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Buckner v. Hassell10/30/2000
eless, in the event that the Trial Court erred in excluding portions of Dr. Meyers' testimony, we cannot say, after a review of the proof submitted to the jury, that the excluded testimony more probably than not affected the judgment. See Tenn. R. Civ. P. 36(b); Ammons v. Bonilla, 886 S.W.2d at 243; Cordell v. Ward School Bus Mfg., 597 S.W.2d 323, 328 (Tenn. Ct. App. 1980). The excluded portions of Dr. Meyers' testimony included his opinion that the standard of care required a non-healing lesion to be biopsied within two to three weeks. Although Plaintiff's retained expert, Dr. Safer, testified that such a lesion should have been biopsied within three to six months, Defendant himself testified to a more stringent standard which required conducting a biopsy of a non-healing lesion within six weeks. The jury also heard testimony from Dr. Meyers that he instructs family practice residents to biopsy no later than six weeks and testimony from Defendant that Dr. Meyers was one of his instructors during his residency.
Considering this testimony, the record reveals that the disputed issue presented to the jury in this matter concerned not simply when Defendant should have biopsied Mr. Buckner's toe, but instead what was the condition of Mr. Buckner's toe during the period of Defendant's treatment. Under the medical testimony presented to the jury, it was the condition of Mr. Buckner's toe that triggered when a biopsy was required under the standard of care. From our review of the record, it appears that Defendant agreed that if Mr. Buckner's toe when seen by Defendant was in the condition that Plaintiff insisted it was in, the undisputed standard of care required Defendant to obtain a biopsy. It appears the real disputed issue presented to the jury was the condition of Mr. Buckner's toe at the times he was seen by Defendant. As a result, we cannot find that the exclusion of portions of Dr. Meyers' testimony, even if in error, more probably than not affected the jury's decision. See Tenn. R. App. P. 36(b).
Conclusion
The judgment of the Trial Court is affirmed, and this matter remanded for further proceedings as may be required, if any, consistent with this Opinion, and for collection of the costs below. Costs of this appeal are taxed to the Appellant, Cheryl N. Buckner, and her surety.
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