Kelly on Malpractice

An expert must demonstrate “similarity” between his community and the defendant’s community to satisfy the stringent requirements of the Locality Rule. In Eckler v. Allen, 2006 WL 3422105 (Tenn.Ct.App.), is a case in which the plaintiff’s expert failed to demonstrate how his community is similar to the defendant’s community. General statements will not suffice. This expert’s affidavit looks good at first blush. See if you can find anything wrong with it:

1. I, Conway C. Huang, am an Assistant Professor at the University of Alabama at Birmingham. I am the Director of Dermatologic Surgery and Cutaneous Laser Surgery. My curriculum vitae is attached.
2. I am familiar with the standard of care for Mohs micrographic Surgeons in communities similar to Memphis, TN.
3. I have become familiar with the standards of care in the Memphis community and throughout the State of Tennessee.
4. I have discussed the standard of care for obtaining informed consent with all the fellowship trained Mohs surgeons in Tennessee. “Fellowship trained” refers to Mohs surgeons who have specialized training in Mohs micrographic surgery for 1-2 years after completing a dermatology or related residency.
5. These fellowships are accredited by the American College of Mohs Micrographic Surgery and Cutaneous Oncology. In the past two years, many of these fellowships have also become accredited by the American Board of Medical Specialties under the newly recognized specialty of Procedural Dermatology.
6. There are sixteen (16) Mohs surgeons in Tennessee including the Defendant. Seven of the Mohs surgeons are partners with the Defendant. Therefore they were not consulted.
7. Besides Dr. Allen and his partners, I consulted with Dr. Malika Tuli of Memphis, Tennessee and was advised that written and oral informed consent are obtained in the Memphis, Tennessee community.
8. I also consulted with the remaining six Mohs surgeons in Tennessee and was advised that the written and oral informed consent are obtained in their community. See attached spreadsheet of my investigation.
9. As I previously stated in my original affidavit, I reviewed the medical records of Jerry Eckler from June 13, 2003, June 20, 2003 and June 30, 2003. These records included clinical notes and photos. There is no written evidence that an informed consent was obtained from Mr. Eckler. Informed consent may have been verbally obtained, but there is no written documentation that would substantiate that is was obtained (see attached affidavit).
10. Based on my investigation Dr. Allen failed to obtain proper informed consent according to the standard of care for Memphis, TN. There is no evidence that Mr. Eckler understood the procedure, disease, treatment options, risks and benefits of those treatment options.

In this case, the Court of Appeals found that Dr. Huang’s affidavit and curriculum vitae demonstrated that he had expert knowledge of the specialized field of dermatological surgery. The affidavit also contained sufficient knowledge of the standard of care in Birmingham, Alabama. However, there was nothing in Dr. Huang’s affidavit or supporting documents to demonstrate or suggest that Birmingham, Alabama, was a community similar to Memphis, Tennessee. The general statement in Section #2 was not enough. Knowledge of the applicable standard of care must be either firsthand knowledge of the standard of care by one who practices in the community in which the defendant practices, or firsthand knowledge by one who practices in a community demonstrated to be similar to that of the defendant. In other words, the affidavit lacked evidence of “similarity” between Birmingham and Memphis. The expert’s failure to bridge Birmingham and Memphis was a fatal mistake that doomed the case. You must take the time to investigate the medical statistics of the similar community and marry them to the defendant’s community in your expert’s affidavit.

There is a Sixth Circuit case that tests the confines of the Locality Rule in Tennessee. Specifically, how much does the plaintiff’s expert have to demonstrate via affidavit that his or her medical community is similar to the defendant’s medical community in order for that expert to be competent? There is no question that an expert must demonstrate “similarity” between his or her community and the defendant’s community in order to satisfy the stringent requirements of the Locality Rule. In Scott v. Miller, 2006 WL 3368767 (6th Cir.), the plaintiff filed a medical malpractice action in federal court. The plaintiff tendered the affidavit of Dr. Allen as their expert to oppose the defendants’ motion for summary judgment. The district court granted the defendants’ motion for summary judgment, holding that Dr. Allen failed to satisfy the Locality Rule. Without this evidence, the district court held that plaintiff failed to make out a case for medical malpractice and, as such, granted summary judgment to defendants. Dr. Allen’s credentials and his curriculum vitae were impressive. As to his familiarity with the standard of care, Dr. Allen stated that he was familiar both with the standard of care in Nashville, Tennessee and in Louisville, Kentucky, which he stated was a similar community to Nashville. His Rule 26 report stated in part:

My practice is in Louisville, Kentucky. Louisville has a medical community that is very similar to the medical community in Nashville, Tennessee. While Louisville is smaller than Nashville, both cities have multiple hospitals, both have respected medical schools, and doctors in the both communities have equal access to medical educational opportunities, state of the art medical equipment, consulting and proctoring physicians for advice and training, and medical information in general. Additionally, there are many surgeons in Nashville, Tennessee who perform laparoscopic Roux-en-Y gastric bypass procedures and these surgeons follow up as I do in Louisville, Kentucky. In short, the doctors in Nashville, Tennessee who comply with the standard of care, perform laparoscopic Roux-en-Y gastric bypass surgery the same way I do in Louisville, Kentucky. Centennial Medical Center, at which Dr. Miller was working at the time he operated on Mrs. Scott, has access to the same quality medical equipment that I have at Norton Hospital, the hospital where I do the majority of my work. In addition to my Kentucky licensure, I am licensed in a number of other states-including Tennessee. I have lectured about gastric bypass surgery in Nashville to physicians practicing there; and I have proctored numerous surgeries in communities similar to Nashville. I am familiar with the standard of care in Nashville, Tennessee and similar communities that governs the conduct of doctors like Dr. Miller and me when we perform Roux-en-Y gastric bypass procedures and provide medical care following these procedures.

Dr. Allen demonstrated why Louisville’s medical community is similar to Nashville’s medical community. This was crucial to satisfaction of the “similarity” requirement embedded within the Locality Rule. Dr. Allen noted the similarities between Nashville and Louisville in terms of having multiple hospitals, respected medical schools, access to medical information, state of the art equipment, and consulting physicians. This was the key reason why the Sixth Circuit reversed the summary judgment.

A ritualistic incantation of statutory buzz words is not always necessary to prove a deviation from the standard of care in medical malpractice cases. Williams v. Baptist Memorial Hosp., 2004 WL 3396474 (Tenn.Ct.App.). Sometimes, it is not possible to frame opinions in the precise words of the statute because of differences in the medical and legal vocabularies and frames of reference. Mitchell v. Ensor, 2002 WL 31730908 (Tenn.Ct.App.). The Court of Appeals has held that TENN.CODE ANN. § 29-26-115 is not “holy writ,” and should never be so rigidly applied that it requires the use its precise terms in order to maintain a malpractice claim. However, these buzz words are recommended to avoid traps in motion practice. In Wicks v. Vanderbilt, 2007 WL 858780 (Tenn.Ct.App.), the Court of Appeals recognized that “the testimony of a physician as to what he would do or his opinion of what should have been done does not prove the statutory standard of medical practice.” Personal preference of what an expert would or should do is irrelevant. Lewis v. Hill, 770 S.W.2d 751 (Tenn.Ct.App.1988); Godbee v. Dimick, 213 S.W.3d 865 (Tenn.Ct.App.2006). Make sure that your expert uses the statutory phrase “recognized standard of acceptable professional practice” when testifying about a deviation from the standard of care. In Godbee, the Court of Appeals held that testimony which referred to a “generally accepted practice” was consistent with the standard of care. Nevertheless, it is preferable to couch the terms in accordance with the language of TENN.CODE ANN. § 29-26-115. These buzz words prevent heartburn. So, make sure your expert is acquainted with the standard of care in terms of art as “the recognized standard of acceptable professional practice.”

In Luna v. Sherwood, 2006 WL 1440169 (Tenn.Ct.App.), the parents filed a medical malpractice action against the doctor, medical clinic and hospitals, alleging that during birth the baby suffered from hypoxic brain injury, thereby leaving her disabled and severely brain damaged. The doctor and medical clinic challenged the venue as an inconvenient forum, because he and his office were located in DeKalb County. The doctor and clinic alleged that many witnesses were located in Dekalb County. The other defendants in the case had offices in Davidson County. The trial court found that Davidson County was a proper venue and that the doctrine of forum non conveniens did not apply to intrastate disputes. The doctor and medical clinic appealed. The Court of Appeals revisited Zurick v. Inman, 426 S.W.2d 767 (Tenn.1968) which was an interstate, not intrastate, application of the forum non conveniens doctrine. The Court found it “significant” the doctrine of forum non conveniens had yet to be applied by our courts in an intrastate action. Finding Zurick limited to an interstate application of the doctrine, the Court declined the invitation to expand the doctrine of forum non conveniens to intrastate disputes. The Supreme Court denied certiori.

There are two new cases on the scene that test the confines of the Locality Rule. Specifically, how much does the plaintiff’s expert have to demonstrate via affidavit that his or her medical community is similar to the defendant’s medical community in order for that expert to be competent? There is no question that an expert must demonstrate “similarity” between his or her community and the defendant’s community in order to satisfy the stringent requirements of the Locality Rule. In Scott v. Miller, 2006 WL 3368767 (6th Cir.), the plaintiff filed a medical malpractice action in federal court. The plaintiff tendered the affidavit of Dr. Allen as their expert to oppose the defendants’ motion for summary judgment. The district court granted the defendants’ motion for summary judgment, holding that Dr. Allen failed to satisfy the Locality Rule. Without this evidence, the district court held that plaintiff failed to make out a case for medical malpractice and, as such, granted summary judgment to defendants.

Dr. Allen’s credentials and his curriculum vitae were impressive. As to his familiarity with the standard of care, Dr. Allen stated that he was familiar both with the standard of care in Nashville, Tennessee and in Louisville, Kentucky, which he stated was a similar community to Nashville. His Rule 26 report stated in part:

My practice is in Louisville, Kentucky. Louisville has a medical community that is very similar to the medical community in Nashville, Tennessee. While Louisville is smaller than Nashville, both cities have multiple hospitals, both have respected medical schools, and doctors in the both communities have equal access to medical educational opportunities, state of the art medical equipment, consulting and proctoring physicians for advice and training, and medical information in general. Additionally, there are many surgeons in Nashville, Tennessee who perform laparoscopic Roux-en-Y gastric bypass procedures and these surgeons follow up as I do in Louisville, Kentucky. In short, the doctors in Nashville, Tennessee who comply with the standard of care, perform laparoscopic Roux-en-Y gastric bypass surgery the same way I do in Louisville, Kentucky. Centennial Medical Center, at which Dr. Miller was working at the time he operated on Mrs. Scott, has access to the same quality medical equipment that I have at Norton Hospital, the hospital where I do the majority of my work. In addition to my Kentucky licensure, I am licensed in a number of other states-including Tennessee. I have lectured about gastric bypass surgery in Nashville to physicians practicing there; and I have proctored numerous surgeries in communities similar to Nashville. I am familiar with the standard of care in Nashville, Tennessee and similar communities that governs the conduct of doctors like Dr. Miller and me when we perform Roux-en-Y gastric bypass procedures and provide medical care following these procedures.

Dr. Allen demonstrated why Louisville’s medical community is similar to Nashville’s medical community. This was crucial to satisfaction of the “similarity” requirement embedded within the Locality Rule. Dr. Allen noted the similarities between Nashville and Louisville in terms of having multiple hospitals, respected medical schools, access to medical information, state of the art equipment, and consulting physicians. This was the key reason why the Sixth Circuit reversed the summary judgment.

You are prepared to file a medical malpractice case against two defendants. One resides in Davidson County and the other resides in Montgomery County. Your client resides in Montgomery County. You elect to file the case in Davidson County. Neither defendant moves to dismiss for improper venue, and neither defendant alleges improper venue in his answer. On the eve of trial, you settle with the Davidson County defendant. Immediately thereafter, the Montgomery County defendant moves to dismiss the case for improper venue. What is the solution? The answer may surprise you.

You should decide first whether the case is “local” or “transitory” within the meaning of the venue statute. The Tennessee Supreme Court has said, “the most apt illustration of a local action is an injury to real estate, and of a transitory action an injury to the person.” Hall v. Southhall Bros. & Carl, 240 S.W. 298, 299 (Tenn. 1922). Actions are local when a statute prescribes a particular county in which they must be brought. For example, actions involving immovable objects like real property are local. Local actions, being founded on causes referring to locality, must be laid in the county of the subject matter. The plaintiff has no choice in venue. He must sue where directed by statute.

A transitory action is one that does not involve an immovable location. It can happen anywhere. The characteristic feature of a transitory action is that the right of action follows defendant’s person. Actions sounding in tort and contract are transitory. Medical malpractice actions are transitory. The plaintiff has a choice of venue in transitory actions. He can sue where the cause of action arose, where the defendant resides, or where the defendant may be found. TENN.CODE ANN. §20-4-104(a).

Next, you should decide if venue is localized in the case. At first blush, your case appears to be transitory in nature. It is a tort action. It does not involve an immovable object. The injuries could happen anywhere. However, there is also the concept of localization. The localization doctrine is an anachronism. It dates back to English common law. It is a nostalgic reminder of the limitations associated with horse and buggy.
The localization doctrine declares that when a statute eliminates the option of suit wherever the defendant may be found and fixes venue for an otherwise transitory action in a particular county or counties, the legislative intent is to “localize” venue. Thus, the formerly transitory action becomes a local action. It means to protect the defendant from a default judgment in a foreign county. Tennessee has gone much further, however, by evolving a doctrine of localization that extends subject matter jurisdiction treatment to many other venue provisions. Professor Entman recently inveighed against the subject matter jurisdiction treatment affiliated with the localization doctrine:

Once the label “local” is attached, the selection of a forum county becomes jurisdictional, subject to the “no-waiver, no-consent rule” and other consequences of litigation in a court lacking subject matter jurisdiction. Tennessee’s localization doctrine has nothing to do with the nature of the action, or with the policies that prompted the legislature to limit permissible venues. The doctrine merely converts a statutory venue restriction into a rule of subject matter jurisdiction solely because the legislative treatment no longer supports the historical label “transitory.” June Entman, Abolishing Local Action Rules: A First Step Toward Modernizing Jurisdiction and Venue in Tennessee, 34 U. MEM. L. REV. 251, 306 (2004).

Thus, localization of venue is co-extensive with subject matter jurisdiction. The plaintiff must file suit in the local court. No other court has subject matter jurisdiction. Curtis v. Garrison, 364 S.W.2d 933 (Tenn. 1963). The defendant cannot waive an objection to the wrong venue. The parties cannot even consent to the wrong venue.

The venue for transitory actions found at TENN.CODE ANN. §20-4-104 contains a localization provision. When the plaintiff and defendant both reside in the same county, such action “shall be brought” either in the county where the cause of action arose or in the county of their residence. TENN.CODE ANN. §20-4-104(b). This provision has been referred to as the “common county rule.” It localizes venue in either the common county or where the cause of action arose. It means that subject matter jurisdiction exists only in the common county or where the cause of action arose.

Returning to the facts of the case, the Plaintiffs and the doctor reside in Montgomery County. The Plaintiffs’ cause of action against the doctor arose in Montgomery County. By statute, venue is localized in Montgomery County. Only the Montgomery County Circuit Court has subject matter jurisdiction. How do you fight off a motion to dismiss? Ask the court to transfer your case against the remaining doctor to the Montgomery County Circuit Court. The next step used to be dismissal of the action. See Mills v. Wong, 39 S.W.3d 188, 190 (Tenn.Ct.App. 2000); Bing v. Baptist Memorial Hospital-Union, 937 S.W.2d 922 (Tenn. App. 1996); Winters v. Healthtrust, Inc., 836 S.W.2d 584 (Tenn. App. 1992), Tims v. Carter, 241 S.W.2d 501 (Tenn. 1951). Fortunately, the General Assembly fashioned an alternative to this harsh consequence. A court that lacks subject matter jurisdiction can simply transfer the case to a court that has subject matter jurisdiction pursuant to TENN.CODE ANN. §16-1-116. Appellate courts clearly prefer a transfer of the action via the statute when venue is localized instead of dismissal. See Hawkins v. Tennessee Dept. of Correction, 127 S.W.3d 749 (Tenn. 2002); Humphreys v. Selvey, 154 S.W.3d 544, 556 (Tenn.Ct.App.2004); Wylie v. Farmers Fertilizer & Seed Co., Inc., 2003 WL 21998408, *6 (Tenn.Ct.App.).

Be sure to check residence carefully before you file suit and beware of the common county rule. Otherwise, you may have to start all over again in another county.