Metropolitan Experts Can Testify About Smaller Towns
posted on October 4th, 2009 in Locality Rule, Experts, Similar Communities by clintCan an expert in a medical malpractice action who practices in a metropolitan city satisfy the locality rule when the defendant practices in a small community? The answer is “it depends.” Fortunately, there is a new case which provides guidance for resolving this tricky situation. In Plunkett v. Bradley Polk OB/Gyn Serv., P.C., 2009 WL 3126265 (Tenn.Ct.App.), the plaintiffs filed a medical malpractice action against an OB/Gyn service, the hospital, and nurses, known as “the Bradley Defendants.” The plaintiffs alleged that the defendants were negligent in providing prenatal services that caused a stillbirth. Prior to trial, the plaintiffs disclosed Dr. Ross, an OB/Gyn, as their only expert witness against the Bradley-Polk Defendants. The trial court denied the Bradley Defendant’s motion in limine to exclude Dr. Ross. However, at trial the court changed its decision and excluded Dr. Ross. Thereafter, the trial court directed a verdict for the Bradley Defendants because it found that Dr. Ross did not satisfy the locality rule. The Court of Appeals reversed and remanded, finding that Dr. Ross satisfied the locality rule. A thorough discussion of this opinion is necessary to understand how important this case is for both sides of the bar. The opinion also demonstrates how plaintiffs and defendants should prepare an expert witness to comply with the statistical requirements of the locality rule.
Dr. Ross had been continuously licensed in Virginia and Washington D.C. He had been board-certified in obstetrics and gynecology since 1981. He had never been licensed in Tennessee and has never practiced medicine in the Cleveland or Bradley County communities. To familiarize himself with those communities, Dr. Ross reviewed information about Cleveland and Bradley County. Dr. Ross was aware that Bradley Memorial Hospital was a 251-bed hospital with approximately 16 registered nurses and a total nursing staff of approximately 208. Dr. Ross reviewed the following materials to familiarize himself with this case and the Bradley County medical community: (a) Records from Bradley Memorial Hospital for [Sarah Plunkett]; (b) Records from Bradley Polk OB-Gyn Services, Inc.; (c) Deposition transcripts of Mr. and Mrs. Plunkett, Dr. Michelle Perry, [and others]; (d) U.S. Census Bureau, Profile of General Demographic Characteristics for Bradley County, Tennessee (2000); (e) Economic Report from the Cleveland, Tennessee Chamber of Commerce (2000, 2006); (f) Map of Bradley County, Tennessee hospitals and surrounding communities provided by American Hospital Directory; (g) Archived website pages for Bradley County Memorial Hospital from August 1, 2003 to June 6, 2004; (h) Bradley Memorial Hospital publication “Pulse” (August 2003); (i) Bradley Memorial Hospital Vision Statement (2004). Dr. Ross had been a clinical professor of obstetrics and gynecology at George Washington University Medical Center since 1979. The vast majority of his practice had been as a private physician who admitted and cared for his patients at a large hospital in Fairfax, Virginia. The Fairfax community was not readily comparable to Cleveland or Bradley County because of the difference in size. However, during the 2002-2004 time frame, Dr. Ross also practiced at Reston Hospital in McLean, Virginia, which is in the community where he lives, and in Warren County, which is about 40-50 miles away Dr. Ross testified that McLean was similar in population to Cleveland and similar in the number of practicing physicians and obstetricians. He also testified that the two communities were similar in that they were both within 40 to 50 miles of a major metropolitan area-Cleveland to Chattanooga and McLean to Washington D.C. Dr. Ross did not deliver babies in Warren County, but he did actively review records of obstetric patients to be sure that the dispute did not affect the quality of care provided to the patients. Dr. Ross identified literature he consulted and websites he visited to learn about Cleveland and Bradley County. He testified that the communities were similar to McLean, Virginia and Warren County, Point Royal, Virginia. On cross-examination, Dr. Ross admitted that he had never delivered babies in Warren County. Dr. Ross had never practiced outside the Washington Metropolitan area, which included city of Fairfax. The trial court found that Dr. Ross’s community was “very different than the Bradley County/ Cleveland community” and, therefore, was not a similar community under the locality rule. The issue on appeal was whether Dr. Ross could satisfy the locality rule by his familiarity with the standard of care in smaller satellite communities even though he practiced exclusively in the Washington Metropolitan area.
The Court of Appeals began its analysis with the understatement of the decade by acknowledging “the question of whether an expert is qualified under the locality rule is an area fertile with misunderstanding that often involves the tedious exercise of hair-splitting.” An expert may “connect the dots” between the standard of care in the similar community and the community where the alleged malpractice occurred. The fact that the dots must traverse from the community of practice through the similar community to the community of the alleged malpractice will not defeat the connection. Referrals from—and interaction with—medical providers in neighboring communities, combined with “a comparison of information such as the size, location, and presence [or absence] of teaching hospitals in the two communities” should suffice. See Farley v. Oak Ridge Medical Imaging, 2009 WL 2474742 (Tenn.Ct.App.). The fundamental problem with the trial court’s ruling was that upon hearing that the smaller communities of McLean and Point Royal, Virginia, were within the realm of a large metropolitan area, the trial court considered only the larger community and refused to consider the smaller communities and their similarities that Dr. Ross identified. The case law does not support the proposition that an expert with a practice centered in a large metropolitan area is disqualified to talk about a small community in Tennessee despite his involvement in similar small communities that are in or near his primary practice community. To the contrary, experts who practice in large cities have been allowed to testify that smaller satellite communities are similar to small Tennessee communities. The Court of Appeals did not agree with the trial court’s analysis since Dr. Ross testified that McLean, Virginia and Warren County, Point Royal, Virginia, were distinct communities with a separate identity despite their proximity within the Washington D.C. metropolitan area. Dr. Ross identified similarities including population, medical facilities, medical personnel, and proximity to larger medical communities. “Similarity” is all that is required because no two communities will be identical. In summary, the Court of Appeals held that the plaintiffs introduced ample evidence to show that Dr. Ross knew the standard of care at Reston Hospital in McLean, Virginia, and Warren Memorial in Warren County, Virginia. The Court of Appeals also held that the plaintiffs introduced sufficient proof that the referenced communities were similar to Cleveland, Bradley County, Tennessee, at the time of the alleged malpractice. Therefore, the trial court erred in disqualifying Dr. Ross under the locality rule.
Puckett will resolve confusion in applying the locality rule when the expert practices in a large metropolitan area.