                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                        July 7, 2003 Session

           MICHAEL D. STREET v. LEVY (WILDHORSE) LIMITED
                           PARTNERSHIP

                       Appeal from the Circuit Court for Davidson County
                          No. 01C-2088     Barbara N. Haynes, Judge



                      No. M2002-02170-COA-R3-CV - Filed August 7, 2003


This appeal involves a patron at a Nashville night spot who was seriously injured by a broken glass
tray left unattended on a table. In addition to the laceration on his leg, the patron fell and hit his face
against the floor. The patron later filed suit against the night spot in the Circuit Court for Davidson
County seeking damages not only for the laceration of his leg but also for internal derangement of
his temporomandibular joint caused by his fall. The night spot conceded its negligence, and, after
conducting a bench trial on the question of damages, the trial court awarded the patron $8,937.00
for his medical expenses, pain and suffering, and loss of enjoyment of life. On this appeal, the
patron takes issue with the trial court’s refusal to award him $1,133.00 in medical expenses and with
the amount of the award for pain and suffering and loss of enjoyment of life. We have determined
that the trial court lacked any basis for declining to award the patron all his medical expenses and
that the evidence does not preponderate against the award for pain and suffering and loss of
enjoyment of life.

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

WILLIAM C. KOCH , JR ., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

T. Turner Snodgrass, Nashville, Tennessee, for the appellant, Michael D. Street.

Michele M. Brubaker, Nashville, Tennessee, for the appellee, Levy (Wildhorse) Limited Partnership.

                                               OPINION

                                                    I.

        On October 6, 1998, Michael Street attended a charity function at the Wildhorse Saloon on
Second Avenue in downtown Nashville. At one point in the evening, as he walked past some empty
tables to meet several friends, he cut his leg on a broken glass tray that had been left unattended on
an empty table. The broken glass sliced through his leg as he walked by. The pain of the injury
caused him to fall to the floor. Mr. Street hit the right side of his face on the floor when he fell and
lost consciousness.1

        Mr. Street was transported to the Vanderbilt University Medical Center emergency room,
where doctors treated the laceration on his leg. His medical chart also indicates that he had abrasions
on his right cheek. He returned to the emergency room five days later, complaining of excruciating
pain in his left ear and soreness in his jaw. Mr. Street returned to Vanderbilt two more times in
October 1998 and again in January 1999 complaining of jaw and ear pain. On his final visit, he was
referred to Dr. Samuel McKenna, an oral and maxillofacial surgeon.

        Dr. McKenna first examined Mr. Street on February 11, 1999. Mr. Street described his
symptoms which included stuffiness in his left ear, facial pain on the left side, and noise coming
from the left jaw joint. He also stated that these symptoms began only after the October accident at
the Wildhorse Saloon. He also stated that he had not been following the restricted diet recommended
by the emergency room physicians. Dr. McKenna suspected internal derangement of Mr. Street’s
temporomandibular joints (“TMJ”) and recommended an MRI to determine the extent of the
problem. He also instructed Mr. Street to go on a soft diet and to continue taking his anti-
inflammatory medication as needed.

        Mr. Street tried twice during the following month to undergo the scheduled MRI but was
unable to because of his claustrophobia. Dr. McKenna then recommended an MRI at BioImaging,
Inc., whose less confining MRI machine would be more suitable for Mr. Street. However, Mr.
Street’s insurance coverage did not cover the MRI, and he lacked sufficient funds to pay for it.
Accordingly, he was forced to wait until May 2, 2000 before the MRI could be performed. The MRI
showed internal derangement of TMJ on both sides of Mr. Street’s jaw, but the derangement was
particularly pronounced on the left side.

        Dr. McKenna examined Mr. Street for the last time on June 29, 2000. Mr. Street continued
to complain about pain in his neck behind his left ear, pain associated with swallowing, jaw pain
when chewing extremely hard food, and popping and grinding sounds from the left jaw joint. Dr.
McKenna told him that the neck pain and swallowing pain were likely unrelated to the TMJ and that
he should have those formally evaluated by another specialist. Even though Dr. McKenna
recommended additional follow-up appointments, Mr. Street did not see him again because he could
not afford to pay for the office visits in advance as Dr. McKenna requested.

        Mr. Street later retained a lawyer to represent him with regard to his claim against the
Wildhorse Saloon. His lawyer referred him to Dr. John Farringer, a dentist, because he was
continuing to experience pain in his jaw. When Dr. John Farringer first examined Mr. Street on
October 19, 2000, Mr. Street told him that he was still experiencing pain in his ears and grinding in
his jaw, as well as headaches, ringing in his ears, dizziness, and changes in hearing. Dr. Farringer
obtained Dr. McKenna’s treatment records and concurred with his diagnosis that Mr. Street had
interior derangement of his TMJ.


         1
          It is rather unclear whether Mr. Street lost consciousness because of the laceration on his leg or because of the
blow to his face when he fell.

                                                           -2-
        In December 2000, Dr. Farringer fitted Mr. Street with a splint that would allow his jaw to
heal and instructed him to wear it for twelve to sixteen hours per day. Mr. Street found the splint
to be uncomfortable and was able to wear it only one hour per day. He returned to Dr. Farringer in
January 2001 and again in February 2001. During the February appointment, Dr. Farringer adjusted
the splint to make it more comfortable. Mr. Street missed his next two appointments, but at his July
2001 appointment, Dr. Farringer again adjusted the splint and noticed that Mr. Street was not
reflexively clenching his teeth. Mr. Street saw Dr. Farringer one last time on January 21, 2002. On
this visit, Mr. Street reported that his jaw had actually locked on two occasions.

        Mr. Street filed suit against Levy (Wildhorse) Limited Partnership (“Wildhorse Saloon”) in
the Circuit Court for Davidson County. He requested damages for $4,136.03 in medical expenses2
and for pain and suffering and loss of enjoyment of life. On the eve of trial, the parties stipulated
that the Wildhorse Saloon was negligent and that it was liable for all the damages proximately
caused by Mr. Street’s October 6, 1998 injury.3 Following a July 16, 2002 bench trial, the trial court
entered a judgment for Mr. Street in the amount of $8,937.00. In response to both parties’ Tenn. R.
Civ. P. 52.01 requests for findings of fact and conclusions of law, the trial court entered an order on
September 17, 2002, stating:

                          1. The Plaintiff is suffering from internal derangement of the
                  temporomandibular joint on both sides of his jaw.
                          2. The Plaintiff’s condition, more likely than not, was caused
                  by Plaintiff’s accident which occurred on Oct. 6, 1998 at the
                  Wildhorse Saloon.
                          3. The amount of Plaintiff’s award for medical expenses is
                  $2,844.00.
                          4. The amount of Plaintiff’s award for pain and suffering and
                  loss of enjoyment of life is $6,093.00.

Mr. Street perfected this appeal. He takes issue with the trial court’s refusal to award him all his
proven medical and dental expenses and with the amount of damages awarded for pain and suffering
and loss of enjoyment of life.

                                                      II.
                                      MR . STREET ’S MEDICAL EXPENSES

      The trial court did not explain its rationale for awarding Mr. Street $2,844.00 for medical
expenses. However, we, like the parties, assume that the court arrived at this figure by approving



         2
         These medical expenses included $1,335.03 to V anderbilt Medical Center, $1,130.00 to B ioImaging, Inc. for
the MRI, $38 1.00 to Dr. M cKenna, $15 7.00 to the Vanderbilt Med ical Group, and $1,133 .00 to Dr. Farringer.

         3
           The W ildhorse Saloon entered into this stipulation even though it learned during discovery that Mr. Street had
been involved in an accident with a taxi on November 9, 19 97. H e had received em ergency treatm ent of ab rasions to
his left shoulder, chin, and left side of his face. Mr. Street never mentioned this incident to the emergency room
physicians who treated him for his O ctober 6, 1998 injuries o r to D rs. M cKenna and F arringe r.

                                                           -3-
all of Mr. Street’s claimed medical expenses except for the $1,133.00 paid to Dr. Farringer.4 Mr.
Street argues that this treatment was a continuation of the treatment for the internal derangement of
his TMJ. The Wildhorse Saloon responds that Dr. Farringer’s treatment was unrelated to the injuries
Mr. Street sustained on October 6, 1998. Mr. Street has the better argument.

        The basis for the trial court’s decision to disallow Dr. Farringer’s fee is not readily apparent
in the record. There are, however, six possible reasons for declining to award claimed medical
expenses such as these: (1) the absence of a compensable injury, (2) the lack of causation in fact, (3)
an inordinate delay between the injury and the treatment, (4) the connection between the medical
professional and the plaintiff’s lawyer, (5) the necessity of the treatment and reasonableness of the
charge, and (6) the failure to mitigate the damage. Based on our examination of the record, it
contains insufficient evidence to support disapproving Dr. Farringer’s fee on any of these grounds.

        First, the trial court could have reached its decision by finding that Mr. Street had suffered
no injury. Woodlawn Memorial Park, Inc. v. Keith, 70 S.W.3d 691, 696 (Tenn. 2002) (finding that
compensatory damages were not warranted where plaintiff suffered no injury). However, the trial
court specifically found, and the parties do not dispute, that Mr. Street “is suffering from internal
derangement of the temporomandibular joint on both sides of his jaw.” In accordance with Tenn.
R. App. P. 13(d), we presume that this finding is correct. Therefore, the preponderance of the
evidence demonstrates that Mr. Street has indeed suffered an injury.

         Second, the trial court could have reached its decision by finding that Mr. Street’s accident
at the Wildhorse Saloon did not cause his TMJ. Harden v. Danek Med., Inc., 985 S.W.2d 449, 451
(Tenn. Ct. App. 1998) (finding no liability where plaintiff failed to establish causation). However,
the trial court specifically found that Mr. Street’s injury was, more likely than not, caused by his
accident at the Wildhorse Saloon. Dr. McKenna’s testimony provided an appropriate factual basis
for this finding, and the Wildhorse Saloon does not seriously contest it on appeal. Therefore, there
is no basis for concluding that Mr. Street’s October 6, 1998 injuries did not cause the internal
derangement of his TMJ.

         Third, the trial court could have reached its decision by concluding that too much time passed
between Mr. Street’s accident and his treatment by Dr. Farringer. Howell v. Betts, 211 Tenn. 134,
138, 362 S.W.2d 924, 926 (1962) (denying a claim for damages because of the significant lapse of
time between the negligent conduct and the injury). Because the trial court made no specific findings
regarding this issue, we will review the record de novo without any presumption of correctness. In
re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); Devorak v. Patterson, 907 S.W.2d 815, 818 (Tenn.
Ct. App. 1995). The fact that approximately two years passed between Mr. Street’s injury and his
initial visit to Dr. Farringer appears to be insignificant in light of Dr. McKenna’s testimony that the
internal derangement of the TMJ “can be an on-going long-term event,” taking time to progress. Mr.


         4
            The charges for the emergency room services, the MRI, and for Dr. McKenna’s services equal $2,846.03
which differs from the $2,844.00 awarded by the trial court by $2.03. We cannot account for the $2.03 discrepancy or
for the fate of Vanderbilt Medical Clinic’s $157.00 fee. Mr. Street asserts in his brief that he req uested $3,8 79.0 3 [sic
$3,979.03] at trial even though his complaint sought $4,136.03. In light of the fact that Mr. Street does not insist on this
appeal that the trial court erred by failing to include Vanderbilt Medical Clinic’s $157.00 fee in its damage award, we
will assume that he is no longer seeking reimbursement for this expense.

                                                            -4-
Street’s well-documented inability to pay for his medical care also explains his delays in seeking
further treatment. As a result, the preponderance of the evidence suggests that lapse of time is no
reason to refuse to allow Mr. Street to recover damages for money owed to Dr. Farringer.

         Fourth, the trial court might have disallowed Dr. Farringer’s fee if there was some factual
basis for concluding that Dr. Farringer and Mr. Street’s lawyer had some sort of improper
contingency fee or fee-splitting arrangement.5 The trial court made no specific findings to that effect,
and, in fact, the record contains absolutely no evidence of an arrangement of that sort. Mr. Street
testified that he had been unsuccessful in finding other physicians with generous payment terms. He
also explained that his lawyer then provided him with a list of several physicians and dentists and
that he selected Dr. Farringer from this list. There is absolutely no evidence of any wrongdoing, and
so the trial court would not have been justified in basing its decision upon this suspicion.

         Fifth, the trial court could have reached its decision by concluding that Dr. Farringer’s
treatment of Mr. Street was unnecessary or that his fee was unreasonable. In personal injury actions
such as this one, a plaintiff may recover only those reasonable medical expenses that were necessary
to treat the injury caused by the defendant’s negligence. See Roberts v. Davis, No. M2000-01974-
COA-R3-CV, 2001 WL 921903, at *4 (Tenn. Ct. App. Aug. 7, 2001) (No Tenn. R. App. P. 11
application filed); Tenn. Code Ann. § 24-5-113 (2000); T.P.I. 3– Civil 14.11, 8 TENNESSEE
PRACTICE : TENNESSEE PATTERN JURY INSTRUCTIONS 484 (3d ed. 1997). The Wildhorse Saloon
presented no evidence that Dr. Farringer’s treatment was unnecessary or unreasonable, and the trial
court made no explicit findings of fact on these questions. The evidence shows that most of Dr.
Farringer’s fee – $953.00 – was for the splint or “orthopaedic repositioner.” The remainder of the
fee was for a comprehensive examination and diagnostic casts. Dr. McKenna testified that a splint
is a legitimate mode of therapy. Accordingly, our independent examination of the evidence reveals
no evidentiary basis for concluding that Dr. Farringer’s treatment of Mr. Street was unnecessary nor
that his fee was unreasonable.

        Sixth, the trial court could have reached its decision by concluding that Mr. Street had failed
to mitigate damages by faithfully following the treatment recommendations of Dr. McKenna and Dr.
Farringer. Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 234 (Tenn. Ct. App. 1976)
(noting that an injured party has a duty to exercise reasonable care in mitigating damages). The
Wildhorse Saloon goes to some length to criticize Mr. Street for missing scheduled appointments,
allowing long lapses of time between appointments, eating hard foods, and failing, at least initially,
to wear the splint designed by Dr. Farringer. However, the record contains no evidence that Mr.
Street’s treatment by Dr. Farringer would have been unnecessary had he followed Dr. McKenna’s
treatment recommendations more assiduously. In light of the testimony that Mr. Street’s condition
is an “on-going long-term event,” it is quite possible that Mr. Street would still have been required
to wear a splint even with treatment immediately followed his injury. Accordingly, we find no



         5
           Medical expe rts cannot be paid on a contingency b asis. Swa fford v. Ha rris, 967 S.W .2d 319, 323 (Tenn.
1998). In addition, a finder of fact may consider an expert’s bias or financial interest in the litigation when determining
the weight to be given to his or her opinions. T hus, a finder of fact m ay con sider the steady stream of referrals by a
lawyer to a medical expe rt in determining how m uch weight sho uld be given to the medica l expert’s testimony. Noel
v. Jones, 532 N.E .2d 1 050 , 105 4 (Ill. Ap p. Ct. 1 988 ).

                                                           -5-
factual basis for concluding that Mr. Street’s management of his condition prior to consulting Dr.
Farringer, as opposed to his October 6, 1998 injury, necessitated Dr. Farringer’s treatment.

        Mr. Street is entitled to recover for all the damages caused by the negligence of the Wildhorse
Saloon. Having considered this record in light of the possible grounds for denying a claim for
medical expenses in a personal injury case, we see no reason why Mr. Street should not recover Dr.
Farringer’s $1,133.00 fee. Therefore, we find that the trial court erred in not awarding Mr. Street
an additional $1,133.00 for medical expenses. On remand, the trial court should enter a revised order
awarding Mr. Street $3,979.03 for his reasonable and necessary medical expenses.

                                                 III.
                               MR . STREET ’S PAIN AND SUFFERING

        Mr. Street also takes issue with the trial court’s decision to award him $6,093.00 for his pain
and suffering and loss of enjoyment of life. He insists that this amount is “inadequate based on a
preponderance of the evidence.” We have determined that the evidence does not preponderate
against the trial court’s damage award for Mr. Street’s pain and suffering and loss of enjoyment of
life.

        Once again, the trial court failed to explain the rationale behind its decision to award Mr.
Street $6,093.00 for pain and suffering and loss of enjoyment of life. The record contains evidence
that Mr. Street’s earaches, headaches, and jaw pain have undoubtedly had a significant negative
impact on his life and that he may continue to experience discomfort in the future. However, it also
contains evidence that Mr. Street does not have the severest form of internal derangement of the TMJ
and that his failure to follow dietary instructions and other treatment advice contributed to his
discomfort. In light of this evidence and recognizing that the trial court had the opportunity to
observe the demeanor of Mr. Street and his other witness, we find no basis for second-guessing the
$6,093.00 award for pain and suffering and loss of enjoyment of life.

                                                 IV.

        We affirm the judgment as modified herein and remand the case to the trial court to modify
its judgment to award Mr. Street $3,979.03 for his medical expenses in addition to the $6,093.00
award for pain and suffering and loss of enjoyment of life. We also tax the costs of this appeal to
Levy (Wildhorse) Limited Partnership for which execution, if necessary, may issue.


                                                        _____________________________
                                                        WILLIAM C. KOCH, JR., JUDGE




                                                 -6-
