Kelly on Malpractice

In Carpenter v. Klepper, 2006 WL 684589, *1 (Tenn.Ct.App.), the Plaintiff lost a medical malpractice jury trial in Clarksville. The Plaintiff appealed the admission into evidence of expert testimony offered by two physicians under the locality rule. The trial court overruled the Plaintiff’s objections to the qualifications of the Defendant’s experts under the locality rule and allowed them to testify. One of those experts appeared to base his knowledge solely on “national accreditation standards” rather than on personal experience. The other defense expert, who had never been to Clarksville, testified in “generalities.” The trial court held firm to the position that it is the Plaintiff, not the Defendant, who is charged with the burden of proof as to the standard of care in the community in which the defendant practices or in a similar community in accordance with the locality rule at TENN.CODE ANN. § 29-26-115(a)(1). The trial court believed that shifting this burden to the Defendant directly contradicted the plain language of the statute and would render it a nullity. In somewhat of a surprise opinion, the Court of Appeals disagreed. The Court held that the locality rule applies to an expert regardless of whether that expert is offered by the plaintiff or the defendant.