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§47.29 Locality Rule

The Case:  Stovall v. Clarke, 113 S.W.3d 715 (Tenn. 2003).

 

The Basic Facts:  Plaintiff’s husband saw Defendant doctors (a general family practitioner and a pulmonologist) for a heart condition. Plaintiff filed medical malpractice actions against both after her husbands death, alleging that the doctors failed to conduct the appropriate tests and failed to discover the heart disease that caused her husband’s death.  

 

The Bottom Line:

 

  • “Tennessee Code Annotated section 29-26-115(a)(1).  This statute embraces the so-called ‘locality rule,’ which requires that the standard of professional care in a medical malpractice action be based upon ‘the community in which the defendant practices or in a similar community.’  As this Court recently explained:

 

A medical expert relied upon by a plaintiff must have knowledge of the standard of professional care in the defendant’s applicable community or knowledge of the standard of professional care in a community that is shown to be similar to the defendant’s community.

 

Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002).  We also clarified that while an expert’s discussion of a national standard of care does not require exclusion of the testimony, ‘such evidence may not substitute for evidence that first establishes the requirements of Tenn. Code Ann. § 29-26-115(a)(1).’  Id.; see also Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn. 1986).” 113 S.W.3d at 722.

 

  • “In Robinson, this Court held that the trial court properly excluded testimony from an expert witness who purported to testify about the standard of care for orthopaedic surgeons in Nashville, Tennessee.  The expert testified that

 

Nashville is certainly recognized as a regional medical center, and communication and training are such . . . that the two standards, locally, as held in Nashville and for that matter where I practiced in Johnson City, would be expected to be the same, and also the same as a national standard.

 

Robinson, 83 S.W.3d at 721.FN5  In holding that the testimony failed to satisfy Tennessee Code Annotated section 29-26-115(a)(1), we stressed that the expert did not ‘relate the basis for his knowledge of the standard of care in Nashville or indicate why the Nashville medical community was similar to, and thus had the same standard of professional care as the community with which [the expert] was familiar.’  Id. at 725.

 

FN5  The expert also had added that orthopaedic surgeons from Johnson City or Nashville ‘would stand the same test and would be expected to have the same knowledge and to practice in very similar fashions by the American Board of Orthopaedic Surgery.’  Id. at 722.”

 

                Id. at 722-23.

 

  • “In this case, contrary to Robinson, we agree with the Court of Appeals’ assessment that the plaintiff presented expert testimony establishing the recognized standard of acceptable professional practice in Franklin, Tennessee, or in a similar community.  See Tenn. Code Ann. § 29-26-115(a)(1) (Supp. 2002).  First, Dr. Uhrig did not rely upon a national standard of care, nor did he simply equate the local standard with a national standard.  Moreover, although Dr. Uhrig had never practiced medicine in the State of Tennessee, he testified that he had reviewed over twenty medical charts from the State of Tennessee and had testified in three other malpractice cases in middle Tennessee.  In addition, Dr. Uhrig stated in his supplemental affidavit that he had reviewed statistical information about the medical community in Williamson County, Tennessee, which included information about the medical specialists and resources available at the Williamson County Medical Center.”  Id. at 723.
  • “Unlike the expert proof in Robinson, Dr. Uhrig also expressed understanding of the locality rule and explained that he had applied the locality standard of care – and not a national standard –  to the facts and circumstances in this case.  Moreover, Dr. Uhrig did not simply offer a vague, conclusory statement that he was familiar with the local standard but instead showed some underlying basis for his testimony.  In sum, all of these factors distinguish this case from Robinson and should be considered by the trial court when determining whether an expert’s testimony satisfies the requirements of Tennessee Code Annotated section 29-26-115(a)(1).”  Id.

 

  • “Dr. Clarke, however, contends that the trial court should not have considered Dr. Uhrig’s supplemental affidavit and that his statements were based on information provided several years after the alleged malpractice in this case.  We are not persuaded.  First, we find no error in the trial court’s consideration of Dr. Uhrig’s supplemental affidavit because it was filed in opposition to the defendant’s motion for summary judgment before the trial court’s ruling.  Second, we note that Dr. Clarke’s arguments essentially contest the weight of Dr. Uhrig’s statements and thus misapprehend the procedural context of this case:  the proper analysis with respect to summary judgment is whether the evidence, when viewed in a light most favorable to the plaintiff, raises a genuine issue as to a material fact.”  Id.

 

Other Sources of Note:  Hunter v. Ura, 163 S.W.3d 686 (Tenn. 2005) (holding that a doctor sufficiently based his testimony on the local standard of care where he testified that he had visited Nashville several times, that he knew the Chair of a local hospital’s anesthesia department very well, that he was familiar regionally with the kind of care offered in the relevant localities, and that the standard of care would be approximately the same as it was at some of the hospitals where he had been); Allen v. Methodist Healthcare Memphis Hospitals, No. W2006-01558-COA-R3-CV, 2007 WL 969394 (Tenn. Ct. App. Apr. 2, 2007) (defendant’s expert excluded because he had not demonstrated knowledge of local standard); Carpenter v. Klepper, 205 S.W.3d 474 (Tenn. Ct. App. 2006) (jury verdict for defendant reversed after his expert was disqualified for not knowing the local standard of care); Eckler v. Allen, No. W2005-02501-COA-R3-CV, 2006 WL 3422105 (Tenn. Ct. App. Nov. 29, 2006) (plaintiff’s expert excluded); Travis v. Ferraraccio, No. M2003-00916-COA-R3-CV, 2005 WL 2277589 (Tenn. Ct. App. Sept. 19, 2005) (plaintiff’s expert should have been permitted to testify); Pulliam v. Robinette, 174 S.W.3d 124 (Tenn. Ct. App. 2004) (plaintiff’s expert permitted to testify).

 

Recent Cases:  Plunkett v. Bradley-Polk OB/GYN Services, No. E2008-00774-COA-R3-CV, 2009 WL 3126265 (Tenn. Ct. App. Sept. 30, 2009) (reversing summary judgment finding plaintiff’s expert satisfied locality rule); Badgett v. Adventist Health Systems Sunbelt, Inc., No. M2007-02192-COA-R3-CV, 2009 WL 2365567 (Tenn. Ct. App. Jul. 31, 2009) (affirming summary judgment granted on basis that plaintiff’s experts failed to satisfy requirements of locality rule); Lane v. McCartney, No. E2008-02640-COA-R3-CV, 2009 WL 2341536 (Tenn. Ct. App. Jul. 30, 2009) (reversing summary judgment granted on basis of locality rule and noting that Tenn. Code Ann. § 29-26-115 does not require the experts themselves to establish the similarity between communities; instead, a plaintiff may introduce other evidence, including testimony of other witnesses, to make the requisite showing that the two communities are similar); Nabors v. Adams, No. W2008-02418-COA-R3-CV, 2009 WL 2182386 (Tenn. Ct. App. Jul. 23, 2009) (reversing summary judgment finding supplemental affidavit of expert cured initial deficiency with regard to locality rule by relating facts showing the similarity of the two communities); McDaniel v. Rustom, No. W2008-00674-COA-R3-CV, 2009 WL 1211335 (Tenn. Ct. App. May 5, 2009) (affirming summary judgment on basis that plaintiff’s expert did not satisfy requirements of Tenn. Code Ann. § 29-26-115); Grisham v. McLaughlin, No. M2008-00393-COA-R3-CV, 2009 WL 275667 (Tenn. Ct. App. Feb. 4, 2009) (affirming summary judgment on basis that plaintiff’s expert did not satisfy locality rule); Cox v. M.A. Primary and Urgent Care Clinic, No. M2007-01840-COA-R3-CV, 2009 WL 230242 (Tenn. Ct. App. Jan. 30, 2009) (reversing summary judgment finding that pursuant to statutes and regulations, the services of a physician assistant are provided under supervision of licensed physician and within the scope of practice of that physician who is responsible for the treatment rendered by the physician assistant and therefore the standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices); Geesling v. Livingston Regional Hospital, LLC, No. M2007-02726-COA-R3-CV, 2008 WL 5272476 (Tenn. Ct. App. Dec. 18, 2008) (upholding summary judgment finding plaintiff’s nursing expert failed to meet requirements of Tenn. Code Ann. § 29-26-115); Land v. Barnes, No. M2008-001910-COA-R3-CV, 2008 WL 4254155 (Tenn. Ct. App. Sept. 10, 2008) (analyzing testimony of plaintiffs’ experts and holding trial court did not abuse its discretion in excluding expert testimony); Hill v. Giddens, No. W2006-02496-COA-R3-CV, 2007 WL 4200417 (Tenn. Ct. App. Nov. 29, 2007) perm. appeal denied (May 5, 2008) (affirming summary judgment in favor of defendant on grounds that plaintiff failed to provide a competent medical expert as required by Tenn. Code Ann. § 29-25-115); Allen v. Methodist Healthcare Memphis Hospitals, 237 S.W.3d 293 (Tenn. Ct. App. 2007) perm. appeal denied (Sept. 24, 2007) (holding defendant’s expert was not qualified under Tenn. Code Ann. § 29-26-115(a)(1)); Conley v. Life Care Centers of America, No. M2004-00270-COA-R3-CV, 2007 WL 34828 (Tenn. Ct. App. Jan. 4, 2007) perm. appeal denied (June 18, 2007) (holding plaintiff may not rely on a national standard of care in a medical malpractice action to establish liability).

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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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