Kelly on Malpractice

In Small v. Shelby County Schools, 2008 WL 360925 (Tenn.Ct.App.), plaintiffs brought a negligence claim against the school board pursuant to the Tennessee Governmental Tort Liability Act. The plaintiff, a student at Millington Middle School, began experiencing breathing problems after physical education class. The physical education teacher was unaware of the student’s asthma, or the fact that the student was mentally retarded. The mother came to school and picked up her son, who was later taken to Le Bonheur Children’s Medical Center in Memphis, where he remained for six months. The mother then brought a negligence claim on behalf of her son against the school board. During discovery, the student’s attorney failed to disclose the student’s treating doctor as an expert witness. The school board sought to exclude testimony from the doctor concerning causation of the student’s injuries and the reasonableness and/or necessity of the medical charges. The school board argued that the court erred by allowing the doctor to testify concerning causation and necessity because the student’s attorney failed to disclose the doctor as an expert witness. The plaintiff argued, on the other hand, that Dr. Barnes testified in the capacity of a treating physician. Therefore, they did not have to disclose him as an expert witness.

The Court of Appeals reviewed the applicable discovery law as landscape for the issue. “[D]iscovery should enable the parties and the courts to seek the truth so that disputes will be decided by facts rather than by legal maneuvering.” White v. Vanderbilt University, 21 S.W.3d 215, 223 (Tenn.Ct.App.1999). Rule 26.02(4) of the Tennessee Rules of Civil Procedure provides for the following discovery concerning expert witnesses:

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(emphasis added). Parties also have a duty to supplement their answers as follows:
(1) A party is under a duty seasonably to supplement the party’s response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of that testimony. Tenn. R. Civ. P. 26.05.

The rules of discovery allow for the parties to narrow the issues in order to avoid “trial by ambush.” Austin v. City of Memphis, 684 S.W.2d 624, 632 (Tenn.Ct.App.1984). Trial courts have the authority, in certain circumstances, to exclude the testimony of an expert witness when that party failed to name the witness during discovery. Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 137 (Tenn.2004); see also Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn.1988). On the other hand, parties do not have a duty to name an expert witness, as required by Rule 26 of the Tennessee Rules of Civil Procedure, if that witness acquired the information as “an actor or viewer in regard to the occurrence,” and did not acquire the information in preparation for trial. Alessio v. Crook, 633 S.W.2d 770, 779 (Tenn.Ct.App.1982). In Alessio, the plaintiffs argued that the defendant failed to supplement answers to interrogatories concerning the testimony of an expert witness. Id. at 778-79. The Middle Section of this Court held that the witness in dispute, the treating surgeon, gathered his information ” ‘because he was an actor or viewer with respect to transactions or occurrences’ that were the ’subject matter of the lawsuit.’ ” Id. at 780. Thus, the witness should be treated as an ordinary witness, and not as an expert witness subject to the disclosure requirement of Rule 26. Id. at 779. Subsequently, the Eastern Section of this Court addressed a similar issue in Buckner v. Hassell, 44 S.W.3d 78 (Tenn.Ct.App.2000). In Buckner, the plaintiff failed to disclose a witness, her treating physician, as an expert. The plaintiff then tried to elicit testimony from this witness concerning the standard of care for dermatologists. Id. at 81. Distinguishing the case from the Alessio decision, the Eastern Section found that although the witness was one of the plaintiff’s treating physicians, “the substance of the excluded testimony involved matters outside [the doctor’s] mere treatment of [the plaintiff].” Id. at 84. Unlike the witness in Alessio, the witness in Buckner obtained his information relating to the applicable standard of care from his own “expertise and experience,” and not from just participating in the treatment of the plaintiff. Id. Thus, the Court found that this testimony concerning the standard of care rendered this witness an expert under the Tennessee Rules of Civil Procedure. Id.

The Board argued that this case is more akin to the Buckner decision, because the deposition testimony of Dr. Barnes concerning causation, reasonableness, and necessity of the medical charges was drawn from his expertise and experience, and not as an actor or viewer in Small’s treatment. The Court of Appeals disagreed. In Buckner, the witness in question clearly did not obtain his knowledge of the applicable standard of care by treating the plaintiff. But in this case, Small’s attorney sought to introduce testimony concerning the cause of Small’s injuries, not the standard of care, as this is not a medical malpractice case. The Court found that the substance of Dr. Barnes’ testimony did not involve matters outside the treatment of Small; rather, information related to the cause of Small’s injuries came from his involvement with the treatment. This case is more in line with Heath v. Memphis Radiological Professional Corp., 79 S .W.3d 550 (Tenn.Ct.App.2001). In this post Alessio and Buckner case, the Court addressed the same issue of whether the testimony of a witness should be excluded because the defendants failed to supplement their answers to interrogatories, naming the witness as an expert. Id. at 559. The witness was one of the plaintiff’s treating physicians who the plaintiff previously listed as a person with knowledge of the facts. Id. The Court applied Alessio and held that the witness acquired his knowledge through the plaintiff’s treatment and thus, could testify as an ordinary witness. Id. Likewise in this case, the Court of Appeals believed Alessio was on point and held that Dr. Barnes obtained his knowledge and information concerning Small’s injuries through the treatment of Small. Thus, the trial court did not err by considering the deposition testimony of Dr. Barnes.

The lesson from this case applies to proving causation and medical expenses in medical malpractice cases as well. Plaintiff’s counsel need not submit a Rule 26 report for a treating physician who will testify about (1) the cause of the injury and (2) the reasonable and necessity of medical expenses.

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