# FILED April 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

SHANNON RUSSELL, ) C/A NO. 03A01-9708-CV-00329 ) Plaintiff, ) CAM PBELL CIRCU IT ) v. ) HON. JAMES B. SCOTT, ) JUDGE DR. JAMES CRUTCHFIELD, ) ) AFFI RMED AND Defend ant. ) REMANDED WILLIAM D. VINES, III, and VONDA M . LAUGHLIN, BUTLER, VINES & BABB, P.L.L.C., Knoxville,for Plainti ff. DOUGLAS L. DUTTON and AMY V. HOLLARD,HODGES, DOUGH TY & CAR SON , Knoxv ille, for Defe ndant.

O P I N I

O N Franks, J. In this medical malpractice action the defendant app eals from a jury verdict i n favo r of the p laintiff.

The action arises from treatment ren dered by def endant to p laintiff in January and February of 1995. D efendan t removed the 23 year-old plaintiff’s ga ll bladder on January

25, and plainti

ff, upon complaining of compl ications,was readmitted t

o the hospital

and was subsequently

transferred t

o another hospit

al for further tre atment. It was t hen determined that

plaintiff was suffering from a leakage of bile into t

he pe rit onea l ca vit y an d tha t the ri ght hepat

ic duct wa s le aking at t

wo points and that

clips had been plac ed on the right hepat ic duct during surgery instead of on the cyst

ic duct, where t

hey should have been placed. Another phys ician performed surgical

repair on March 6, 1995, a nd this action was filed on December2

13, 199 5. Following tria l, the jur y returned a

verdict for plaintiff in t he amount of $1,000 ,000.00 . The T rial Cou rt subse quently re duced the aw ard to $ 900,00 0.00.

Defend ant conten ds the trial cou rt erred in den ying his Mo tion to Continue the trial scheduled for May 28, 1997. On May 23, 1997, defendant filed his motion stati

ng that Dr. Edward Mason, one of defendant ’s expert witnes ses would be unavailable for trial due to his em ergency surgery. The motion w as denied. How ever, Dr. Mason’s testi

mony was introduced t

hrough a discovery

deposition which had been conducted by counsel

for the plaint

iff. The granting or fai

lure to grant

a continuance “res ts in the sound discreti on of the trial

court” and will not

be reversed absent

“a clear showing of abuse.” State, Dept. of Human Services v. Hauck, 872 S.W.2d 916, 919 (Tenn.App. 1993). While Dr. Mason was not avail able to test

ify, t he jury hear

d his opinions through the discovery dep osition. Additionally, Dr. Mason was not the appe llant’s only expert

witness. Appella

nt presented t

he testimony

of four other witnes ses, who testified about various aspects of the plai ntiff’s treatment. One of these witnesses, Dr. Michael Kropilak, testified at great le ngth concerning any

alleged deviat

ion in the standard of care. Thus, the tri al court proper ly noted t

hat Dr. Mason’s test

imony was largely cumulative. Moreover, it is not a

n abuse of discret

ion to deny a cont

inuance when an abse nt witn ess’ testim ony wo uld be m erely cum ulative. Life & Cas. Ins. Co. of Tenn. v. Ayers , 281 S.W.2d 75 (Tenn.App. 1954). The Trial Court did not err on overruling t

he Motion to Continue. Next, defendant contends that the Tri al Court erred i n allowing plaint

iff to testify concern ing her me dical bills and in admitting $ 64,839.60 of bills into evidence. Defendant ar gues that the bi

lls were hearsay

and should have been excluded. Since an evi

dentiary ruling by t

he trial cour

t is a questi

on of law, the3

standard of review is de novo with no presum ption o f correc tness. City of Tu llahoma v. Bedford County , 938 S.W.2d 40 8 (Tenn. 1997).

We have been presented with no Tennessee cases direct ly address ing this issue. In Long v. Mattin gly, 797 S.W.2d 8 89, 892 (Tenn.A pp. 1990), this Court noted that the

plaintiff’ s proof “concluded with her husband introduci

ng $6,173.19 worth of med ical bills into evidence.” The cou rt later noted that the bills “were properly i

ntroduced into evi

dence at tria

l.” Id. at 893. Long , however, was m ore concerned with whether a non- treating phy sician could t estify c oncerning the reasonableness and ne

cessity of another physi

cian’s charges.The opinion does not indicate that the d efend ant ma de any he arsay obje ction to t he bills th emselv es.

In Davis v. Tr avel ers I ns. Co ., 496 S.W.2d 458 (Tenn. 1973) , the appellant argued that the medical expenses should have been excl uded as hearsay without supporti

ng testimony . According to the c ourt “there was suppor ting evidence in the depo sitions entered in the record and a stud y of the exhib its themselve s is suffici ent to de termine that the c hance llor wa s not in e rror in ad mitting th e bills . . .” Id. at 460. Davis, however, was a workers’ compensati on case and contains no fur ther discuss ion of th e hears ay issue.

The majority

of courts in othe

r states have he

ld that it is error t o exclude the plain tiff’s tes timony co ncernin g med ical bills in curred
. Walters v. Lit tleton , 290 S.E.2d 839 (Va. 1982). The Vir ginia Supreme Court in Walters said: The bills were not hea

rsay. Thei

r probative val

ue in showing [the plaintiff’s] damages did n ot depend upo n an out-of-court assertion,but upon [the plaint iff’s] asse

rtion, based on an adequate foundation,

that he recei

ved them for the servi

ces provided him. Thus, t

he bills were not

merely repor

ts of what the service provid ers cha rged, th ey were t he cha rges the mselve s. [The pla intiff] should have bee n permitted to introduce the bills he received as a conse

quence of his injur

ies and test

ify to t hem from firsthand knowledge and subject to cros s-examination. Id. at 450- 451 (ci tations o mitted).4

Accord. Ledet v . Nation al Car Renta l Sys., Inc ., 694 So.2d 12 36 (La.Ct.App . 1997); Andre s v. Libe rty Mu t. Ins. Co ., 568 So.2 d 651 (L a.Ct.App . 1990); Guillory v. Shel ter Mut. In s. Co., 542 So.2 d 850 (L a.Ct.App . 1989); A.J. v. Flori da , 677 So.2d 935, 937 (Fla.D ist.Ct.A pp. 199 6). C.F. Padilla v. Hay, 900 P.2d 969 (N.M.Ct.App. 1995) (holding that a treating physician’s med ical bills were hearsay. Howe ver the court noted that the

plaintiff ne

ither tes tified nor made any offer of proof concerni ng the

amou nt of the bills. Id. at 972.) Defendant re lies on State v. Blevins, 736 S.W.2d 120 (Tenn.Crim.App. 1987),and Kanipes v. North Am. Phill ips Elec. Corp. , 825 S.W.2d 426 (Ten n.App. 19 91), as autho rity for the propo sition that the m edical bills

con stitu ted in adm issib le he arsa y.

Blevins and Kanipes are distinguis hable from the instant cas e. First, plaintiff was not

introducing any

statements fr

om her bills for

their tr uths. Rather,she was stating the

charges incurred. Any evidence concer ning the actual

treatments she receive d was largely ad dressed by either h erself, o r the ph ysicians w ho testif ied. Plaintiff testified as to the amoun ts for which she w as liable, and other expert witnes ses con firmed the nec essity and reason ablene ss of the charge s. See Long v . Mattingly , 797 S .W.2d 889, 89 3 (Ten n.App . 1990) . Tenn essee R ule of E videnc e 703.

Defendant also rais es objections to the bill s’ authenticity. Under Tennessee Rule of Evidence 901 “[t] he requirement of aut henticati on or identifi

cation as a condition precede nt to admissibility is satisfied by evidence sufficient to the court to support a findi

ng by the tri

er of fact that

the matter i

n question is what i

ts proponent claims.” In t

his case, pl aintiff and her treating phy sicians te stified about the type of treatment she r

eceived. Thus, bot

h the source of the bi

lls and the pr

ocedures they

covere d were verified
. See Walter s.

Defendant also argues t hat the tri al court err

ed in allowing the introduction of evidence of medical bi lls above and beyond the amount payabl e by5

TennCare. Defendant reli es upon T.C.A. § 29-26-119 which st ates that l

osses may be recovered: only to t

he extent that

such costs are not

paid or payabl

e and such losses are not

replaced, or i

ndemnified, in whole or in part, by insurance provide

d by an employer

either government

al or private, by social s ecurity benefits, s ervice benefit programs, unemployment benefit

s, or any ot

her source except t

he assets of the claiman ts or of the m embers o f the claima nts’ immed iate family and ins

urance purchased in whole or in part, pr

ivately and indi vidu ally. Thus, defendant argues t hat expenses not pai

d by TennCare are not owed by plaintiff and co uld not be reco vered.

In this ca se, any po tential err or was cured b y the Trial Court’ s remittitu r. The Trial Court granted a remittitur and stated that the reduction included any excess expen ses that m ay have b een allo wed.

Finally , appellant

insists t hat the evidence pr

eponderates against the verdict a s adjuste d by the tria l court. T he stan dard of review set forth in T.C .A. §20-10-102(b) is appr

opriate for r

eviewing a trial

court’s fail

ure to grant a larger remittitu r. Id. Under the statut e, we are required t

o “utilize the standard of r

eview provided in Rule 13 (d) of the T ennessee Rules of Appellate Procedu re applicab le to decisions of the

trial cour

t sitti ng without a jury .” Thus, review “shal l be de novo upon the record of the t rial court, accompanied by a pr esumption of correct

ness of the finding , unless th e prepo nderan ce of th e evide nce is o therwi se.” Te nn.R.A pp.P. 1 3(d). In this case,

the evidence does not

preponderate agai

nst the verdict as remitt ed. The record demonstrate s that plai ntiff suffered substantial pain after the operation. I

n order to all

eviate her condi

tion, doctor

s at the Universi

ty of Tennessee Medical Center performed compli cated surgical

repairs. Plaintiff te stified she was disabled for appr

oximately s ix months following t he corrective s

urgery and was unable to take car

e of her children or

dress herself

. According to her t

estimony, she continu es to suf fer peri odic ep isodes o f pain, s ome o f whic h requi re med ical atten tion.6

Additi onally, pla intiff ha s a large and pe rmane nt scar o n her ab dome n.

Plaintiff’s sister testified that he r sister’s person ality has significan tly changed, and that her

skin color has become more y ellow. Dr Martin Evans te stified that the pla

intiff’s bi

le duct and liver chemistries “have not retur ned to normal” and that “this is a lifelong problem.” A nother physician testified that some fu ture procedures will need to be performed on the ducts.

We affirm the judgment of the Tr ial Court on the a

ward as remitted. The cause is remanded with t he cost of the appeal

assessed to t

he appellant.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.