dissenting.
I respectfully dissent from the result reached in the majority opinion.
The minority report which the trial judge refused to admit in evidence is set out in full in the majority’s opinion and I do not believe the separate, informal statements by the doctor and nurse are admissible under the statute. The separate statements of the two board members are not in the statutory form prescribed and amount to comments on the evidence presented before the board and identify the board members by name and profession, all proscribed by statute. Baldwin v. Knight, 569 S.W.2d 450 (Tenn.1978), states:
[T]he second sentence of T.C.A., § 23-3409 excludes from admissibility at the trial any attempt to bring to the attention of the jury what evidence was or was not adduced at the board hearing. In short, nothing about the MMRB hearing, beyond the language of the formal statement, is admissible at trial. At 454.
While defendants’ counsel insisted on reading the statements by the doctor and nurse, the trial judge, as the majority opinion holds, erroneously refused to allow any mention of the minority report or the reading of the formal report as mandated by T.C.A., § 23-3409.
The majority’s opinion does not discuss whether the error committed by the trial judge prejudiced appellants to the point that a new trial is in order. Our Supreme Court has held that failure of a trial judge to comply with a provision of the Medical Malpractice Review Board and Claims Act may be harmless error. Runnells v. Rogers, 596 S.W.2d 87 (Tenn.1980).
The statute provides that the minority report “shall be admissible as an exception to the hearsay rule.” Thus, the matter is an evidentiary question. Baldwin, supra. Generally, the exclusion of evidence is not reversible error unless prejudice to the party seeking reversal is shown. Tibbs v. Ake, 505 S.W.2d 232 (Tenn.1974); Jordan v. State, 217 Tenn. 307, 397 S.W.2d 383 (1965).
We are required by T.R.A.P., Rule 36(b) to inquire into the prejudicial effects of the error in the trial below before the lower court judgment is set aside. The rule provides:
Effect of error. — A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process. [Emphasis supplied.]
I cannot say, considering the whole record, that the absence of the formal minority report from the evidentiary record more probably than not affected the judgment and, accordingly, would affirm the judgment with the modification hereinafter sug*134gested. Baldwin states, and Runnells reiterates, that the board’s report is primarily to encourage settlements and not for use as an evidentiary substitute for expert testimony, but is admissible “to be given such weight, credit and value as the jury may ultimately determine.” Baldwin, p. 453.
In this case, the evidence was in sharp conflict as to the procedure followed by the nurse in administering the shot and whether the shot caused plaintiff’s condition. There is no dispute as to the standard for administering shots of this nature, as conceded by defendant nurse. She stated on cross-examination, in response to the following question:
Q. Now, you would further agree that it would be a departure from the standard nursing practice not to give it in the deep muscle? Isn’t that correct?
A. Yes.
Assuming arguendo the informal reports of the doctor and nurse made in connection with the minority report were admissible, there is ample evidence in the record from witnesses as to the substance of these statements from which the triers of fact could have determined plaintiff’s claim to be without merit had the jury accepted the nurse’s version of how the shot was administered. Defendants offered expert testimony which was predicated on the hypothesis of accepting as fact the nurse’s testimony. At least one expert witness for defendants conceded a shot administered under conditions as plaintiff described would fall short of the professional standard.
The burden of showing the error affected the results of trial is on the appellants. Cook v. Blytheville Canning Co., 210 Tenn. 414, 359 S.W.2d 828 (1961). I conclude the judgment should not be set aside since, in my opinion, considering the whole record, the error of excluding the minority report most probably did not affect the judgment.
The remaining issue relative to the applicability of T.C.A., § 23-3418 may properly be resolved on appeal. I agree with the majority that the constitutionality of the statute is not properly before the court but the final judgment should be modified by reducing in an amount equal to the sum of the wages and stipulated medical expenses which fall within the ambit of the statute. Accordingly, I would modify and affirm the judgment.