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-Appellant.

____________________________________________________________________________

FROM THE CIRCUIT COURT OF SHELBY COUNTY

THE HONORABLE JAMES E. SWEARENGEN, JUDGE

Jerry Stokes of Memphis

For Plaintiff-Appellee

C. J. Barnett, McNabb, Holley & Waldrop 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, David Shorter, Jr., appeals

from the judgment of the trial court in a bench trial awarding plaintiff, Sylvia Hudson, $9,000.00

damages. Shorter’s responsibility for the accident was stipulated, and the trial concerned only

the issue of damages.
1

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

whereas the front of Shorter’s pick-up truck was not damaged at all.

2

 There was a dispute at trial concerning whether the clinic triple-charged Hudson for

certain treatments.

2

Although the collision caused relatively minor damage to the parties’ vehicles,1

 Hudson

was taken to the emergency room of Methodist Hospital in Memphis immediately after the

accident. She was examined and released without being referred to any health care professional.

Hudson admitted 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 application 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 Subsequently, Bellevue Clinic referred Hudson to Dr. Paul Williams, an

orthopedist. Dr. Williams administered similar conservative treatment to Hudson during the

course of nine visits and charged her a total of $528.00.

Hudson sued Shorter for damages in general sessions court, and Shorter 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 stipulation. Hudson also

presented the deposition testimony of Dr. Williams concerning his care and treatment and also

as proof that the major medical bill from Bellevue Clinic was reasonable and necessary. The

trial court considered the deposition testimony 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 appellee’s

physician’s opinions too speculative, and not within a sufficient

degree of certainty to be admitted into evidence at 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 Hudson’s initial visit with 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, Doctor, with an automobile accident

that she gave a history of?

A. It could and might be caused by an automobile accident.
3

When asked whether his treatment rendered to Hudson during the course of her visits was

“necessary,” Dr. Williams stated:

She might have lived without the treatment, but I feel that the

treatment was advised based on her medical complaints. And it

was my thought that this treatment was what I would like to have

done to me if I had the same complaint.

Dr. Williams, after reviewing Hudson’s other related medical bills that itemized the treatments

by Bellevue Clinic, testified: 

Q. Do you have an opinion whether the treatment that Ms.

Hudson received was necessary?

A. Again, these were treatments to relieve her complaints.

She could live without the treatments but these would shorten the

course of her -- the treatments rendered here would shorten the

course of her complaints and make her more comfortable while

she was getting better.

Q. Would those treatments be necessary to relieve those

complaints?

A. These treatments would be helpful in relieving the

complaints.

Q. Did you see the bills that were charged as a result of those

treatments?

A. Yes, sir.

Q. Do you think they’re fair and reasonable and in keeping

with what other physicians who treat soft tissue injuries would

charge in this community?

A. They appear to be fair and reasonable and within normal

limits for similar groups that render this type of physical therapy

treatment.

At the conclusion of his deposition, Dr. Williams was asked:

Q. Doctor, all that you’ve testified to you’ve testified to

within a reasonable degree of medical certainty?

A. Yes, sir.

Q. And the treatment you rendered Ms. Hudson, was that

consistent with the complaints that she gave in her history

stemming from a motor vehicle accident?

A. Yes, sir.

Shorter asserts that the trial court erred in admitting Dr. Williams’s medical opinions

since they are not within the requisite degree 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 timely objection at trial.
4

The trial court is afforded wide discretion in the admission or rejection of evidence, and

the trial court's action will be reversed on appeal only when there 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 i ces r endered w ere necessar y and t hat t he charges f or t he ser v i ces 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 i ces 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 zed
5

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 i ces 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 Mattingly 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 i c’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