                                                                                          10/25/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 May 23, 2017 Session

   COMMERCIAL BANK & TRUST COMPANY, ET AL. v. CHILDREN'S
              ANESTHESIOLOGISTS, P.C., ET AL.

                     Appeal from the Circuit Court for Knox County
                      No. 3-740-14   Deborah C. Stevens, Judge


                             No. E2016-01747-COA-R3-CV


Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi,
a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal
Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc.
(collectively “Plaintiffs”) sued Children’s Anesthesiologists, P.C.; Heather D. Phillips,
D.O.; Kari L. Clinton; Neurosurgical Associates, P.C.; Lewis W. Harris, M.D.; and East
Tennessee Children’s Hospital Association, Inc. d/b/a East Tennessee Children’s
Hospital alleging health care liability in connection with surgery performed on Albert P.
Mjekiqi (“Albert”) in May of 2011. After a trial, the Circuit Court for Knox County (“the
Trial Court”) entered judgment on the jury’s verdict finding no liability on the part of the
defendants. Plaintiffs appeal to this Court raising issues with regard to admission of
evidence and jury instructions. We discern no error, and we affirm.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and KENNY W. ARMSTRONG, JJ., joined.

Sidney W. Gilreath, Cary L. Bauer, and Joshua M. Dennis, Knoxville, Tennessee, for the
appellants, Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert
P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as
Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc.

James H. London, Jennifer Pearson Taylor, and J. Spencer Fair, Knoxville, Tennessee,
for the appellee, Children’s Anesthesiologists, P.C.

Edward G. White, Wayne A. Kline, and Lyndsey L. Lee, Knoxville, Tennessee, for the
appellee, Neurosurgical Associates, P.C.
                                                OPINION

                                              Background

       When Albert was one year old he had a hemispherectomy which removed a
portion of his brain. Albert had a shunt implanted to drain cerebrospinal fluid in his
brain, and over the years had undergone at least one shunt revision procedure. At the
time of the surgery that gave rise to this suit, Albert was an eight year old who had left-
side weakness, but he was able to sit, stand, and walk. In May of 2011, after presenting
to the emergency room with complaints of headaches and vomiting, and undergoing
testing1, Albert was admitted to East Tennessee Children’s Hospital where he underwent
surgery for a shunt revision. Albert was no longer able to walk post-surgery and instead
was wheelchair-bound.

        Plaintiffs2 sued alleging health care liability. The case was tried before a jury
during a two week period in February and March of 2016. After trial, the jury returned
its verdict finding no liability on the part of the defendants.3 The Trial Court entered
judgment upon the jury’s verdict on March 8, 2016. Plaintiffs filed a motion for new
trial, which the Trial Court denied. Plaintiffs appeal to this Court.

                                                Discussion

        Although not stated exactly as such, Plaintiffs raise four issues on appeal: 1)
whether the Trial Court erred in allowing testimony that implied that Albert’s parents
came to this country as refugees; 2) whether the Trial Court erred in not allowing exhibit
number 102 to be taken to the jury room; 3) whether the Trial Court erred in refusing to
grant the motion for new trial when the defendants allegedly failed to offer evidence of
the standard of care; and 4) whether the Trial Court erred in charging the jury with an
‘error in judgment’ instruction.




1
  From the Parkwest Medical Center emergency room, Albert was sent first to East Tennessee Children’s
Hospital and then home. Dr. Harris called the next day and set up the shunt revision surgery.
2
  Volunteer State Health Plan, Inc. was not originally a plaintiff to this action, but it was granted leave to
intervene during the pendency of the suit.
3
  Prior to trial, Plaintiffs non-suited East Tennessee Children’s Hospital. After the close of proof at trial,
Plaintiffs nonsuited Heather D. Phillips, D.O.; Kari L. Clinton; and Lewis W. Harris, M.D. The jury
deliberated as to the potential liability of Children’s Anesthesiologists, P.C. and Neurosurgical
Associates, P.C. only.
                                                       2
      Our Supreme Court has instructed:

             An appellate court shall only set aside findings of fact by a jury in a
      civil matter if there is no material evidence to support the jury’s verdict.
      Tenn. R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn.
      2006). In determining whether there is material evidence to support a
      verdict, we shall: “(1) take the strongest legitimate view of all the evidence
      in favor of the verdict; (2) assume the truth of all evidence that supports the
      verdict; (3) allow all reasonable inferences to sustain the verdict; and (4)
      discard all [countervailing] evidence.” Barnes v. Goodyear Tire & Rubber
      Co., 48 S.W.3d 698, 704 (Tenn. 2000) (citing Crabtree Masonry Co. v. C
      & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)). “Appellate courts shall
      neither reweigh the evidence nor decide where the preponderance of the
      evidence lies.” Barnes, 48 S.W.3d at 704. If there is any material evidence
      to support the verdict, we must affirm it; otherwise, the parties would be
      deprived of their constitutional right to trial by jury. Crabtree Masonry
      Co., 575 S.W.2d at 5.

Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009).

       We first consider whether the Trial Court erred in allowing testimony that implied
that Albert’s parents came to this country as refugees. During cross-examination,
Albert’s mother was asked several questions about the fact that she and her husband came
to the United States in 1999, that she was from Bulgaria and her husband was from
Yugoslavia, and that she had worked for a military contractor training United States
soldiers for peace-keeping missions. Plaintiffs’ counsel did not object to any of these
questions.

      As this Court stated in Grandstaff v. Hawks:

             Objections to the introduction of evidence must be timely and
      specific.

                                          ***

             A party who invites or waives error, or who fails to take reasonable
      steps to cure an error, is not entitled to relief on appeal. Failure to object
      [to] evidence in a timely and specific fashion precludes taking issue on
      appeal with the admission of the evidence.



                                            3
Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) (citations omitted). As
Plaintiffs raised no objection at trial to the introduction of evidence regarding Albert’s
parents coming to the United States from Bulgaria and Yugoslavia, Plaintiffs are
precluded from raising this issue on appeal.

        We next consider whether the Trial Court erred in not allowing exhibit number
102 to be taken to the jury room. Exhibit 102 consists of a piece of paper upon which
was handwritten, apparently by Plaintiffs’ counsel: “standard of care,” and undernearth
those words was typed: “The practice that protects the patient from unnecessary risk of
serious harm.” At trial, Plaintiffs’ counsel asked Dr. Phillips if she agreed with that
statement, and she did agree. Plaintiffs’ counsel then attempted to file the paper as an
exhibit. An objection was raised to admitting the paper as an exhibit as it was cumulative
to the testimony just given by Dr. Phillips. The Trial Court marked Exhibit 102 for
identification purposes only.

      As this Court stated in DeLapp v. Pratt:

      Issues regarding admission of evidence in Tennessee are reviewed for
      abuse of discretion. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct.
      App. 2001). “[T]rial courts are accorded a wide degree of latitude in their
      determination of whether to admit or exclude evidence, even if such
      evidence would be relevant.” Id. Our Supreme Court discussed the abuse
      of discretion standard in Eldridge v. Eldridge, stating:

                     Under the abuse of discretion standard, a trial court’s
             ruling “will be upheld so long as reasonable minds can
             disagree as to [the] propriety of the decision made.” A trial
             court abuses its discretion only when it “applie[s] an incorrect
             legal standard, or reache[s] a decision which is against logic
             or reasoning that cause[s] an injustice to the party
             complaining.” The abuse of discretion standard does not
             permit the appellate court to substitute its judgment for that of
             the trial court.

      Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

              Appellate courts ordinarily permit discretionary decisions to stand
      when reasonable judicial minds can differ concerning their soundness.
      Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). A
      trial court's discretionary decision must take into account applicable law
      and be consistent with the facts before the court. Id. When reviewing a
                                            4
       discretionary decision by the trial court, the “appellate courts should begin
       with the presumption that the decision is correct and should review the
       evidence in the light most favorable to the decision.” Id.

DeLapp v. Pratt, 152 S.W.3d 530, 538 (Tenn. Ct. App. 2004).

       Plaintiffs’ counsel did not object to the Trial Court’s not allowing Exhibit 102 to
be taken into the jury room, and, as such, waived this issue on appeal. Furthermore, even
if the issue were not waived, we cannot find the Trial Court abused its discretion in
excluding Exhibit 102 as “needless presentation of cumulative evidence,” since the
statement contained in Exhibit 102 was read to Dr. Phillips at trial, and she testified that
she agreed with the statement. Tenn. R. Evid. 403. Furthermore, there was no evidence
submitted at trial that Exhibit 102 was a complete definition as to the “recognized
standard of acceptable professional practice . . .” in this case as mandated by Tenn. Code
Ann. § 29-26-115(a)(1) as opposed to being a general statement or aspect of that standard
of acceptable profesional practice. Tenn. Code Ann. § 29-26-115(a)(1) (2012). The
specifics necessary to flesh out that general statement will vary from case to case
depending upon the health care given to the patient. For example, the specifics as to the
acceptable standard of professional practice in a case involving a surgery will not be the
same as in a case involving the prescribing of medication. As such, allowing Exhibit 102
to go to the jury room likely would have resulted in confusion by giving this written
statement undue weight over the oral testimony on that issue. We find no error by the
Trial Court on this issue. If we are in error on this, we also find that it would be, at most,
harmless error.

       We next consider whether the Trial Court erred in refusing to grant the motion for
new trial when the defendants allegedly failed to offer evidence of the standard of care.
With regard to a motion for new trial this Court has stated:

               A trial court is given wide latitude in granting a motion for a new
       trial, and a reviewing court will not overturn such a decision unless there
       has been an abuse of discretion. Mize v. Skeen, 63 Tenn. App. 37, 42–43,
       468 S.W.2d 733, 736 (1971); see also Tennessee Asphalt Co. v. Purcell
       Enter., 631 S.W.2d 439, 442 (Tenn. App. 1982). As the thirteenth juror,
       the trial judge is required to approve or disapprove the verdict, to
       independently weigh the evidence, and to determine whether the evidence
       preponderates in favor of or against the jury verdict. Mize, 63 Tenn. App.
       at 42, 468 S.W.2d at 736. If the trial judge is dissatisfied with the verdict,
       he should set it aside and grant a new trial. Hatcher v. Dickman, 700
       S.W.2d 898, 899 (Tenn. App. 1985)(quoting Cumberland Tel. & Tel. Co. v.
       Smithwick, 112 Tenn. 463, 469, 79 S.W. 803, 804 (1904)).
                                              5
Boggs v. Rhea, 459 S.W.3d 539, 547 (Tenn. Ct. App. 2014) (quoting Loeffler v.
Kjellgren, 884 S.W.2d 463, 468 (Tenn. Ct. App. 1994)).

       In their brief on appeal, Plaintiffs assert that the Trial Court should have granted a
new trial because defendants allegedly failed to offer evidence of the standard of care.
Plaintiffs are mistaken.

        In Mabon v. Jackson-Madison County Gen. Hosp., this Court stated: “It is the
plaintiff who is charged with the burden of proof as to the standard of care in the
community in which the defendant practices or in a similar community,” pursuant to
Tenn. Code Ann. § 29-26-115(a)(1). Mabon v. Jackson-Madison County Gen. Hosp.,
968 S.W.2d 826, 831 (Tenn. Ct. App. 1997); see also Geesling v. Livingston Reg. Hosp.
LLC, No. M2007-02726-COA-R3-CV, 2008 WL 5272476, at *4 (Tenn. Ct. App. Dec.
18, 2008) (stating: “Tenn. Code Ann. § 29-26-115(a)(1) states that the claimant shall
have the burden of proving by evidence the relevant recognized standard of care.”). Our
Supreme Court also has noted that “T.C.A. § 29-26-115 affirmatively places the burden
of proof in a malpractice case upon the plaintiff . . . .” Cardwell v. Bechtol, 724 S.W.2d
739, 753 (Tenn. 1987).

        In their brief on appeal, Plaintiffs acknowledge that several expert witnesses
testified at trial that Dr. Harris met the standard of care. Plaintiffs argue, however, that
none of those expert witnesses “established what the recognized standard of acceptable
professional practice actually was for Defendant Harris.” This argument is without merit.
Plaintiffs had the burden of proving the standard of care, not defendants. Plaintiffs met
this burden and several defense expert witnesses then testified that Dr. Harris met the
standard of care. We find no abuse of discretion in the Trial Court’s refusal to grant the
motion for new trial on this issue.

        Finally, we consider whether the Trial Court erred in charging the jury with an
‘error in judgment’ instruction. As this Court explained in Goodale v. Langenberg:

              The trial court’s instructions guide the jury in its deliberations. The
       instructions must be plain and understandable, and must inform the jury of
       each applicable legal principle. Wielgus v. Dover Indus., 39 S.W.3d 124,
       131 (Tenn. Ct. App. 2001). They must also reflect the theories that are
       supported by the parties’ pleadings and proof, as well as the parties’ claims
       and defenses. Cole v. Woods, 548 S.W.2d 640, 642 (Tenn. 1977). Jury
       instructions must be correct and fair as a whole, although they do not have
       to be perfect in every detail. Wielgus, 39 S.W.3d at 131. Upon review, we
       read a trial court’s instructions to the jury in their entirety and in context of
                                              6
        the entire charge. See id. Additionally, where the trial court’s instructions
        clearly and definitely set forth the elements upon which liability must be
        based, the failure to recite each element in the verdict form will not render
        the verdict invalid. State v. Faulkner, 154 S.W.3d 48, 62 (Tenn. 2005).

Goodale v. Langenberg, 243 S.W.3d 575, 584 (Tenn. Ct. App. 2007).

       In their brief on appeal, Plaintiffs argue that because there was “no testimony
whatsoever basing any defense on ‘error in judgment,’ it was reversible error to instruct
the jury on such a defense.” Plaintiffs rely4, in part, upon Godbee v. Dimick in which this
Court stated: “[Defendant] denies any mistake, honest or otherwise, and his defense does
not envision ‘honest mistake,’” and held that as there was “no evidence in this record to
support such defense, it was error to give the instruction.” Godbee v. Dimick, 213
S.W.3d 865, 890 (Tenn. Ct. App. 2006).

       The jury instructions given in the instant case differ significantly from those given
in Godbee. In Godbee, the relevant portion of the jury instructions included the
following:

               A physician will not be held responsible for honest mistakes in
        judgment but only for negligent failure to meet the standard required by the
        profession in the community.

               A physician does not guarantee a cure for his patients. Presuming
        careful diagnosis, a physician is not liable for damages resulting from an
        honest mistake in determining the care and the treatment to be
        administered.

Id. In the instant case, the relevant jury instructions included the following5:

              By undertaking treatment, a medical professional does not guarantee
        a good result. A medical professional is not negligent merely because of an
4
  Plaintiffs also rely upon Givens v. Sorrels, No. M2012-01712-COA-R3-CV, 2013 WL 4507946 (Tenn.
Ct. App. Aug. 21, 2013), Rule 11 appl. perm. appeal denied Jan. 16, 2014, which is designated as a
memorandum opinion and pursuant to Rule 10 of the Rules of the Court of Appeals may “not be cited or
relied on for any reason in any unrelated case.” R. Ct. App. 10. Plaintiffs also rely upon cases from other
jurisdictions. As there is existing Tennessee case law, however, we find no need to consider case law
from other jurisdictions. See Ward v. Glover, 206 S.W.3d 17, 41 (Tenn. Ct. App. 2006) (discussing the
use of Tennessee pattern jury instruction 6.12 and stating that Tennessee “has consistently held that this
charge is appropriate.”).
5
  The Trial Court utilized pattern jury instruction T.P.I. – Civil 6.12 Perfection Not Required, changing
only the pronouns in the jury instruction as appropriate to suit the facts in the instant case.
                                                     7
       unsuccessful result or error in judgment. An injury alone does not raise a
       presumption of negligence. It is negligence, however, if the error of
       judgment or lack of success is due to a failure to have and use the required
       knowledge, care, and skills as defined in these instructions.

       The Trial Court in the instant case did not charge the jury with regard to ‘honest
mistake,’ as did the trial court in Godbee. Rather, the Trial Court in the instant case
charged the jury that: “A medical professional is not negligent merely because of an
unsuccessful result or error in judgment.” Even if Plaintiffs are correct that the evidence
in the record on appeal does not support a defense based upon ‘error in judgment,’ the
jury instruction given provided for another possibility. The jury instruction given
provided that a defendant is not negligent merely “because of an unsuccessful result,” or
because of an “error in judgment.” Here, it was alleged that Dr. Harris’s decision to
continue to attempt to remove the shunt after he encountered difficulty was inappropriate
and that Dr. Harris should have made a different decision. Clearly, Dr. Harris used his
medical judgment when he made the decisions that he made during the surgery. So the
fact that defendants did not admit to an ‘error in judgment’ does not invalidate the use of
this instruction when Plaintiffs presented proof that Dr. Harris erred in choosing to
continue to attempt to remove the shunt. Given all this, we find the facts and analysis
with regard to the jury instructions in Godbee easily distinguishable from the case now
before us.

       Reading the Trial Court’s “instructions to the jury in their entirety and in context
of the entire charge,” as we must, we find no error in the Trial Court’s use of the pattern
jury instruction containing the words ‘error in judgment’ as they properly reflected the
parties’ claims and defenses. Goodale, 243 S.W.3d at 584.

       Finding no error, we affirm the Trial Court’s Final Judgment entered upon the
jury’s verdict on March 8, 2016.

                                       Conclusion

        The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert
P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as
Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan,
Inc., and their surety.

                                          _________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE
                                            8
