Samuel S. Haines v. Henry County Board of Education ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 28, 2009 Session
SAMUEL S. HAINES v. HENRY COUNTY BOARD OF EDUCATION
Direct Appeal from the Circuit Court for Henry County
No. 2899 Donald E. Parish, Judge
No. W2008-02532-COA-R3-CV - Filed February 11, 2010
This appeal arises out of an auto accident. The trial court entered judgment in favor of the
plaintiff. The defendant appeals, arguing that the plaintiff’s evidence was insufficient to
prove causation. We reverse the judgment of the trial court and enter judgment in favor of
the defendant.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.
Charles M. Purcell, Hailey H. David, Jackson, Tennessee, for the appellant, Henry County
Board of Education
Gary J. Hodges, Clarksville, Tennessee, for the appellee, Samuel S. Haines
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
This case involves an automobile accident that occurred on the afternoon of October
14, 2005, in Paris, Tennessee, on a five-lane roadway. Samuel Haines (“Plaintiff”) was
driving his Saturn Vue SUV in the left eastbound lane next to the turning lane, at
approximately 40 miles per hour, when the car in front of him came to an abrupt stop. When
Mr. Haines applied his brakes to avoid hitting that car, he was rear-ended by a school bus
owned by the Henry County Board of Education. The vehicle that abruptly stopped in front
of Plaintiff was driven by James Russell. According to Mr. Russell, he was forced to slam
on his brakes because an elderly woman with Louisiana tags was driving the wrong way
down the eastbound lane. The elderly woman initially stopped but later left the scene of the
accident.
Plaintiff filed suit against the Henry County Board of Education on October 4, 2006.
Plaintiff alleged that the bus driver was negligent in failing to keep a proper lookout and
failing to avoid the collision. Plaintiff claimed that, as a result of the accident, he incurred
medical expenses and suffered physical injuries, pain, mental stress, loss of enjoyment of life,
loss of income, and loss of capacity to earn income. The Henry County Board of Education
filed an answer denying that the bus driver was negligent and claiming that the unknown
driver was the sole proximate cause of the accident.
A bench trial was held on July 9, 2008. The school bus driver testified that prior to
the accident, he was traveling thirty to thirty-five miles per hour, below the speed limit, on
his way to pick up children after school. He could not remember how far he was driving
behind Plaintiff’s vehicle, but he said it was “a good distance” and that he could see the road
between the bus and Plaintiff’s vehicle. The bus driver testified that when he saw Plaintiff’s
vehicle’s brake lights, he slammed on his brakes but was unable to stop. However, Plaintiff
testified that he did not hear any braking by the school bus prior to the impact. Mr. Russell,
who stopped in front of Plaintiff, also testified that he did not hear any tires squealing. The
investigating police officer testified that he did not observe any skid marks on the pavement
from the bus.
Plaintiff was 44 years old at the time of the accident. His two young children were
also in the vehicle with him, but neither of them was injured. Plaintiff was taken to the
emergency room, where he was x-rayed, evaluated, and released. However, the emergency
room staff referred Plaintiff to Dr. Eugene Frank Gulish, a board-certified orthopedic
surgeon. Dr. Gulish’s deposition was entered into evidence at trial. Dr. Gulish stated that
Plaintiff first presented to his office on October 18, 2005, four days after the accident. At
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that time, Plaintiff informed Dr. Gulish that he had been in a car accident and experienced
immediate back and neck pain. Plaintiff’s neck pain had largely resolved by the time he saw
Dr. Gulish, but he reported that his back pain had persisted and that it occasionally radiated
into his left leg. Dr. Gulish said that Plaintiff also reported having sciatica in the past with
radiation into his left leg.1 Dr. Gulish x-rayed Plaintiff and found that two of his vertebral
bodies, T-11 and T-12, each had about 10 degrees of compression. He explained this finding
as follows:
The vertebral bodies are the supporting elements of the spine so they’re
essentially like little blocks sitting one on top of the other with the disks
between them and their top and bottom cortices are generally parallel.
If something happens, be it osteoporosis or trauma,2 then they might get
crunched down so that the – that the normal contour of the vertebral body is
compressed to some degree.
....
[T]he vertebral bodies are made of trabeculated bone which means like
spongy bone so there’s a whole bunch of little trabeculae that make that
vertebral body.
Somewhere along the way those – some of those trabeculae collapsed,
cracked through, so that essentially was a fracture.
The question is, you know, here – this is the first time I saw him with
a history of an injury so the question is when did it happen. Did it happen with
that injury or had it happened long ago so there was no way to know that at
least at that point.
Dr. Gulish testified that “10 degree is not very much” and explained that “a vertebral collapse
of just 10 degrees usually does well. The pain goes – especially in a relatively young healthy
person does well and it doesn’t cause that much of a change in his biomechanics so usually
the pain goes away.” Dr. Gulish instructed Plaintiff to avoid lifting and bending for six
weeks, then to progress with his activities as he could.
Dr. Gulish prescribed Percocet for Plaintiff, but after three days, Plaintiff called Dr.
Gulish and requested a different medication, stating that the Percocet was making him too
sleepy. Dr. Gulish then prescribed hydrocodone for Plaintiff. Over the next few months,
1
Dr. Gulish explained that sciatica is a layperson’s term for radiating pain into the lower
extremities, with “the sciatic nerve being the main nerve going to the extremities and so it’s called sciatica.”
2
Dr. Gulish said that he generally sees compression fractures in people with osteoporosis, especially
elderly females, where the compression is caused by “not one acute trauma, but it’s just the activities of
daily living, standing up so these trabeculae continue to collapse, not all at once, but continue to collapse .
. . .”
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Plaintiff had numerous additional appointments with Dr. Gulish, and each time, he reported
that he continued to experience back pain. Dr. Gulish performed additional x-rays, which
showed no further compression of Plaintiff’s vertebrae. Dr. Gulish sent Plaintiff to physical
therapy, yet he continued to report pain. Dr. Gulish performed a Dexa scan on Plaintiff and
determined that he was osteopenic, which Dr. Gulish described as “kind of a step before
[osteo]porosis.” Dr. Gulish explained that with osteopenia, the back structures are weaker
than expected, and he said that Plaintiff’s osteopenia might explain why his vertebrae
collapsed.
Dr. Gulish testified that at a January 2006 appointment, Plaintiff reported that he was
still hurting, although his gait was normal, his reflexes were symmetrical, and he
demonstrated “no objective findings.” Plaintiff was still taking hydrocodone, and he
requested an additional prescription for a muscle relaxer.
Dr. Gulish had a bone scan of Plaintiff performed on April 5, 2006, because he was
concerned that Plaintiff was still reporting pain nearly six months after the accident. Dr.
Gulish explained,
[A] bone scan is injecting an isotope into the body and waiting two hours and
that isotope will go to wherever there is a cellular activity in the bone and if
there is a fracture, if there’s a fresh fracture, then generally the isotope will go
there and then when they run the Geiger counter over the body, it picks it up
and it’s seen as a black area on the film.
....
Generally, the uptake in an acute fracture will be present for six months
to a year while that fracture is trying to heal . . . .
Dr. Gulish stated that Plaintiff’s bone scan showed “no uptake” in his back, meaning that his
fractures were healed. When Dr. Gulish was asked whether he could state, to a reasonable
degree of medical certainty, whether Plaintiff’s compression fractures were related to the car
accident, considering the results of the bone scan, Dr. Gulish said, “I can’t say for certain that
those compressions didn’t occur with his accident[.]” (emphasis added).
At a May 2006 appointment, Plaintiff continued to complain of pain, but an
examination revealed “nothing new.” Dr. Gulish’s office had received an anonymous
telephone call from someone who stated that Plaintiff was selling his pain medication. Dr.
Gulish stated that when Plaintiff was confronted about the anonymous phone call, Plaintiff
acted surprised but did not deny the allegation. Plaintiff was told that Dr. Gulish would
continue to see him as a patient, but he would no longer write him pain medication
prescriptions. Dr. Gulish also referred Plaintiff to a pain management doctor, Dr. Charles
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Walker, thinking that Dr. Walker would be able to give Plaintiff pain medication by injection
if necessary.
Thereafter, Plaintiff quit seeing Dr. Gulish. He first saw Dr. Walker on July 24, 2006,
some nine months after the accident. Plaintiff told Dr. Walker that he had “dull pain from
his mid-spine down,” especially after sitting or driving for more than 30 to 45 minutes, or
standing for extended periods of time. He reported that his pain began around the date of the
car accident. Dr. Walker referred Plaintiff for a functional capacity exam, which according
to Dr. Walker, indicated that Plaintiff did experience pain when lifting. However, Dr.
Walker testified that Plaintiff’s effort on the exam was found to be “variable,” and that the
results of the exam “may or may not represent the patient’s current maximum functional
abilities.” The functional capacity evaluation report states that Plaintiff’s “pain profile was
MODERATE to HIGH with POOR reliability.” Dr. Walker testified, though, that he had
found Plaintiff to be an honest person, and he said he believed that Plaintiff had been honest
with him about his condition. Dr. Walker was prescribing numerous medications for
Plaintiff, including, among other things, hydrocodone, methadone, and a muscle relaxant, but
he said he had no knowledge of Plaintiff overusing his medications.
Dr. Walker testified that it was his opinion, to a reasonable degree of medical
certainty, that the automobile accident caused the back injury for which Plaintiff was being
treated. However, Dr. Walker acknowledged that he never reviewed any of the x-rays or
objective tests showing Plaintiff’s injury. He said he was basing his opinion as to causation
solely on the history he had received from Plaintiff himself. Dr. Walker said the history
Plaintiff reported was that “he had pain, the initiation of pain that he did not have prior to this
wreck, and that that correlated with those compression fractures that were identified at that
time.” Dr. Walker ultimately said that he would defer to Dr. Gulish on his opinion regarding
the cause of the compression fractures.
Dr. Gulish had requested that Plaintiff come see him for a follow-up visit in May
2008, in preparation for his deposition, and at that appointment, nearly three years after the
accident, Plaintiff continued to complain of severe low back pain with mild radiation into his
left leg. However, additional x-rays revealed no difference in his 10 degree compressions.
Dr. Gulish ordered an MRI, but he said it found “nothing” – no bulging disks and no
impingement of the spinal cord. Dr. Gulish concluded that Plaintiff had a six percent whole
person impairment rating.
Dr. Gulish testified that he was never able to determine why Plaintiff continued to
experience pain from the compressions when the bone scan showed that the compressions
were not collapsing further, and there was no neurologic injury. Dr. Gulish said that
throughout his months of treating Plaintiff, he never found any objective evidence that was
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consistent and compatible with the level of pain described by Plaintiff. He then clarified that
he did find the two vertebral compressions, which he described as “mild but still there.” Dr.
Gulish said there are many reasons why people have pain and interpret pain, and he said, “I
don’t know that he’s embellishing it or that he’s somehow or other interpreting that pain as
being that significant.” Dr. Gulish said that Plaintiff always described his pain as coming
from the area of the compressions, but he also said that Plaintiff had been “conditioned” and
“knows that that’s where the fractures are.” He said it would be odd to have the “radicular
type” pain that Plaintiff described “from a fracture that high up with that small amount of
compression so I would say that the radicular pain probably is not coming from the vertebral
compressions.”
Dr. Gulish said he discussed his concerns with Plaintiff at his last appointment and
“asked him if there was any other part of his history that he hadn’t told me about, back pain
and he emphatically denied ever having sought medical attention for back problems before
that injury.” Dr. Gulish said his impression of Plaintiff at that last appointment was that he
had “chronic, mid and low back pain secondary to motor vehicle accident.” However, when
asked whether he could state to a reasonable degree of medical certainty whether the
compression fractures came from the accident, he said, “I can’t know that. I know that there
was no uptake six months later. On the other hand, he emphatically denies seeking medical
care for his back in the past. I guess if that’s true, then it seems like at least the back pain
started with the accident.” Dr. Gulish reiterated that Plaintiff’s self-reported history was that
he had no history of back problems for which he had been treated, and that “he had leg pain
before but did not indicate that he had ever seen anybody for it.”
Dr. Gulish also explained that osteopenic patients lose bone substance so that their
bones are not as hard as they should be, and he said “it’s possible that just the activities of
daily living, bending and lifting and all the things we do could have caused over time those
vertebrae to wedge and not – he not even know it.” When asked whether it was more likely
that Plaintiff suffered his injury in that manner than in the car accident, Dr. Gulish replied,
“It’s really hard to say. The history I got is this is new and never had pain like this before.
If that is a true history, his pain started with the accident and hasn’t ended, then I think we
have to conclude that whatever happened in that accident was what’s causing his pain if that
is true.” In conclusion, Dr. Gulish was asked by Plaintiff’s counsel whether he was saying
that Plaintiff’s injury and pain were not the result of the car accident. Dr. Gulish said he was
not, explaining, “As I said, the history he gave me is that this pain started on the day of his
injury and continued such – since if that’s true, then it seems like the accident caused the
pain. Whether or not the vertebral body compressions occurred on that day, it seems like the
pain occurred on that day if the history is true.”
Plaintiff testified that he was not experiencing “any kind of pain” before the accident,
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that his back pain began immediately after the accident when his car came to a stop and he
turned around to check on his daughter, and that he had been in continual pain since the
accident. Despite Plaintiff’s contrary statements to Dr. Gulish, he admitted that he had
sought medical care for a back injury prior to the car accident. Plaintiff acknowledged that
he had gone to the emergency room complaining of back pain after stepping off a curb
approximately five months before the car accident. He said that his pain at that time was just
above his belt line in the left part of his back, and that the pain also radiated down his leg.
Plaintiff testified that he was given pain medication and told to rest, and the pain went away.
Plaintiff said he did not inform Dr. Gulish about the incident because he understood him to
be asking whether he had ever suffered back problems “like this” before. However, he said
that if Dr. Gulish’s records indicated that he reported no back problems, he would not dispute
that he made that statement.
During Plaintiff’s deposition, he had testified that the curb incident was his only
previous back problem. However, when questioned by Defendant’s counsel at trial, Plaintiff
admitted that he had also gone to a clinic in November of 2004, roughly eleven months
before the accident, complaining of “lower back problems.” On that occasion, he reported
that he was sore from riding in a car and that he had “twisted the wrong way.” Plaintiff was
prescribed pain medication and sent home.
Plaintiff also admitted that he returned to the clinic in April of 2005, less than six
months prior to the accident, complaining of a four-day history of pain from his lower back,
radiating into his left leg. Plaintiff reported that he had spent a lot of time in the car, and he
was again prescribed pain medications.
Plaintiff also briefly referred to an incident that occurred in the year prior to the
accident when he sought medical treatment after stepping down off a ladder, although it is
not clear whether this was a separate incident or another reason for his previously mentioned
doctor visits. In sum, Plaintiff conceded that he “had some lower back pain before the
accident.”
Plaintiff also admitted that he had filled numerous prescriptions for hydrocodone
during the two years prior to the accident, with the most recent prescription being filled in
August of 2005, just two months prior to the accident. Records revealed that Plaintiff had
filled prescriptions for over 250 hydrocodone pills between June of 2004 and the time of the
accident. Plaintiff admitted that he had a prescription drug problem prior to the accident.
At the conclusion of the testimony, the trial court ruled in favor of Plaintiff and
subsequently entered an order incorporating its oral findings. The court’s findings relative
to causation were as follows:
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Dr. Walker is of the opinion that this treatment was made necessary and
these injuries caused by the motor vehicle accident of October 14, 2005.
....
. . . [Dr. Walker] acknowledged that he first saw the patient a year after
the motor vehicle accident and that his opinion about causation was based in
significant part upon the history and, of course, the accuracy of the history
being a part of that that the patient/plaintiff had given to him.
Dr. Walker opined that he did not believe there was any evidence of the
overuse of pain medications by Mr. Haines during his treatment.
Dr. Gulish first saw the plaintiff on October 18, 2005, just days after
this accident. The history being given by the plaintiff was that he had been
injured in an automobile accident some four days earlier. He gave a history of
back pain radiating into his left leg.
....
. . . [Dr. Gulish] diagnosed a compression fracture at T11 and T12, . .
. and he quantified that compression as being 10 percent – or 10 degrees, I
should say, at each.
. . . He also ordered sometime thereafter a bone scan to be performed,
and the results of the bone scan were that in his opinion he – the result was that
he could not say that the compression fractures were or were not caused by the
motor vehicle accident simply from the bone scan itself.
He did make an attempt to investigate that depending upon the degree
of – of a positive uptake or negative results about the bone scan to make some
opinion in terms of the age of the injury.
Dr. Gulish was of the opinion that the plaintiff’s reports of pain as time
went along during the course of treatment seemed to be excessive for the
injury that he was detecting. . . .
....
Dr. Gulish was of the opinion that the objective findings were
somewhat inconsistent with the reports of pain that the plaintiff continued to
give him. That was his opinion some two years earlier and remained his
opinion in May of 2008. . . .
When questioned closely about the genesis for the pain,[Dr. Gulish]
acknowledged that the pain apparently started with the motor vehicle accident.
He accredited the sincerity of the plaintiff and made no effort to opine that the
plaintiff was exaggerating his symptoms. He just felt that the period of
treatment with these narcotic drugs was not appropriate. . . .
The court then went on to award damages to Plaintiff of $10,000 for past physical pain,
mental suffering, and loss of enjoyment of life; $15,000 for future physical pain, mental
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suffering, and loss of enjoyment of life; $8,700 for past medical expenses; $12,000 for past
lost earning capacity; and $10,000 for future lost earning capacity. The court found that the
Henry County Board of Education was 90% at fault for Plaintiff’s injuries, and the unknown
driver was 10% at fault. As such, the court awarded Plaintiff $50,130 from the Defendant.
The Defendant timely filed a notice of appeal to this Court.
II. I SSUES P RESENTED
The Defendant presents the following issues for review:
1. Whether the trial court erred in failing to determine that the unknown driver was the
sole proximate cause of the accident;
2. Whether the trial court erred in finding proof of causation and awarding damages
based on such finding of causation;
3. Whether the trial court erred in awarding damages for lost earning capacity.
4. Whether the trial court erred in awarding damages for physical pain, mental suffering,
permanent impairment, and loss of enjoyment of life.
For the following reasons, we reverse the decision of the circuit court.
III. S TANDARD OF R EVIEW
“It is well settled that causation in a negligence case is a question of fact, which we
review with a presumption of correctness.” Jones v. Shelby County Div. of Corr., No.
W2007-00198-COA-R3-CV, 2008 WL 366151, at *5 (Tenn. Ct. App. Feb. 12, 2008) (citing
Tenn. R. App. P. 13(d)). On appeal, we will not overturn a trial court’s factual finding unless
the evidence preponderates against it. Tenn. R. App. P. 13(d) (2008); Bogan v. Bogan, 60
S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate against a trial court’s
finding of fact, it must support another finding of fact with greater convincing effect.
Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. RR
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). When the resolution
of the issues in a case depends upon the truthfulness of witnesses, the fact-finder, who has
the opportunity to observe the witnesses in their manner and demeanor while testifying, is
in a far better position than this Court to decide those issues. Mach. Sales Co., Inc. v.
Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643 (Tenn. Ct. App. 2002). However,
“[w]hen the issues involve expert medical testimony that is contained in the record by
deposition, determination of the weight and credibility of the evidence necessarily must be
drawn from the contents of the depositions, and the reviewing court may draw its own
conclusions with regard to those issues.” Foreman v. Automatic Sys., Inc., 272 S.W.3d 560,
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571 (Tenn. 2008) (citing Orrick v. Bestway Trucking, Inc., 184 S.W.3d 211, 216 (Tenn.
2006)).
IV. D ISCUSSION
“As a general rule, the causation of a medical condition must be established by
testimony from a medical expert.” 3 Miller v. Choo Choo Partners, L.P., 73 S.W.3d 897, 901
(Tenn. Ct. App. 2001); see also Hankins v. Chevco, Inc., 90 S.W.3d 254, 260 (Tenn. Ct.
App. 2002). The testifying physician must be “reasonably certain” as to the cause of the
condition. Jackson v. Allen, No. M2000-01673-COA-R3-CV, 2002 WL 661930, at *2
(Tenn. Ct. App. W.S. Apr. 23, 2002); Miller, 73 S.W.3d at 909; Primm v. Wickes Lumber
Co., 845 S.W.2d 768, 771 (Tenn. Ct. App. 1992)). “A doctor’s testimony that a certain thing
is possible is no evidence at all.” Miller, 73 S.W.3d at 902 (quoting Lindsey v. Miami Dev.
Corp., 689 S.W.2d 856, 861-62 (Tenn. 1985)). “Proof of causation equating to a
‘possibility,’ a ‘might have,’ ‘may have,’ ‘could have’ is not sufficient, as a matter of law,
to establish the required nexus between the plaintiff’s injury and the defendant’s tortious
conduct by a preponderance of the evidence . . . .” Ambrose, 2008 WL 1901207, at *5
(quoting Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993)). However, the exact
terminology used by the expert is less important than the meaning of his testimony as a
whole. Jackson, 2002 WL 661930, at *5.
The plaintiff must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant was
a cause in fact of the result. A mere possibility of such causation is not
enough; and when the matter remains one of pure speculation or conjecture or
the probabilities are at best evenly balanced, it becomes the duty of the court
to direct a verdict for the defendant. . . . The plaintiff is not, however, required
to prove the case beyond a reasonable doubt. The plaintiff need not negative
entirely the possibility that the defendant's conduct was not a cause and it is
enough to introduce evidence from which reasonable persons may conclude
that it is more probable that the event was caused by the defendant than that it
was not . . . . Prosser [and Keaton, Torts, §41, p.269 (5th ed. 1984)].
3
The cause of a medical condition must be established by the testimony of a medical expert in all
but the most obvious of cases. Ambrose v. Batsuk, No. M2006-01131-COA-R3-CV, 2008 WL 1901207,
at *8 n.3 (Tenn. Ct. App. Apr. 30, 2008) (citing Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278, 283
(Tenn. 1991); Smith v. Empire Pencil Co., 781 S.W.2d 833, 835 (Tenn. 1989); Miller, 73 S.W.3d at 901).
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Miller, 73 S.W.3d at 901 (quoting Lindsey, 689 S.W.2d at 861-62). In sum, the testimony,
as a whole, must show that it is more probable than not that the accident caused the injury.
Jackson, 2002 WL 661930, at *2. The medical testimony is not sufficient to establish
causation if it is speculative in nature. Miller, 73 S.W.3d at 901; Primm, 845 S.W.2d at 771.
In this case, Dr. Gulish testified that he could not say for certain that the compressions
didn’t occur in the car accident. However, he also said he “can’t know” to a reasonable
degree of medical certainty whether the compressions did come from the car accident. Dr.
Gulish explained, “I know that there was no uptake six months later. On the other hand, he
emphatically denies seeking medical care for his back in the past. I guess if that’s true, then
it seems like at least the back pain started with the accident.” 4 (emphasis added). Dr. Gulish
said it was “possible” that Plaintiff’s compressions were caused by “just the activities of daily
living, bending and lifting and all the things we do.” He said it was “really hard to say”
whether it was more likely that the compressions occurred from normal activities than from
the car accident, stating, “The history I got is this is new and never had pain like this before.
If that is a true history, his pain started with the accident and hasn’t ended, then I think we
have to conclude that whatever happened in that accident was what’s causing his pain if that
is true.” (emphasis added). He later testified that “the history he gave me is that this pain
started on the day of his injury and continued such – since if that’s true, then it seems like the
accident caused the pain. Whether or not the vertebral body compressions occurred on that
day, it seems like the pain occurred on that day if the history is true.” (emphasis added).
In short, Dr. Gulish said that he could not know to a reasonable degree of medical
certainty whether the accident caused the compressions, but he said that if the history
Plaintiff gave him was true, then he thought one would have to conclude that the accident at
least caused Plaintiff’s pain. However, as previously discussed, the history Plaintiff gave Dr.
Gulish was clearly untrue. According to Dr. Gulish, Plaintiff told him that he had injured his
lower back in the car accident, and he described his pain as occasionally radiating into his
left leg. Plaintiff said that his pain was new and that he had never had pain like this before.
Yet he admitted at trial that he went to the emergency room five months before the accident
after stepping off a curb and experiencing pain in his lower back that also radiated down his
leg. He also admitted that he went to a clinic approximately six months prior to the accident,
complaining of a four-day history of pain in his lower back, radiating into his left leg, which
he attributed to riding in a car. He admitted seeking medical care eleven months before the
accident for “lower back problems,” and reporting that his pain was due to riding in a car and
to “twist[ing] the wrong way.” He further admitted recently seeking medical attention due
4
We also note Dr. Gulish’s testimony that Plaintiff’s radicular pain was probably not coming from
the compressions, and that he was unable to find objective evidence that was consistent or compatible with
Plaintiff’s complaints of pain.
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to his stepping down off a ladder. Yet when Dr. Gulish asked Plaintiff whether there was
“any other part of his history that he hadn’t told [him] about, back pain,” Plaintiff
“emphatically denied ever having sought medical attention for back problems” in the past.
Again, Plaintiff was required to present medical evidence affording a reasonable basis
for the conclusion that it is more likely than not that Defendant’s negligence resulting in the
accident was a cause in fact of his back problem. We find that Plaintiff failed to do so. We
are of the opinion that Dr. Gulish’s equivocal medical testimony, which was based upon an
incomplete and inaccurate medical history, was insufficient to establish that it is more
probable than not that the accident caused Plaintiff’s injuries. Dr. Gulish repeatedly qualified
his opinion as to causation by stating that it was based upon the assumption that Plaintiff
gave him a true history. If Dr. Gulish was unable to say for certain that the accident caused
Plaintiff’s injuries when he believed that Plaintiff had no history of similar back problems,
he surely would have been less certain as to causation had he known that Plaintiff sought
medical attention for lower back problems at least three other times in the past year. We
recognize that the other physician, Dr. Walker, initially stated his opinion, to a reasonable
degree of medical certainty, that the accident caused Plaintiff’s injuries. However, his
opinion was based solely upon Plaintiff’s self-reported history that he was experiencing pain
that he did not have prior to the accident. Because Dr. Walker was given an inaccurate
history, then his opinion, based entirely upon that information, would also be inaccurate. See
Van Sickel v. Howard, 882 S.W.2d 794, 796 (Tenn. Ct. App. 1994). Dr. Walker also said
that he would defer to Dr. Gulish regarding an opinion as to causation. Therefore, Dr.
Walker’s testimony does not provide sufficient medical testimony of causation.5
5
We note that the Middle Section of this Court has stated that “an inference of causation may be
drawn by the trial court where equivocal medical proof is combined with other evidence which supports a
finding of causation.” Pellicano v. Metro. Gov’t of Nashville & Davidson County, No.
M2003-00292-COA-R3-CV, 2004 WL 343951, at *7 (Tenn. Ct. App. Feb. 23, 2004) (citing Taylor v. Dyer,
88 S.W.3d 924, 926 (Tenn. Ct. App. 2002)). In Taylor,88 S.W.3d at 926, the Middle Section had held that
“[c]ausation may be established by a combination of medical and lay testimony.” The Court recognized that
the cases it cited for this proposition were worker’s compensation cases but opined that the principles would
also apply to the auto accident case before it.
Nevertheless, after considering the entire record in this case, we conclude that Plaintiff failed to
introduce evidence affording a reasonable basis for the conclusion that it is more likely than not that the
conduct of the defendant was a cause in fact of his injury. See Miller, 73 S.W.3d at 901.
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V. C ONCLUSION
For the aforementioned reasons, we conclude that the evidence preponderates against
the trial court’s finding of causation. Accordingly, we reverse the decision of the circuit
court and award judgment in favor of the Defendant. Costs of this appeal are taxed to the
appellee, Samuel Haines, for which execution may issue if necessary.
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ALAN E. HIGHERS, P.J., W.S.
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