1 The record also i ndicates that Mr. Wynn was obese. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON March 4, 2002 Session ELAINE WYNN v. DR. JOSEPH HAMES A Direct Appeal from the Circuit Court for Benton County No. 99CCV-271 The Honorable Julian P. Guinn, Judge

No. W2001-00269-COA-R3-CV - Filed May 13, 2002

This a medical malpractice case. Plaintiff’ s decedent saw Defendant, an e mergency room phy si cian, who diagnosed de cedent with pneumo nia and se nt deced ent home with antibiotics. Plaintiff’s decedent died the next day from congestive heart failure. Plaintiff, wife of decedent, sued Defendant for malpractice. The jur y’s verdict f

ound decedent

90% at fa

ult and Defendant 10% at fault, and the trial court entered judgment for De fendant on the jury verdict. Plain tiff appe als. We affirm. Tenn. R. App.P. 3; Appe al as of Rig ht; Judgme

nt of the C ircuit Court Affi rmed and Remanded
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and D' ARMY B AILEY , S P
. J., joined. T. Robert Hill, Randall J. Phillips, Jackson, for Appellant, Elaine Wynn Jerry D. Kizer, Jr., Patrick W. Rogers, Jackson, f or Appellee, Dr. Joseph Hames OPINION This medical malprac tice ca se arise s out o f the deat h of James Wynn (“decedent” or “ Mr. Wynn”) from congestive heart fa ilure. Mr . Wynn, a

53 year- old man wit

h a history of diabetes and hypertension 1 , went to the Camden Ge

neral H ospital eme

rgency room complaining of a cough which hadlasted several days, chest pain and trouble brea thing. Mr. Wynn told the treat ing physic ian, Defendant

Joseph Hames (“Dr. Hames”), the he had come down with a cold a few days before and that the c oldhad moved

from his he ad to his chest. Mr. Wynn was running a temperature of 99.9 degree s, his heart rate was regular, and his lungs revea led sounds suggesting a lower respiratory infection. Mr. Wynn specifically denied that he had or was experie

ncing cr ushing, or externa l chest2 Dr. Ha me s testified th at, an x -ray taken of a p atient w ith co nge stive h eart failu re w ould show an enlarged heart

and “haziness” on both of the patient’s lungs. I n this case, however, Dr. Hames testi fied t hat the x- ray reveal ed that Mr. Wy nn’s heart

was not enlar ged, and that the “ hazine ss” was only pr esent in one l ung: all con sistent w ith a dia gnosis of “atyp ical” o r “w alkin g” p neu mo nia.

-2- pain or pain radiating to his neck and arm. Dr. Hames order ed a chest x-ray, which Dr. Hames testified was not c onsistent with congestive heart failure but, rather, with what is commonly referred to as “walking pneumonia.” 2 Plaintiff, Elaine Wynn, Mr. Wynn’s wife, testified that her husband’s condition was about the same that evening and the next morning. She testified tha t th e two of them had played cards together the evening following her husband’s visit to the emergency room, and that whe n she left her husband in

the morning to go to work, there was nothing unusual in his condition. Mrs. Wynn also testified that when she spoke to him by telephone around noon, she had difficulty understanding what he was saying because

he sounded “very congested and froggy.” She be lieves he told her he had fallen. After calling home, Mrs. Wynn left work immediately to check on her husband. When Mrs

. Wynn arrived home, Mr. Wynn’s voice was clea rer, and Mrs. Wynn testified that she thought her husband had gotte

n up too quic

kly and los t his balance. Mrs. Wynn tried to contact her husband’s regular physician, and even called the pharmacy that dispe

nsed the m

edicine in an attempt to locate Dr. Hames phone number. Later, she asked her husband whethe r he though

t he should

go back to t he doctor , but Mr. Wynn said that Dr. Hames had told him that it would take a few days for the medicine to have any noticeable effect and tha t he wanted to

rest. Several hours later, Mr. Wynn began to have ser

ious diffi culty bre athing, a nd Mrs. Wynn calle d 911. The parame dics to ok Mr

. Wynn to the hospital, and he was pronounced dead shortly after

. Mrs. Wynn filed this action on October 13, 199 9 against Dr. Hames, Camden General Hospital, Chris Tubb s (an eme rgency r oom nurse ), and Pa

m Layto n (the Em ergency Room Supervisor). Mrs. Wynn amende d he r Complaint on January 3, 2000, adding Jackson-Madison County General Hospital District as a defendant. On June 5, 2000, the court entered a consent order granting summary judgment in favor of Defendants Tubbs and Layton. On June 30, 2000, the tria l court entered an

order gr anting sum

mary judg ment in fa

vor of De fendant s Jackson- Madison County General Hospital District and Camden General Hospital, Inc

. At the conc lusion of th

e jury tri al inthis matter, the jury returned a verdict finding Dr. Hames 10% at fault and Mr. Wynn, the decedent, 90% at fa ult, and judgment for Defen dant was entered thereon. Mrs. Wynn filed a Motion for a New Trial, which the trial cour tdenied by order entered January 26, 2001.
Mrs. Wynn appeals and presents the following two issues for review: (1) Whether the trial court erred in denying Plaintiff’s Motion for a Directed Verdict as to the af f irmative defense of-3-

comparative fault and instructing the jury regarding the negligence of the decedent; and (2) Whether the trial cou

rt erre d in denying Plaintiff ’s Motion to

Strike the

expert t estimony o f Dr. Scott Portis. We will now consider the first issue. When deciding a motion for a directed verdict, both the trial c ourt and the reviewing court on appeal must look to all the evidence, take the stronges t legitimat

e view of the evide nce in favor of the opponent of the motion, and allow all reasonable inferences in favor of that party. The court must discardall count

ervailing evidenc e, and if there is t hen any d ispute as to any material fact, or any doubt as to the conclusions to be drawn from the whole evidence, the motion must be denied. See Conatser v. Clarksville Coca-Cola Bottling Co. , 920 S.W.2d 646 , 647 (Tenn. 1995); Hurley v. Tennessee Farmers Mut. Ins. Co. , 922 S.W.2d 887, 891 (Tenn. Ct. App. 1995). A directed verdict cannot be sustaine d if

there is material evidence in the record w hich would support

a verdict for the defendant under any of the theories the defendant had advanced. Id. ; Conatser , 920 S.W.2d at 647. Plaintiff’s argument for a direct verdict in the trial court was premised solely on the alleged failure of proof

of neg ligenc e on the pa

rt of Plain

tiff’s decedent. The tria

l transcr ipt r eveals the following exchange:

THE COURT: Anything else you want on the r ecord at this time, sir? MR. HILL: Yes, your honor. We believe that the defense that wa s r ai se d b y answer and in the opening statement of compara ti ve faul t on the part of Mr. Wynn is not supported by the evidence, and therefore, we respectfully move the court for a directed verdict on the issue of comparat ive fault on the grounds that, one, there wa s n o n eg li ge nc e p ro ve n a nd no br ea ch of an y duty prove n, and ther efore, a defen se of com

parativ e fault

falls as a result of

lack of proof. THE COURT: All right. Let y our motion be overruled. On app eal, Plaintiff ar

gues a t grea t length that Def endant f ailed to p roperly raise in hi s plead ings the affirmative defense of compara tive negligence. I

t appears that Plaintiff

, theref ore, raises a theory on a

ppeal different from the theory asserted in the trial court. I t is well se

ttled in thi s state that a party on a

ppeal will not be permitted to depart from the theory on which the case was tried in the lower court. Issues not raised or complained of in the trial court will not be considered on appeal. See Tamco Sup ply v. Po llard , 37 S.W.3d 905, 909 (Tenn. Ct. App. 2000). Neverth eless, we will briefly discuss this waived theory in conjunction with our discussion of the Plaintiff’s theory advanced in the trial court.-4-

We begin our analy sis by noting that Rule 8.03 of the Tennessee Rules of Civil Procedure provides, in part, “In pleading to a preceding ple ading, a party shall set f

orth aff irmatively f

acts in short and plain terms relied upon to constitute. . .comparative fault. (including the identity or description of any other

alleged tortfeasors). . .” Tenn. R. Civ. Pro. 8 .03 (2001 ). This rule contemplates that a defendant must give a plaintiff sufficient notice a s to the existence and id entity of a compar ative tor tfeasor so as toal lo w t he pl ai nt if

f t o i ni ti at e d is co ve ry. See, e.g ., Brown v. W

alM art Discount Cities , 12 S.W.3d 78 5, 787 (Te nn. 2000) ; George v. Alexander , 931 S.W.2d 517, 521-22 (Tenn. 1996). With this in mind, we review the record in this case. The Defendants filed an answer which set forth a g eneral

compara tiv e fa ul t d ef

en se an d i nc lu de d t he la ng ua ge , “ th e d am ag es , i f a ny, recove rable in this action must be diminished or apportio ned to the

fault att ributable to all persons andentities c ontributing there to.” Foll owing Mr s. Wynn’s depo sition in thi s case, D r. Hames , pursuant to a conse

nt order , filed a

n Amende d Answer

in which he sets outthe following defense: Defendant

asserts t hat James Wy

nn was h im self guilty of negligent acts or omissions which proximatel y c ause and contributed to his death. Defenda nt asser ts that Mr. Wynn ’s proximat e comparative negligence, being greater than one-half of

the cause of the harm, bars any

recovery . In the alternative, Defend ant asse rts that, if the facts developed during trial support the theory that Mr. Wynn’s comparative neg lig ence was less than half the total negligence

i nvolved in his death, Plaintiff’s recovery should be reduced proportionally

with Mr. Wynn’s comparative negligence. At trial, defense counsel raised the compara tive fault of Mr. Wynn on

numerous occasions, the most significant of which was upon cross examination of Mrs. Wy nn: Mr. Kizer: And I believe y ou said that Wednesday

morning when you left for wor

k the day that Mr. Wy

nn died, he was in the recliner a nd he seemed to be sle eping f ine; is tha t right? You

didn’t notic e any thing unu sual abou

t him? Mrs. Wynn: No, sir, not anything f romthe previous couple of day s.

Mr. Kizer: And you called him from wor k at noon, a s I understa nd? Around no on, y our lunch hour; is tha

t right? Mrs. Wynn: Yes. * * *-5- Mr. Kizer: And you said he sounded like he wa s difficult t o understand, he sound ed lik e he had lost his b alance or som ethin g; is that rig ht? Mrs. Wynn: He sounded like he had a frog in his throat, andI couldn’t discern what he said. Mr. Kizer: And a t that time you told Mr. Wynn to go to the doctor, didn’t you? Mrs. Wynn: No. I told him to go to the recliner. Mr. Kizer: Well, I may have misunderstood in your de position - - * * * Mr. Kizer: I’ll

refer y ou to page 61, line 17. The question wa s, “O ka y . Wh at did y ou f ind wh en y ou a rr ive d?” Answer: “I talked to him to understand wha thappened. He said he had gotten up and gone to the rest room. He was coming out and kind of lost his balance.”. . . Ques tion on pa ge 62, line 1: “Okay . What else was said or done a t th at point? ” Answer: “I told h im th at he n eeded t o go back to the doctor.” Mrs. Wynn: I

may have sug gested

to him th at he should, b uthe said that h

e didn’t need to g o, he just h ad a dizzy spell. Mr. Kizer: Well, as soon as you got home , though , yo

u told him that he needed to go back to the doctor? Mrs. Wynn: Well, I though he did, and I ask ed him severa l times. He gave the same answer every time. One

of the things that

he told me was that

the box on the front of the form that was not ma

rked sai d to come back if y ou have any problems, and he didn’t

anticipate there would by any , and that was why he didn’t go back. Mr. Kizer: But you fe lt like he needed

to go ba ck to the doctor; is that rig ht?-6- Mrs. Wynn: I’m

the worr ier. When

it came to my husban d, I worried a lot. * * * Mr. Kizer: And you said y ou started trying

to call Dr. Goad? Mrs. Wynn: Not initi ally. I thought about it for a

while and I decided I wanted to. Mr. Kizer: And you

th ought about the emergency roomand sugge sted that h

e go ba ck to the e

merge ncy room; isn’ t that rig

ht? Mrs. Wynn: Iwould h ave preferred that he g o s ee our regula r family doctor. Sh

e was fa miliar wit h him. Mr. Kizer: But he refused to go back

to the eme

rgency r oom, did he not? Mrs. Wynn: He said he d idn’t fee l any worse tha

n he did before. He said that he was told it would take time for the medicine. At no t ime du ring th is ex change did counsel for Mrs. Wynn object as to defense counsel’s line of questioning. Similarly, we f ind nothing in the record, apart from Mrs. Wy nn’s Motion for a Directed Verdict, which indicates that Mrs. Wy nn’s counsel objected to the p resent ation of evidence regarding Mr. Wy nn’s comparative fault in this case. Rule 15.02of the TennesseeRules of Civil Pro cedure

provides : When iss ues not ra

ised by the plea dings ar e tried b y e

xpress o r implied consent of the parties, they shall be treated in all respects as if they had bee n raised in the ple adings. Such amendment of the plead ings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does notaffec t th e resu lt of the trial of these issues. Provided, however, amendment

after verdict so as to increase the amount sued f or in the action shall not be permitted. If evidence is objectedto at the trial on the ground that it is not

within the issues made by the plea dings, the court may allow the plea

dings to be amende d and shall do so freely when the presentation of the merits of the action will be subser ve d thereby and the objecting party fails to satisfy

the co urt that the admission of such e

vidence would pre

judice th at party

in maintaining1 T.C .A. § 29- 26- 115 pro vide s, in relev ant p art: (a) In a malpr acti ce act ion, the c lai mant sh all have t he burden of proving by evidence as provided by subsection (b):

(1) The recogni zed st andard of accept able profes siona l pra cti ce i n the profes sion and th e speci alt y ther eof, if any, t

hat t he defenda nt pra cti ces i n the com mu nity in which he pract ices or in a si milar community at the t ime the all eged inj ury or wrongf

ul ac ti on occurr ed; (2) That t

he defendant acted w ith less than or failed to act with ordinary and reas onable care i n accorda nce wit h such s tandar d; and (3) As a pro xim ate resu lt of t he defenda nt' s negl igent actor omissi on, the plai nti ff s uffer ed inj urie s which woul d not ot herwis e have occ urred. (con tinue d...) -7- the action o r defen se upon the merits. Th

e court may

grant a continuance to enable the objecting party to meet such evidence. Should Def enda nt's amendment to his answer be deemed insufficient to ra ise the issue of the decede nt's fa ult, Rule 15 .02 cure s the prob lem. We next address Mrs. Wynn’s contention that there is insufficie nt evidence in the record

to support the defense of compara

ti ve fault on the part of Mr. Wy nn. Under the standard of review citedabove, w e must aff irm if the re is mate rial evid e nce in the record which would support Dr. Hames’stheory

of compa rative f ault. As we have noted above, the record c ontains testimony which supports a finding of compara tive fault. Mrs. Wy

nn testifi ed that she was co ncerne d enough about he r husband ’s wellbeing that she le

ft work to go home to check on him. She a

lso testif ied that sh

e tr ied on several occasions to contact

Mr. Wy nn’s reg ular phy sician, a

nd even c alled the

pharmacy a

t one point

in an effort to contact Dr. Hames directly . The testimony reproduc ed above also reveals that Mrs. Wy nn, at least on several occasions, asked her husband to go back to the emerg ency room, but he r efused. Alth ough Mrs. Wynn relies on emerg ency room discha rge instru ction s Mr. Wynn received which indicatedthat he should not be surprised if it took a few day s before he felt better, we cannot agree that it was re asonable

for Mr. Wynn to delay

returning to the emergency room when his condition had worsened

significantly. Mor

eover, thereis testimony that had he returned to the emergency room, the outcome w ould have

likely been dif ferent

. We believe this evidence is sufficient to support the defense of c omparative fault on Mr. Wynn’s part. On

this reco rd, it app ears reasonable for a jury to reac

h the conclusion that Mr. Wynn’s inaction in seeking medical treatment was a significant cause of his death. The second issue Mrs. Wynn pre sents is whether the trial court erred in allowing

Dr. Scott Portis to testify on behalf of D r. Hames. At trial, counsel for Mrs. Wynn moved to have Dr. Portis’s evidenti ary

depositio n stricke

n becau se Dr. Por

tis alleg edly

did not com

ply withthe provisions of T. C. A. § 2 9- 26 -1 15 as it pe rt ai ns to ex pe rt me di ca l t es ti mo ny. 11 (.. .continued) (b) No pers on in a he alt h care profes sion requi ring l icens ure under the laws of thi s st ate shal l be c ompetentto tes tif y in any court of l aw to es tabl ish the facts requ ired to be es tablish ed b y sub section (a), un less the p erson wa s li c ensed to practi ce in the s tat e or a con tiguo us bo rder ing sta te a pro fession or sp ecialty which would make the pe rson' s expert t est imony rel evant to the issues in the ca se and had pra cti ced t his profes sion or spe cial ty i n one (1) of thes e st ates during the yea r prec edin g the date th at the a lleged injury or w ron gfu l act oc curr ed. -8- To begin with, we note that the party introducing expert testimony in a medical malpractice action carries the burden of proof asto the stat

utory require ment that m

edical e xperts pra ctice in a community

similar to the one in which the claim arose. See Mabon v . Jackson-

Madison County Gen. Hosp. , 968 S .W.2d 826, 828 (Tenn. Ct. App. 1997). Although this Court has “admonished lawyersto couch their medical experts’ conclusions in the languag e of” the statute, we realize that “a mere ritualistic incantation of statutory buzz words evidences ver y little.” Church v. Perales , 39 S.W.3d 149, 166 (Tenn. Ct. App. 2000). Rather, we must look at the expert’s opinion to determine if it is based upon “trustworthy fa cts or data sufficient to provide some basis for the opinion.” Id. We must, therefore, examine the record for evidenc e that Dr. Portis was qualified to testify a s to the recognized

standard of acceptable professional pr actice required of an emerg ency room phy sician in Camden, Benton County, Tenne ssee, or a similar community, in 1999. The trial court is vested with broad discretion to determine the “admissib ility, qual ificatio ns, relevancy and competency of expert testimony.” McDaniel v . CSX Transp., 955 S.W.2d 257, 263 (Tenn. 1997). See Shelby County v. Barden , 527 S.W.2d 124, 131 (Tenn. 1975) ; Mabon , 968 S.W.2d at 829. The tria

l court’srulings in

this regard will be upheld except upon a showing of an abuse of this discretion. See McDaniel , 955 S.W.2d
. at 263-64. Plaintiff asserts that Dr. Portis could not define the “ sta ndard of care” and, thus, was not qualifiedto testify concer ning the standard of ca

re requi red of physicia

ns in the community. Dr. Portis testified as to the definition of standard of care: “I think the standa

rd of care in a certain area would be what I and the maj ority of my ER physicians in this area would do in a specific case.” Plaintiff relies upon the decision of this Court in Hopper v. Tabor , 19 98 WL 498211, No. CA03A01-9801-CV-00049 (Tenn. Ct. App. 1998). In Hopper , the plaintiff submitted the testimony of a Dr. Oldham in opposition to a summary judgment motion by the defenda nt-phy si cian. Dr. Oldham te stified c oncerning his understanding of t he standa rd of ca re as fo llows: Q. What is your understanding as far as y our testimony

is concerned of what st andard o f care

means? A. Well , to m e, sta ndard of care means doin g thos e thin gs which a majority of physicians in a com munity would consider to be re as on ab le me di ca l c ar e i n t ha t c om mu ni ty.-9-

Dr. Oldham further testified that he could not be “be prec ise” about his awareness of the standard of care in the community where the alleged malpractice occurred.
In Dr. Portis’s deposition, he testified he wa s familia r with the standard of care for an emergency

room physician

in Ca md en , T en ne ss ee , o r a si mi la r c om mu ni ty, on the date in question. Dr. Portis also testified as to his extensive knowl edge throughout the region concerning the practice of emergency

roomphysicians and although his answer as to the definition of the standard of c are is somewhat inartful, it could be interpreted to be what a reasona ble medic al prac titioner in a same or similar community

would have done in a particular case. The trial court apparently

considered it in th at ma nn er , a nd we fi nd no ab us e o f d is cr et io n i n t he ad mi ss io n o f t he te st im on y. In a ny e vent, we note, considering thetestimony of Dr. Hames, Dr. Geno, Dr. Garrett, and Dr. Sentell, that there is material evidence to support the verdict of the jury and the court’s judgment thereon. If there were any err or on the part of the trial court in admitting Dr. Portis’s deposition, it was harmless error. Ac co rd in gl y, t he judgment of the trial court is affirmed. The c ase is remanded to the trial court for such further

procee dings as may

be nece ssary . Costs of th

e appea l are as sessed to

appella nt, El ai ne Wyn n, an d h er su re ty.

__________________________________________ W. FRANK CRA

WFORD, PRESIDING JUDGE , W.S

.