§47.12 Causation Expert Need Not Know Standard of Care
The Case: Farley v. Oak Ridge Medical Imaging, P.C., 2009 WL 2474742 (Tenn. Ct. App. Aug. 13, 2009).
The Basic Facts : Plaintiffs prevailed in a medical negligence jury trial against several defendants. Numerous issues were raised on appeal, including whether a plaintiff's expert on the issue of causation needed to know the standard of care in the community where the negligence occurred or a similar community (the "locality rule").
The Bottom Line:
- "We move now to the question of whether a medical causation expert must also establish familiarity with the standard a care to be qualified. The Defendants rely on Payne v. Caldwell, 796 S.W.2d 142 (Tenn. 1990), for the proposition that a causation expert must establish familiarity with the standard of care. The actual holding in Payne was that 'the element of proximate cause is included [in Tenn. Code Ann. § 29-26-115(a)] and witnesses, to be competent to testify on the issue, must meet the licensing and geographical requirements of [Tenn. Code Ann. § 29-26-115 (b)].' Payne, 796 S.W.2d at 143. It is not the holding that the Defendants rely on, but rather language used by the court in rejecting the policy argument that it did not make logical sense to require a causation expert to be from a contiguous state. '[W]e see nothing unusual or illogical in the inclusion of all three elements in the limitations on competency of witnesses set forth in Section (b). The proof of each element in a medical malpractice action is so entwined that it is difficult, if not impossible, for a witness to testify on the issue of causation without commenting, either expressly or tacitly, on the standard of care or whether or not it was breached.'" 2009 WL 2474742 at *12.
- "Fortunately, we are not the first panel to have considered the impact of Payne on a "causation only" expert. In Russell v. Pakkala, No. 02A01-9703-CV-00053, 1998 WL 10212 (Tenn. Ct. App., filed Jan 14, 1998), the testimony of Dr. Raymond Hawkins was at issue. This Court quoted the language from Payne that the Defendants rely on but noted, "[t]he Court's holding, however, was limited to requiring witnesses testifying on causation to meet the requirements of Section (b) [of the statute]." Russell, 1998 WL 10212 at n.1. The Russell court's analysis was as follows:
However, under Tennessee Code Annotated § 29-26-115 (a)(3), there is no requirement that the medical expert be familiar with the standard for acceptable medical practice in the relevant community in order to testify as to causation. Regarding causation, the statute states:Id. at 5. 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. 796 S.W.2d at 143. 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. at *13.
(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b):
(3) as a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a) unless he was licensed to practice in the state or a contiguous bordering state a profession or speciality which would make his expert testimony relevant to the issues in the case and had practiced this profession or speciality in one of these states during the year preceding the date that the alleged injury or wrongful act occurred. Tenn. Code Ann. § 29-26-115(a)(3) and (b) (1980 & Supp. 1997).
The medical expert "must meet the licensing and geographic requirements of Section (b)" in order to be competent to testify as to causation. Payne v. Caldwell, 796 S.W.2d 142, 143 (Tenn. 1990). Dr. Hawkins testified that he was licensed to practice medicine in Tennessee and that he had practiced in Tennessee as a general surgeon for over twenty years. Thus, under the statute he was competent to testify to establish causation under subsection (a)(3), but not negligence under subsections (a)(1) and (2).