Kelly on Malpractice

There is still some misunderstanding about when an expert who practices in a different specialty may testify about defendant’s standard of care. This issue arises frequently. Modern medical practice involves doctors from differing specialties treating the same types of medical conditions. For example, interventional radiologists and gastroenterologists perform liver biopsies. Psychiatrists and neurologists treat epilepsy. Vascular surgeons and general surgeons install arterial bypass grafts. The examples are too numerous to mention here. The point is that you often find an expert from another specialty perfectly suited by experience and training to offer standard of care opinions about the defendant physician. Suppose you are faced with the motion in limine, from either the plaintiff or defendant, to exclude your expert’s standard of care opinions because he practices in another specialty? What is the legal standard? I have devoted this entire newsletter to resolving that issue.

Under Tennessee law, an expert from a different specialty can testify about the applicable standard of care for the defendant. The key question in these situations is whether the expert is sufficiently familiar with the standard of care of the defendant’s specialty to make his testimony relevant to the issue in question. Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987); Goodman v. Phythyon, 803 S.W.2d 697, 702 (Tenn.Ct.App.1990). That is the legal standard. An expert may be “sufficiently familiar” with the standard of care from another specialty to make his opinion relevant on an issue common to both specialties. Cardwell, 724 S.W.2d at 754. The medical malpractice statute only requires the expert to be “familiar” with the recognized standard of acceptable professional practice a/k/a the standard of care. TENN. CODE ANN. § 29-26-115(a). Familiarity comes from experience. You must determine before retaining the expert whether he has personal experience treating the relevant medical condition or whether he has experience working with specialists like the defendant to treat a patient like the plaintiff.

Searle v. Bryant, 713 S.W.2d 62 (Tenn. 1986) is the seminal case. In Searle, the patient developed an infection of her surgical wound. To treat this infection, the defendant surgeon drained it and applied an antiseptic medication. The defendant then discharged the patient. That same evening, the patient was admitted to the hospital with complaints of abdominal pain. The patient later developed an infection of the surgical wound, and she was left with a much larger and more unattractive scar than she would have had if she had received proper care. The patient sued the defendant surgeon alleging that he (1) failed to administer pre-operative antibiotics; (2) made an improper choice of post-operative antibiotic; (3) failed to culture the surgical wound in order to determine the proper antibiotic to administer; and (4) discharged the patient with a draining wound. The patient’s expert was an infectious disease specialist from Vanderbilt named Dr. Stratton. He was not a surgeon like the defendant. The defendant moved to strike Dr. Stratton’s opinion at trial, arguing that he was not competent to comment on the standard of care applicable to a surgeon. The trial court agreed with the defendant and struck the trial testimony of Dr. Stratton.

On appeal, the Supreme Court reversed the trial court’s finding that Dr. Stratton was not competent to testify. The Supreme Court rejected the defendant’s argument that Dr. Stratton, a non-surgeon, could not testify about the standard of care applicable to a surgeon. In so doing, the Supreme Court declared:

We likewise find the argument that only a surgeon was competent to testify as to the recognized standard of acceptable professional practice to be without merit. The statute contains no requirement that the witness practice the same specialty as the defendant. The issue at trial was whether the defendant’s performance in attempting to prevent the surgical wound infection and in treating it after it developed was negligent. Dr. Stratton stated that he was familiar with the applicable standards of surgeons in the prevention and treatment of surgical wound infections, and his testimony supports that statement. His expert testimony was, therefore, relevant to the issues in the case. For that reason, he was competent to testify as to those standards, even though he was not himself a surgeon (emphasis added).

It is manifest that an expert who practices in another specialty may testify about the defendant’s standard of care. Searle has been the prevailing law on this subject for over 20 years. Searle is not the only case where an expert from another specialty was allowed to testify about the defendant’s standard of care. See Stokes v. Leung, 651 S.W.2d 704, 706 (Tenn.Ct.App.) (admitting a psychiatrist’s opinion regarding the standard of care for an internist because the medical issue at issue was common to both specialties); Ledford v. Moskowitz, 742 S.W.2d 645, 647-48 (Tenn.Ct.App.1987) (admitting a neurologist’s opinion regarding the standard of care for a psychiatrist because they see the same type of patients and prescribe the same type of medication at issue in the case).

However, you must also beware of cases where an expert from another specialty was held incompetent to testify. For instance, in Brown v. Kudsk, 1998 WL 34190563 (Tenn.Ct.App.) the court excluded the testimony of an endocrinologist who was critical of the care from the defendant surgeon. In Brown, the endocrinologist admitted that she was not familiar with the standard of care for a surgeon. If your expert cannot say she is familiar with the defendant’s standard of care, then you should not retain her. This matter must be resolved long before expert discovery. In Whittemore v. Classen, 808 S.W.2d 447 (Tenn.Ct.App.1991), the court excluded the testimony of a radiologist regarding the standard of care applicable to a surgeon. In Whittemore, the radiologist was never asked – and did not testify – as to the standard of care for a surgeon. In Johnson v. Pratt, 2005 WL 1364636 (Tenn.Ct.App.), the court excluded the testimony of a radiologist regarding the standard of care for a surgeon on the issue of informed consent. In Johnson, the radiologist did not know the medical community where the defendant surgeon practiced. I cannot understand such a profound mistake. Furthermore, the radiologist did not explain why or how he was familiar with that standard of care for a surgeon. The plaintiff’s counsel should not have retained this expert. Finally, in Carmichael v. Bridgeman, 2000 WL 124843 (Tenn.Ct.App.), the court held that a pathologist could not testify about the standard of care for a family practitioner. The Court of Appeals found that the pathologist’s laboratory diagnosis was far more limited to the “universe of diagnoses” faced by the family practitioner. I think that the holding in Carmichael is confined to its facts given the limited scope of clinical pathology in the lab. Nevertheless, it is incumbent upon you to educate your expert about Searle and its progeny. Your expert should be able to testify that he practices within the same medical “universe” as the defendant when it comes to the medical condition at issue. This will pass the Searle test.

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