                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                        July 22, 2014 Session

                 LEON DICKSON, SR. v. SIDNEY H. KRIGER, M.D.

                      Appeal from the Circuit Court for Shelby County
                       No. CT-005591-04      James F. Russell, Judge


                 No. W2013-02830-COA-R3-CV - Filed December 30, 2014


Patient brought a health care liability action against his eye surgeon, alleging that the
surgeon’s negligence in performing a LASIK procedure resulted in several eye injuries. The
trial court granted a directed verdict for the surgeon, finding the patient failed to present
evidence establishing the standard of care and causation. Because we find the evidence was
sufficient to create an issue for the jury, we reverse and remand to the trial court.

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

W. N EAL M CB RAYER, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
J., and K ENNY W. A RMSTRONG, S P. J., joined.

Robert L. Green and Darryl D. Gresham, Memphis, Tennessee, for the appellant, Leon
Dickson, Sr.

Karen S. Koplon and Hugh Francis, Memphis, Tennessee, for the appellee, Sidney H. Kriger,
M.D.

                                               OPINION

                          I. F ACTUAL AND P ROCEDURAL B ACKGROUND

         Leon Dickson, Sr. had experienced poor vision since childhood and decided to inquire
about laser corrective eye surgery, also known as LASIK 1 surgery, in 2003. Mr. Dickson
hoped LASIK surgery would make his life easier by removing the need for glasses and the
irritation from contact lenses. Mr. Dickson’s optometrist referred him to Dr. Sidney H.


       1
            LASIK is an acronym for laser-assisted in-situ keratomileusis.
Kriger, an opthalmologist in Memphis, Tennessee.

       On May 9, 2003, Dr. Kriger performed LASIK surgery on both of Mr. Dickson’s eyes.
After the surgery, Mr. Dickson complained of several problems in his left eye. He later
discovered that he suffered from an inferior temporal decentered ablation 2 of his cornea.
Mr. Dickson filed a complaint on September 27, 2004, claiming that Dr. Kriger was
negligent in performing the LASIK surgery.

         After nine years, several pre-trial motions, and an interlocutory appeal, the case
proceeded to trial on October 28, 2013. At the conclusion of Mr. Dickson’s proof, Dr. Kriger
moved for directed verdict. The trial court granted the motion, finding that Mr. Dickson had
failed to establish a prima facie case of health care liability. Specifically, the court found that
Mr. Dickson had failed to establish: (1) the standard of care for ophthalmologists in Memphis
at the time of Mr. Dickson’s surgery; and (2) that Dr. Kriger’s negligence was the proximate
cause of Mr. Dickson’s eye injuries.

                                            A. Proof at Trial

       Mr. Dickson testified that he has developed several on-going conditions in his left eye
since the LASIK surgery: shooting pain “30 to 40 times a day”; poor vision; extreme
sensitivity to light; glare; and difficulty seeing at night. The conditions resulted despite
Mr. Dickson apparently doing well during surgery. When asked about whether Mr. Dickson
followed instructions during surgery, Dr. Kriger testified as follows:

        Q:      And at no time did you ever stop the procedure because Mr. Dickson
                was not focusing on the red light, correct?

        A:      That is true.

        Q:      Now, so in essence, as far as Mr. Dickson is concerned in this
                procedure, he cooperated 100 percent, correct?

        A:      That is true.

Dr. Kriger further testified that if he or a monitor in the room had seen Mr. Dickson’s eye


        2
          “A ‘decentered ablation’ occurs when the eye area reshaped by the laser is not centered to the eye’s
visual axis. This results in a variety of vision problems, including glares, halos, ghost images, and blurred
vision.” Dickson v. Kriger, 374 S.W.3d 405, 406 n.1 (Tenn. Ct. App. 2012) (decision on parties’
interlocutory appeal).

                                                     -2-
move from the center of the laser beam, he “would . . . have stopped [the laser], [and] the
laser would have broken laser lock and it would have stopped automatically.”

        Dr. Kriger agreed that the creation of the corneal flap is very important, and if a “bad
flap” is created, the LASIK procedure should not go forward. He claimed, however, that the
flap created on Mr. Dickson’s left eye was adequate to complete the LASIK procedure.
Dr. Kriger also asserted that liquid from a tear that appeared on Mr. Dickson’s eye during
surgery may have “prevented the beam from treating the cornea evenly,” and caused Mr.
Dickson’s eye injuries.

        Mr. Dickson’s expert medical witness was Dr. Rolando Toyos, an ophthalmologist
practicing in Memphis, Tennessee. Dr. Toyos began treating Mr. Dickson in March 2004,
after Mr. Dickson’s LASIK surgery. Dr. Toyos opined on the procedure for creating a
corneal flap sufficient to perform LASIK surgery:

       [W]e would use a piece of technology that used a blade to make this flap that
       we’re going to lift. . . . The most important part about the flap is that we can
       have a full treatment zone and the flap needs to be big enough so that we can
       treat all around the pupil. . . .

              ....

       [T]his [microkeratome] would pass with a blade and then go forward – go
       forward, pass, make the flap and then go back, and then you would take this
       thing out. . . . [W]e never knew what the flap was going to look like until after
       the treatment was done. . . . So you would take this microkeratome off and
       then you would see if you made a perfect flap or a nice flap or a good enough
       flap to cover the treatment zone.

              ....

       [O]ne of the complications that you talk to patients about is if your flap is not
       covering the whole treatment zone and is not a regular flap, well we can’t do
       the laser. So all we have to do is, we’ll put the flap back down, let it heal and
       then we’ll come back another day.

              ....

       [Y]ou could do a laser with an irregular flap, but the patient’s vision is not
       going to be very good.

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      Dr. Toyos also testified that he was familiar with the standard of care for
ophthalmologists in Memphis:

       Q:     Based upon what you saw in Mr. Dickson’s eye when you examined
              him, should this flap have been laid down – laid back down?

       A:     I would have put this flap back down and come back another day, and
              he would not have had these problems.

              ....

       Q:     Dr. Toyos, are you familiar with the concept of the standard of care as
              required of physicians practicing in this community?

       A:     Yes.

       Q:     Do you know the standard of care in this community for eye surgeons?

       A:     Yes.

              ....

       Q:     Dr. Toyos, you’ve testified that you are familiar with the standard of
              care for eye surgeons here in the Memphis community, and I want to
              ask you this question: Do you have an opinion as to whether or not it
              was a deviation from or a violation of the accepted standard of care for
              Dr. Kriger to go forward with the LASIK procedure and fail to put the
              flap back down in Mr. Dickson’s case in view of your findings of an
              irregular flap in the left eye?

       A:     Yes, it was a deviation of the standard of care.

       Q:     And can you state that opinion with a reasonable degree of medical
              certainty?

       A:     Yes.

       Dr. Toyos also read from an October 2005 letter he wrote to Mr. Dickson’s attorney
regarding the standard of care for LASIK surgeries and the cause of Mr. Dickson’s injuries:



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              Mr. Dickson was examined many times in our clinic starting on March
       26, 2004. He underwent LASIK procedure on both eyes on May 9 th , 2003 by
       Dr. – by Sidney H. Kriger, M.D. Mr. Dickson was having many post-LASIK
       complaints in his left eye like decreased vision and light sensitivity.

              ....

             Our clinic examination included Orbscan, LADARWave and slit lamp
       exam. The exam revealed that Mr. Dickson had an irregular flap with
       decentered and incomplete ablation. These abnormalities led to irregular
       astigmatism and posterior steepening of the cornea, which is consistent with
       corneal ectasia.

              Mr. Dickson’s problems were a direct result of his LASIK procedure.
       These problems cannot be corrected with more LASIK or corrective lenses.
       Attempt of correction with cornea inserts were not successful either. He’ll be
       dealing with these eye problems for the rest of his life and may need a cornea
       transplant.

              I believe that his problems are due to complications of LASIK that
       Sidney H. Kriger, M.D. deviated from the standard of care when he created an
       irregular flap and still proceeded with the laser procedure.

              ....

              The standard of care during surgery would have been once the irregular
       flap was made, Sidney H. Kriger, M.D. should have put the flap back in place
       and not proceeded with the laser procedure.

       The direct examination concluded with Dr. Toyos addressing other suggested causes
of Mr. Dickson’s decentered ablation. He testified that neither a “malfunction of the laser,”
Mr. Dickson’s “failure to fixate on the red blinking light,” or a “tear having appeared on the
cornea” could have caused Mr. Dickson’s eye injuries.

                                   B. Directed Verdict

        The trial court granted Dr. Kriger’s motion for directed verdict on November 1, 2013.
The court identified several perceived shortcomings with the plaintiff’s proof: (1) Dr. Toyos
did “not specifically say the standard of care on May 9, 2003 was such and such”;
(2) Dr. Toyos did not establish the standard of care for ophthalmologists in Memphis in 2003

                                             -5-
regarding the identification of a “good” flap and a “bad” flap; (3) “Dr. Toyos’s testimony
may be forever tainted with the notion left by that statement, quote, ‘I would have put this
flap down,’ end quote”; (4) Dr. Toyos testified only as to Mr. Dickson’s “problems,” and did
not identify any particular “injuries”; and (5) Dr. Toyos did not testify that Mr. Dickson’s
“injuries” would not have otherwise occurred but for the alleged medical negligence.

                                         II. A NALYSIS

         Tennessee Rule of Civil Procedure 50.01 provides that a motion for directed verdict
“may be made at the close of the evidence offered by an opposing party or at the close of the
case.” Tenn. R. Civ. P. 50.01. “A motion for directed verdict requires the trial court to
determine whether, as a matter of law, the evidence is sufficient to create an issue for the jury
to decide.” White v. Vanderbilt Univ., 21 S.W.3d 215, 231 (Tenn. Ct. App. 1999). Directed
verdicts are appropriate only when reasonable minds could reach only one conclusion from
the evidence. Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000). When reviewing
a trial court’s decision regarding a directed verdict, appellate courts apply the same standard
of review as the trial court. See Sauls v. Evans, 635 S.W.2d 377, 379 (Tenn. 1982). We do
not weigh the evidence or evaluate the credibility of witnesses. Conatser v. Clarksville
Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); see Kellon v. Lee, No. W2011-
00195-COA-R3-CV, 2012 WL 1825221, at *4 (Tenn. Ct. App. May 21, 2012). Instead, we
“take the strongest legitimate view of the evidence in favor of the non-moving party.” Eaton
v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994). We allow all reasonable inferences in favor
of the non-moving party and disregard all evidence contrary to their position. Id.

       To avoid a directed verdict in a health care liability action, the non-moving party must
present sufficient evidence on each element to establish a prima facie case under Tennessee
Code Annotated section 29-26-115(a) (2012). See Kellon, 2012 WL 1825221, at *4.
However, the plaintiff does not bear the burden of proving all elements of his claim by a
preponderance of the evidence at the directed verdict stage. Id. at *5. Instead, the plaintiff
survives a motion for directed verdict if there is “any material evidence in the record to
support a verdict for the plaintiff under any of his . . . alleged theories.” Id. (emphasis in
original) (citing City of Bartlett v. Sanders, 832 S.W.2d 546, 549 (Tenn. Ct. App. 1991)).

       Tennessee Code Annotated section 29-26-115(a) outlines the plaintiff’s burden of
proof in a health care liability action. To establish a prima facie case, the plaintiff must prove
three essential elements:

       (1) The recognized standard of acceptable professional practice in the
       profession and the specialty thereof, if any, that the defendant practices in the
       community in which the defendant practices or in a similar community at the

                                               -6-
       time the alleged injury or wrongful action occurred;

       (2) That the defendant acted with less than or failed to act with ordinary and
       reasonable care in accordance with such standard; and

       (3) As a proximate result of the defendant’s negligent act or omission, the
       plaintiff suffered injuries which would not otherwise have occurred.

Tenn. Code Ann. § 29-26-115(a). The plaintiff must provide expert testimony in accordance
with Tennessee Code Annotated section 29-26-115(b) to establish the three necessary
elements of a health care liability action. See Shipley v. Williams, 350 S.W.3d 527, 537
(Tenn. 2011) (discussing the use of expert testimony under the predecessor medical
malpractice statute). To be competent to testify, an expert witness must:

       [be] licensed to practice in the state or a contiguous bordering state a
       profession or specialty which would make the person’s expert testimony
       relevant to the issues in the case and had practiced this profession or specialty
       in one (1) of these states during the year preceding the date that the alleged
       injury or wrongful act occurred.

Tenn. Code Ann. § 29-26-115(b).

         Although in this case an expert witness was required to establish a prima facie case,
“[i]t is unreasonable to expect a medical expert to testify with legal precision.” Miller v.
Choo Choo Partners, L.P., 73 S.W.3d 897, 905 (Tenn. Ct. App. 2001). Of course, the
medical expert’s testimony must be admissible and cannot be mere speculation. See Lindsey
v. Miami Dev. Corp., 689 S.W.2d 856, 861-62 (Tenn. 1985). But, when construing the
contents of the witness’s testimony, we must view the testimony “as the testimony of a
medical person and not that of an individual trained in the law.” Miller, 73 S.W.3d at 905.
However, “[i]t is well settled that the testimony of a physician as to what he would do or his
opinion of what should have been done does not prove the standard of care.” Jennings v.
Case, 10 S.W.3d 625, 632 (Tenn. Ct. App. 1999).

                                    A. Standard of Care

        In this case, we must determine whether an expert’s testimony regarding the standard
of care is sufficient under Tennessee Code Annotated section 29-26-115(a)(1). We conclude
that it is. We have never required perfect language from medical experts in healthcare
liability actions in order for the case to proceed to the jury. Imprecise statements by an expert
witness will not prevent the plaintiff from establishing a prima facie case if a reasonable juror

                                               -7-
could conclude that the expert had established the standard of care at the time of the incident
giving rise to the plaintiff’s injuries. See Griffith v. Goryl, 403 S.W.3d 198, 210 (Tenn. Ct.
App. 2012).

       In Wynn v. Hames, No. W2001-00269-COA-R3-CV, 2002 WL 1000268 (Tenn. Ct.
App. May 13, 2002), the expert testified that he thought “the standard of care in a certain area
would be what I and the majority of my ER physicians in this area would do in a specific
case.” Id. at *6. This Court concluded that, although “somewhat inartful, [the testimony]
could be interpreted to be what a reasonable medical practitioner in a same or similar
community would have done in a particular case,” and thus, could establish the requisite
standard of care. Id.

       Mr. Dickson argues that he established the recognized standard of care for
ophthalmologists in Memphis through Dr. Toyos’s expert testimony. Dr. Kriger complains
that Dr. Toyos did not state that he was familiar with the standard of care for the time period
when Mr. Dickson’s surgery occurred. Instead, Dr. Toyos testified as to the standard of care
“during surgery” and “in Mr. Dickson’s case.”

        Here, Dr. Toyos’s testimony was sufficient to establish the applicable standard of care
under Tennessee Code Annotated section 29-26-115(a). Dr. Toyos testified that he was
familiar with the standard of care in Memphis for eye surgeons and described the appropriate
standard of care during Mr. Dickson’s LASIK procedure by discussing the technology used
to cut a flap, assessment of the flap, and treatment of an irregular flap. Dr. Toyos’s use of
the phrases “during surgery” or “in Mr. Dickson’s case,” although less than ideal, would not
prevent a jury from determining the time period involved. In response to the question, “Do
you have an opinion as to whether or not it was a deviation from or a violation of the
accepted standard of care for Dr. Kriger to go forward with the LASIK procedure and fail
to put the flap back down in Mr. Dickson’s case in view of your findings of an irregular flap
in the left eye?,” Dr. Toyos responded “Yes, it was a deviation of the standard of care.” This
testimony can refer to no other standard of care than that applicable on May 9, 2003, the date
of Mr. Dickson’s surgery. The testimony at trial repeatedly established that Dr. Kriger
performed only one surgery on Mr. Dickson, which took place on May 9, 2003.

       “The standard of care is determined by whether a physician exercises the reasonable
degree of learning, skill, and experience that is ordinarily possessed by others of his
profession.” Hopper v. Tabor, No. 03A01-9801-CV-00049, 1998 WL 498211, at *3 (Tenn.
Ct. App. Aug. 19, 1998). Dr. Kriger argues that because Dr. Toyos stated that “[he] would
have put the flap back down,” Mr. Dickson failed to establish a prima facie case. The trial
court also identified this statement as a flaw in the plaintiff’s case. Although Dr. Toyos’s
statement regarding what he would have done is not admissible to establish the standard of

                                              -8-
care, it does not negate his later admissible statements regarding the standard of care. When
reviewing a motion for directed verdict, we ignore all evidence weighing against the non-
moving party. Eaton, 891 S.W.2d at 590. Accordingly, we disregard Dr. Toyos’s statement
regarding what he would do during LASIK surgery and conclude that there was material
evidence of the standard of care for ophthalmologists in Memphis on May 9, 2003.

                                         B. Causation

         The final element of a plaintiff’s prima facie health care liability action is causation.
Tenn. Code Ann. § 29-26-115(a)(3). The plaintiff must prove that: “[a]s a proximate result
of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not
otherwise have occurred.” Id. A mere possibility of causation is not enough to satisfy this
burden. White v. Methodist Hosp. S., 844 S.W.2d 642, 649 (Tenn. Ct. App. 1992). Instead,
the “plaintiff must introduce evidence which affords a reasonable basis for the conclusion
that it is more likely than not that the conduct of the defendant was a cause in fact of the
result.” Lindsey, 689 S.W.2d at 861; see also Kilpatrick v. Bryant, 868 S.W.2d 594, 602
(Tenn. 1993).

        When construing the contents of the witness’s testimony, and whether it establishes
a prima facie showing of causation, we must view the testimony “as the testimony of a
medical person and not that of an individual trained in the law.” Miller, 73 S.W.3d at 905.
To require medical expert witnesses to use precise legal language when discussing causation
is “expecting too much.” Id.; Mitchell v. Ensor, No. W2001-01683-COA-R3-CV, 2002 WL
31730908, at *11 (Tenn. Ct. App. Nov. 18, 2002). If there are two interpretations of an
expert’s testimony on causation, the court should adopt the interpretation most favorable to
the non-moving party. See Miller, 73 S.W.3d at 906. In Miller v. Choo Choo Partners, L.P.,
73 S.W.3d 897 (Tenn. Ct. App. 2002), the expert witness in a personal injury action stated,
“I don’t know what caused the disc herniation.” Id. at 905-06. The Court concluded that two
interpretations of that testimony were possible: (1) the expert did not know what caused the
plaintiff’s current back condition; or (2) the expert did not know what caused the disc
herniation to first appear. Id. at 906. The Court adopted the latter interpretation when
reviewing a grant of directed verdict because it was most favorable to the non-moving party.
Id.

       In this case, causation must be demonstrated by an expert witness who holds an
opinion as to the cause-in-fact to a reasonable degree of medical certainty. See Kilpatrick,
868 S.W.2d at 602. However, whether Dr. Toyos’s opinion on the cause of Mr. Dickson’s
eye injuries was held to a “reasonable degree of medical certainty” is a threshold question
of admissibility for the trial court to decide. Bara v. Clarksville Mem. Health Sys., Inc., 104
S.W.3d 1, 8 (Tenn. Ct. App. 2002); Miller, 73 S.W.3d at 909. The appellees have not raised

                                               -9-
the admissibility of Dr. Toyos’s testimony as an issue on appeal. See Childress v. Union
Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002) (noting that an issue is waived if not
designated as an issue on appeal). Therefore, the only question before this Court is whether
a reasonable juror could conclude that there was material evidence in the record sufficient
to prove the causation element. See Lindsey, 689 S.W.2d at 861. We conclude that there was
such evidence.

        Mr. Dickson argues that Dr. Toyos’s expert testimony established that Dr. Kriger’s
decision to proceed with the LASIK surgery after creating an irregular flap caused a
“decentered and incomplete ablation” in Mr. Dickson’s left eye, which resulted in
Mr. Dickson’s symptoms of pain, poor vision, sensitivity to light, glare, and difficulty seeing
at night. Mr. Dickson further claims the causation element is satisfied because Dr. Toyos
testified that if Dr. Kriger had put the flap back down, Mr. Dickson’s eye injuries would not
have resulted. Dr. Kriger, however, argues that there was no expert testimony establishing
to a reasonable degree of medical certainty that Mr. Dickson’s injuries proximately resulted
from Dr. Kriger’s deviation from the standard of care.

        Here, Dr. Toyos stated, “Mr. Dickson’s problems were a direct result of his LASIK
procedure. . . . I believe his problems are due to complications of LASIK that Sidney H.
Kriger, M.D. deviated from the standard of care when he created an irregular flap and still
proceeded with the laser procedure.” As in Miller, Dr. Toyos’s testimony may be interpreted
in two ways: (1) Mr. Dickson developed eye injuries as a result of the LASIK procedure
itself; or (2) Mr. Dickson developed eye injuries because of Dr. Kriger’s negligence in
proceeding with the surgery after creating an irregular flap. A reasonable juror could reach
either interpretation of Dr. Toyos’s testimony. We must adopt the interpretation most
favorable to Mr. Dickson, which is that Dr. Kriger’s negligence proximately caused
Mr. Dickson’s eye injuries. Dr. Toyos did not testify that Dr. Kriger’s negligence
“probably,” or “most likely” caused Mr. Dickson’s eye injuries. However, the most
favorable interpretation of Dr. Toyos’s testimony is that he concluded Mr. Dickson’s eye
injuries were a direct result of Dr. Kriger’s negligence, so his testimony was unqualified by
estimates of probability. “Weak or strong, [Dr. Toyos’s] testimony at least created a jury
question on causation” under Tennessee Code Annotated section 29-26-115(a)(3).
Richardson v. Miller, 44 S.W.3d 1, 31 (Tenn. Ct. App. 2000).

                                     III. C ONCLUSION

        For the reasons set forth above, we reverse the directed verdict and remand the case
for further proceedings consistent with this opinion. Costs of this appeal shall be taxed to
the Appellee, Dr. Sidney H. Kriger, for which execution may issue if necessary.



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       _________________________________
       W. NEAL McBRAYER, JUDGE




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