Tuesday, February 2, 2010

Court affirms based on insufficiency of expert witness affadavit

REBECCA METTES v. J. THOMAS JOHN, JR., M.D. (Tenn. Ct. App. May 21, 2009)

In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.

"Under Tennessee law, except in circumstances in which the alleged malpractice is within the common knowledge of laymen, the plaintiff in a medical malpractice action is required to prove by expert testimony the applicable standard of care, the defendant’s breach of that standard, and proximate cause. Tenn. Code Ann. § 29-26-115(a)." Id.

"Our Supreme Court has held: '[I]n those malpractice actions wherein expert testimony is required to establish negligence and proximate cause, affidavits by medical doctors which clearly and completely refute plaintiff’s contention afford a proper basis for dismissal of the action on summary judgment, in the absence of proper responsive proof by affidavit or otherwise.'" Id.

"To effectively refute a claim of malpractice, the defendants 'must present facts rebutting the allegations of [the] complaint as to at least one of the three statutory elements for medical malpractice actions.' To refute one of the statutory elements, a defendant 'must simply file an expert affidavit stating that all of his care and treatment of the plaintiff met the recognized standard of acceptable professional practice or that his treatment was not the cause of any injury to the plaintiff that plaintiff would not otherwise have suffered.' Id. at 191. A defendant may shift the burden by submitting his or her 'own selfserving affidavit stating that their conduct neither violated the applicable standard of care nor caused injury to their patient that would not otherwise have occurred.'" Id. (Case citations omitted.)

The full text of this opinion is available at the TBA website:

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