Hamilton Herald Masthead


Front Page - Friday, January 2, 2015

Supreme Court vacates appeal; sends case back to trial

The Tennessee Supreme Court has determined that a Hamilton County trial court did not depart from accepted and usual judicial course during a health care liability lawsuit as to require immediate appellate court review.

In February 2011, C.L. Gilbert, Jr., filed a complaint against Dr. Izak Frederick Wessels, alleging health care liability. Prior to trial, Dr. Wessels filed a motion seeking to waive a Tennessee law that requires expert medical testimony to come from one who practices in Tennessee or a contiguous state. Dr. Wessels wanted an ophthalmologist from Florida to testify on his behalf.

The trial court issued an order declining to waive the geographical requirement, finding that Dr. Wessels had not established that appropriate witnesses would be unavailable. The trial court also denied Dr. Wessels’s request to appeal the ruling about the expert testimony. The Court of Appeals subsequently granted Dr. Wessels’s application for an extraordinary appeal directly to that court and held that the trial court acted appropriately in declining to waive the contiguous state requirement.

The Supreme Court vacated the Court of Appeals decision to grant Dr. Wessels’s appeal. In an opinion authored by Chief Justice Sharon G. Lee, the Court held that the Court of Appeals improperly granted the extraordinary appeal, noting that trial courts have discretionary authority to determine whether the contiguous state limitation should be waived.

Because the trial court considered the proper statute, the relevant facts, and the arguments advanced by the parties, the trial court’s actions did not warrant immediate review, nor was review necessary for a complete determination of the action on appeal. The Supreme Court remanded the case back to the trial court, noting that Dr. Wessels may seek review of his evidentiary issue after a final judgment has been entered in the trial court.

To read the C.L. Gilbert, Jr. v. Izak Frederick Wessels, M.D. opinion, visit the opinions sections of TNCourts.gov.

Source: Tennessee Supreme Court