                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                September 19, 2013 Session


                   IKE J. WHITE, III v. DAVID A. BEEKS, M.D.

                   Appeal from the Circuit Court for Bradley County
                      No. V-07-554      J. Michael Sharp, Judge




              No. E2012-02443-COA-R3-CV-FILED-DECEMBER 9, 2013




C HARLES D. S USANO, JR., P.J., concurring.

       I concur in the majority opinion. I write separately to further address the causation
aspect of the trial court’s rationale in excluding portions of Dr. Law’s testimony.

        The plaintiff offered the testimony of Dr. Law in an attempt to establish that the
defendant deviated from the acceptable standard of professional practice when he failed to
advise the plaintiff of certain risks of the planned surgery. I will hereafter refer to these risks
as “the risks involved in Dr. Law’s excluded testimony.” Assuming that Dr. Law’s testimony
had been found by the jury to be credible, it is clear to me that it would have established
negligence on the part of the defendant. But this negligence would not have been relevant
unless there was a causal relationship between the negligence and the injuries that the
plaintiff claimed as a result of the surgery.

       In the case of Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993), the Supreme Court
discussed in detail the dual and related concepts of cause in fact and proximate cause:

               Causation and proximate cause are distinct elements of
               negligence, and both must be proven by the plaintiff by a
               preponderance of the evidence. Causation (or cause in fact) is
               a very different concept from that of proximate cause.
               Causation refers to the cause and effect relationship between the
               tortious conduct and the injury. The doctrine of proximate cause
               encompasses the whole panoply of rules that may deny liability
               for otherwise actionable causes of harm. Thus, proximate cause,
               or legal cause, concerns a determination of whether legal
               liability should be imposed where cause in fact has been
               established. Cause in fact, on the other hand, deals with the “but
               for” consequences of an act. The defendant’s conduct is a cause
               of the event if the event would not have occurred but for that
               conduct.

Id. at 598 (internal citations omitted). See also King v. Anderson County, 2013 WL
6124390 at *11 (Tenn., filed Nov. 21, 2013); Nye v. Bayer Cropscience, Inc., 347 S.W.3d
686, 704-05 (Tenn. 2011); Morrison v. Allen, 338 S.W.3d 417, 438 (Tenn. 2011); Hale v.
Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005).

        Returning to this case, and utilizing the “but for” test alluded to in the above-cited and
other Tennessee appellate decisions, it cannot be said that but for the defendant’s failure to
advise the plaintiff of the risks involved in Dr. Law’s excluded testimony, the injuries
complained of by the plaintiff would not have occurred. It is important to note that the focus
is on the injuries and not on whether, had all of the significant risks been explained, the
plaintiff would have decided to have the surgery. The dissent focuses on the latter while the
rule is directed at the former.

       Accordingly, I concur in the majority opinion.




                                             __________________________________________
                                             CHARLES D. SUSANO, JR., PRESIDING JUDGE




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