# FILED
June 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ SYLVIA HUDSON, Plaintiff-Appellee, Shelby Circuit No. 78879 T.D. Vs. C.A. No. 02A01-9709-CV-00232 DAVE SHORTER, JR., Defendant-App

ellant.

____________________________________________________ ________________________ FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONORABLE JAMES E. SWEARENGEN, JUDGE

Jerry Stokes of Me

mphis For Plaintiff-Appellee C. J. Barnett, McNa

bb, Holley & Waldr

op PLLC of Memphis For Defendant-Appellant

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE

This is an automobile personal injury case. The defendant, Dav

id Shorter, Jr., ap

peals from the judgment of the trial court in a bench trial awarding plaintiff, Sylvia Hudson, $9,000.00 damages. Shorter’s respon sibility for the ac

cident was stipula

ted, and the trial

concerned only the issue of damag

es.1 Photographs reveal that the rear of Hudson’s car was only slightly damaged,

whereas the fr

ont of Shorter’s pi

ck-up truck was n

ot damaged at all.
2 There was a dispute at trial concerning whether the clinic triple-charged Hudson for certain treatme

nts. 2 Although the collision caus ed relatively

minor damage to the parties’ vehicle s, 1 Hudson
was taken to the emer

gency room of Meth

odist H ospital in Memphis immediately after the accident. She was examined and released without being referred to any health car

e professional. Hudson a dmitted that shortly thereafter she retained an attorney and was referred to Bellevue Clinic for treatment of alleged lower back and neck pain. Hudson visited the clinic on fourteen occasions, and her treatment included the appli cation of hot and cold packs and the administration of ultrasound to her lower back and neck. Bellevue Clinic’s bill totaled $2,655.00 for these visits. 2 Sub sequent ly, Bellevue Clinic referred Hudson to Dr. Paul Williams, an orthopedist. Dr. Williams administered s i milar conservative treatment to Hudson during the course of nine visits and charged her a total of $528.00. Hudson sued S ho rter for damage s in general sessi

ons court, and Shor

ter appealed to circuit court for a trial de novo . The case was tried in the circuit court by a judge without a jury, and the bills for medical expenses were introduced into evidence by stipu lation. Hudson also presented the deposition testimony of Dr. Williams concerning his care and treatment and also
as proof that the majo

r medic al bi ll from Bellevue Clinic was reasonable and necessary. The trial court considered the deposition tes timony in reaching its decision to award plaintiff $9,000.00 as damages. Shorter has appealed and presents in his brief these issues for review:

Under the surrounding circumstances, were the a ppe llee’s physician’s opinions too speculative, and notwithin a sufficient degree of cer

tainty to be admitte

d into evidence a

t trial: a. With respect to his treatment of the appellee? And/Or b. With respect

to the treatment and bill allegedly incurred by the appellee with another physician? In his deposition, Dr. Williams testified about Hu

dson’s initial visit w

ith him as follows: Q. What

were your findings after

this physical examination? A. My opinion was that she sustained a strain and sprain of a generalized nature of her lumbar spine. Q. Was that

consistent, Docto

r, with an automobil

e accident that she gave a history of? A. It could and might be caused by an automobile accid

ent.3

When asked whether his treatment rendered to Hudson d uring the course of her visits was “necessary,” Dr. Williams stated:

She might have lived wi tho ut the treatment, but I feel that the treatment was advised based on h

er medical compla

ints. And it was my thought that this treatment was what I would like to have done to me if I had t

he same complaint

. Dr. Williams, after

reviewing Hudson’s other related medical bills that itemized the treatments by Bellevue Clinic,

testified: Q. Do yo u have an opinion w hether the trea

tment that M s . Hudson received was necessary? A. Again, these were tr eatments to relie ve her complaints
. She could live without the treatments but these would shorten the course of her -- the treatments rendered here would shor t en the course o f her complaints an

d make her more c

omfortable while she was getting better. Q. Would

those tre at ments be necessa ry to relieve thos

e complaints? A. These

treatments wou l d be helpful in relieving the complaints. Q. Did

you see the bills that

were charged as a re

sult of those treatments? A. Yes, sir. Q. Do you think they’re fair a nd reasonable and in keeping withwhat other physic

ians who treat soft tissue injuries wou ld charge in this community? A. They appear to be fa ir and reasonable and within normal limits for similargroups that render this type of physical therapy treatment. At the conclusion of his deposition, Dr. Williams was asked:

Q. Doctor, all that you’ve te stified to you’ve te

stified to within a reasonable degree of medical certainty? A. Yes, sir. Q. And the treatment you r endered Ms. Hudson, was that consistent with the complaints that she gave in h er hist ory stemming from a moto

r vehicle accid

ent? A. Yes, sir. Shorter asserts that

the tri al court erred in admitting Dr. Williams’s medical opinions since they are not within the requisite deg ree of certainty. In addition to responding that Dr. Williams’s opinions were within a sufficient degree of certainty, Hudson counters that Shorter failed to make a ti

mely objection at tr

ial.4 The trial court is

afforded wide discretion in the admission or rejection of evidence, and the trial court's act

ion will be revers

ed on appeal only w

hen th ere is a showing of an abuse of discretion. Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992); Davis v. Hall , 920 S.W.2d 213, 217 (Tenn. App. 1995). W e first address H udson ’ s argum ent t hat Sh ort e r i s bar red f rom ass ert i ng thi s i s s ue si nce he fai l ed t o ob j ect at t r i al. H u d son cit es T e n n. R
.C iv. P
.32
. 0 2 , w hich stat es: S u b j ect to th e pr ovi s i ons of R u l e 28. 02 and Rule

32. 04( 3 ) , obj ect i on m ay be m ade a t th e t r i a l or hear i ng t o r ece i v i ng i n evi dence any depos i t i o n or par t t her eof f o r any r eas on w h i ch w oul d r equi r e the e x c lusi o n of the ev iden c e if the w i t n e s s we r e t hen pr e s ent and t e s t i f y i ng. H udson ar gues t hat Short e r di d not obj ect t o t he adm i s s i b i l i t y of D r. W i l l i a m s’s d e p o siti o n b efo r e her pr oof w a s cl ose d . Techni cal l y , Short e r di d not r egi s t e r an obj ect i on bef o r e t he depos i t i o n w as pr esent e d , but af t e r t he cour t r ead t h e depos i t i on, Short e r st a t ed: Y our honor , I ’ m opposi ng any ar gum ent about t he ce r t a i n t y of t hes e opi n i ons i n c l osi n g ar gum ent s . W i t hout a j u r y I di dn’t see any po i n t i n t ryi ng to r a i se t hat at t h i s p o i n t. In a bench tr

i a l , w e w i l l const rue t h i s s t a t e m ent as a f orm a l object i on. I n a case s uch as t h i s , w hen the m edi cal or doct or bi l l s exceed $2, 500. 00, t he l a w i m pose s t he dut y upon t h e p lain t i f f t o show by co m pet ent proof t hat t he ser v ices r endered w ere necessar y and t hat t he charges f or t he ser v ices we r e
rea sonable. Ogle v. Brandon , C
. A
.N o . 1247, 1989 W L 48460, at *2 ( Tenn. A

pp.M ay 12, 1989) and West v. Hudson, H

a m i l t on C i r cui t C
. A
.N o . 827, 1988 W L 122431, at

*3 ( Tenn. A pp.N ov.18, 198 8). Sh ort er a rgues t hat D r
. W i l l i a m s ’ s t est i m ony concerni ng h i s bi l l for m edi cal ser v ices di d no t prove t hat t he exp enses w ere necessar y . A s p r evi ousl y not ed, D r. W illia m s s t a t e d t hat he fel t t he t rea t m ent he gav e t o H udson w as advi sed based on h

er m edi cal
com p l a i n t s , and h e fur t her st a t ed t hat it w as the type of treatm e n t he w o u ld w a n t i f he ha d the sam e c o m plaints. V i e w i n g Dr
.W illia m s ’ s te stim o n y a s a w h o l e , w e c o n str u e h is o p i n i o n th a t su c h tre a t m e n t w a s advis ed t o be essent i a l l y the sa m e a s op ini n g that such tr e a t m e n t w as n e c essa ry to a ssi s t H udson i n her r ecove r y . C e r t a i n l y an i n j u r ed par t y i s
e n title d t o t r eat m ent t hat w i l l al l evi a t e or l e s s e n di s c o m f o r t and shor t en t he dur a t i o n of any pai n and s u f f e r i ng.Per haps t h e hum an body i s c onst r uct ed s o t hat , f o r m ost m a l adi e s , nat u r e w i l l event ual l y over com e t h e pr obl e m and t he body
w ill be restored to full he alt h. H o w e v er, the law sho uld n ot req uire that a p erso n m ust r e l y on nat u r e al one but , i nst ead, should em brace t he no t i on that a pers on is ent i t l e d t o ut i l i ze t he m a r vel ous a dvance s m ade i n t h e t rea t m ent of hum a n ills. A l t hough it m a y no t use the “ m

a g ic l a n g u a g e,” D r . W i l l i a m s’s t esti m o n y d o e s suff i c i ent l y pr o ve t hat hi s render ed t rea t m ent t o H udson w as necess ary. I n addi t i on t o t e s t i f y i ng conce r n i ng hi s own tr eat m ent , D r . W i l l i a m s w as quest i oned concerni ng the i t e m i zed5

t r eat m ent s l i s t ed on Bel l evue Cl i n i c ’ s bi l l
. In Long v. Mattingly ,

797 S. W
. 2d 889 ( Tenn. A

pp.1990) , t h i s Court consi dered t he t e s t i m ony of a phys i c i an conc e r n i ng t h e necessi t y of another phy s i c i an’s ser v ices and t h e rea sonableness o f hi s c har ges .The C our t sa i d : A physi c i an w h o is f a m ilia r w ith th e e x t e n t and nat u r e of t he m edi cal t r eat m ent a par t y has r ece i ved m ay gi ve an opi n i on conce r n i ng t he necessi t y of another physi c i an' s se r v ice s a n d the rea s o n a b len e s s o f the ch arg e s . T o b e q u alified to render t hes e opi n i ons, t he ph ysi c i an m ust fi r s t dem onst rat e ( 1 ) know l edge of t h e par t y ' s condi t i on, ( 2 ) know l edge of t he t r eat m ent t he par t y r ece i ved, ( 3 ) know l edge of t he cust o m ary t rea t m ent opti ons for t he con d i t i on in t he m edi cal com m uni t y w her e t he t r eat m ent w a s r ender ed, and ( 4 ) k now l edge of t h e cus t o m a r y char ges f o r t he t r eat m ent . Id. at 893 ( i n t e r nal ci t a t i ons om i t t ed)
. D r
.W illia m s ’ s te stim o n y re v e a ls th a t h e c o m p o rts to th e re q u ire m e n ts s e t out i n M attingly and,

t hus, i s q u a lifie d t o t e s t i f y acc o r d i ngl y .H i s t e s t i m ony conce r n i ng t h e necessi t y of B e l l evue C l i n ic’s t rea t m ent w as es sent i a l l y t he s a m e as f o r hi s own, i
. e . , t r eat m ent s to r e l i eve H udson’ s c o m p l a i n t s . H udson was ce

r t a i n l y ent i t l ed t o r e l i e f f r o m any pai n and suf fer i ng that she m i ght have been en

duri ng. D r . W i l l i a m s t est i f i e d t hat t he com p l a i n t s t hat H udson had
w hen he w a s t rea t i ng h er w ere consi s t ent w i t h t he his t ory of an aut

o m obil e acci dent and, t heref ore, could have been caused i n t hat m anner. H udson t est i f i e d t hat she w a s f r ee of any i n j u r y pr i o r t o t he ac c i dent and t hat t he pr obl e m s s h e i ncurr e d res u l t ed aft er t he acci dent. U nder t he ci rcum s t ances of t h i s cas e , t he t r i a l court di d no t err i n cons i der i ng D r . W illia m s ’ s te stim o n y . T h e ju dgm ent of t he t r i a l court i s af f i r m ed, and thi s cas e i s r e m anded t o t he t r i a l court for such fur t her proceedi ngs as m ay be n ecess ary. C ost s of t he app eal are ass ess ed against t he app e l l ant .

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE