                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                          August 30, 2001 Session

        LISA HEATH v. MEMPHIS RADIOLOGICAL PROFESSIONAL
                        CORPORATION, ET AL.

                    A Direct Appeal from the Circuit Court for Shelby County
                   No. 75928-9 T.D.   The Honorable Robert L. Childers, Judge



                      No. W2000-02770-COA-R3-CV - Filed November 6, 2001


        This is a medical malpractice case. Plaintiff sued physician, radiological group and hospital,
alleging failure to discover and diagnose her malady resulting in permanent physical impairment.
The trial court entered judgment for the defendants on a jury verdict, and plaintiff appealed asserting
evidentiary errors and the failure of the trial judge to perform his duty as the thirteenth juror. We
affirm

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Joel Porter and Nathan A. Bicks, Memphis; Todd A. Rose, Paris, For Appellant, Lisa Heath

Jerry E. Mitchell, John H. Dotson, and Andrea N. Malkin, Memphis, For Appellees, Dale E. Hansen,
M.D. and Memphis Radiological Professional Corporation

                                                     OPINION

      Plaintiff, Lisa Heath, sued Memphis Radiological Professional Corporation, Dale E. Hansen,
M.D., and Methodist Hospitals of Memphis1 for medical malpractice by deviating and not
conforming to the standard of care in failing to diagnose a brain tumor which directly and
proximately caused severe injuries and disabilities to the plaintiff.



         1
           Edward Mabry, M.D., was also originally sued, but the suit against him was voluntarily dismissed by the
plaintiff. Defendants, M emphis Radiolo gical Professional Corp oration and M ethodist Hospitals of M emphis, are sued
for their respon sibility for the action s of defenda nt, Dale E. H ansen, M .D., on the the ory of respondea t superior.
However, we will refer to them c ollectively with Dr. Hansen as defend ants.
       Defendants’ answer denies the material allegations of negligence against them and joins issue
thereon. The answer also avers that the defendants conformed to the established standard of care,
and they used reasonable care and diligence in their medical practice and procedure and were guilty
of no negligence or malpractice of any nature.

       The case was tried before a jury and submitted to the jury on a special verdict form. The first
question and answer of the verdict form resolved the case:

               We, the jury, unanimously answer the questions submitted by the
               Court as follows:

               1. Do you find that the defendant, Dr. Dale E. Hansen, deviated from
               the recognized standard of acceptable professional practice with
               respect to the MRI studies on plaintiff, Lisa Heath? (The plaintiff has
               the burden of proof.)

               Yes______________________               No           X

               If your answer is “No,” stop here, sign the Verdict Form and return
               to the Court. If you answered “Yes,” proceed to Question 2.
                              *                      *                    *

      The trial court entered judgment for the defendants on the jury verdict, and plaintiff
subsequently filed a motion for a new trial which was denied by the trial court.

       Plaintiff’s appeal presents three issues for review:

               1. Whether the trial court, as thirteenth juror, afforded too much
               deference to the jury’s verdict and thereby applied an incorrect
               standard in its evaluation of the evidence?

               2. Whether the trial court erred by excluding evidence of bias arising
               from the fact that defendant Dale Hansen, M.D. and the physicians
               who testified on his behalf had a financial interest in the outcome of
               the case through their ownership interest in State Volunteer Mutual
               Insurance Company?

               3. Whether the trial court erred by allowing defendants to introduce
               any testimony by Fereidoon Parsioon, M.D. because of defendants’
               failure, during pretrial discovery, to disclose Dr. Parsioon as a person
               with knowledge or as an expert witness?




                                                 -2-
       Since all of plaintiff’s issues present questions of law, we will deal only briefly with the facts,
except as necessary in considering the specific issues.

         In early 1993, plaintiff began experiencing hearing loss in her left ear and was referred by her
primary care physician to Dr. Allan Ruleman, an ear, nose, and throat physician. Dr. Ruleman
conducted various tests and then referred plaintiff to the radiology department at Methodist North
Hospital for an MRI study of her brain, which was performed on March 12, 1993. Memphis
Radiological Professional Corporation had a contract with Methodist Hospitals of Memphis whereby
the corporation agreed to provide radiological services to Methodist’s patients. Defendant, Dale E.
Hansen, M.D., was a member of the Memphis Radiological Professional Corporation and, being on
duty on March 12, 1993, was responsible for interpreting plaintiff’s MRI. Plaintiff’s theory and
contention is that the March 12, 1993 MRI revealed a brain tumor and that Dr. Hansen was negligent
in failing to discover and diagnose that condition, because he did not conform to the standard of
acceptable practice for radiologists in the community. As the evidence revealed, plaintiff’s condition
deteriorated over a period of approximately two years, during which time she had various
examinations and treatment from a variety of physicians, including numerous MRI procedures.

        The defendants’ theory and proof is that, although in retrospect plaintiff’s tumor might have
been discernable on the March 12, 1993 MRI, Dr. Hansen was not negligent in failing to see it. Over
the approximate two year period subsequent to the March 12, 1993 MRI, plaintiff had several other
MRI procedures, all of which were reviewed by several different radiologists without finding that
the affected area of the brain was abnormal, having an identifiable tumor. Defendants’ proof is to
the effect that it was only after obtaining a highly detailed image of plaintiff’s brain and a personal
view of the patient, could the radiologist determine that there was in fact a tumor.

        We will now discuss plaintiff’s first issue for review:

                1. Whether the trial court, as thirteenth juror, afforded too much
                deference to the jury’s verdict and thereby applied an incorrect
                standard in its evaluation of the evidence?

       When the trial court is called upon to act as the thirteenth juror upon the filing of a motion
for a new trial, the trial court must be independently satisfied with the verdict of the jury.
Cumberland Telephone and Telegraph Co. v. Smithwick, 79 S.W. 803 (Tenn.1904). The Supreme
Court’s opinion reads in part:

                       The rule in civil cases is that, if the circuit judge is dissatisfied
                with the verdict of the jury, it is his duty to set it aside and grant a
                new trial, and that upon its being made to appear to this court, from
                statements made by the circuit judge in passing upon the motion for
                new trial, that he was really not satisfied with the verdict, it becomes
                the duty of this court, when it has acquired jurisdiction of the cause,
                to do what the circuit judge should have done; that is, to grant a new


                                                    -3-
                 trial on the ground of the dissatisfaction of that judicial officer with
                 the verdict. [Citations omitted.]

                                 *                *                *

                          The reasons given for the rule are, in substance, that the
                 circuit judge hears the testimony, just as the jury does, sees the
                 witnesses, and observes their demeanor upon the witness stand; that,
                 by his training and experience in the weighing of testimony, and the
                 application of legal rules thereto, he is especially qualified for the
                 correction of any errors into which the jury by inexperience may have
                 fallen, whereby they have failed, in their verdict, to reach the justice
                 and right of the case, under the testimony and the charge of the court;
                 that, in our system, this is one of the functions the circuit judge
                 possesses and should exercise – as it were, that of a thirteenth juror.
                 So it is said that he must be satisfied, as well as the jury; that it is his
                 duty to weigh the evidence, and, if he is dissatisfied with the verdict
                 of the jury, he should set it aside. . . .

Id. at 804-05.

         If the trial judge, when acting as the thirteenth juror, simply approves the verdict without any
comment, it is presumed by an appellate court that he has performed his function adequately. Miller
v. Doe, 873 S.W.2d 346 (Tenn. Ct. App. 1993). Where the trial court makes comments in the course
of reviewing a motion for a new trial, we will review those comments, but we do not review those
comments to see if we agree with the trial court’s reasoning but rather to determine whether the trial
court properly reviewed the evidence and was satisfied or dissatisfied with the verdict. Id. at 347.
If the trial judge makes comments which indicate that he has misconceived his duty or clearly has
not followed it, this Court must reverse and remand the case for a new trial. Id.

        Following these principles, it now becomes our responsibility to examine the comments made
by the trial judge when he overruled plaintiff’s motion for a new trial. We quote from the transcript:

                         And . . . regarding the weight of the evidence in this case, this
                 was a very well tried, very hard fought case. You know, I was
                 certainly sympathetic and I don’t know how the jury could help but
                 be sympathetic to the plaintiff in this case. But it is a case, as Mr.
                 Mitchell has suggested, that could have gone either way.

                        You know, as a trial judge I sit up here and listen to all the
                 evidence and then instruct the jury and the jury comes back, and in
                 almost every case, I would say 90 to 95 percent of the cases, I don’t
                 have any problems with what the jury does. In five percent or less of


                                                      -4-
               the cases the jury comes back with a verdict and I think to myself how
               in the world did they come to that verdict based on the evidence that
               I heard in this case.

                      And in those cases if the party, the aggrieved party, comes
               back and asks for a new trial, generally I grant it. But this is not one
               of those cases. Again if the jury had come back for the plaintiff, I
               would have said there’s evidence – ample evidence in the record.
               And I can’t remember the plaintiff’s expert’s witness Doctor Bat –

               MR. ROSE: Batnitsky.

               THE COURT: Thank you. I couldn’t remember his last name. Made
               a good credible witness, I thought, even though he was lambasted for
               testifying in other cases. Made a credible witness. And if the jury
               had come back for the plaintiff, I would have said the evidence
               preponderates in favor of the verdict of the jury. And likewise based
               on the verdict for the defendant, I have got to say after an independent
               review of the evidence that the evidence preponderates in favor of the
               verdict of the jury in this case and not against.

                       Again, it was a tough case and I’m certainly empathetic with
               the plaintiff, but you had your jury trial. I think it was a fair trial, and
               I will deny you motion.

      Subsequently, on October 13, 2000, the trial court entered an “Order Denying Plaintiff’s
Motion for a New Trial,” which states:

                       This cause came to be heard on plaintiff’s motion for a new
               trial, memoranda, and statements of counsel, and the entire record in
               the case, from all of which it appears that the motion is not well taken
               and should be denied. As thirteenth juror, the Court agrees with the
               jury verdict and agrees that the preponderance of the evidence is in
               favor of the defendants.

                      WHEREFORE, IT IS CONSIDERED AND ORDERED BY
               THE COURT that plaintiff’s motion for new trial be, and the same is
               hereby, denied.

       Plaintiff asserts that “the trial court’s candor, in its ruling as the thirteenth juror, shows an
impermissible degree of deference to the jury’s verdict.” Plaintiff primarily relies upon the Supreme
Court’s holding in Holden v. Rannick, 682 S.W.2d 903 (Tenn. 1984).



                                                   -5-
        In Holden, also a medical malpractice case, the Supreme Court commented:

                 Although the trial judge said that he agreed with the verdict for the
                 defendant, he indicated that he would also have agreed with the
                 verdict for the plaintiff. That position is inconsistent with his duty to
                 weigh the evidence and pass on the issues. If a trial judge properly
                 weighs the evidence and passes on the issues, he will not find that the
                 evidence does not preponderate in favor of the plaintiff because the
                 verdict is for the defendant, but would preponderate in favor of the
                 plaintiff if the verdict had been for the plaintiff.

                         The trial judge stated that he expressly approved the verdict.
                 It appears from the context of that statement, however, that he
                 approved the verdict because he felt that the case was fairly presented
                 and he was not shocked by the verdict, rather than because he reached
                 the same verdict as the jury after independently weighing the
                 evidence and passing upon the issues. Twice the trial judge stated
                 that the court does not substitute its judgment for that of the jury.
                 Those statements reveal a mistaken belief on his part that he was
                 under no duty to pass upon the issues.

                         Because the trial judge stopped short of making an
                 independent decision on the issues presented by the case, and deferred
                 to the judgment of the jury, he failed to perform his duty as a
                 thirteenth juror.

Id. at 905-06.

In determining whether the trial court misconceived its duty as a thirteenth juror, the Supreme Court
made it clear that the comments of the trial judge should be considered as a whole. Id.

        In the case at bar, the trial judge recognized his duty to make an independent review of the
evidence and stated that his experience has been that in 90 to 95 percent of the cases the jury comes
back with the proper decision; that in the other percentage of the cases, he generally grants a new
trial. He stated “but this is not one of those cases.” Although the trial judge stated that if the jury
had come back for the plaintiff, he would have said that the evidence preponderates in favor of the
verdict of the jury, it appears that he did that in the context of his expressed sympathy for the
plaintiff. He did specifically state that he considered the verdict for the defendant on an independent
review of the evidence and found that the evidence preponderates in favor of the verdict. No where
does the trial judge indicate that he is not at liberty to substitute his judgment for that of the jury, as
in Holden. It appears that the judge’s remarks concerning a jury verdict for the plaintiff is merely
pointing out that there was material evidence to sustain a verdict for the plaintiff on that standard of
review and not that the weight of the evidence was placed with plaintiff. Considering his remarks


                                                   -6-
as a whole, we find that the trial judge did not misconceive his duty as the thirteenth juror and made
an independent review of the evidence from which he found that the evidence did not preponderate
against the jury’s verdict in favor of the defendant. Moreover, a court speaks through its written
orders. Ladd v. Honda Motor Co., 939 S.W.2d 83 (Tenn. Ct. App. 1996), and the trial court’s order
denying the motion for a new trial explicitly provides that the decision was made only after an
independent review of the evidence. There is no reversible error by the trial court on this issue.

       The second issue for review is:

               2. Whether the trial court erred by excluding evidence of bias arising
               from the fact that defendant Dale Hansen, M.D. and the physicians
               who testified on his behalf had a financial interest in the outcome of
               the case through their ownership interest in State Volunteer Mutual
               Insurance Company?

       Defendant filed a motion in limine stating in part:

               1. That counsel for plaintiff and plaintiff’s witnesses shall not adduce
               testimony or comments with respect to whether the defendants or any
               of the witnesses called by the defendants are insured by any liability
               insurance or by State Volunteer Mutual Insurance Company in
               particular.

                               *               *              *

       The trial court granted the motion, and plaintiff was allowed to make an offer of proof as
follows:

               Fereidoon Parsioon, M.D.

               Q. (BY MR. PORTER:) Dr. Parsioon, are you insured by the State
               Volunteer Mutual Insurance Company?

               A. Yes, sir.

               Q. What group are you a part of?

               A. I am a solo practitioner.

               Q. Solo practitioner?

               A. Yes, sir.



                                                   -7-
Q. When you were with the Semmes-Murphey Clinic, were they
insured by the SVMIC, as well?

A. I believe so.

Q. And do you understand that the physicians who were insured are
the people who own the company.

A. Yes, sir.

Q. A doctor owned insurance company; is that correct?

A. I believe so.

Q. Thanks. That’s all.

James Wolfe, M.D.

Q. (BY MR. ROSE:) The other thing I want to ask you is, in your
practice, are you insured by State Volunteer Mutual Insurance
Company?

A. Yes, sir. Everybody in that group is.

Q. And you understand that you are an owner in part in that
insurance company?

A. I saw one of the depositions that question was asked and after
that, I gave it some thought. And I finally realized why they sent me
the proxies every year. I think I must be.

Q. You have an ownership interest in the company, in the insurance
company, you understand that?

A. I am not for certain of that, no, I’m not. But I have an idea I
probably am. I am a shareholder of some sort.

Q. That’s all. Thank you.

      MR. MITCHELL: Dr. Wolfe, do you know whether or not Dr.
Hansen has any insurance of any kind?

A. No, I don’t.


                                -8-
        MR. MITCHELL: That’s all I have.

Gale Gardner, M.D.

Q. (BY MR. PORTER:) Dr. Gardner, are you insured by the SVMIC
Insurance Company?

A. Yes, sir.

Q. Is that a physician owned company that operates within the State
of Tennessee?

A. I believe that it is.

Q. And are you, by virtue of being a policyholder, also an owner of
that company?

A. I don’t know the answer to that.

Q. Are you aware of anyone else who owns it, other than the doctor
members who are insured by it?

A. I don’t know enough about it to be able to answer that question,
Mr. Porter. I’m sorry.

Q. And do you know, of your own knowledge, whether the
defendant, Dr. Hansen and his group, are insured by that company?

A. I don’t specifically know.

Q. That’s all, Doctor. Thank you.

Q. (BY MR. DOTSON): Dr. Gardner, do you know Dr. Hansen?

A. Very casually. I know who he is.

Q. Did you see him this morning before trial?

A. I did see him this morning.

Q. First time you saw him, did you recognize him?

A. No, I did not.


                                 -9-
       Q. That’s all I have. And would you just leave your CV there on the
       stand, please? I’m going to make that as an exhibit later. Thank you,
       Doctor.

       Stipulation as to MRPC, which includes Drs. Hansen, Mabry, and
       Halford

               MR. PORTER: Your Honor, we have one additional matter.
       It’s not rebuttal, but we would like – we would move to recall Dr.
       Hansen for purposes of completing our offer of proof because we
       overlooked asking him the question about the SVMIC.

               THE COURT: Any objection?

              MR. MITCHELL: Your Honor, we will stipulate that Dr.
       Hansen is insured by State Volunteer, if that is all they want to put
       him on for.

               MR. PORTER: You stipulate that Dr. Hansen and his group
       are insured by SVMIC?

               MR. MITCHELL: Yes.

               MR. PORTER: That’s satisfactory.

The Tennessee Rules of Evidence, as pertinent to our inquiry on this issue, are as follows:

       Rule 402. Relevant evidence generally admissible; irrelevant
       evidence inadmissible. - All relevant evidence is admissible except
       as provided by the Constitution of the United States, the Constitution
       of Tennessee, these rules, or other rules of laws of general
       application in the courts of Tennessee. Evidence which is not
       relevant is not admissible.

       Rule 403. Exclusion of relevant evidence on grounds of
       prejudice, confusion, or waste of time. - Although relevant,
       evidence may be excluded if its probative value is substantially
       outweighed by the danger of unfair prejudice, confusion of the issues,
       or misleading the jury, or by considerations of undue delay, waste of
       time, or needless presentation of cumulative evidence.

       Rule 411. Liability insurance. - Evidence that a person was or was
       not insured against liability is not admissible upon issues of


                                       -10-
               negligence or other wrongful conduct. This rule does not require the
               exclusion of evidence of insurance against liability when offered for
               another purpose, such as proof of agency, ownership, or control, or
               bias or prejudice of a witness.

               Rule 616. Impeachment by bias or prejudice. - A party may offer
               evidence by cross-examination, extrinsic evidence, or both, that a
               witness is biased in favor of or prejudiced against a party or another
               witness.

        A review of the offer of proof made by the plaintiff indicates that the witnesses, while being
insured by SVMIC, were not aware of Dr. Hansen’s liability insurance, if any. In Roberson v.
Netherton, No.01A01-9310-CV-00470, 1994 WL 164153, (Tenn. Ct. App. May 4, 1994), a medical
malpractice case, plaintiffs made the same assertion as in the case at bar - that the potential bias of
the defendant’s experts was relevant in the case. The Court noted:

               The plaintiffs merely concluded that because these experts were
               policy holders with SVMIC, and because they were not compensated
               for their testimony in this case they were biased in favor of the
               defendant. The introduction of evidence to show bias on the part of
               a witness is in the proper circumstances, admissible under Rule 411
               and 616. However, that evidence is not admissible without a proper
               foundation. . . .

Id. at *2.

After reviewing the testimony, the Court stated:

                       In this case the plaintiffs’ attorney did not lay a proper
               foundation for the evidence that he wanted to introduce before the
               jury. Neither Dr. Arnold nor Dr. Nesbitt stated that they understood
               how a mutual insurance company operated or that the amount of
               claims paid by SVMIC could potentially affect their premiums.
               Absent any evidence in the record to support the inference that these
               experts would be untruthful in order to prevent a possible increase in
               their premiums, the evidence offered by the plaintiffs’ attorney was
               not admissible under either Rule 411 or Rule 616.

Id. at *3; see also Patton v. Rose, 892 S.W.2d 410, 414-15 (Tenn. Ct. App.1994).

        The admissibility of evidence is a matter which rests within the sound discretion of the trial
court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993); Wright v. Quillen, 909 S.W.2d 804, 809
(Tenn. Ct. App. 1995). The appellate court will not reverse the trial court’s decision on the


                                                 -11-
admissibility of evidence absent clear abuse. State v. Roden, 739 S.W.2d 6 (Tenn. Crim. App.
1987).

       Under the record in this case, we cannot say that the trial court abused its discretion in
granting the motion in limine and excluding the proffered testimony.

       The last issue for review is:

                3. Whether the trial court erred by allowing defendants to introduce
                any testimony by Fereidoon Parsioon, M.D. because of defendants’
                failure, during pretrial discovery, to disclose Dr. Parsioon as a person
                with knowledge or as an expert witness?

         By letter from defendants dated May 4, 2000, and received by the plaintiff May 11, 2000,
eleven days before the trial began on May 22, 2000, defendants listed, among others, Dr. Fereidoon
Parsioon as a “may call” witness. Dr. Parsioon had not previously been identified by defendants in
response to discovery as an expert witness nor as a witness with knowledge of facts. The subject
witness was listed by defendants in the pretrial order, and plaintiff filed a motion prior to trial to
strike this witness, among others, from the pretrial order and to exclude him as a witness in the case.

       The record reflects that Dr. Parsioon was one of plaintiff’s treating physicians who had
previously been listed by the plaintiff as a person with knowledge of the facts. Plaintiff contends that
defendants violated Tenn.R.Civ.P. 26.05 by failing to seasonably supplement the response to the
previously answered interrogatories. Tenn.R.Civ.P. 26.05 provides in part:

                (1) A party is under a duty seasonably to supplement the party’s
                response with respect to any question directly addressed to (A) the
                identity and location of persons having knowledge of discoverable
                matters; and (B) the identity of each person expected to be called as
                an expert witness at trial, the subject matter on which the person is
                expected to testify, and the substance of that testimony.

         Basically, plaintiff asserts that defendants should have listed the doctor as an expert witness
and be required to show “the subject matter on which [he] is expected to testify, and the substance
of that testimony.”

        The trial court delayed its ruling on the admissibility of testimony of this witness until he was
called to testify and, at the trial, sustained an objection to the doctor’s testimony relating to expert
opinions and activities of other actors in the case. The doctor was allowed to testify about his care
and treatment of the plaintiff and his opinion concerning his preoperative and post-operative actions.

       The precise issue presented is whether the doctor should have been excluded as a witness
because he was not listed as an expert witness by the defendants.


                                                  -12-
      We believe the case is controlled by the decision of this Court in Alessio v. Crook, 633
S.W.2d 770 (Tenn. Ct. App. 1982), where the Court held:

                         An expert whose information was not acquired in preparation
                for trial but rather because he was an actor or viewer in regard to the
                occurrence should be treated as an ordinary witness and not as an
                expert as contemplated by Rule 26, TRCP.

Id. at 779.

         In the instant case, it is clear that Dr. Parsioon was one of plaintiff’s treating physicians and
testified concerning the knowledge that he acquired thereby. We find no error by the trial court in
allowing this testimony.

        Accordingly, the judgment of the trial court on the jury verdict for defendants is affirmed,
and the case is remanded for the trial court for such further proceedings as may be necessary. Costs
of the appeal are assessed against the appellant, Lisa Heath, and her surety.




                                                __________________________________________
                                                W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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