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, ) CAMPBELL CIRCUIT

)

v. ) HON. JAMES B. SCOTT,

) JUDGE

DR. JAMES CRUTCHFIELD, )

) AFFIRMED AND

Defendant. ) REMANDED

WILLIAM D. VINES, III, and VONDA M. LAUGHLIN, BUTLER, VINES &

BABB, P.L.L.C., Knoxville, for Plaintiff.

DOUGLAS L. DUTTON and AMY V. HOLLARD, HODGES, DOUGHTY &

CARSON, Knoxville, for Defendant.

O P I N I O N

Franks, J.

In this medical malpractice action the defendant appeals from a jury

verdict in favor of the plaintiff. 

The action arises from treatment rendered by def endant to plaintiff in

January and February of 1995. Defendant removed the 23 year-old plaintiff’s ga ll

bladder on January 25, and plaintiff, upon complaining of complications, was

readmitted to the hospital and was subsequently transferred to another hospital for

further treatment. It was then determined that plaintiff was suffering from a leakage

of bile into the peritoneal cavity and that the right hepatic duct was leaking at two

points and that clips had been placed on the right hepatic duct during surgery instead

of on the cystic duct, where they should have been placed. Another physician

performed surgical repair on March 6, 1995, and this action was filed on December
2

13, 1995. 

Following trial, the jury returned a verdict for plaintiff in the amount of

$1,000,000.00. The Trial Court subsequently reduced the award to $900,000.00. 

Defendant contends the trial court erred in denying his Motion to

Continue the trial scheduled for May 28, 1997. On May 23, 1997, defendant filed his 

motion stating that Dr. Edward Mason, one of defendant’s expert witnesses would be

unavailable for trial due to his emergency surgery. The motion was denied. However,

Dr. Mason’s testimony was introduced through a discovery deposition which had been

conducted by counsel for the plaintiff.

The granting or failure to grant a continuance “rests in the sound

discretion 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 available to testify, the jury heard his opinions

through the discovery deposition. Additionally, Dr. Mason was not the appe llant’s

only expert witness. Appellant presented the testimony of four other witnesses, who

testified about various aspects of the plaintiff’s treatment. One of these witnesses,

Dr. Michael Kropilak, testified at great length concerning any alleged deviation in the

standard of care. Thus, the trial court properly noted that Dr. Mason’s testimony was

largely cumulative. Moreover, it is not an abuse of discretion to deny a continuance

when an absent witness’ testimony would be merely cumulative. Life & Cas. Ins. Co.

of Tenn. v. Ayers, 281 S.W.2d 75 (Tenn.App. 1954). The Trial Court did not err on

overruling the Motion to Continue.

Next, defendant contends that the Trial Court erred in allowing plaintiff

to testify concerning her medical bills and in admitting $64,839.60 of bills into

evidence. Defendant argues that the bills were hearsay and should have been

excluded. Since an evidentiary ruling by the trial court is a question of law, the
3

standard of review is de novo with no presumption of correc tness. City of Tullahoma

v. Bedford County, 938 S.W.2d 408 (Tenn. 1997).

We have been presented with no Tennessee cases directly addressing

this issue. In Long v. Mattingly, 797 S.W.2d 889, 892 (Tenn.App. 1990), this Court

noted that the plaintiff’s proof “concluded with her husband introducing $6,173.19

worth of medical bills into evidence.” The court later noted that the bills “were

properly introduced into evidence at trial.” Id. at 893. Long, however, was more

concerned with whether a non-treating physician could testify concerning the

reasonableness and necessity of another physician’s charges. The opinion does not

indicate that the defendant made any he arsay obje ction to the bills themselves. 

In Davis v. Travelers Ins. Co., 496 S.W.2d 458 (Tenn. 1973), the

appellant argued that the medical expenses should have been excluded as hearsay

without supporting testimony. According to the court “there was supporting evidence

in the depositions entered in the record and a study of the exhibits themselve s is

sufficient to de termine that the chancellor was not in error in admitting the bills . . .”

Id. at 460. Davis, however, was a workers’ compensation case and contains no further

discussion of the hearsay issue. 

The majority of courts in other states have held that it is error to exclude

the plaintiff’s testimony concerning medical bills incurred. Walters v. Littleton, 290

S.E.2d 839 (Va. 1982). The Virginia Supreme Court in Walters said:

The bills were not hearsay. Their probative value in showing [the

plaintiff’s] damages did not depend upon an out-of-court

assertion, but upon [the plaintiff’s] assertion, based on an

adequate foundation, that he received them for the services

provided him. Thus, the bills were not merely reports of what the

service providers charged, they were the charges themselve s. 

[The plaintiff] should have been permitted to introduce the bills

he received as a consequence of his injuries and testify to them

from firsthand knowledge and subject to cross-examination.

Id. at 450-451 (citations omitted). 
4

Accord. Ledet v . National Car Rental Sys., Inc ., 694 So.2d 1236 (La.Ct.App. 1997);

Andre s v. Liberty Mut. Ins. Co., 568 So.2d 651 (La.Ct.App. 1990); Guillory v. Shelter

Mut. Ins. Co., 542 So.2d 850 (La.Ct.App. 1989); A.J. v. Florida, 677 So.2d 935, 937

(Fla.Dist.Ct.App. 1996). C.F. Padilla v. Hay, 900 P.2d 969 (N.M.Ct.App. 1995)

(holding that a treating physician’s medical bills were hearsay. However the court

noted that the plaintiff neither testified nor made any offer of proof concerning the

amount of the bills. Id. at 972.) Defendant relies on State v. Blevins, 736 S.W.2d 120

(Tenn.Crim.App. 1987), and Kanipes v. North Am. Phillips Elec. Corp., 825 S.W.2d

426 (Tenn.App. 1991), as authority for the proposition that the medical bills

constituted inadmissible hearsay.

Blevins and Kanipes are distinguishable from the instant cas e. First,

plaintiff was not introducing any statements from her bills for their truths. Rather, she

was stating the charges incurred. Any evidence concerning the actual treatments she

received was largely addressed by either herself, or the physicians who testified. 

Plaintiff testified as to the amounts for which she was liable, and other expert

witnesses confirmed the necessity and reasonableness of the charge s. See Long v.

Mattingly, 797 S.W.2d 889, 893 (Tenn.App. 1990). Tennessee Rule of Evidenc e 703. 

Defendant also raises objections to the bills’ authenticity. Under

Tennessee Rule of Evidence 901 “[t]he requirement of authentication or identification

as a condition precedent to admissibility is satisfied by evidence sufficient to the court

to support a finding by the trier of fact that the matter in question is what its proponent

claims.” In this case, plaintiff and her treating physicians testified about the type of

treatment she received. Thus, both the source of the bills and the procedures they

covered were verified. See Walters. 

Defendant also argues that the trial court erred in allowing the

introduction of evidence of medical bills above and beyond the amount payable by
5

TennCare. Defendant relies upon T.C.A. § 29-26-119 which states that losses may be

recovered:

only to the extent that such costs are not paid or payable and such

losses are not replaced, or indemnified, in whole or in part, by

insurance provided by an employer either governmental or

private, by social security benefits, service benefit programs,

unemployment benefits, or any other source except the assets of

the claimants or of the members of the claimants’ immediate

family and insurance purchased in whole or in part, privately and

individually.

Thus, defendant argues that expenses not paid by TennCare are not owed by plaintiff

and could not be recovered. 

In this ca se, any potential error was cured by the Trial Court’s remittitur. 

The Trial Court granted a remittitur and stated that the reduction included any excess

expenses that may have been allowed. 

Finally, appellant insists that the evidence preponderates against the

verdict a s adjusted by the tria l court. The standard of review set forth in T.C.A. 

§20-10-102(b) is appropriate for reviewing a trial court’s failure to grant a larger

remittitur. Id. Under the statute, we are required to “utilize the standard of review

provided in Rule 13(d) of the Tennessee Rules of Appellate Procedure applicable to

decisions of the trial court sitting without a jury.” Thus, review “shall be de novo

upon the record of the trial court, accompanied by a presumption of correctness of the

finding, unless the preponderance of the evidence is otherwise.” Tenn.R.App.P. 13(d). 

In this case, the evidence does not preponderate against the verdict as remitted.

The record demonstrates that plaintiff suffered substantial pain after the

operation. In order to alleviate her condition, doctors at the University of Tennessee

Medical Center performed complicated surgical repairs. Plaintiff testified she was

disabled for approximately six months following the corrective surgery and was

unable to take care of her children or dress herself. According to her testimony, she

continues to suffer periodic episodes of pain, some of which require medical attention. 
6

Additionally, plaintiff ha s a large and pe rmanent scar on her abdomen. 

Plaintiff’s sister testified that he r sister’s personality has significantly

changed, and that her skin color has become more yellow. Dr Martin Evans testified

that the plaintiff’s bile duct and liver chemistries “have not returned to normal” and

that “this is a lifelong problem.” Another physician testified that some future

procedures will need to be performed on the ducts.

We affirm the judgment of the Trial Court on the award as remitted.

The cause is remanded with the cost of the appeal assessed to the

appellant.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

Charles D. Susano, Jr., J.