### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 10, 2002 Se ssion VICKIE BARA, ET AL 

### . v. CLARKSV ILLE MEMORIAL HEA LTH SYSTEMS, INC., d/b/a CLARKSVI LLE MEMORIAL HOSPITAL, ET AL.

Appeal from the Circuit Court for Montgomery C ounty No. C12-852 James E. Walton, Judge

No. M2001-00682-COA-R3-CV - Filed Septem ber 12, 2002

Parents of deceased child sued Clarksville Memorial Hospital and Dr. David Miller for the death of their child. They

alleged this dea

th occur red due t o Defendants’ mis-diagnosis of their daughter’s injuries following an automobile accident and subsequent incorre ct and neg ligent trea tment . The jury returned a verdict for Defe ndants. Plaintiffs now appeal alleging two points of error in the jury instructi ons; (1) that

it was error to charge the jury that Plaintiffs must prove causation to a reasona ble degree of medical ce

rtainty and; (2) that it

was error to charge the

jury that they

must find the child’s death to be re asonably forese eable. We

find that t

he jury instructi ons on rea sonable degree of medical certainty

and foreseeability

were incorrect statements of the law, confusing to the ju ry, and more probably than not, af fected the jury ’s verdict. We thus reverse the judgment and remandfor a new trial as to D efend ant Miller . We affir m the judgment in fa

vor of Cla

rksville Memorial Hospital.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded as to Defendant Dr. Miller Affirme d and Rem anded as to D efendant Cl arksville Memor ial Hospital

W IL LI AM B. C AIN , J., delivered the opinion of the court, i n which P AT RICIA J. C OTT RELL , J. and I RVIN H. K ILCREASE , J R ., S P . J., joined.
Joe Bednarz, Sr. and Joe Bednarz, Jr., Nashville , Tennes see, for the appe llants, Vi ckie

Bara and John Paul Bara. Wayne L . Robbins, Jr., Nashville, Tennessee, for the defendant, David S. Miller, M.D. Robert L. Tr entham a

nd G. Br ian Jackso n, Nashvi lle, Tenn essee, f or the ap pellee, Clarksville Memorial Hospital. OPINION-2-

Sofia Bara, deceased, wa s in an auto accident on November 30, 1997. She was taken to the emergency

room at Clarksville Memorial Hospital where she was examined by an emergency

room physician. The ER physician orde red a CT scan of her

abdomen and called in Defendant, surg eon Dr. Davi d Miller, f

or consul tation re garding the po ssibility of intern al injurie s. Dr. Miller viewed the CT scan and examined Sofia. He then admitted her to the hospital for observation at around 2:00 a.m. on the night of the accident. The CT scan showed some fluid around her liver, but the fluid appeared to Dr. Miller to be fatty tissue, a s So fia was quite overweight. He saw he r again around 2:00 p.m. the following afternoon, at which time she was drinking and asking for food; however, he did not p erform a physical examination at that time. He spoke with her, and after checking her vital signs and talking withher mother, he stated that it would be fine for her to g o home. Ho wever, Dr. Miller did not disch arge her at that time, nor did he pro vi de any discha rge instruction. Sofia also had an orthopaedic inj uryand still needed to be seen by her orthopaedic surgeon prior to any discharge. There was a question at trial as to who actually discharged Sofia. She wa s discharged at around 7:20 p.m. on the evening of November 30, 1997, and sen t homewith no discharge instructions regarding a possible internal injury

or the potential for internal bleed ing. She continued to feel ill and, on the night of December 1, was found unc onscious. She died before she could be transported to the hospital. Her p arents , Vickie and John Paul Bara, brought suit against Dr. David Miller and Clarksville Memorial Hospital for ma lpractice. The case wa s tried to

a jury in October

2000, and the jury re

ndered a verdict finding no fault on the part of eithe r De fendant. Plaintiffs appeal the verdict asserting tha t (1) the jury wa s incorrectly

charg ed that Pla

intiffs mu st prove c ausation to a re as on ab le de gr ee of

me di ca l c er ta in ty, (2) the jury was incor

rectly cha rged that Plaintiffs had the burden of proving by a preponderance

of the evidence that the death of Sofia Bara was reason ab ly foreseeable, and (3) the jury verdict was agains tthe weight of the evidence. We ag ree that as to Dr. Miller

the jury was incor

rectly cha rged on causati on and fo

reseea bility and find t hat these errorslikely

affected the outcome of the trial. The judgmen t is rever sed as to Dr. Miller and the c ase remanded fo r a new tr ial.
STANDARD OF REVIEW
The necessity of

jury instructions based on a clear and sound exposition of the law in order for a jury ver

dict predicated upon those ins tructions to s tand is a long standing principle of Tennessee law. “The parties are entitled to a clea r andconsistent

charge, as well as a cor

rect one, that justice may be re ached.” Citizens’ Street Railroad Co. v. Sheph erd , 64 S.W. 710, 711 (Tenn. 1901). A verdict will be reversed if it can be shown that an instruction conta ins an inaccura

t e statement of the law or

is confusing and, considering the char ge of thecourt as a whole, that the error was no t h ar ml es s, i. e. th at th e i ns tr uc ti on mo re li ke ly t han not affe cted the outcome o f the tria

l. Cardwell v. Golden , 621 S.W.2d 774 (Tenn. Ct. App. 19 81); Helms v. Weaver , 770 S.W.2d 552 (Tenn. Ct. App. 19 89); Whits ett v. Mc Cort, 1990 Tenn. App. Lex is 611, at *20 (Tenn. Ct. App. August 28, 1990).-3- The real que stion on thisissue, the n, is wheth

er th e error should be considered

harmless. . . . Tenn. R. App. Proc. 36(b) states that a judgment should not be set aside unless, considering the whole record, the error more probably than not affected the judgment

or would r

esult in pr ejudice to the judicial proc ess. Our courts have held that

in order to amount to

revers ible err

or it must appear that the jury

was mislead by the err

oneous charge. Carney v. Coca-Cola Bottling Works of Tullahoma , 8 56 S .W.2d 147, 150 (Tenn. Ct. App. 1993) (citations omitted). This Court t horoughly

analy zed the re asoning

behind th

is requirement for accuracy in jury instructions in Ladd v. Honda Motor Co. , LTD , 939 S.W.2d 83 (Tenn. Ct. App. 1996). Juries have the exclus ive duty to decide a ll disputed questions of fact submitte d to them based on the law as explained by the trial court. Thus, the soundnes s of ever

y ju ry verdict rests on the fairness and accuracy of the trial court’s instruction. Since the instructions are the sole source of the legal principles needed to guide th

e jury ’s delibe

rations, trial c our ts must giv e substan tially accura te instructions concerning the law applicable to the matters a t issue. Juryinstructions need not be perfect in every detail. A single erro neous statement will not necessarily unde rmine otherwis e proper

instructi ons that, on the wh ol e, fa ir ly d ef

in e t he is su es an d d o n ot mi sl ea d t he ju ry. Instructions must be viewed as a whole, and the challeng ed portion of th e instructions should be c onsidered in light of its con

text. An erroneous instruction will not be con sidered

revers ible err

or if the t rial cou rt explainsor corr

ects it in other portions of the charge. Juries are generally

composed of persons who do not h ave formal legal train ing. Accordingly , a

trial cou rt’s instr uctions should be co

uched in p lain term s that la y p erson s can re adily

understa nd. I t also foll ows that a

ppellate courts mu st view the challenged instructions not through the practiced eyes of a judge but rather through the eyes of an average lay juror. Ladd , 939 S.W.2d at 93-94 (citations omitted).
THE “REA SONABL

E DEGREE OF MEDI

CAL CE RTAI NTY” QU

AGMI RE
To prevail in a medical malpractice ac tion, Plaintiffs must present expert evidence (1) establishing the applicable standard of care, (2) demonstrating that Defendant’s conduct fell below that standard of care and, (3 ) that D efendant’s conduct was a proximate cause of injuries whic h would not other wise hav e occur

red. Te nn. Code A

nn. § 29-2 6-115(a

) (1980) ; Moon v. St. Thomas-4-

Hospital , 983 S.W.2d 225, 229 (Tenn. 1998) and White v. Vande rbilt Univ ersity , 21 S.W .3d 2 15, 226 (Tenn. Ct. App. 1999). There was ample

medical e

xpert te stimo ny introduced in the ca se under which a verdict either for the plaintiffs or for the defendant Dr. Miller would be unassailable on appeal, assuming a c or re ct ch ar ge of

th e l aw to th e j ur y. In exami ning e ach of the medical experts, able counsel for all parties did wha t prudence demanded

and when asking the experts’ opinion on any issue intoned the standard incantation that the doctor base his opinion upon “a reasonable deg ree of medical certainty .” The continue d usage

of these “magic words” h as come

under intense academic scrutiny over the past decade and the near universal c onclusions drawn are somewhat startling. The Genesis and Evolutio n of Le gal Unc ertainty About ‘Re asonable

Medical Certaint y ’ ” Jeff L. Lew in , 57 Md. L. Rev. 380 (1998 ); “ Dissecting Missouri’s Requirement of ‘Reas onable Medical Cer tainty ’ ” Glenn E. Bradfor

d , 57 Journal of Missouri Bar, 136 (May 2001).
In his exhaustive and heavily foot-noted 66 page a rticle pu blished in 199 8, P rof ess or J eff

L. Lew in observ es: The universa

l use of the phrase

‘reaso nable me d ical certainty ,’ and the importance that some c ourts attac h to t his p hrase, canno t be ex plain ed by its i ntrin sic me aning, for t he phras e has no r

eadily appare nt meanin g. The v ery

notion of ‘ reasona

ble ce rt ai nt y’ is almost a

n oxym oron, be cause th

e adjective ‘reasonable’ qualifies and essentia lly negates the absolute implications of the noun ‘certainty .’ Insertion of the adjective ‘medical’ does not reduce th e t en si on be tw ee n ‘ re as on ab le ’ a nd ‘c er ta in ty’ for the concept of certainty is just as elusive in medicine as in othe r scienti fic disciplines, and perhaps more so. 57 Md.L.Review 380, 400-401 Jeff L . Lewin 1998. Accord ing to L ewin and Bradford, the phrase “r easonable medicalcertain ty”origina

ted in Illin ois sometime

between 1915 and 1930 and spread to at least 22 other jurisdictions betwee n 1940 and 1960. Mr. Bra

dford obs erves: Given the broad popular usage and acceptance of the conce

pt of ‘reasonable medical certainty,’ it would be expected that the courts have given the phrase a precise and definite meaning . On the c ontr ary, appel late opin ions seem

to use the

phrase ‘reaso nable me dical ce

rtainty ’ as if itsmeaning

were se lf evide nt. 57 Journal of Missouri Bar, 136 (Glenn E. Bradford 2001).1 It is respe ctfully sugge sted tha t Te nnesse e migh t do w ell to follow t he Supreme Co urt of M ontan a whe rein it held:
We agree with BN that the answer given by Dr. Schimpff i s not strong and clear. This Court

has general ly adhe red to a t est of “reas onable medical

certai nty” as the basis f or admissibili ty alt

hough we do not require of doctors the same strictness in test ify ing t hat was once requi red. See Stordahl v. Rush Implement

Company (19 66) , 148 M ont. 13 , 417 P.2 d 95 . Althou gh we still formally adhe re to a “reasonable medical certaint y” standard, the t

erm is not well

understood by the medical profession. Litt le, if anything, is “ certain” in sc ience

. The term was adop ted in law t o assure that testimony r eceived by the f

act fi nder w as not

merel y conj ectu ral but r athe r was suf fi cien tl y proba ti ve t o b e reliable. W e are striving for, what in fact, is a probabili ty r ather than a possibili ty. Our evidenti ary sta ndards are sat

isf ied if medical testi mony is based upon an opini on that it is “mor e likely than not.” We find that

Dr. Schimpff’s t estimony regarding “permanency” was suffi cient for t he jury to f

ind it probable tha t Dall as’ pr esent symptomat ic condit ion would n ot improve during hi s li feti me. Dallas v. Burlingt on Northern, I nc. , 689 P.2d 2 73, 277 (M ont. 1984).
Thus did M ontana allow the “magic wo rds” to dis appear back int o the abys s of unc ertai nty f rom whence t hey came. -5- Tennessee seems to have picked up this language in Nashville C & St. L Railway v. Reev es , 157 S.W.2d 851 ( Tenn. Ct. App. 1941) in a case dealing with the admissibility of medical evidence as to the permanency

of an injury. Delving further

into the dicta involving these “magic w ords” as a pre-requisite to the admissibility

of expert testimony is not necessary to a decision in this case. We are de aling he re with the charg e to the jury in a ca se where each of the docto rs use d the “ magic w ords” and th e tria l jud ge ad mi tt ed in to ev id en ce al l o f t he ir te st im on y fo r c on si de ra ti on by t he ju ry. 1

EXPERT TESTIMONY AS TO PRE-DEATH EVENTS
The accident in issue was a one car accident that occur red in the evening hours of November 30, 1997. Sofia Bara was driving her father’s car acc ompanied by her brot her Mich ael and others. It had been raining and the pavement wa s wet. She lost control of the car and struck a tree c ausing injury to herself an d minor in

juries to t he other occup ants of the car . Bo th Sofia and her brother Michael were wearing their sea tbelts. Sofia was taken to the em er ge nc y room at Cla rksville Memorial Hospital and first treated by Dr. Doty who obser

ved symptoms of pain in her abdome n and in her left foot. She also had a seatbe lt mark wit

h bruising in the abdom

inal are a where

the seat belt had been strapped around her. Sofia wa s obese w eighing betwee n 240 and 2 50 pounds a

nd Dr. Do ty ordered a CAT scan to search for internal injuries. The defendant Dr. Miller, a gener al surgeon, was calledinto the emergency room and examined the films fromthe CT sca n which we

re unre markabl e except for disclosing some fluid in the area of the liver. Dr. Miller conferred by telephone with the radiolog ist Dr. Doug Hong. Dr. Hong in his report

on the results of the CT scan had referred to the fluid he found as “ascites.” He explained:-6-

When we said a scites, doctors understand usually this mea ns fluid in the abdomen that include blood or any

kind of fl uid, even urine or true asc itic fluid or e

ven bile a ll look alike on t

he CT sca

n, and so th at’ s what I

meant on m

y r eport when I

said ascites that means fluid inside of the abdomen. Neither Dr. Miller nor Dr. Hong observed any laceration of

the liver discernable from the CT scan. When asked for the possible sources of this free fluid Dr. H ong answered:
If you - - if we

confine possible source of fluid - - I mean confine the injury

as far as injury is conce rned, it c ould

be injury from live r or sple en or it

could be injury to the gallbladder. It co

uldbe injury to the intestine. Also it could be injury to the kidney or ureter. Dr. Miller opined that the substance disclosed by the CT sca

n was in fact fatty tissue around the liver but nonetheless admitted her to the hospital around 2:00 a.m. for continued observation. She also had an injury to her foot and an orthopaedic specialist, D r. St even Salyer s, was called i n to treat her for the foot injury . After observing Sofia, Dr. Saly ers diagnosed a mid-foot injury and orde red a CT scan to rule o ut a more ominous dislocation pattern, together with an ice pack for her left foot and crutche s to hold down weight bearing. After this, Dr. Saly ers testified:
I received a

phone call from one of the nurses on the floor, and she to ld me that Dr. Miller had transferred Miss Bara to my service. And I

told her that I did not accept that patie

nt in trans fer, tha

t Dr. Mi ller ha d not spoken to me and arranged ahead of time for me to acc e pt the pat ient; and that if it w as only

the ortho paedic condition that was being treated, that the patient would not have even been admitted to the hospital because it was a relatively minor f oot fracture that we

were g oing to investig atefurther

to rule out if it was a more significant injury . But if the foot injury had been her

only injury , she woul d not have b een admitted to the hospital a

nd I d id not feel it was appropriate for her to be tra nsferred to my

service. My motivation , more tha

n any thing, pr obably , was I

didn’t wa nt to dictate the disch arge summary. I didn’t want to do the orders. And it wasa - - I did not ag ree to accept that patient on my service. Sofia was seenagain by

Dr. Miller

at about 2:00 in the afternoon when he observed no visual signs of distress and discussed with her mother possible discharge fr om the hospital. Ab out 7:0 0 p.m. that same afternoon Sofia was discharged from the hospital and went home, though the record is unclear as to who actually authorized her discharge. Sofia Bara died about 10:00 p.m. December 1, 1997 either at her hom e or en rout e to the hospital.-7- THE AUTOPSY RESULTS
Dr. Charles W. Harlan, who performed the autopsy on Sofia Bara, testified that the hospital record indicated she came into the hospital following an automobile accident shortly after midnight on November 30 and was discharge d from the hospital at approximately 7:00 p.m. on November

30. She returned to the hospital at approximately 10:00 on the e vening of December

1, 1997, at

which time she had already

died.
Dr. Harlan testified that he found a relatively small laceration of the liver and approxima

tely 2000 cc’s of blood in the peritoneal cavity (commonly called the be lly). He opined that she

bled to death internally from the lac eration of the liver during the period between the accident in the very early hour s of November 30, 1997 and 10:00 p.m. on December 1, 1997.

EXPERT TRI

AL TE STIMO NY ON MAL PRACTI CE
There is little to b e gained, under the circumstance s, in deta iling the expert med

ical te stimony at trial relative to

standard of care, deviation from standard of care and causation. It suff ices to sa y that there is expert medical testimony establishing the standa rd of care and that Dr. Miller deviated from that standard when, knowing that the substance evidenc ed by the CT scan could be blood, he allowed Sofia to be discharged from the hospital too quickly and without ascer taining, for certain, th at the substance on the CT scan was in fact fatty tissue and not blood and further, in n ot givin g detai led di scharge inst ructi ons re lati ve to t he pos sibi lity of i ntern al ble eding. There was likewise ample testimony

for the d efense as to the applicable standard of care a nd that Dr. Mille

r did not de

viate the refrom a nd that no a

ction or in action by

Dr. Mille

r proximate

ly caused the demise of Sofia Bara. Thus, we have ty

pical questions of fact to be resolved by the jury under pr

oper instructions as to the la

w by the cour t.
THE INST RUC TION S G IVEN BY T HE T RIA L C OURT ESSENTIAL LY FOL LOW THE TENNESSEE PATTERN CIVI L JURY I NSTRUCTI

ONS WI TH TWO CRITI

CAL EXCEPTIONS , THE FIRST I

NVOLVI NG “REASONABLE DEGREE OF MEDICAL CERTAINTY” ANDTHE SECOND INVOL

VING “FORESEEAB IL ITY OF DEATH ” RATHER THAN GENERAL FORESEEA

BIL ITY OF IN

JURY

. Over the objections of Pla

intiffs, t he trial c ourt c harged the jury in accor dance with the defendant’s special request number nine which asserted “in or der for y ou t o find that the injuries and/or death of Ms. Bara were proximately caused by the

negligence of any

defendant, the plaintiffs must have proven causation to a reasonable deg ree of medical certainty .” The actual charge embody ing this special request provides: “Proof of causation in a medical malpractice case ca

nnot rest on conjecture. The

mere pos sibility

of such c ausation

is not enou gh to-8-

sustain the plaintiff’s burden of proof. In or der for you to find tha

t the injur ies and/o r death o f Ms. Bara were pr oximately caused b y the negli gence of any defenda nt, the pla intiffs mu st

have proven that causation to a reasonable degr ee of medical certainty .” Assuming that sucha charg e to the ju ry was prop er, the s ameglarin g deficiency confron ts the jury as has conf

ronted the bench and bar for seventy yea rs. Nobody und ertakes to define the meaning of the te

rm. Prior t

o incorpo rati ng th is special request number nine into the charge , the judge has just finished ch arging the jury that Pla intiffs h av e t he bu rd en of pr ov in g, by a preponderance

of the evidence, all facts necessar y to prove fa

ult on the part of

Defendants. Then the court specific ally

defines preponderance of the e vidence to mean“more likely true than not.” Then it has charged that if the negligence of a party was “a legal cause of

the injury or damag e” that p arty is at fault. Thus, the two time honoredelements lack of ordinary care and legal (proximate) cause have been cor

r ectly cha rged under a “preponde

rance of the evidence” re quirement. Then on the heels of these

imminently

correct instruct

ions the ju

ry is told that “proof of

causation” (cause in fact and proxi ma te ca use ?) must be proven, not by a prepond erance of the evidence, but “to a r easonab le degree of medical ce

rtainty.” This is the precise bullet that the trial court correctly dodged in Miller v. Cho o Cho o Partners, L.P. , 73 S.W.3d 89 7 (Tenn. Ct

. App. 2001). When the defenda nt challeng ed the trial court’s refusal to charge the jury as to this “reasonable certainty ” el eme nt, Judge Susano, for the majority in the Eastern Section of the Court of Appeals, countered:

The defendant’s proposed instruction regardingthe requirement that expert testimonyon causa

tion be “r easonab ly c ertain”embodiesa correct principle of

law. However, we do not find

that it was error not to instruct the jury as to this principle. That an expert ’s testimo ny i s “reas onably certain” is said

to be a prerequisite to the admissibility

of that testimony. See Lindsey , 689 S.W.2d at 862. Th e admissib ility of expert testimony is a matter of law for the court, not the jury. See McD aniel v

. CSX Transp., Inc. , 955 S.W.2d 257, 263 (Ten n. 1997). The tria

l court did

not err in refusing to give this instruction. Miller , 73 S.W.3d at 909. Thus, Judge Susa

no correctly

points outthe only justifiable function that “re asonable degree of medical certainty ” ever had. That it is, (under what is even in t he admissibility of evidence cont ext of highly que stionable utility), a ga te keeping question of law under w hich the trial court decides whe th er o r no t a d oct or’ s op in io n i s ad mi ss ib le i n ev id enc e. It is not jury charg e material and can only le ad to confusion.
In Volz v. Ledes , 895 S.W.2d 677 (Tenn. 1995), the supreme court said:
T.C.A. § 29-26-115(a)(3) requires that a plaintiff in a m edi cal malpractice action prove that ‘[a]s a proximate result of the defendant’s neglige ntact or omission-9-

[of accepted community

medical standards], the plaintiff suffered injuries which would not otherwise have occurred.’ This statu tory lan guage is simply another way

of expressing the requirement

that the injury would not have occ urred but for the defenda nt’s neg ligenc e, our tr

aditiona l test for cause in fact. Kilpatrick

v. Bryant , 868 S.W.2d 594, 602 (Tenn. 1993). Additiona lly, causati on in medical malpractice ca ses must be shown as a matter of probability , i.e. mor e likely than not, or greater than a 50 perc ent chance, that the plaintiff’s injuries would not have occurred but for the negligent actions of the defendant(s). Id

. The record

reveal s that the p laintiff s proffe red su fficie nt proof a

t trial to establish tha t the neg ligenc e of Dr. Lede s more like ly th an not wa s the proxima te cause of the d eath of Robert Volz. Expert medical testimony also established that when Volz was first treated by the defendant, he had a 60

percen t chance of comple

te re co ve ry. Further theplaintiffs offere d uncontr overted testimony

that the d efenda nt, Dr. Ledes, failed

to act in accordance with acce pted community standards of medical practice for treatment of the disease from which Volz was suffering. The

plaintiff s’ proof establish ed, that a s a

result o f the defendant’s deviation from such medical standar ds, Rober t Volz suff

ered a d eath whic h otherw ise would

nothave occurred. Stated another way , the record reveals that it was more likely

than not Ro

bert Volz would have survived the cancer but for the de fendant’s negligent actions. Volz v. Ledes , 895 S.W.2d 677, 679-80 (Tenn. 1995).
In Kilpatrick v. Bryant , 868 S.W.2d 594 (Tenn. 1993), the supreme court went to great lengths to iterate the difference be tween causation in fact and proximate cause and to reassert

that each wa s a separ

ate ele ment of ne glige

nce. Said the cour t: Causation and proxima

te cause are distinct eleme

nts of negligence, and both must be proven by

the plaintiff by a pre

ponderance of the

evidence. Bradshaw , 854 S.W.2d at 869; McClenahan v. Cooley , 806 S.W.2d 7 67, 774 (Tenn. 1991 ); Smith v. Gore , 728 S.W.2d 738, 749 (Tenn. 1987). “Causation (or cause in fact) is a very different concept from that of proximate cause. Causation refers to the c ause and effect relation sh ip between the tortious conduct and the injury . The doctrine of proximate

cause encompasses the whole panoply of rules that may

deny liability

for otherwis e action able

causes of harm.” King, Causation, Valuation, and Chance in Personal I

njury Torts

Involving Preexisting Injuries and Future Consequences , 90 Yale L.J. 1353, 1355 n. 7 (1981). Thus, proximate cause, or legal cause, c oncerns a determination of whether legal liability should be imposed where c ause in fact has bee n established. McKellip s v. Saint F rancis Ho sp ., 741 P.2d 467 (Okl. 19 87)

. “Cause in fact, on the othe

r hand, d eals with the ‘but for’ co nsequences of a n act. ‘The defendant’s conduct is a cause of the e vent if the event would not have occurred-10-

butfor that conduct.’ ” Id. at 470 (quoting Prosser and Keeton, The Law of Tort

s , 266 (5th ed. 1984)). Kilpatrick v. Bryant , 868 S.W.2d at 598. Neither Kilpatrick v. B r

yant nor Lindsey v. Miami Development Corp. , 689 S.W.2d 856 (Tenn. 1985), involve jury instructions or jury questions but involve rather summary judg ment and gate keeping questions of law. As said in Kilpatrick : Thus, proof of

causati on equating to a ‘ possibility ,’ a ‘might have,’ ‘may have,’

‘ could have,’ is not sufficient, as a matter of lawto establish the required nexus betweenthe plaintiff’s injury and the d ef en da nt ’s to rt io us co nd uc t b y a preponderance

of the evidence in a medical malpractice case. Causation in fact

is a matter of pro babili ty, not possibility and in a medical malpractice case, must be sh ow n t o a re as on ab le de gr ee of me di ca l c er ta in ty. Kilpatrick , 868 S.W.2d at 602. This Court addressing ne wl y a dopted Tenn. Rule of Evidence 702 made clear that admissibility was the question involved in “reasonable degree of medical ce

rtainty.” The expert’s opinion must substantially assist the jur y in its determina

tion and the question of what will ‘substantially’ assist the jury is one for the trial cou rt to determine. The expert’s testimony must satisfy Rule 702 and the threshold question for the cour t’s deter mination iswhether

the witne ss’ testimo ny “ will substan tially assist the trier of fact to understand the evidence or to determine a fact in issue.” The Tennessee standard

is much more stringent than its federal counterpar t which merely requires evi dence fro m experts which “assist the trier of fact” rather than “substan tially assist the trier of fact.” The importance of the cour

t’ s task in determining whether the evidence will substantially assist the trier of fact is borne out by the weight

given to an expert ’s testimo ny. “Expert te stimony is unique because experts are allowed to give an opinion in a particular situation wher eas other witnesses are prohibited fr om giving

opinion te stimony

in area s where

expertise is not required.”

. . . . Numerous Tennessee cases establish a necessa ry deg ree of medical c ertainty to prove causation. Testimony w hich amounts to mere speculation is not evidence which establishes proximate cause.
We find nothing in the record or in the deposition which shows that the plaintiff laid the necessary

foundation to prove medi cal exper t causat ion. Ther e is-11-

no evidence to establish with a reasonable deg ree of medicalcertain

ty that plaintiff’s heart a ttack and by

pass surg ery

in 1990 re sulted fr

om the ac cident wi

th defendant. For the testimony of a

physician to be admissible,
‘It should show

that such result is reasonably c ertain and not a mere likelihood or possibility.’
‘To warrant a recovery

for a permanent

injury, the future e

ffect of the injury must be shown with reason able certainty. I t is not necessary th at the evidence show conclusively or without a shadow of doubt that the injuries are permane nt. But wh

ile absolu te certa inty should notbe required, a mere con jecture, o r even a probability , does not warrant the giving of da

mages f or futur e disabili ty which may never exist.’ Testimony

of expert s as to the

probable cause of injury should be subject to the same rules as applied supra in the case of proba ble effect of injury

.

. . . . ‘A doctor’ s testimony

that a ce rtain thing is possible

is no evide

nce at a ll. His opinion as to wha

t is possible

is no more valid than the jury’ s own speculation as to what is or is not possible.’ ‘The mere possibility of a c au sal relationship, without more, is insufficient to qualify a s an admissible expert opinion.’
Primm v. Wickes Lumber Co. , 845 S.W.2d 768, 770-71 (Tenn. Ct. App. 1992) (citations omitted). Thus, if the doctor cannot testify as to cause in fact to a reasonable deg ree of medical ce rt ai nt y, his testimony is not admissible before the jury and if there

is no other expert

evidence of causation in fact in a medical malpractice ca se, summary judgment would be proper. In the case at ba

r, in their special request number nine, Defenda nts and the trial court have taken out of

cont ext the phrase “causation in fact is a matter of proba bility and not possibility , and must be shown to a reasonable degree of medical certainty” as such phrase is used in White v. Methodis t

Hospital So uth , 844 S.W.2d 642, 648-49 (Tenn. Ct . App. 199 2); Kilpatrick v. Bryant , 868 S.W.2d 594, 602 (Tenn. 1993); and White v. Vanderbi lt Univer sity , 21 S.W.3d 215 , 232 (Te nn. Ct. App. 1999) de aling w ith the ad miss ib ilit y of exper t test imon y and conv erted i t int o a jur y charge which is exa

ctly what Miller v. Choo Choo Partners, L.P. , 73 S.W.3d 897 (Tenn. Ct. App. 2001) asserts is not proper.
It is noted that in some cases as, for instance, In re: Twining , 894 P.2d 1331, 1336-37 (Wash. Ct. App. 1995 ), the te

rm “rea sonable m

edical c ertainty

” has bee n held to me an “mo re likely than-12-

not.” One is compelled to ask und er su ch ci rc um st an ce s w hy “ re as on ab le me di ca l c er ta in ty” continues to exist. I

t suffice s to say

in the case at bar

that nowhere is any one informed that the two terms ar e sy nony mous. The Supreme Court

of Nebraska made a particularly informative observation a century ago: “In Altschule r v. Coburn , 38 Neb. 881, 891, 57 N.W. 836, 838, (1894) we notedthat an a ttempt to give a specific meaning to the word rea sonable is like ‘trying to c ount what is not a number, and measure what is not space.’ ” Gleason v. Gleason , 357 N.W.2d 463, 468 (Neb. 1984). As this Cour

t has held : The real question on this issue, then, is whether the error should be considered

harmless. . . . Tenn. R. App. P. 36(b) states that a judgment should not be set asid e unles s, considering the whole record, the er ror more probably

than not affected the judgment or would result in prejudice to the judicial process. Our cour

ts have held that in order

to amount to reversible error it must appear that the jury was misled by the errone ous charge. Carney v. Coco Cola Bottling Works of Tullahoma , 856 S.W.2d 147, 150 (Tenn. Ct. App. 1993). On this subject, the supreme court has said: Long ago, this Court established the rule that inconsistent or contradictory instructions “do not neutralize or validate each other, but are vitally erroneous. . . . The parties are entitled to a clear and consistent cha rge, as well as a

correct one, that justice may

be reached.” Citizens Street Railroad Co. v. She

pherd , 107 Tenn. 444, 64 S.W. 710, 711 (1901). This principle was more recently disc ussed in Abbott , in which the Court of Appeals stated: Instr uctio ns as a whole must be consistent and harmonious, not conflicting and contradictory . . . . Where instructions given to the jury fo r their guidance present contradictory and conf licting rules which are unexplained, and where following one would or might lead to a different result than would obtain by followi ng the other, the instructions are inhe

rently defective. This is true although one of the instructions correctly

states the law applicable to the facts of the case, since the correct instruction cannot cure the error in the contradictory erroneous instruction. . . . 682 S.W.2d at 209, quoting 75 Am.Jur.2d Tria l § 628, 920 (1974), and citing 88 C.J.S. Trial § 338-39 (1955). State v. Stephenson , 878 S.W.2d 530, 555 (Tenn. 1994).-13-

Unless one can , as a matter of ev ery day common sense, say that “ reasonable degree of medical certainty”and “more probably than not” are sy

nonymous terms, the

instructi ons in

this case are inconsistent and contradictory and misleading to the jury . The erroneous charge is notharmless but reversible error.
FORESEEABIL ITY Plaintiffs also allege error in another jury instructi on, which

reads a s follows: “In order for you to find either defendant to have been liable, y ou must find by a preponde rance of the evidence that the death of

Sophia Ly

nn Bara was reasonably

foreseeable to the Defendant.”Plaintiffs assert that th ey a re no t r eq ui re d t o s ho w t ha t t he sp ec if ic in ju ry, death, sustained by Sofia wa s foreseeable, only that some harm

was foreseeable; thus, the court erred in stating that Plaintiff had to prove that deathwas fore seeable . Howeve r, Defe ndants ar gued th at, to pro ve fore seeabil ity, a plaintif

f must show that harm of the same general c haracter was reasona

bly foreseeable, so the jury

instruction was proper. We find this instruction to be a misleading and improper statement of the law. The Tenness ee Supre

me Court has clearly

set outthe foreseeability

requirement for finding proximate cause.

Taken as a whol e, our ca ses suggest a three-prong ed test fo r proximate causation: (1) the tortfeasor’s co nduct must have been a “ substantia

l factor ” in bringing about the harm being complained of; and (2) ther e is no rul e or policy that should relieve the wrongdoer from liability because of t

he manner i n which the negligence

has resulted in

the harm ; and (3) the harm giving riseto the ac tion could have reasonably

been foreseen or anticipated by a person of ordinary

intelligenceand p rudence. S ee Smith v. Gore , 728 S.W.2d 7 38, 749-5 0 (Tenn. 1987); Ford Motor C o. v. Eads , 224 Tenn . 473, 457 S. W.2d 28, 32 (Tenn. 197 0); Ray Carter, Inc. v. Edwards , 222 Tenn. 465, 436 S.W.2d 864, 867 (Tenn. 1969); Lancaster v. Monte si , 216 Tenn. 50, 390 S.W.2d 217, 221 ( Tenn. 196 5); Roberts v. Robertson County Bd. of Ed. , 692 S.W.2d 863, 87 1 (Tenn. App. 1985 ); Caldwell v. Ford Motor Co. , 619 S.W.2d 534, 541- 43 (Tenn . App. 198 1); Wya tt v. W innebago Industr ies, In c. , 566 S.W.2d 276, 280-81 (Tenn. App. 1977). T he fore seeabil ity r equirem ent is not so strict as to require the tortfeasor to foresee the exact manner in which the injury takes place, provided it is determined that the tortfeasor could foresee, or throu gh the exercise of reas onable

diligence should have foreseen, the general manner in which the injury or loss occurr

ed. Roberts

at 871; Wya tt

at 280-81. ‘The fact that an accident may be fr eakish does not per se

make it unpredictable or unforeseen.’ City of Elizabethton v. Sluder , 534 S.W.2d 1 15, 117 (Tenn. 1976 ). It is suff icient that harm in the abstract

could reasonably

be foreseen. Shell Oil Co. v. Blanks , 46 Tenn. App. 539, 330 S.W.2d 569, 572 (Tenn. 1959). McClenahan v. Cooley , 806 S.W.2d 767, 775 (Tenn. 1991).-14- The defendant argues that the dec e ased’ s act was so unusual and extraordinary

that the act was unforeseeable; there fore, the defendant was under no duty to guard against such an act. Ac cidents, however, ‘almost invariably are surprise s, in the sen se that the precise manner of their occurr ence cannot be foreseen.’ Spivey v. St. Thomas Hospital , 31 Tenn. App. 12, 211 S.W.2d 450, 455 (Tenn. Ct. App. 19 47). Acc ordingl y the particular harm need not have been forese eable

if another ‘harm of a like general chara

cter was reasonably

foreseeable.’ Id. at 457. The defendant stresses that the accident wasnot fore seeable , since there is no in dication that another patient had ever severed a n endotracheal tube. The record, ho w ever, is clear

that a ris k of some h arm is for eseeab le if an e

ndotracheal tube

is occluded or impaired. . . . If a jury were to find that some harm resulting from occlusion was foresee able in lig ht of the c ircumsta

nces, the n the def endant w ould also owe a duty

to protect Mr. Garrett from completely severing the endotracheal tube, even though this specific harm was never foreseen. Spivey , 211 S.W.2d at 457. Moon v. St. Thomas Hospital , 983 S.W.2d 225, 229 (Tenn. 1998). These cases makeclear that Plaintiffs were not required to prove that de ath was foreseeable, butmerely that some ha

rm could have foreseeably resultedfrom

Defendants’ action or inaction and, throu gh the exerc ise of re asonable diligence, could have been fore seen. Th is forese eability instruction standing alone might not constitute reversible error under T. R.A.P. 36(

b) but none

theless is error and should

be corr ected on re-tria l.
CONCLUSIO N
The issue asserted by A

ppellant that

the verd ict is against the overwhelming weig ht of the evidence presents no issue for appellate review since T.R.A.P. 13(d) pr ovides in part: “Findings of fact by a jury in civil actions shall be set aside only if ther e i s no materi al evidence to support the verdict.”
We find no error in the verdict and judgment in favor of Clarksville Memorial Hospital and indeedAppellant all but concedes as to the hospital at the b ar of

this c ourt. We find, however, that the charge to the jury

concerning the burden of proof on c ausation is erroneous, confusing, and misleading and reversible error. We fur ther find the charge as to fore seeability to be in err or. The judgmen

t in favor of Clarks ville Memo

rial Hosp ital is in a

ll respects affir

med with c osts in that cas e assess ed aga inst Appellant. The

judgmen t in favor of Dr. Miller is revers ed and remanded for a new trial with costs assessed to the appe llee Miller.-15-

This case is remanded to the trial court for proceedings in conformity with this opinion.

__________________________________________ WILL IAM B. CAI

N, JUDGE