Kelly on Malpractice

What happens when the hospital wants to get the “super expert” from a non-contigous state? It files a motion to waive the contiguous state rule, even though it already has competent experts. Consider these facts:

You have a hospital liability action in which the decedent was a patient. The gist of your claim is that the hospital negligently failed to monitor the decedent while he was on a ventilator. A nurse noted that he had a decreased level of consciousness. He was difficult to arouse. His teeth were clenched. He became hard to bag, and his ET tube was occluded. He arrested. The hospital’s cardiopulmonary resuscitation team was able to restore his heartbeat. However, he suffered a permanent and severe brain injury from this hypoxic event (oxygen loss). He dies from complications associated with his brain injury.

The hospital’s conduct when your client lost consciousness is the focus of the negligence claim. The hospital wants a ventilator “super expert,” even though there was no evidence of a ventilator malfunction. This “super expert” can provide an a background and perspective into the case that no other expert can. Even though your case is about the staff, not the machine, the hospital argues that it needs a ventilator expert to tell the whole story of the case. The hospital moves to waive the contiguous state requirement. What can you do?

To grant or deny a waiver is ultimately discretionary decision. Sutphin v. Platt, 720 S.W.2d 455, 458 (Tenn.1986). Every party who retains experts in a medical malpractice case must comply with the contiguous state requirement in Tennessee Code Annotated §29-26- 115(b). The statute contains a “safety valve” for those situations in which a party is unable to locate a qualified expert within this state or one of our bordering states. Id. This “safety valve” permits the trial court to waive the contiguous state requirement if it determines that “the appropriate witnesses otherwise would not be available.” TENN.CODE ANN. §29-26-115(b). The primary issue in each waiver request is whether the party has proven “unavailability.” Without such proof, trial courts must deny the requested waiver.

You have no ventilator experts, so this is not a situation where the Court is being called upon the “match up” the sides for parity. In fact, the hospital really wants to stack the deck against you. There is no need for more hired guns in your case.
The appellate courts have addressed the issue of waiver repeatedly. Trial courts cannot waive the contiguous state rule except when: (1) there is complete unavailability of experts Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn.1991) or (2) there is a disparity in experts. Pyle v. Morrison, 716 S.W.2d 930, 933 (Tenn.Ct.App.1986) (affirming a waiver there was a disparity of experts so the trial court decided to “match up” the sides). This issue here is not complete unavailability. Defense Counsel has already retained one expert already. You should argue that a waiver stacks the deck against your client.

In Steele v. Berkman, 2006 WL 627185, *2, the Defendant sought an interlocutory appeal because this Court granted a waiver without any proof regarding the availability of an appropriate expert from Tennessee or a contiguous state. Plaintiffs’ counsel candidly conceded on appeal that he made no effort to find another witness. There is no case where the court has waived the contiguous state requirement without any showing regarding the availability of other witnesses or the plaintiffs’ efforts to find such witnesses. Accordingly, the Court of Appeals held that the contiguous state requirement cannot be waived when the plaintiffs fail to demonstrate that “the appropriate witnesses otherwise would not be available” as required by TENN.CODE ANN. §29-26-115(b).

Although Steele is a memorandum opinion, it stands for a simple principle. Trial courts cannot waive the contiguous state requirement in absence of unavailability. This principle is borne out repeatedly. See Rose v. H.C.A. Health Services of Tennessee, Inc., 947 S.W.2d 144 (Tenn.Ct.App.1997) (rejecting waiver where affidavits submitted by plaintiffs in support of motions for waiver were generalized, unspecific, and reflected only a cursory effort to find appropriate expert from Tennessee or contiguous border state); Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 161 (Tenn.Ct.App.1984) (rejecting waiver where there was nothing in the record to show that an “appropriate witness otherwise would not be available”). The hospital has an available expert. There are no medical issues that justify a circumvention of the contiguous state rule. Therefore, you muts argue that the hospital failed to prove the requisite “unavailability” as mandated by the statute and the appellate courts.

The Court should also consider the cost of a waiver. A waiver means that you must get a ventilator expert for rebuttal. There is tremendous expense associated with finding and paying for such a rare expert. There is extreme prejudice if you never find such a rare expert. This means that the parties will incur substantial time and expense to litigate an issue that is collateral at best. Argue that the loss of time and money weigh heavily against a waiver. It is your best defense against a motion to waive the contiguous state rule.