§47.19 Duty of Physician to Refer to a Specialist

The Case: Osborne v. Frazor , 425 S.W.2d 773 (Tenn. Ct. App. 1968).

The Basic Facts: Defendant left a sponge in the patient after a surgery.

The Bottom Line:

  • "Thus the defendant and his witnesses, Drs. Eyler, Troutt, and Wallace were agreed that the condition of an unhealed and draining wound following orthopaedic surgical procedure would be beyond the capacity of a general practitioner and ought to be referred back to the orthopaedic surgeon for specialized diagnosis and treatment." 425 S.W.2d at 773.
  • "In 132 A.L.R. 392 is found the following general statement:
    It may be stated as a general rule that, as a part of the requirements which the law exacts of general practitioners of medicine and surgery, or other schools of healing, if, in the exercise of the care and skill demanded by those requirements, such a practitioner discovers, or should know or discover, that the patient's ailment is beyond his knowledge or technical skill, or ability or capacity to treat with a likelihood of reasonable success, he is under a duty to disclose the [58 Tenn. App. 26] situation to his patient, or advise him of the necessity of other or different treatment."
    Id .
  • "The many cases analyzed under this annotation support the insistence of the plaintiff, the admission of the defendant, and the testimony of the defendant's witnesses that the chronic, persistent condition of the patient in this case required the defendant to recommend treatment by specialist." Id.
  • "Where a physician sets his own standard of professional competence and testifies that he measured up to that standard, but the jury finds from other evidence that the physician failed to do that which he himself considers proper and necessary, the physician cannot complain that the plaintiff has not proven negligence." Id. at 776.

    Other Sources of Note: Waterman v. Damp, No. M2005-01265-COA-R3-CV, 2006 WL 2872432, *11 (Tenn. Ct. App. Oct. 9, 2006) (re-affirming Osborne).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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