Kelly on Malpractice

A new triad of medical malpractice cases have recently come from the Court of Appeals, which refine expert competence or lack thereof. I am devoting this issue to these three new cases to show you how the contours of expert competence have changed and how to beat summary judgment. In Nabors v. Adams, 2009 WL 2182386 (Tenn.Ct.App.), plaintiff submitted an affidavit from Dr. Miklos in response to the physicians’ motion for summary judgment. Dr. Miklos stated he was familiar with the standard of care for labiaplasty in both Atlanta, Georgia and Memphis, Tennessee. Defendants pointed to the following passage in Dr. Miklos deposition to show that he did not pass the locality rule:

Q: Is there a national standard of care for the performance of labiaplasty?
A: I just never heard it put that way, national standard of care. I didn’t know there was a big discrepancy.
Q: Well, would you testify differently about the standard of care in Florida for the performance of a labiaplasty than in Memphis, Tennessee?
A: I can’t imagine I would, but, you know, I’m just trying to make sure that I don’t–I just understand what you’re saying.
Q: Do you know–tell me what you know about the Memphis medical community?
A: Nothing.
Q: Have you ever been to any hospitals in Memphis?
A: No.
Q: Do you know any plastic surgeons in Memphis?
A: No.
Q: Do you know how many ob-gyns or urogynecologists there are in Memphis?
A: No.
Q: Do you know any urogynecologists in Memphis?
A: Yes.
Q: Who do you know?
A: I believe Val Vogt is there
Q: Do you know, Doctor, any plastic and reconstructive surgeons in Memphis, Tennessee?
A: Not that I’m aware of.
Q: Do you know how many colleges there are in Memphis, Tennessee?
A: No.
Q: How many hospitals there are?
A: No.
Q: How many hospitals are there in Atlanta?
A: I don’t know.
Q: How many colleges are there in Atlanta?
A: I don’t know.
Q: How many urogynecologists are there in the Atlanta area?
A: Anybody who wants to call themselves one.
Q: Do you know anything at all, Doctor, about the services or specialities that are available in Memphis, Tennessee?
A: No.

Plaintiff filed a Rule 59.04 motion to alter or amend. The motion included the supplemental affidavit of Dr. Miklos. In this affidavit, Dr. Miklos recited facts about the medical communities (e.g., number of hospitals, estimated population) of Atlanta, Georgia and Memphis, Tennessee. With this new information, Dr. Miklos concluded that Memphis and Atlanta were similar communities with regard to the standard of care for a labiaplasy. The trial court considered the information provided in Dr. Miklos’ supplemental affidavit but found he still did not qualify as an expert under the locality rule. The Court of Appeals disagreed. Dr. Miklos passed muster by comparing the medical statistics of Memphis with Atlanta. This was crucial to defeating the defendant’s motion.

In McDaniel v. Rustom, 2009 WL 1211335 (Tenn.Ct.App.), plaintiff filed a medical malpractice action against a pediatrician who worked in an emergency room. This was an emergency room case. However, the plaintiff retained an internist, Dr. Marks. He admitted that he had never practiced as an emergency room physician and that he had not worked in an emergency room since his residency. Counsel for Dr. Rustom then questioned Dr. Marks as to his familiarity with the standard of care as follows:

A. Well, I’m no[t] claiming to be an emergency room physician, or know the standard of care for an emergency room physician for the care of a patient with an emergent condition, emergency condition. But Shantel did not have an emergency condition, so I’m perfectly able to speak on the management of her case. Yes.

This was a fatal admission. There was no way for Dr. Marks to offer an opinion about the standard of care for an emergency room physician. The Court of Appeals affirmed the summary judgment. The key here is that you don’t have to hire an expert from the same speciality so long as the expert witness demonstrates “sufficient familiarity with the standard of care” of the defendant’s profession or specialty and is able to give relevant testimony on the issue in question.” Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn.1987). Dr. Marks didn’t, so the case was dismissed.

The final medical malpractice case in the triad is Lane v. McCartney, 2009 WL 2341536 (Tenn.Ct.App.), where the plaintiff tendered the following affidavit in opposition to a motion for summary judgment:

I have reviewed and compared the U.S. Census Bureau population statistics and demographic profile highlights for Johnson City, Tennessee and Harrisonburg, Virginia. Both Harrisonburg, Virginia and Johnson City, Tennessee are small, but growing urban metropolitan areas located in larger rural areas in the Appalachian mountain chain. Geographically they are similar. The population and social characteristics for Johnson City, Tennessee and Harrisonburg, Virginia are most similar and are identical in many categories…. The size of the hospitals in both communities is similar. Both hospitals are mid-size community hospitals. Johnson City Medical Center has 443 beds and Rockingham Memorial Hospital in Harrisonburg, Virginia has 270 beds. Both hospitals have helicopter service. Rockingham Memorial Hospital offers the same range of specialities and subspecialities regarding women’s health as listed on Johnson City Medical Center’s website. Gynecologic surgery, which is what is at issue here, is offered at both hospitals. Rockingham Memorial Hospital offers a Family Birth Center similar to that described on the Johnson City Medical Center’s web site.

The Court of Appeals found this testimony was sufficient to meet the locality rule. The Court of Appeals also said that TENN.CODE ANN. § 29-26-115 requires only that a plaintiff show that the plaintiff’s expert knows the standard of care in a community that is similar to the community in which the defendant practices. A plaintiff is free to introduce other evidence, including the testimony of other witnesses, in order to make the requisite showing that the two communities are similar. This means you can use hospital experts and demographic experts to show similarity. This may be a good thing if you have trouble establishing similarity.

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