. ) REMANDED
WILLIAM D. VINES, III, and VONDA M . LAUGHLIN, BUTLER, VINES &
BABB, P.L.L.C., Knoxville, for Plaintiff.
DOUGLAS L. DUTTON and AMY V. HOLLARD, HODGES, DOUGHTY &
CAR SON , Knoxv ille, for Defe ndant.
O P I N IO N
Franks, J.
In this medical malpractice action the defendant app eals from a jury
verdict i n favo r of the p laintiff.
The action arises from treatment ren dered by def endant to p laintiff in
January and February of 1995. D efendan t removed the 23 year-old plaintiff’s ga ll
bladder on January 25, and plaintiff, upon complaining of complications, was
readmitted to the hospital and was subsequently transferred to another hospital for
further treatment. It was then determined that plaintiff was suffering from a leakage
of bile into the peritoneal cavity and that the right hepatic duct was leaking at two
points and that clips had been placed on the right hepatic duct during surgery instead
of on the cystic duct, where they should have been placed. Another physician
performed surgical repair on March 6, 1995, and this action was filed on December
13, 199 5.
Following trial, the jury returned a verdict for plaintiff in the amount of
$1,000 ,000.00 . The T rial Cou rt subse quently re duced the aw ard to $ 900,00 0.00.
Defend ant conten ds the trial cou rt erred in den ying his Mo tion to
Continue the trial scheduled for May 28, 1997. On May 23, 1997, defendant filed his
motion stating that Dr. Edward Mason, one of defendant’s expert witnesses would be
unavailable for trial due to his em ergency surgery. The motion w as denied. How ever,
Dr. Mason’s testimony was introduced through a discovery deposition which had been
conducted by counsel for the plaintiff.
The granting or failure to grant a continuance “rests in the sound
discretion of the trial court” and will not be reversed absent “a clear showing of
abuse.” State, Dept. of Human Services v. Hauck, 872 S.W.2d 916, 919 (Tenn.App.
1993). While Dr. Mason was not available to testify, the jury heard his opinions
through the discovery dep osition. Additionally, Dr. Mason was not the appe llant’s
only expert witness. Appellant presented the testimony of four other witnesses, who
testified about various aspects of the plaintiff’s treatment. One of these witnesses,
Dr. Michael Kropilak, testified at great length concerning any alleged deviation in the
standard of care. Thus, the trial court properly noted that Dr. Mason’s testimony was
largely cumulative. Moreover, it is not an abuse of discretion to deny a continuance
when an abse nt witn ess’ testim ony wo uld be m erely cum ulative. Life & Cas. Ins. Co.
of Tenn. v. Ayers, 281 S.W.2d 75 (Tenn.App. 1954). The Trial Court did not err on
overruling the Motion to Continue.
Next, defendant contends that the Trial Court erred in allowing plaintiff
to testify concern ing her me dical bills and in admitting $ 64,839.60 of bills into
evidence. Defendant argues that the bills were hearsay and should have been
excluded. Since an evidentiary ruling by the trial court is a question of law, the
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standard of review is de novo with no presum ption o f correc tness. City of Tullahoma
v. Bedford County , 938 S.W.2d 40 8 (Tenn. 1997).
We have been presented with no Tennessee cases directly addressing
this issue. In Long v. Mattin gly, 797 S.W.2d 8 89, 892 (Tenn.A pp. 1990), this Court
noted that the plaintiff’s proof “concluded with her husband introducing $6,173.19
worth of med ical bills into evidence.” The cou rt later noted that the bills “were
properly introduced into evidence at trial.” Id. at 893. Long, however, was m ore
concerned with whether a non-treating physician could testify concerning the
reasonableness and necessity of another physician’s charges. The opinion does not
indicate that the d efend ant ma de any he arsay obje ction to t he bills th emselv es.
In Davis v. Travelers Ins. Co., 496 S.W.2d 458 (Tenn. 1973), the
appellant argued that the medical expenses should have been excluded as hearsay
without supporting testimony. According to the court “there was supporting evidence
in the depo sitions entered in the record and a stud y of the exhib its themselve s is
suffici ent to de termine that the c hance llor wa s not in e rror in ad mitting th e bills . . .”
Id. at 460. Davis, however, was a workers’ compensation case and contains no further
discuss ion of th e hears ay issue.
The majority of courts in other states have held that it is error to exclude
the plain tiff’s tes timony co ncernin g med ical bills in curred . Walters v. Littleton, 290
S.E.2d 839 (Va. 1982). The Virginia Supreme Court in Walters said:
The bills were not hearsay. Their probative value in showing [the
plaintiff’s] damages did n ot depend upo n an out-of-court
assertion, but upon [the plaintiff’s] assertion, based on an
adequate foundation, that he received them for the services
provided him. Thus, the bills were not merely reports of what the
service provid ers cha rged, th ey were t he cha rges the mselve s.
[The pla intiff] should have bee n permitted to introduce the bills
he received as a consequence of his injuries and testify to them
from firsthand knowledge and subject to cross-examination.
Id. at 450- 451 (ci tations o mitted).
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Accord. Ledet v . Nation al Car Renta l Sys., Inc ., 694 So.2d 12 36 (La.Ct.App . 1997);
Andre s v. Libe rty Mu t. Ins. Co ., 568 So.2 d 651 (L a.Ct.App . 1990); Guillory v. Shelter
Mut. In s. Co., 542 So.2 d 850 (L a.Ct.App . 1989); A.J. v. Florida, 677 So.2d 935, 937
(Fla.D ist.Ct.A pp. 199 6). C.F. Padilla v. Hay, 900 P.2d 969 (N.M.Ct.App. 1995)
(holding that a treating physician’s med ical bills were hearsay. Howe ver the court
noted that the plaintiff neither testified nor made any offer of proof concerning the
amou nt of the bills. Id. at 972.) Defendant relies on State v. Blevins, 736 S.W.2d 120
(Tenn.Crim.App. 1987), and Kanipes v. North Am. Phillips Elec. Corp., 825 S.W.2d
426 (Ten n.App. 19 91), as autho rity for the propo sition that the m edical bills
constituted in adm issib le he arsay.
Blevins and Kanipes are distinguis hable from the instant cas e. First,
plaintiff was not introducing any statements from her bills for their truths. Rather, she
was stating the charges incurred. Any evidence concerning the actual treatments she
receive d was largely ad dressed by either h erself, o r the ph ysicians w ho testif ied.
Plaintiff testified as to the amoun ts for which she w as liable, and other expert
witnes ses con firmed the nec essity and reason ablene ss of the charge s. See Long v.
Mattingly , 797 S .W.2d 889, 89 3 (Ten n.App . 1990) . Tenn essee R ule of E videnc e 703.
Defendant also raises objections to the bills’ authenticity. Under
Tennessee Rule of Evidence 901 “[t]he requirement of authentication or identification
as a condition precede nt to admissibility is satisfied by evidence sufficient to the court
to support a finding by the trier of fact that the matter in question is what its proponent
claims.” In this case, plaintiff and her treating physicians testified about the type of
treatment she received. Thus, both the source of the bills and the procedures they
covere d were verified . See Walter s.
Defendant also argues that the trial court erred in allowing the
introduction of evidence of medical bills above and beyond the amount payable by
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TennCare. Defendant relies upon T.C.A. § 29-26-119 which states that losses may be
recovered:
only to the extent that such costs are not paid or payable and such
losses are not replaced, or indemnified, in whole or in part, by
insurance provided by an employer either governmental or
private, by social security benefits, service benefit programs,
unemployment benefits, or any other source except the assets of
the claiman ts or of the m embers o f the claima nts’ immed iate
family and insurance purchased in whole or in part, privately and
individu ally.
Thus, defendant argues that expenses not paid by TennCare are not owed by plaintiff
and co uld not be reco vered.
In this ca se, any po tential err or was cured b y the Trial Court’ s remittitu r.
The Trial Court granted a remittitur and stated that the reduction included any excess
expen ses that m ay have b een allo wed.
Finally, appellant insists that the evidence preponderates against the
verdict a s adjuste d by the tria l court. T he stan dard of review set forth in T.C .A.
§20-10-102(b) is appropriate for reviewing a trial court’s failure to grant a larger
remittitu r. Id. Under the statute, we are required to “utilize the standard of review
provided in Rule 13 (d) of the T ennessee Rules of Appellate Procedu re applicab le to
decisions of the trial court sitting without a jury.” Thus, review “shall be de novo
upon the record of the trial court, accompanied by a presumption of correctness of the
finding , unless th e prepo nderan ce of th e evide nce is o therwi se.” Te nn.R.A pp.P. 1 3(d).
In this case, the evidence does not preponderate against the verdict as remitted.
The record demonstrates that plaintiff suffered substantial pain after the
operation. In order to alleviate her condition, doctors at the University of Tennessee
Medical Center performed complicated surgical repairs. Plaintiff testified she was
disabled for approximately six months following the corrective surgery and was
unable to take care of her children or dress herself. According to her testimony, she
continu es to suf fer peri odic ep isodes o f pain, s ome o f whic h requi re med ical atten tion.
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Additi onally, pla intiff ha s a large and pe rmane nt scar o n her ab dome n.
Plaintiff’s sister testified that he r sister’s person ality has significan tly
changed, and that her skin color has become more yellow. Dr Martin Evans testified
that the plaintiff’s bile duct and liver chemistries “have not returned to normal” and
that “this is a lifelong problem.” A nother physician testified that some fu ture
procedures will need to be performed on the ducts.
We affirm the judgment of the Trial Court on the award as remitted.
The cause is remanded with the cost of the appeal assessed to the
appellant.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Don T. McM urray, J.
___________________________
Charles D. Susano, Jr., J.
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