That a plaintiff may have a thin case or a defendant a tenuous defense is ordinarily insufficient justification for prohibiting such party from trying to establish the contention. Nor should a party ordinarily be required to try a case or defense twice-once outside the jury’s presence to satisfy the trial court of its sufficiency and then again before the jury. Moreover, the motion in limine is not ordinarily employed to choke off an entire claim or defense, as it was here regarding arson. Rather, it is usually used to prohibit mention of some specific matter, such as an inflammatory piece of evidence, until the admissibility of that matter has been shown out of the hearing of the jury. Turner v. Northwest Arkansas Neurosurgery Clinic, P.A., 133 S.W.3d 417 (Ark.App.2003).

Motions in limine serve fundamentally different purposes than motions for summary judgment. They are not subject to the same procedural safeguards. Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069-70 (3d Cir.1990). Thus, a motion in limine should not be used as a substitute for a dispositive motion such as a motion for summary judgment. See e.g., Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5037.18 (2d ed.2005); Craig Lee Montz, Trial Objections From Beginning to End: The Handbook for Civil and Criminal Trials, 29 Pepp. L.Rev. 243, 256 (2002) (stating that a motion in limine “may not be used as a substitute for a motion for summary judgment.” Even though a motion in limine may be used to narrow evidentiary issues in advance of trial, it should not be mistaken for a method to dismiss an opponent’s claim.”).

Courts that have addressed attempts to use a motion in limine in such a manner, either explicitly or implicitly, have found such use to be in error. Bradley v. Pittsburgh Bd. of Educ., 913 F.2d at 1069-70; Cannon v. William Chevrolet/Geo, Inc., 341 Ill.App.3d 674, 276 Ill.Dec. 593, 794 N.E.2d 843, 849 (Ill.App.Ct.2003); Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 616 N.E.2d 519, 524-25 (Ohio Ct.App.1992); BHG, Inc. v. F.A.F., Inc., 784 A.2d 884, 886 (R.I.2001). As several courts have noted, a motion in limine should not be used to “choke off” a party’s entire claim or defense. McCracken v. Edward D. Jones & Co., 445 N.W.2d 375, 379 (Iowa Ct.App.1989); Cass Bank & Trust Co. v. Mestman, 888 S.W.2d 400, 404 (Mo.Ct.App.1994).

Keep these rules in mind as you stave off the defendant’s in limines, which are often improperly used as poor substitutes for a summary judgment motion.

[t]he injuries, damages, and losses alleged in the Complaint, none being admitted, were caused in whole or in part by the negligence of plaintiffs and/or others over whom Nestle exercised no control, had no opportunity to anticipate or right to control, and with whom Nestle had no legal relationship by which liability could be attributed to it because of the actions of plaintiffs and/or others, which by comparison was far greater than any conduct alleged as to Nestle. Nestle relies upon and invokes the doctrine of modified comparative fault and reserves the right to amend this Answer to name other potentially responsible parties as discovery continues.

Plaintiffs filed a motion requesting that the district court impose a deadline for Nestle to assert its comparative fault defense by identifying other potentially responsible parties or, alternatively, that the court strike the comparative fault defense for insufficiency. Plaintiffs argued that under Federal Rule of Civil Procedure 16(b), the court may in its discretion impose a deadline for Nestle to name other potentially responsible parties. They also argued that the court should strike Nestle’s affirmative defense of comparative fault under Federal Rule of Civil Procedure 12(f) if Nestle does not amend its answer or supplement its interrogatory responses to identify the names of others who may be at fault.

The magistrate denied the plaintiffs’ motion. The magistrate reasoned that an assertion of comparative fault may be proper, even though it does not name a third party, if it provides reasonable notice of a third party’s potential fault. Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032, 1038 (M.D.Tenn.1996). Reasonable notice coupled with discovery should allow a plaintiff to determine the third party’s identity. Soper, 923 F.Supp. at 1038; see also Kizziah v. Fire Mgmt. Sys., No. 1:04 CV 374, 2006 WL 218026, at *2 (E.D.Tenn. Jan.27, 2006). Moreover, after a defendant asserts an affirmative defense of comparative fault, it is incumbent upon the plaintiff to conduct discovery or take other appropriate action to identify the third party. Kizziah, 2006 WL 218026 at *10.

The magistrate further found that Nestle’s comparative fault defense was sufficient. See Kizziah, 2006 WL 218026 at *2 (finding that defendant’s answer raising affirmative defense of comparative fault but not mentioning a third party by name was sufficient to properly assert the defense); Soper, 923 F.Supp. at 1038 (finding an answer stating, among other things, that “the plaintiff’s damages are the proximate result of his negligence as well as the negligence and/or intentional misconduct of a third party over whom the defendant had no control” adequately pled an affirmative defense of comparative fault). Although Nestle did not identify any third parties by name, the magistrate determined that its defense adequately put the plaintiffs on notice that third parties may be at fault.

In addition, in response to interrogatory 2 which was served upon Nestle on August 23, 2007 and which asked for the names of persons or entities who may be liable in negligence for the claims asserted by plaintiffs, Nestle responded as follows, “Nestle USA states that potentially responsible parties include health care providers, care-givers, and people involved in the care and treatment of the infant.” Finally, the Court held that the identities of the child’s health care providers, care-givers, and people involved in her care and treatment were known by plaintiffs or are obtainable by plaintiffs through discovery.

This decision is troubling decision on many levels. It thwarts the primary purpose of comparative fault: to identify other tortfeasors to whom fault should be apportioned. It unfairly puts the burden squarely on the plaintiff to prove the defendant’s comparative fault defense. It risks the statute of repose defense by non-parties who may not be named until much later in the litigation. Finally, it enables the defendant to “hide the ball” until such time as the defendant is ready to disclose the identity, if ever.

Fortunately, this is a products laibility case in a federal jurisdiction. It is unclear how the new Medical Malpractice Act of 2008 would affect a similar issue in a circuit court. Nevertheless, beware of it.

1. Discovery Rule
The discovery rule was first applied by the Tennessee Supreme Court in Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974). In Teeters, a medical malpractice action, the Court stated, “We find it difficult to embrace a rule of law … requiring that [a plaintiff] sue to vindicate a non-existent wrong, at a time when injury was unknown and unknowable.” Teeters, 518 S.W.2d at 515. The Court has applied the discovery rule to tort actions governed by the one-year statute of limitations, stating:

Under the “discovery rule” applicable in tort actions, including but not restricted to products liability actions predicated on negligence, strict liability or misrepresentation, the cause of action accrues and the statute of limitations begins to run when the injury occurs or is discovered, or when in the exercise of reasonable care and diligence, it should have been discovered. Potts v. Celotex Corp., 796 S.W.2d 678, 680 (Tenn.1990) (citing McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn.1975); Teeters, 518 S.W.2d at 512). It is important to note that “[t]he discovery rule applies only in cases where the plaintiff does not discover and reasonably could not be expected to discover that he had a right of action.” Id. If the plaintiff has information that would place a reasonable person on inquiry notice that he may have a cause of action, the statute of limitations will not be tolled. Levine v. March, 2007 WL 4181554, at *4 (Tenn.Ct.App.2007) (citing Potts, 796 S.W.2d at 680-81).

On occasion, an injury is discovered but its source remains hidden. In those circumstances, courts have tolled the statute of limitations until the plaintiff discovers the identity of the tortfeasor or the source of the injury. See, e.g., Foster v. Harris, 633 S.W.2d 304, 305 (Tenn.1982); Hathaway v. Middle Tenn. Anesthesiology, P.C., 724 S.W.2d 355, 359 (Tenn.Ct.App.1986). In Foster, the plaintiff unknowingly became infected with serum hepatitis during a dental procedure in October, 1975. Foster, 633 S.W.2d at 304. He discovered his illness in January 1976, but did not discover the source of the illness until July 1976, when the defendant dentist informed the plaintiff that he, the dentist, had serum hepatitis. Id. The plaintiff filed a lawsuit against the dentist in February 1977. Id. The trial court granted summary judgment in favor of the defendant dentist because the plaintiff discovered his injury in October 1975, but did not file his lawsuit until more than one year later. Id.

On appeal, the Supreme Court reversed the trial court’s grant of summary judgment. It noted that no cause of action in tort could exist “until a judicial remedy is available to the plaintiff.” Id. at 305 (citing McCroskey v. Bryant Air Conditioning Co., 542 S.W.2d 487, 489-90 (Tenn.1975)). It then stated, “It is axiomatic that no judicial remedy was available to this plaintiff until he discovered, or reasonably should have discovered, (1) the occasion, the manner and means by which a breach of duty occurred that produced his injury; and (2) the identity of the defendant who breached the duty.” Id. Thus, the Court held that the plaintiff’s lawsuit was timely filed because he could not have discovered the identity of the tortfeasor until the dentist’s admission. Id.

2. Fraudulent Concealment
“A close cousin of the discovery rule is the ‘well accepted principle … of fraudulent concealment.’ “ Mark K. v. Roman Catholic Archbishop of L.A., 79 Cal.Rptr.2d 73, 78 (Cal.Ct.App.1998) (quoting Bernson v. Brown, 873 P.2d 613 (Cal.1994)). The Tennessee Supreme Court has set forth the elements of fraudulent concealment:

To establish fraudulent concealment, a plaintiff must prove (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so and, (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence. The third essential element of fraudulent concealment is knowledge on the part of the defendant of facts giving rise to the cause of action. In other words, the defendant must be aware of the wrong. The fourth and final essential element of fraudulent concealment is a concealment of material information from the plaintiff. Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn.1998). If a fiduciary relationship exists between the plaintiff and defendant, the party asserting fraudulent concealment need not show affirmative concealment of the cause of action, because “failure to speak where there is a duty to speak is the equivalent of some positive act or artifice planned to prevent inquiry or escape investigation.” Id. (quoting Hall v. De Saussure, 297 S.W.2d 81, 85 (Tenn.Ct.App.1956)).

3. Equitable Estoppel
In Tennessee, a party, by its conduct, may be equitably estopped from relying on the statute of limitations. Fairway Vill. Condo. Ass’n, Inc. v. Conn. Mut. Life Ins. Co., 934 S.W.2d 342, 346 (Tenn.Ct.App.1996). “Equitable estoppel and fraudulent concealment represent distinct (although kindred) defenses to limitations claims.” Doe v. Linam, 225 F.Supp.2d 731, 736 (S.D.Tex.2002) (quoting Neely v. Bankers Trust Co. of Tex., 757 F.2d 621, 632 (5th Cir.1985)). The doctrine of equitable estoppel “is premised on the defendant’s wrongdoing.” Accordingly, the doctrine can be invoked to toll the statute of limitations for the period during which the defendant misled the plaintiff. Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 146 (Tenn.2001); cf. Fairway Vill., 934 S.W.2d at 346 (explaining that equitable estoppel is less a tolling mechanism and more a doctrine used to prevent a party from relying on a statute of limitations defense).

In order to establish equitable estoppel in Tennessee, the party asserting estoppel must prove that the party to be estopped (1) engaged in a false representation or concealment of material facts, (2) with knowledge, actual or constructive, of the real facts, and (3) with the intent or at least the expectation that its representation or concealment would be acted on by the other party. The party asserting estoppel must also prove that he (1) relied on the false representation or concealment, (2) changed his position to his prejudice, and (3) lacked knowledge and the means of acquiring knowledge of the truth as to the facts in question. Consumer Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn.Ct.App.1990) (quoting Callahan v. Town of Middleton, 292 S.W.2d 501 (Tenn. T.App.1954)). Also, under appropriate circumstances, equitable estoppel may be based on a party’s “silence or negative omission to do anything.” Evans v. Belmont Land Co., 231 S.W. 670, 673 (Tenn.1893); but see DOBBS ON REMEDIES § 2.3 (“mere silence or nondisclosure is not enough to trigger estoppel”).

Inquiry Notice
Under all three tolling theories, the focus is on whether the plaintiff had “inquiry notice” of the alleged negligent act. Stated differently, had the plaintiff exercised reasonable diligence, would he have learned that the defendant had knowledge of negligent act, and that it chose not to disclose this information. “Actual notice” is that notice which a plaintiff actually possesses; “inquiry notice” is that notice which a plaintiff would have possessed after due investigation.” Cevenini v. Archbishop of Wash., 707 A.2d 768, 771 (D.C.1998) (quoting Diamond v. Davis, 680 A.2d 364, 372 (D.C.1996)).

Time-Barred as a Matter of Law
A majority of courts applying these doctrines have held that if the plaintiff, in the exercise of reasonable diligence, would have learned that defendant had knowledge of the negligent act, then as a matter of law the statute of limitations is not tolled. This means that the statute of limitations begins to run when the plaintiff suspects or should suspect that [his] injury was caused by wrongdoing … once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry. “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, he must decide whether to file suit or sit on his rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; he cannot wait for the facts to find him. Doe v. Catholic Bishop for Diocese of Memphis, 2008 WL 4253628 (Tenn.Ct.App.).

I hope this primer helps you when evaluating whether the statute of limitations or statute of repose bars your medical malpractice claim.

The Court of Appeals held that the savings statute did not apply after the amendment of the GTLA, which added the Med to the list of governmental entities covered by the Act. This is a tough procedural decision that reminds us all of the perils of non-suiting a governmental entity.

Charles A. Bates sought treatment at the Highland Rim Medical Health Care Center (“Highland Rim”) in Fayetteville, Lincoln County, Tennessee on February 6, 1997. Dr. Larry Barnes, the physician at Highland Rim, was out of the office, and Mr. Bates was seen by Gail Shutt, a nurse practitioner. Mr. Bates reported a constant ache with occasional pain in his chest. His initial blood pressure was 220/100. Nurse Shutt ordered an EKG and chest x-ray, neither of which showed any acute problems. A second blood pressure reading was 198/98. Mr. Bates was given samples of two blood pressure medications, Ziac and Altace, which he was instructed to take as soon as he arrived home. According to Mr. Bates’s daughter, Mr. Bates did take the medications soon after leaving the office. Nurse Schutt also instructed Mr. Bates to return to her office the following day for a recheck.

Later that day, Nurse Shutt received a telephone call from a member of Mr. Bates’s family. Mr. Bates’s condition had worsened. He exhibited slurred speech and apparent weakness on one side of his body. Nurse Shutt advised the family member that Mr. Bates had probably suffered a stroke and instructed them to take him to the emergency room immediately.

At Lincoln Regional Hospital, Mr. Bates was diagnosed with an intracranial hemorrhage. He was airlifted to Huntsville Hospital System in Huntsville, Alabama, where a neurologist diagnosed a brain hemorrhage secondary to hypertension. Mr. Bates progressed to brain death and was declared dead on February 7, 1997.

The surviving children of Mr. Bates filed this medical malpractice action against Dr. Barnes and Nurse Shutt. The complaint alleged that Nurse Shutt violated the applicable standard of care, thereby causing Mr. Bates’s death. Dr. Barnes was sued on the basis of respondeat superior as Nurse Shutt’s supervising physician. The plaintiffs asserted that Nurse Shutt violated the standard of care by failing to stabilize Mr. Bates’s blood pressure before releasing him from Highland Rim, failing to administer appropriate blood pressure reduction therapy at Highland Rim, failing to contact a physician to see Mr. Bates, allowing Mr. Bates to leave Highland Rim with the complaints and symptoms he had, and failing to send Mr. Bates to the emergency room.

The trial court granted the defendants’ motions to exclude the testimony of Dr. Sarah J. Polow and Gregory T. Stevens, a physician’s assistant. As these were the plaintiffs’ only two experts, the court dismissed the case.

Testimony of Dr. Sarah J. Polow

In excluding Dr. Polow’s testimony, presented in the form of a deposition for proof, the trial court gave the following analysis:

[Dr. Polow is] not asked and she does not tell us if she is familiar with the standard of care in Lincoln County and does not have sufficient familiarity with Lincoln County demonstrated to suggest that she’s in a position to equate any other county with Lincoln County. More importantly, she simply does not deal with the causation issue between the negligence and the death; she does between high blood pressure and stroke and stroke and death, I think that’s clearly in there. But as far as anything saying not only in these words but anything that is synonymous with these words, she simply does not say that there is a breach of the standard of care which has caused the death or has caused the stroke.

Thus, the trial court found that the plaintiffs failed to establish Dr. Polow’s knowledge of the applicable standard of care under the locality rule and failed to address causation. Dr. Polow testified that, since 1984, she had practiced family medicine and worked in the emergency room in Chatsworth, a town in Murray County, Georgia, and that she used nurse practitioners in her family medical practice. She further gave fairly detailed testimony to indicate the similarities between Macon County, Georgia, and Lincoln County, Tennessee, and their medical communities:

A. Lincoln County in Tennessee is midway in the state, but along the southern border, between Tennessee and Alabama. It is situated about 45 to 50 miles, I believe, west of Chattanooga, and we’re [Murray County] about 45 to 50 miles southeast of Chattanooga. So we share that radius of Chattanooga. I know … Lincoln County [is] about 70 miles south of Nashville, and about 30 miles north of Huntsville. County size, it’s a little bit bigger than Murray County. Population wise, they’re both very similar. I think, according to the 2000 census, we’re both like in the mid 30s. Murray County may be slightly bigger, at about 35-, 36,000, and Lincoln County about 31-, 32,000 people. I think our demographics is [sic] very much the same, both about 97 percent white. We both have some industrial base. And our hospitals are very similar, I think both around just under 50 beds. We have similar full-time emergency rooms, full-time CAT scanners, O.R., acute care, O.R. being surgical suit-suites and MRI, and very similar laboratory and x-ray testing. I think physician-wise, actually, I think Fayetteville has a few more physicians, somewhere around 29 physicians, compared to Murray County’s physicians, about 20, but we’re still looking to recruit some more right now.

Q. Do you know how many hospitals that there are in each county?

A. I think just-just the one hospital. We’re one hospital here in Murray County; and Lincoln County, there’s just the one, Lincoln Medical Center.

Q. And the beds, how do they compare with regard to size?

A. They’re very similar. Lincoln’s just around 50. Murray County’s licensed for 42 beds.

Q. What is the nature of the practice of the physicians in Murray County and in Lincoln County? Can you comment on that, Doctor[?]

A. Well, the majority of physicians are in primary care in both places. Murray County has about five family practitioners, two internists, a rotating general surgery group, one-a rotating pediatric group, a rotating x-radiology, one urologist. And I believe the make-up of the physicians in Fayetteville and Lincoln County are very similar.

Based upon this testimony, the Court of Appeals disagreed with the trial court’s conclusion that Dr. Polow failed to provide a sufficient factual basis for her belief that Murray County, Georgia, was a similar community to Lincoln County, Tennessee.

TENN.CODE ANN. § 29-26-115(b) provides, in part, that the expert must have been licensed to practice “a profession or specialty which would make the person’s expert testimony relevant to the issues in the case.” The latter provision does not require that the expert practice the same profession or specialty as the defendant, “so long as the expert had a sufficient basis on which to establish familiarity with the defendant’s field of practice and the standard of care required in dealing with the medical care at issue.” Bravo v. Sumner Regional Health Systs., Inc., 148 S.W.3d 357, 367 (Tenn.Ct.App.2003). Although she testified that she had practiced family medicine in Murray County since 1984 and had used nurse practitioners “on and off” since 1986, Dr. Polow never expressly testified that she was familiar with the standard of care for nurse practitioners in Murray County.

Assuming arguendo, based upon her experience and her testimony concerning the standard of care for the treatment of patients with hypertension, that Dr. Polow was in fact familiar with the standard of care for nurse practitioners in Murray County, Georgia, the Court of Appeals determined that her testimony on cross-examination cast doubt on whether that knowledge would be relevant to the standard of care applicable to a nurse practitioner in Lincoln County, Tennessee:

Q. And you know, just from general knowledge, that those regulations [governing nurse practitioners and other health care providers] must differ from state to state; is that correct?

A. Yes, that’s correct.

Q. And I think you testified, too, in your deposition that you have not specifically looked at the Tennessee regulations as they apply to either PA’s or nurse practitioners; is that correct?

A. That is correct.

Q. And I believe you also said that you knew or you thought you knew that Tennessee nurse practitioners can write certain prescriptions, but you weren’t exactly sure how or if those prescriptive privileges are limited in any way. Do you recall that?

A. Yes.

Q. And I think you also said, in talking about what Tennessee nurse practitioners can or cannot do, beyond prescriptive privilege, you really didn’t have an understanding of what the scope of their permissible practice was; is that correct?

A. Yes. That is specific to the State of Tennessee.

Q. Right.

A. That’s right.

Q. I think you testified, as well, that you do not know if Tennessee recognizes any subcertifications or particular specializations for nurse practitioners. Do you recall that?

A. Yes, that’s right, I don’t, and I-right.

Q. We also talked a little bit about practice parameters or protocols. Do you recall that discussion?

A. Yes.

Q. And I think that you said that in Georgia you now-or the state of Georgia now has a system where, in a medical practice that employs a nurse practitioner, you can actually rely on a textbook, as opposed to a specific set of published parameters that go with that practice, correct?

A. That is correct.

Q. And when talking about the protocols and what was required in Tennessee, I believe you also testified that you did not know if Tennessee allowed a textbook-based protocol, or if it was still the more traditional system of having a specific dedicated set of protocols to that practice; is that correct?

A. That is correct.

Q. … [I]n Georgia, in fact, here in Chatsworth, is it correct that there’s at least one nurse practitioner who practices, more or less, on her own?

A. There are actually two right now … in Chatsworth.

Q. I think you told me that as that situation [nurse practitioners practicing in their own offices] may apply in Tennessee, you did not know if Tennessee law or Tennessee regulations for nursing allowed nurse practitioners to so function; is that correct?

A. That is correct.

Q. There was some discussion, as well, about the supervisory role of physicians and how they may supervise nurse practitioners, and, certainly, you’re familiar with that, as how it applies in the state of Georgia since you practice here, correct?

A. Yes.

Q. But I think you-and you said that you’re not sure if it differs from state to state, and you’re not sure if the same thing that applies here would apply in Tennessee; is that correct?

A. Yes.

Dr. Polow later testified that she had reviewed Highland Rim’s protocol regarding hypertensive patients and believed that it conformed with the standard of care. The Court of Appeals has previously declined to equate internal manuals or protocols with the applicable standard of care. Prewitt v. Semmes-Murphey Clinic, P.C.., No. W2006-00556-COA-R3-CV, 2007 WL 879565, * 16 (Tenn.Ct.App. Mar. 23, 2007) (perm. app. denied Aug. 20, 2007). Nevertheless, the trial court may have found that Dr. Polow’s testimony cast doubt upon her actual familiarity with the standard of care applicable in Lincoln County, Tennessee in 1997.

The Court of Appeals also found significant the following exchange concerning Dr. Polow’s discovery deposition testimony regarding her understanding of the standard of care:

Q. Now, then, also, in that April deposition that-in response to a question from Mr. Burns [attorney for Nurse Shutt], in which he asked you how do you define standard of care, you gave the following definition of standard of care, and I’m going to quote it, from page 67 of your deposition. Your definition of standard of care there was: [”]The standard of which the majority of practitioners for a given area would use in diagnosis and treatment of various diseases and symptoms.[”]

Q. Is that definition your understanding as to what standard of care means, as far as your testimony is concerned in this case?

A. Yes.

Q. Okay. And that’s the definition of standard of care that you used to base the opinions you have given regarding the standard of care in this case, right?

A. Yes.

The appellate courts have previously held that the general practice of a majority of physicians in a given area does not constitute the standard of care. Godbee v. Dimick, 213 S.W.3d 865, 896 (Tenn.Ct.App.2006). Rather, “[t]he standard of care is determined by whether a physician exercises the reasonable degree of learning, skill, and experience that is ordinarily possessed by others of his profession.” Id. (quoting Hopper v. Tabor, No. 03A01-9801-CV-00049, 1998 WL 498211, *3 (Tenn.Ct.App. Aug. 19, 1998). Dr. Polow’s testimony concerning her understanding of the standard of care calls into question the reliability of her testimony regarding the applicable standard of care.

The Court of Appeals acknowledged that the admissibility of Dr. Polow’s testimony was a close question. Given the issues discussed above, the Court of Appeals did not find that the trial court abused its discretion in excluding Dr. Polow’s testimony.

Testimony of Gregory P. Stevens, P.A.

The other expert identified by the plaintiffs was Gregory Stevens, a physician’s assistant. In excluding Mr. Stevens’ testimony, the trial court stated:

The problem with his proof, in my mind, is that he just has not demonstrated any knowledge of what a Tennessee nurse practitioner should be doing under these circumstances. I do not see how he could address the issue of breach of the standard of care if he really doesn’t know what the parameters are within which nurse practitioners work. He’s not familiar with the medications that were given. His testimony on issues like causation, I would say in the least, are not particularly helpful to the plaintiffs.

The trial court was asked to disqualify Mr. Stevens as an expert witness based upon his deposition testimony. Thus, unlike with Dr. Polow, the plaintiffs would have had the opportunity to cure some deficiencies in Mr. Stevens’ deposition testimony at the hearing-for example, the failure to establish a similarity between his community of practice and Lincoln County, Tennessee. The Court of Appeals found, however, that Mr. Stevens’ testimony failed to show he was competent to testify as to the standard of care for nurse practitioners.

The Court of Appeals started by noting that, without the testimony of Dr. Polow, the plaintiffs likely could not have proven causation. Courts have previously held that “[a] nurse is not an expert who can testify as to medical causation.” Hinson v. Claiborne & Hughes Health Ctr., No. M2006-02306-COA-R3-CV, 2008 WL 544662, *5 (Tenn.Ct.App. Feb. 26, 2008) (no Tenn. R.App. P. application filed). TENN.CODE ANN. § 29-26-115(b) requires testimony from a licensed health care professional who has practiced in a profession or speciality “which would make the person’s expert testimony relevant to the issues in the case.” As discussed in Richberger v. West Clinic, P.C.., a nurse is prohibited by Tenn.Code Ann. § 63-7-103(b) from making a medical diagnosis and, therefore, he or she lacks the expertise to testify as to causation. Richenberger, 152 S.W.3d 505, 511 (Tenn.Ct.App.2004). Since a physician’s assistant may only render diagnostic or therapeutic services under the “supervision, control and responsibility of a licensed physician,” there is considerable doubt that a physician’s assistant would be competent to testify as to causation. TENN.CODE ANN. § 63-6-204(b).

Even apart from the lack of evidence of causation, however, the Court of Appeals found no abuse of discretion in the trial court’s decision to exclude Mr. Stevens’ testimony. As discussed above, TENN.CODE ANN. § 29-26-115(a) requires that the expert be familiar with “[t]he recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community.” TENN.CODE ANN. § 29-26-115(b) requires that the expert be licensed to practice “a profession or specialty which would make the person’s expert testimony relevant to the issues in the case.”

Mr. Stevens testified that he had been a physician assistant in the emergency department of Hutcheson Medical Center since 1995. He had also moonlighted at Erlanger in the emergency room and urgent care facility, but his urgent care experience occurred after 1997. Mr. Stevens acknowledged that he was not familiar with the medications prescribed by Nurse Schutt for Mr. Bates and that he could not offer any criticism of her choice of medications: “It’s hard for me to make any type of criticism with my limited knowledge of starting people on those medications.” Mr. Stevens went on to state that, during his career, he had probably started a patient on anti-hypertensive medications about five times.

Mr. Stevens also testified as to his lack of knowledge concerning the acceptable practices of a nurse practitioner, particularly in Tennessee:

Q. What is your understanding of what a nurse practitioner in the state of Tennessee can do in terms of scope of permissible practice?

A. I couldn’t say.

Q. Okay. Have you done any research to look into that as part of your workup in this case or not?

A. No, I have not.

Q. So you work with nurse practitioners at the urgent care clinic?

A. I don’t really work with them. They work there.

Q. And do you know if the nurse practitioner at the urgent care clinic, are they limited in any way as to what their practice parameter is, or do you know?

A. I do not know.

Q. Okay. And the same question with respect to the nurse practitioner that worked in the ER at Erlanger, do you know what the limitations on them are?

A. I can’t imagine that there would be much in the way of limitations to be able to practice there.

Q. Do you know what prescriptive privileges nurse practitioners in Tennessee are allowed to have?

A. As far as it pertains to the schedule of narcotic and their ability to write that, I don’t know. I think that their scope is much broader and they have the ability to do that. I don’t know what it is in particular. I know that it’s very limited in the state of Georgia. I don’t know that they even have that privilege.

Q. And what is your understanding of how [Nurse Schutt] is supposed to operate with respect to that requirements of this protocol; can you say or not?

A. I can’t say. I don’t know if she can deviate from the protocol. I don’t know how strict the protocol is as to her scope of practice.

Q. How much judgment she can use?

A. Exactly.

Q. To get outside or to stay in?

A. That’s correct.

Q. You just can’t address that today?

A. I cannot address that. All I can say is what I believe I would have done.

Q. Okay. But you function as a PA, we know that?

A. Yes, that’s correct.

Q. You don’t practice as a nurse practitioner?

A. That is correct.

Q. And it sounds like you’re saying that you understand that nurse practitioners practice with these specific parameters that are set forth, correct?

A. Correct.

Q. And as to how much deviation or room they have to operate within, you just can’t address that?

A. No, I cannot.

Q. Because you’re just not familiar enough with what a nurse practitioner does?

A. In this setting.

Based upon this testimony, it did not appear that Mr. Stevens was sufficiently familiar with the standard of care for a nurse practitioner to provide relevant testimony. See Eckler v. Allen, 231 S.W.3d 379, 387 (Tenn.Ct.App.2006) (stating that the expert need not practice in the same specialized field but must be sufficiently familiar with the standard of care in the specialty to give relevant testimony). Moreover, the testimony of a medical expert as to what he or she would have done does not establish the standard of care. Jennings v. Case, 10 S.W.3d 625, 632 (Tenn.Ct.App.1999); Roddy v. Volunteer Med. Clinic, Inc., 926 S.W.2d 572, 578 (Tenn.Ct.App.1996). Thus, the Court of Appeals concluded that the trial court did not abuse its discretion in excluding the testimony of Dr. Polow and Mr. Stevens.

It appears that these experts were somewhat lukewarm in their opinions. Lands v. Barnes demonstrates the narrow margin of error for meeting the strict requirements of the Locality Rule.

1. While an employee, your client purchases a disability policy through his employer. He paid about $3 per month out if his check for this coverage.

2. The Policy provides short term benefits (24 months) in the event a worker becomes disabled, i.e., unable to earn more than 80% of an indexed pre-disability income. The policy provides long term benefits in the event a worker becomes disabled, i.e., unable to earn more than 60% of an indexed pre-disability income.

3. Your client makes a claim for short and long term disability payments through the policy. He received $330 per week for six months during the short term disability period. He receives $2,061 per month from 06/30/06 to age 65 during the long term disability period.

4. The Policy has an explicit subrogation provision. The Policy provides that the carrier is subrogated, “Against a third party whose act or omission caused the Disability for which we are paying you benefits for lost income.” The Policy reduces benefits payable by “Social Security benefits, the amount of any lump sum judgments or settlements you receive representing or compensating for your loss of income.”

5. The Claims Specialist for the carrier notifies your client in writing before trial of its intent to enforce its subrogation rights.

6. Your client receives $1,400 per month in Social Security benefits.

7. Your client faces sobering financial facts. In the event of a settlement or judgment, he owes the carrier $8,250 ($330 x 25 weeks STD) plus $49,464 ($2,061 x 24 months LTD), for a total of $57,714. In addition, he may lose his future LTD completely in the event of a settlement or judgment, regardless of the amount, per the offset provision of his Policy.

What do you do?

Collateral source payments are usually admissible in a medical malpractice action. The General Assembly abrogated the collateral source rule in medical malpractice cases only to a certain extent:

In a malpractice action in which liability is admitted or established, the damages awarded may include (in addition to other elements of damages authorized by law) actual economic losses suffered by the claimant by reason of the personal injury including, but not limited to cost of reasonable and necessary medical care, rehabilitation services, and custodial care, loss of services and loss of earned income, but only to the extent that such costs are not paid or payable and such losses are not replaced, or indemnified in whole or in part, by insurance provided by an employer either governmental or private, by social security benefits, service benefit programs, unemployment benefits, or any other source except the assets of the claimants or of the members of the claimant’s immediate family and insurance purchased in whole or in part, privately and individually. TENN.CODE ANN. § 29-26-119.

Culled to its essence, the statute provides Defendants a credit for services “paid or payable…by any other source.” The statute seeks to prohibit injured parties from making a double recovery by reducing a plaintiff’s recovery by the amount of benefits paid by employer-provided insurance. Nance v. Westside Hosp., 750 S.W.2d 740, 742 (Tenn.1988).

Insurance payments are inadmissible when there is a right of subrogation. Excluded from the statute’s abrogation of the collateral source rule are payments made where the insurer has subrogation rights. Id. at 743. Where the patient must repay the insurer out of any damages recovered, the insured gets no double recovery. Hughlett v. Shelby County Health Care Corp., 940 S.W.2d 571, 574 (Tenn.Ct.App.1996). The patient’s losses have not been “replaced or indemnified” (1) where a right of subrogation exists or (2) where the patient has a legal obligation to repay the collateral source payer, Richardson v. Miller, 44 S.W.3d 1, (Tenn.Ct.App.2000). Therefore, the patient may prove her losses when the insurer asserts a right of subrogation, and the physician gets no credit for the collateral source payments. Id. at 32.

The Policy is clear. The carrier has a right of subrogation. The carrier has asserted its right of subrogation. There is no prospect of a double recovery. Your client must pay any proceeds from a recovery to the carrier. The repayment is co-extensive with the disability payments already made. Moreover, the proceeds from any recovery will be offset against future disability payments. Under the plain language of the statute, these losses are not “replaced or indemnified.” The Supreme Court does not allow a defendant credit in medical malpractice cases for insurance payments when there is a right of subrogation. Therefore, the Court should exclude any evidence of past and future disability payments to your client.