Although it would be better practice for a plaintiff to have filed a written response, rather than stating it orally, this technical defect does not justify disregarding a portion of the record that a trial judge deems necessary to reflect a fair, accurate and complete account of what transpired in the trial court. Tenn. R. App. P. 1 advisory commission comments; Tenn. R. App. P. 24.
The non-patient's husband had died from the disease. When the non-patient died from the disease only a few days after her husband, her son filed a suit against the husband's physician and alleged that his negligence in failing to advise the non-patient that her husband died of the disease, and in failing to warn her of the risk of exposure, proximately caused her death. Upon retrial of the case, the trial court denied the physician's motion for summary judgment but granted an interlocutory appeal on the issue of the physician's legal duty. The court of appeals refused to consider the physician's trial testimony in its determination of the substantive issue of legal duty.
Should the physician’s testimony have been part of the record?
The court of appeals refused to consider the physician's trial testimony in its determination of the substantive issue of legal duty. The court reversed. The court found that because there were no extraordinary circumstances that would have justified disregarding the physician's testimony, it would consider the entire record on appeal. The court held that the physician had a duty to warn his patient's wife of the risk to her of contracting Rocky Mountain Spotted Fever, when he knew, or in the exercise of reasonable care, should have known, that his patient was suffering from the disease. The court remanded the case for further proceedings.