Kelly on Malpractice

More often than not, I analyze decisions affirming dismissal of medical malpractice actions where the plaintiff’s expert affidavit, filed in opposition to the defendant’s motion for summary judgment, is deficient. It is an unpleasant task to report these decisions because I know how it feels to lose an otherwise meritorious case due to a legal technicality. However, I believe it is my duty to inform and educate you so the same mistakes are not repeated. I want to spare all of my readers and their clients the agony attached to this cruel fate. My newsletters are not meant to denigrate or cast aspersions toward the plaintiff’s counsel involved in the case under review. We have all made similar mistakes in our careers that are painful and embarrassing. No trial lawyer is perfect. However, we must share these lessons together so that some good will come out of a sad situation. Mettes v. John, 2009 WL 1422987 (Tenn.Ct.App.) is one of those cases we should all read and learn from in order to prevent a similar tragedy.

In Mettes, the plaintiff filed a medical malpractice action claiming that the multiple cortisone injections by Dr. John contributed to deterioration of her bone and aggravation of her Kienbock’s disease. This disease is a form of avascular necrosis, which is cell death of the wrist in the absence of infection. Dr. John was a specialist in internal medicine and rheumatology. He filed a motion for summary judgment supported by his own affidavit. Dr. John’s affidavit stated that he was competent under TENN. CODE ANN. § 29-26-115 to opine that he had complied with the standard of care and had not caused the plaintiff’s damages.

In opposing Dr. John’s motion for summary judgment, plaintiff filed the affidavit of Dr. James Johnson. He was a specialist in orthopedics and sports medicine. Dr. Johnson stated that he was “familiar with the standard of care for orthopedic physicians in the Nashville, Tennessee and surrounding areas.” He described his treatment of the plaintiff and his own findings of Kienbock’s disease on X-rays. Dr. Johnson opined that the Cortisone injections administered by Dr. John could possibly have contributed to the deterioration of the bone. (emphasis added) Dr. Johnson also stated in light of the evidence of sclerosis on the X-rays that Dr. John’s cortisone injections “were contraindicated.” Dr. Johnson concluded that the treatment rendered to the plaintiff by Dr. John was below the standard of care for physicians of like training, skill and expertise, and that as a result the plaintiff sustained injuries. In a reply brief, Dr. John challenged the legal sufficiency of Dr. Johnson’s affidavit.

At the summary judgment hearing, Judge Brothers of the Sixth Circuit Court of Davidson County decided that Dr. Johnson’s affidavit was insufficient for a variety of reasons. First, Dr. Johnson did not establish that he practiced in a relevant profession or specialty during the year preceding the alleged events and/or injury at issue. Second, Dr. Johnson failed to establish the applicable standard of care and his familiarity therewith. Finally, Dr. Johnson failed to establish causation with the requisite degree of certainty required. Based on the foregoing, Judge Brothers granted summary judgment to the defendant. The plaintiff appealed.

On appeal, the Court first agreed that the defendant’s affidavit complied with TENN. CODE ANN. § 29-26-115 in all respects. This meant that the burden of production shifted. It was now incumbent upon the plaintiff to submit a responsive expert affidavit that likewise complied with TENN. CODE ANN. § 29-26-115 in all respects. The Court of Appeals identified the three areas that Judge Brothers found to be deficient. Each flaw on its own would be fatal to the claim. Dr. Johnson’s affidavit stated that he was a specialist in orthopedics and sports medicine, and he was familiar with the standard of care of orthopedic physicians in Nashville. As stated previously, the defendant was a specialist in rheumatology and internal medicine. There was nothing in Dr. Johnson’s affidavit to establish his familiarity with the standard of care for a rheumatologist or internist in Nashville, Tennessee “with respect to the detection and treatment of Kienbock’s disease.” There was nothing in the affidavit to establish that the standard of care for orthopedics “with respect to Kienbock’s disease” was the same as the standard of care for internal medicine or rheumatology specialists. Thus, the affidavit did not give the trial court a basis to find that Dr. Johnson was competent to testify about the standard of care of a rheumatologist or internist in diagnosing and treating Kienbock’s disease. You need to know that Dr. Johnson can qualify as a competent expert even though he practiced in a different specialty than the defendant. See Bravo v. Sumner Reg’l Health Sys., Inc., 148 S.W.3d 357, 367 (Tenn.Ct.App.2003); Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn. 1987). Remember this in future cases where your expert practices in a different specialty than the defendant. Nevertheless, Dr. Johnson was not familiar with the standard of care for an internist and rheumatologist “with respect to Kienbock’s disease.” Therefore, he was not competent to testify about the standard of care.

The Court of Appeals examined the next flaw bearing upon Dr. Johnson’s competency. An expert must have practiced…during the year preceding the date that the alleged injury or wrongful act occurred. Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 161 (Tenn.Ct.App.1984). Dr. Johnson’s affidavit was “silent” as to whether he was licensed to practice orthopedics in Tennessee or a bordering state at any time during the year preceding the time when the alleged malpractice occurred. You should know that the statute only requires licensure and practice “at some point” during the preceding year, not necessarily for the entire year. Kenyon v. Handal, 122 S.W.3d 743, 761 (Tenn.Ct.App.2003). Moreover, Dr. Johnson did not describe the applicable standard of care and in what way Dr. John allegedly deviated from that standard. See Estate of Henderson v. Mire, 955 S.W.2d 56, 59 (Tenn.Ct.App.1997). There has to be more depth. Given these deficiencies in Dr. Johnson’s affidavit, the Court of Appeals affirmed the trial court’s implicit finding that Dr. Johnson was not qualified to testify as to the applicable standard of care.

The final flaw examined by the Court of Appeals was causation. Dr. Johnson’s use of the phrase, “could possibly have contributed,” was insufficient. See Kilpatrick v. Bryant, 868 S.W.2d 594, 598-99 (Tenn. 1993). Statements of “possibility” or “might have” will not establish causation. Just as important, Dr. Johnson did not indicate with what degree of certainty he held this opinion. Our Supreme Court has stated, “Causation in fact is a matter of probability, not possibility, and in a medical malpractice case, such must be shown to a reasonable degree of medical certainty.” Id. Therefore, the Court of Appeals agreed that Dr. Johnson’s affidavit was not sufficient to create a genuine issue of material fact on the issue of medical causation.

I hope that each of you will read Mettes v. John and keep a copy around when drafting your expert’s affidavit. In the alternative, associate a medical malpractice specialist to help you in this endeavor. As a result, some good will come from this unfortunate case.