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
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Showing posts with label locality rule. Show all posts
Showing posts with label locality rule. Show all posts
Tuesday, November 20, 2012
Tuesday, April 24, 2012
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
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
Wednesday, December 28, 2011
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
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
Thursday, August 11, 2011
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
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
Wednesday, March 10, 2010
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
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
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