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.