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§47.29 Locality Rule

The Case: Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).

The Basic Facts:  Plaintiff’s experts were excluded as not having the requisite knowledge of the local standard of care.  The court “granted permission to appeal determining whether a medical expert is qualified to testify as an expert witness in a medical negligence case.” 350 S.W.3d at 535.

The Bottom Line:
  • “Our review of Tennessee Code Annotated section 29-26-115 and pertinent Tennessee case law since 1986 leads us to several conclusions. First, subsection (b) of Tennessee Code Annotated section 29-26-115 sets forth the three requirements for an expert witness to be competent to testify in a medical negligence case. The witness must be (1) ‘licensed to practice in the state or a contiguous bordering state,’ (2) ‘a profession or specialty which would make the person’s expert testimony relevant to the issues in the case,’ and (3) must have ‘had practiced this profession or specialty in one…of these states during the year preceding the date that the alleged injury or wrongful act occurred.’ Therefore, the only grounds for disqualifying a medical expert as incompetent to testify are (1) that the witness was not licensed to practice in Tennessee, Georgia, Alabama, Mississippi, Arkansas, Missouri, Kentucky, North Carolina, or Virginia; (2) that the witness was not licensed to practice a profession or specialty that would make the person’s expert testimony relevant to the issues in the case; or (3) that the witness did not practice this profession in one of these states during the year preceding the date of the alleged injury or wrongful act. Tenn. Code Ann. § 29-26-115(b).” Id. at 550.
  • “Subsections (a) and (b) [of T.C.A. § 29-26-115] serve two distinct purposes. Subsection (a) provides the elements that must be proven in a medical negligence action and subsection (b) prescribes who is competent to testify to satisfy the requirements of subsection (a). Therefore, when determining whether a witness is competent to testify, the trial court should look to subsection (b), not subsection (a).” Id.
  • “In its role as a gatekeeper, the trial court is to determine (1) whether the witness meets the competency requirements of Tennessee Code Annotated section 29-16-115(b) and, (2) whether the witness’ testimony meets the admissibility requirements of Rules 702 and 703. The trial court is not to decide how much weight is to be given to the witness’ testimony. Once the minimum requirements are met, any questions the trial court may have about the extent of the witness’s knowledge, skill, experience, training, or education pertain only to the weight of the testimony, not to its admissibility.” Id. at 551.
  • “[T]he locality rule requires that the claimant demonstrate ‘[t]he recognized standard of acceptable professional practice…in the community in which the defendant practices or in a similar community.’ Tenn. Code Ann. § 29-26-115(a)(1). The statute does not require a particular means or manner of proving what constitutes a ‘similar community,’ nor does it define that term. Principles of stare decisis compel us to adhere to the requirement that a medical expert must demonstrate a modicum of familiarity with the medical community in expert’s testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has discussed with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the defendant practices, will be sufficient to establish the expert’s testimony as relevant and probative to ‘substantially assist the trier of fact to understand the evidence or to determine a fact in issue’ under Tennessee Rule of Evidence 702 in a medical malpractice case and to demonstrate that the facts on which the proffered expert relies are trustworthy pursuant to Tennessee Rule of Evidence 703.” Id. at 552.
  • “[T]he ‘personal, firsthand, direct knowledge’ standard set forth in Eckler and Allen is too restrictive. There is substantial Tennessee precedent allowing experts to become qualified by educating themselves by various means on the characteristics of a Tennessee medical community. See Stovall, 113 S.W.3d at 723; Searle, 713 S.W.2d at 64-65; Taylor, 231 S.W.3d at 368-71; Pullum v. Robinette, 174 S.W.3d 124, 132-33 (Tenn. Ct. App. 2004); Bravo, 148 S.W.3d at 360-61; Ledford, 742 S.W.2d at 648. A proffered medical expert is not required to demonstrate ‘firsthand’ and ‘direct’ knowledge of a medical community and the appropriate standard of medical care there in order to qualify as competent to testify in a medical malpractice case. A proffered expert may educate himself or herself on the characteristics of a medical community in order to provide competent testimony in a variety of ways, including but not limited to reading reference materials on pertinent statistical information such as community and/or hospital size and the number and type of medical facilities in the area, conversing with other medical providers in the pertinent community or a neighboring or similar one, visiting the community or hospital where the defendant practices, or other means. We expressly reject the ‘personal, firsthand, direct knowledge’ standard formulated by the Court of Appeals in Eckler and Allen.” Id.at 552-53 (footnote omitted).
  • “[I]n this case we do not adopt a national standard of care in medical malpractice cases. Any change in the locality rule must come from the legislature, not the judiciary. However, we recognize that in many instances the national standard is representative of the local standard. Robinson, 83 S.W.3d at 724; see also Pullum, 174 S.W.3d at 129-30. A number of medical experts have testified in Tennessee cases that there is either a uniform national standard of care or a standard pertinent to a broad geographic area applicable to medical care providers. Examples of such testimony are found in Stovall, 113 S.W.3d at 719; Robinson, 83 S.W.3d at 721; Taylor, 231 S.W.3d at 371-72; Carpenter, 205 S.W.3d at 479-80; Pullum, 174 S.W.3d at 131-32; Kenyon, 122 S.W.3d at 762; Totty, 121 S.W.3d at 678; Wilson, 73 S.W.3d at 99; Mabon, 968 S.W.2d at 828; Coyle, 822 S.W.2d at 598; and Ayers, 689 S.W.2d at 159.” Id. at 553 (footnote omitted).
  • “Therefore, expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.  Contrary to statements made in the dissent, this recognition is neither a dilution nor a relaxation nor an invitation of reliance on a national or regional standard of care. It is simply a common sense recognition of the current modern state of medical training, certification, communication, and information sharing technology, as demonstrated in the numerous instances of sworn testimony offered by medical experts in the above-reviewed cases, as well as the thoughtful analysis and discussion by courts in several other jurisdictions, that the consideration of such testimony is justified. See, e.g., Shilkret v. Annapolis Emer. Hosp. Ass’n, 276 Md. 187, 349 A.2d 245 (1975); Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968); Hall v. Hilbun, 466 So.2d 856 (Miss.1985).” Id.
  • “Only after a medical expert witness has sufficiently established his or her familiarity with the standard of care in the same or similar community as the defendant, may the witness testify that there is a national standard of medical care to which members of his or her profession and/or specialty must adhere. This testimony, coupled with the expert’s explanation of why the national standard applies under the circumstances, is permissible and pertinent to support the expert’s opinion on the standard of care. The mere mention of a national standard of care should not disqualify an expert from testifying. However, an expert may not rely solely on a bare assertion of the existence of an applicable national standard of care in order for his or her proffered testimony to be admissible under Rules of Evidence 702 and 703.”  Id. at 553-54.
  • “In summary, (1) at the summary judgment stage of the proceedings, trial courts should not weigh the evidence but must view the testimony of a qualified expert proffered by the nonmoving party in the light most favorable to the nonmoving party. (2) A claimant is required to prove the ‘[t]he recognized standard of acceptable professional practice…in the community in which the defendant practices or in a similar community.’ Tenn. Code Ann. § 29-26-115(a)(1). The medical expert or experts used by the claimant to satisfy this requirement must demonstrate some familiarity with the medical community in which the defendant practices, or a similar community, in order for the expert’s testimony to be admissible under Rules 702 and 703. Generally, a competent expert’s testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has had discussions with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the defendant practices, will be sufficient to establish the expert’s testimony as admissible. (3) A medical expert is not required to demonstrate ‘firsthand’ and ‘direct’ knowledge of a medical community and the appropriate standard of medical care there in order to qualify as competent to testify in a medical malpractice case. A proffered expert may educate himself or herself on the characteristics of a medical community in a variety of ways, as we have already noted. (4) In addition to testimony indicating a familiarity with the local standard of care, a medical expert may testify that there is a broad regional standard or a national standard of medical care to which members of his or her profession and/or specialty must adhere, coupled with the expert’s explanation of why the regional or national standard applies under the circumstances.” Id. at 554.
Recent Cases:  Evans v. Williams, No. W2013-02051-COA-R3-CV, 2014 WL 2993843 (Tenn. Ct. App. June 30, 2014) (for injury occurred in 1991, plaintiffs’ expert’s familiarity with “the medical services and practices available in the area at that time” was sufficient to qualify under locality rule; did not have to show similarity between two communities in 1991); Meares v. Traylor, No. E2011-02187-COA-R3-CV, 2012 WL 3060510 (Tenn. Ct. App. July 27, 2012) (affirming admissibility of testimony from expert from Atlanta regarding standard of care in Knoxville); McDonald v. Shea, No. W2010-02317-COA-R3-CV, 2012 WL 504510 (Tenn. Ct. App. Feb. 16, 2012) (rejecting defendant’s argument that Los Angeles and Memphis are dissimilar per se because of the difference in population size, regardless of the testimony of plaintiff’s expert regarding similarities, and rejecting defendant’s argument that plaintiff’s expert was not qualified to testify because he did not perform the same surgery that defendant doctor performed on plaintiff); Johnson v. Richardson, 337 S.W.3d 816 (Tenn. Ct. App. 2010) (affirming exclusion of expert based on locality rule where expert was incorrect as to population size, and testimony regarding medical specialties within the communities was too vague to be sufficient, and mere fact that both communities had outlying hospitals is insufficient on its own to establish similarity); Stanfield v. Neblett, 339 S.W.3d 22 (Tenn. Ct. App. 2010) (upholding trial court’s admission of expert opinions under locality rule).

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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.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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