Court reviews the dismissal of a medical malpractice case based on the exclusion of expert testimony

SHIRLEEN NEVELS v. JOSEPH CONTARINO, M.D. ET AL. (Tenn. Ct. App. November 19, 2012)

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.

Opinion available at:
https://www.tba.org/sites/default/files/nevelss_111912.pdf

Court reviews whether a medical expert failed to identify the standard of care in a wrongful death case

BRENDA GRIFFITH, NEXT OF KIN OF DECEDENT, BOB GRIFFITH v. DR. STEPHEN GORYL AND UPPER CUMBERLAND UROLOGY ASSOCIATES, P.C. (Tenn. Ct. App. November 1, 2012)

In this medical malpractice, wrongful death action the plaintiff alleges the defendant physician, a urologist, failed to timely diagnose and treat the decedent’s bladder cancer which caused his death. At the close of the plaintiff’s case in chief, the defendant moved for a directed verdict.

The trial court held that the plaintiff’s only medical expert witness erroneously defined the standard of care and, upon that basis, excluded his testimony concerning the standard of care and breach thereof. With the exclusion of the plaintiff’s only expert testimony, the trial court held that the plaintiff failed to establish a prima facie case for medical malpractice and granted the motion for a directed verdict.

We have determined the plaintiff’s medical expert did not erroneously identify the standard of care, he is competent to testify and, thus, the trial court erred in excluding his testimony and directing a verdict in favor of the defendant. We, therefore, reverse and remand for a new trial.

Opinion available at:
https://www.tba.org/sites/default/files/griffithb_110112.pdf

Court reviews an order to exclude an expert witness based on the locality rule in light of the Shipley opinion

VIVIAN KENNARD v. METHODIST HOSPITALS OF MEMPHIS a/k/a METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL. (Tenn. Ct. App. April 18, 2012)

Plaintiff filed a medical malpractice action against the Anesthesia Defendants, among others. Prior to trial, one of Plaintiff’s experts, Dr. McLaughlin, was excluded for failure to meet the requirements of the locality rule. Plaintiff proceeded to trial, and a jury verdict was rendered in favor of the Anesthesia Defendants. Plaintiff now appeals the expert’s exclusion and the subsequent jury verdict.

In light of our previous vacation of the order excluding Dr. McLaughlin in Kennard 2, we remand this case to the trial court for reconsideration of Dr. McLaughlin’s qualifications in light of Shipley.

If the trial court determines that Dr. McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants.

Finally, if the trial court determines that Dr. McLaughlin is competent to testify, it shall then determine whether his erroneous exclusion warrants a setting aside of the jury verdict rendered in favor of the Anesthesia Defendants.

Opinion available at:
https://www.tba.org/sites/default/files/kennardv_041812.pdf

Court reviews whether trial court properly excluded expert testimony based on the locality rule in a medical malpractice case

TISH WALKER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LISA JO ABBOTT v. DR. SHANT GARABEDIAN (Tenn. Ct. App. December 28, 2011)

This appeal concerns the application of the locality rule in a medical malpractice case. The trial court excluded the testimony of the plaintiff's medical expert, based on the locality rule. On this basis, the trial court granted summary judgment to the defendant physician. The plaintiff appeals. We vacate the order excluding the testimony of the plaintiff's expert and the grant of summary judgment, and remand for reconsideration in light of the Tennessee Supreme Court's recent decision Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/walkert_122811.pdf

TN Supreme Court clarifies the standards that apply to the locality rule for expert medical witnesses

DONNA FAYE SHIPLEY ET AL. v. ROBIN WILLIAMS (Tenn. August 11, 2011)

In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. S 29-26-115 (2000 & Supp. 2010).

Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define "similar community," nor does it provide guidance as to how a community is determined to be "similar" to the defendant's community.

In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court's exclusion of the claimant's two proffered medical experts under the locality rule was error. The trial court's grant of summary judgment is affirmed in part and vacated in part.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/shipleyd_081111.pdf

KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/shipleyd_DIS_CORR_082911.pdf

Court Reviews Whether Appellant Proved that her Expert was Familiar with the Standard of Care in a Community Similar to that of the Defendant

TINA JOHNSON, ET AL. v. DAVID J. RICHARDSON, M.D. (Tenn. Ct. App. August 13, 2010)

This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court's disqualification of her expert witness and grant of the Defendant/Appellee's motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant's community, we affirm the decision of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/johnsont_081310.pdf

KIRBY concurring
http://www.tba2.org/tba_files/TCA/2010/johnsont_CON_081310.pdf

Summary Judgement Reversed Upon Disqualification of Medical Experts

DONNA FAYE SHIPLEY, ET AL. v. ROBIN WILLIAMS, M.D. (Tenn. Ct. App. August 14, 2009)

In reliance on plaintiff's experts, the trial court granted defendant doctor's motion for partial summary judgment on the medical malpractice claim pertaining to defendant's failure to admit plaintiff into the hospital. The trial court later granted the defendant doctor summary judgment on the remaining malpractice claims finding that the plaintiff's medical expert proof previously relied upon by defendant failed to comply with Tenn. Code Ann. section 29-26-115. We reverse the grant of partial summary judgment on the failure to admit claim since the defendant doctor relied solely on plaintiff's experts, whose testimony was later found inadmissible. We also reverse the summary judgment of the remaining malpractice claims since the defendant doctor never presented proof to negate an element of those claims. Consequently, the plaintiff had no duty to create issues of fact at the summary judgment phase.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/shipleyd_081409.pdf

Plaintiff successfully defends multiple challenges to experts, jurors, jury instructions and amount of damages awarded.

ROBIN FARLEY, ET AL. v. OAK RIDGE MEDICAL IMAGING, P.C., ET AL. CORRECTION (Tenn. Ct. App. August 13, 2009)

This is an appeal from a judgment entered on a jury verdict in the amount of $2,780,000 in a medical malpractice action based upon a failure to detect and report an abnormality on a mammogram. Robin Farley ("the Patient") and her husband, Dennis Farley ("the Husband"), are the plaintiffs in this action; they are referred to collectively in this opinion as "the Plaintiffs." Dr. James Rouse and his employer, Oak Ridge Medical Imaging, P.C., dba Oak Ridge Breast Center, P.C. ("the Breast Center"), are the defendants, referenced collectively as "the Defendants." The Patient reported to the Breast Center on November 15, 2001, for a mammogram. Dr. Rouse read the mammogram and reported his findings as normal. In 2004, the Patient noticed an indentation in her right breast. Follow-up care revealed stage IV incurable breast cancer.

According to the Plaintiffs, the cancer was present in 2001, and was treatable and curable had it been properly detected and reported. The Defendants conceded very little and alleged, as an affirmative defense, that the Patient knew that repeat mammograms were needed but failed to come back until it was too late. The case was tried to a jury over four consecutive days. The jury began deliberations on a Friday and resumed and announced its verdict on the following Monday. It found the Defendants negligent, but apportioned 20% of the fault to the Plaintiffs, apparently based upon the Patient's failure to have a timely follow-up mammogram. The Defendants appeal, raising a host of issues. We affirm.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/farleyr_CORR_081409.pdf

"The points of contention in this case – which are initially less than clear – are, (1) whether, and if so, the extent to which the medical expert’s knowledge of the matters set out in subdivision (a) (1) must be “personal” knowledge , (2) whether an expert licensed in a contiguous state in the relevant time frame must also know the standard of care in a comparable community in order to qualify as a causation expert, and (3) the extent to which the contiguous state requirement can be established to the trial judge’s satisfaction through material not admitted or admissible into evidence." Id.

"We do not believe Eckler went so far as to hold that the bridge of similarity from the community where the expert practices to the community where the defendant doctor practices, must all be built on personal, firsthand knowledge." Id.

"We agree completely with the approach taken in Russell. The quoted language from Payne concerning the “entwined” nature of causation and standard of care testimony is true enough, but should not be read to impose requirements not imposed by the language of the statute. This is especially true given that Payne based its holding on the “clarity” of the statute. We hold that a causation expert who does not testify on the standard of care is not required to establish familiarity with the standard of care." Id. (Case citations omitted)

"To conclude the point, we agree with the trial court that for Dr. Mitchell to take the stand and testify that he reviewed the 2001 mammogram and read it as normal, with no indicators of cancer, was to indirectly comment on the standard of care. Accordingly, we hold that the trial court did not abuse its discretion in so limiting the scope of Dr. Mitchell’s testimony." Id.

Court reviews whether defendant properly showed that it met the standard of care in medical malpractice case

ALVIN FLATT v. CLAIBORNE COUNTY HOSPITAL AND NURSING HOME (Tenn. Ct. App. April 8, 2010)

In this medical malpractice action, the plaintiff offered evidence of the standard of care required of defendant by an expert witness, and defendant offered evidence that it complied with the standard of care by an expert witness, who was accepted as an expert by the Trial Court. The Trial Judge ruled in favor of defendant, essentially accepting the defendant's evidence that it had met the standard of care for the deceased. Plaintiff appealed, insisting that the Trial Court did not "correctly weigh the conflicting expert testimony" in its ruling for the defendant. On appeal, we affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/flatta_040810.pdf

TCA affirms Summary Judgment finding Plaintiff's expert witness did not meet statutory requirements

GEORGE H. BADGETT, ET AL. v. ADVENTIST HEALTH SYSTEMS SUNBELT, INC. d/b/a TENNESSEE CHRISTIAN MEDICAL CENTER (Tenn. Ct. App. July 31, 2009)

In this action concerning alleged malpractice by hospital staff, the trial court found plaintiff's expert affidavit failed to meet the locality test of Tenn. Code Ann. section 29-26-115 where the only similarities proven between the medical communities were population, existence of feeder hospitals and existence of medical school. Finding the trial court did not abuse its discretion, we affirm.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/badgettg_080309.pdf

Court holds that amended medical expert afffidavit met Tenn. Code requirements

NANCY L. LANE v. JODI D. MCCARTNEY, M.D., ET AL. (Tenn. Ct. App. July 31, 2009)

Nancy L. Lane ("Plaintiff") sued Karen K. Lauer-Silva, M.D. and Medical Education Assistance Corporation d/b/a ETSU Physicians & Associates ("Defendants") alleging medical malpractice. Defendants filed a motion for summary judgment. After a hearing on Defendants' motion, the Trial Court entered an order finding and holding, inter alia, that Plaintiff's expert witness did not meet the requirements of Tenn. Code Ann. section 29-26-115, and granting Defendants summary judgment. Plaintiff filed a motion to alter or amend along with a Second Supplemental Affidavit from Plaintiff's expert. The Trial Court considered the Second Supplemental Affidavit and found that Plaintiff's expert still did not satisfy the requirements of Tenn. Code Ann. section 29-26-115, and again granted Defendants summary judgment. Plaintiff appeals to this Court. We reverse.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lanen_073109.pdf

Court reviews whether an expert witness cured a deficiency in order to satisfy the locality rule

SAMANTHA NABORS v. WILLIAM M. ADAMS, M.D., ET AL. (Tenn. Ct. App. July 23, 2009)

This appeal involves a medical malpractice action. In a motion for summary judgment, defendant physician asserted that plaintiff's expert witness failed to satisfy the requirements of the locality rule. The trial court granted the motion finding that plaintiff's expert failed to demonstrate a familiarity with the standard of care in defendant's community or a similar community. In a motion to alter or amend the judgment, plaintiff attached a supplemental affidavit of the same expert in order to cure the deficiency. The trial court considered the expert's supplemental affidavit and denied the motion because the new affidavit still failed to satisfy the locality rule. Plaintiff appeals. Reviewing the record, we find that the expert's supplemental affidavit cured the initial deficiency by relating facts which showed the similarity of the two communities. Accordingly, we reverse the judgment of the trial court.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/naborss_072309.pdf

Court reverses summary judgment in negligence/medical malpractice case

ROSE JOHNSEY, Widow of Frederick Johnsey v. NORTHBROOKE (Tenn. Ct. App. May 14, 2009)

The plaintiff filed suit against a nursing home after her husband allegedly suffered a broken hip while he was a resident there. The nursing home filed a motion for summary judgment, asserting that the plaintiff could not prove the elements of her claim. The trial court concluded that the plaintiff''s claims were for medical malpractice rather than ordinary negligence, but the court found that under either theory summary judgment was appropriate. We agree with the court's conclusion that the plaintiff's claims sound in medical malpractice, but we find that the trial court erred in granting summary judgment. Therefore, we reverse and remand this case for further proceedings.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/johnseyr_051409.pdf

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:
http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf

Court affirms that expert witness not qualified

TOMMY McDANIEL, ET AL. v. AMAL RUSTOM, M.D., ET AL. (Tenn. Ct. App. May 5, 2009)

The plaintiffs filed a complaint alleging medical malpractice against emergency room physicians who treated their daughter. The defendants filed motions for summary judgment, claiming that the plaintiffs' only expert was not qualified to testify as to the recognized standard of acceptable professional practice in the defendants' profession and specialty in their community or in a similar community. The trial court granted summary judgment to the defendants, finding that the plaintiffs' expert did not meet the qualifications of Tennessee Code Annotated section 29-26-115. The plaintiffs appeal. We affirm.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf