Topics
s |
Lex et Scientia Tennessee Locality Rule & Alternative Methods Jury Instruction Posted: April 11, 2009 Tennessee Pattern Jury Instruction § 6.14 Alternate Methods. provides "When there is more than one accepted method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all physicians of good standing, a physician is not negligent for selecting an accepted method of diagnosis or treatment that later turns out to be unsuccessful. This is true even if the method is one not favored by certain other physicians." T.P.I. § 6.14 is inapplicable to the issue of the prima facie case (and getting a plaintiff’s verdict) where one alternative is established by expert proof to be outside the standard of care. In Ledford v. Bradley Memorial Hosp. Not Reported in S.W.3d, 2001 WL 1448500 Tenn.Ct.App.,2001: "Where competent medical authority is divided, a physician will not be held responsible if, in the exercise of his judgment, he followed a course of treatment advocated by a considerable number of his professional brethren in good standing in his community." Gresham v. Ford, 192 Tenn. 310, 315, 241 S.W.2d 408, 411 (1951) (quoting Floyd v. Walls, 26 Tenn.App. 151, 167, 168 S.W.2d 602, 608-09 (1941)); see also Harris v. Buckspan, 984 S.W.2d 944, 952-53 (Tenn.Ct.App.1998) ("It is not a departure from the applicable standard of care for a physician to use a procedure that is but one of several procedures recognized in the profession as adequate in the treatment of the plaintiff's condition."). The plaintiffs have not shown that Dr. Johnson's decision to implant a 1/3 tubular plate violated the standard of care. " Likewise, in Click v. Mangione, Not Reported in S.W.3d, 2000 WL 897774 Tenn.Ct.App.,2000.): " It is not a departure from the standard of care for a physician to choose one of several different medically accepted courses of treatment for his patient. Harris v. Buckspan, 984 S .W.2d 944, 952-53 (Tenn.Ct.App.1998).” Thus, under these cases, Harris v. Buckspan, 984 S.W.2d 944 (Tenn.App.,1998.) and TPI 6.14 the law and instruction is cautionary-- to tell the jury that just because a doctor uses a method that is "accepted" and used by other physicians "in good standing" the doctor defendant doesn't commit malpractice just because his method is "disfavored" by certain other physicians if it is an "accepted method". If you read all case law it is clear that the law and instruction does not mean there cannot be malpractice where you have one method that the defendants says is SOC and one method that plaintiff says is not SOC. The law and instruction is simply to caution the jury (and establish as law) that merely because there are 2 accepted alternatives that is not enough to prove malpractice. The plaintiff must prove a violation of the SOC in the same or similar community. Tennessee defense attys should not be allowed to argue that this instruction = no malpractice where there are two views on SOC. The proper plaintiff’s retort to the alternate methods defense argument is: no -- we are not talking about 2 accepted methods-- we are talking about 1 method that is SOC (proven in the similar community) and one that is not SOC—that the defense position is utterly unacceptable, outside the SOC and the one that the defense wants you the jury to bless as unsafe medicine. So TPI 6.14 can be given in a case but so what? That does not make the problem go away. If the SOC established by P by expert testimony for a similar community is A (and not B) but the defense expert says SOC in D's community is B, then P has proven a violation of SOC and the method is not accepted (at least by prima facie case). The vagueness problem and due process problems are still there because if all there is proof that the SOC in the similar community (let's say GA) is A and not B. Then how can a jury say/decide SOC in a similar community was not violated. I say they can't just pick the SOC in D's community or even make a valid choice because the statute allows prima facie case in either. Juries in TN in medmal cases are really deciding cases on the basis of which expert they like and have no principled or instructed basis to decide between the differing SOCs. Under TN law as set forth in the medmal statute if P establishes D violated the SOC in the similar community there is simply no standard or instruction does for the jury decide liability where D experts say SOC in D's community was met. Another twist. Just settled a case where hosp in Nashville failed to do a test in a newborn baby case. Our expert from VA said SOC in similar VA community required the test. Experts for defense said SOC in Nashville did not require the test. Defense also had expert from NC who said test not required by SOC in NC. The medical literature, however, strongly supports the test. So if we had not settled what was the jury to do? How would they pick/decide and by what standards or instruction? We proved SOC in similar community (VA) was violated. Does jury decide what the better/more reasonable rule on SOC was? Where is that in the statute or instructions. Do they decide on the more impressive expert? Do you see my point? The statute should be used by Plaintiffs and victims as a sword—the TN legislature said a Plaintiff could win if they proved SOC violation in a similar community. Where the SOCs conflict but P proves a violation in a similar community the statute says P wins or we need a new constitutional non-vague comports with due process law that explains how the jury decides and picks between differing SOCs I between D community and the Plaintiff’s similar community. And it is pretty clear the TN medmal locality rule involves two potential SOCs.: "[The locality rule is two-pronged. The party calling an expert witness has the burden to establish the appropriate standard of care in (1) the community in which the defendant practices, or (2) a community similar to the one in which the defendant practices. Mabon, 968 S.W.2d at 831. Thus, the party's expert must be knowledgeable of one or the other to be competent to testify. Tenn.Code Ann. § 29-26-115(a)(1); Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn.2002)." Conley v. Life Care Centers of America, Inc. 236 S.W.3d 713, 742 Tenn.Ct.App.,2007. To close the loop of my thoughts. What the TN legislature probably meant to say/do is have 1 SOC provable by the D's community or a similar community. Because the law is badly written the jury is really at sea when the SOCs are different and the experts differ as to the SOC in the same versus similar community. The locality rule should be abolished and one way to do so is to attack its utter vagueness, irrationality and lack of procedural due process for victims of malpractice. Tennessee Locality Rule: The Missing Instruction & Potential New Const’l Challenge (Due Process/Vagueness)
I was sitting in a lengthy all too boring depo yesterday in Atlanta where a medmal defense atty was spending > 1 hr on the Tennessee locality rule and the issue of whether a community in GA was similar to the defendant doctor's community in TN. After what seemed interminable forays on this I objected on the grounds that the whole line of questioning was argumentative, misleading and totally irrelevant. Here’s my new, maybe, “take” on this “rule”: The statute (29-26-115) and case-law define the relevant standard of care inquiry as “The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred” (emphasis supplied). Thus, I say, it matters not a whit whether the GA MD knows MDs in the TN defendant's community, it doesn’t matter whether he’s ever been to TN, etc. If he knows the recognized standard of acceptable professional practice in his GA community and testifies based upon sufficient facts that his community is similar to the TN community that’s a prima facie case. But here’s the rub. What if the practices or standard of care are in fact different in the 2 communities? Suppose, just as a hypothetical, that surgeons in the TN community never take x-rays to confirm catheter placement but they always do in GA (and everywhere else). Suppose, another hypo, no OB/GYN in the TN community tests for group B strep but they do in similar communities in GA, KY, etc (and in fact this is reasonable and a national standard to boot). The jury needs a specific instruction that if they find the standard of care was not followed in the similar community then the defendant is liable for medical malpractice. The jury should not be allowed to choose which standard it is going to go with. Otherwise the statute is unconstitutionally vague, with no guidance or due process for decision, and permits a locality in which the defendant practices to act unreasonably and outside the similar community/reasonable standard of care for similar communities. Recall the TJ Hooper case (Learned Hand, if B<PxL then negligence). None of the tugboats in NY harbor had lights but there was still negligence because that was unreasonable. Granted the locality rule changes the common law, but it can’t do so irrationally and violation of due process or with utter vagueness. If in “the community that the defendant practices in” they do X, but in a proven similar community they do “not X” what is a jury to do? Pick? How? If the jury picks the defendant’s community (the X) the jury has rendered a verdict contrary to the statute I would say. I believe many medmal cases are lost because the TN medmal defense bar convinces a jury that the defendant did it the way they do it in their community and the plaintiff’s out of town expert doesn’t know jack about “our community”. This jingoistic BS must stop. Bottom line: we need to try the medmal cases and force the judge to explain that the Plaintiff wins if the Plaintiff proves the standard of care in a similar community was not followed, especially if different from the defendant’s community standard and if there is a conflict we should raise a due process, vagueness constitutional objection on the grounds that the law gives the jury no rational basis to choose which standard. The jury needs to receive “the missing instruction” that “if they find the standard of care was not followed in the similar community then the defendant is liable for medical malpractice.” Update: excerpt from brief on locality rule, here. Defective Chinese Dry Wall Two U.S. Senators have filed a bill seeking a temporary ban on certain Chinese-made drywall, the latest effort to address problems with Chinese-made drywall believed to be emitting unpleasant, sulfurous odors and causing unusual air-conditioner problems in homes from Florida to Louisiana. Sens. Bill Nelson (D., Fla.) and Mary Landrieu (D., La.) introduced the bill, which also asks the Consumer Product Safety Commission to conduct a study in conjunction with the National Institute for Standards and Technology and the Environment Protection Agency. They want the study to include at least 10 samples of drywall that was imported from China during 2004 through 2007 and used in residential dwellings in the U.S. The study should include at least one sample of drywall from residences located in Florida, Louisiana, Mississippi, Texas and Virginia, according to the bill's text. The bill is called the Drywall Safety Act of 2009. Reports of problem drywall first surfaced in January in Florida, where home builder Lennar Corp. is suing two Chinese manufacturers of drywall, claiming the wallboard is defective and is causing electrical problems and emitting rotten odors in dozens of homes in the state. This month, the legal battle over the imported construction material spread to Louisiana, where a couple in a suburb filed a lawsuit against certain drywall manufacturers alleging the wallboard in their house was emitting a "rotten egg" smell, causing respiratory problems and corroding electrical equipment. More . . . Assault Weapons Ban On the Table I had posted here (2005) with outrage, the shameful decision by Senate majority leader Bill Frist to allow the U.S. assault weapons ban to expire and permit gun dealers to sell these true weapons of mass destruction. Fast forward four years and now U.S. Secretary of State Hillary Clinton, in Mexico, has called for a new U.S. assault weapons ban. Mexico's president Felipe Calderone ( with U.S. officials agreeing) states that "90% of the arms used by Mexican cartels come from the U.S." Picture here. A Passage to India
Sometime in your life you become especially aware that we are on this earth with millions of other people who struggle to eke out a daily existence and yet have true happiness with no concern for wealth, the stock market or television. India is such a place. My wife and I just spent 10 days in India. Amazing place. Extreme poverty but tremendous wealth -- in the people. Here is a slideshow of our trip. Namaste. Barack Obama: The Law Student
“I went to Harvard Law School spending most of three years in poorly lit libraries, poring through cases and statutes,” Obama wrote in his memoir, “Dreams from My Father.” Over the last two years, he hasn’t dwelled publicly on his HLS days—not surprising during a campaign where the label “elitist” proved a potent political epithet. But his time at HLS had an important impact on Obama, says David Mendell, who wrote the 2007 biography “Obama: From Promise to Power.” “I don’t think you can discount how much that period helped educate him and played a big role in his development,” says Mendell, a former Chicago Tribune reporter. It was as a law student that Obama first made history—and national headlines—when he was elected the first black president of the Harvard Law Review in the spring of 1990." Read more. The Brutal Side of Fraternity Hazing In 1994 I represented a college student at Tennessee State University who had been brutally hazed as part of his initiation to a Black fraternity. His name was Wardell Pride. He was a courageous young man who broke the code of silence and exposed the very sinister and sadistic side of college hazing. His story and the case was covered by the New York Times. "Lawsuit Shatters Code of Silence Over Hazing at Black Fraternities" (New York Times, December 21, 1994). His case was settled and he has gone on to lead a happy and successful life, including playing professional tennis. Quite a different road and result for Brian Nichols. You may have read last week that Brian Nichols, the man who went on a shooting spree at a courthouse in Georgia was sentenced to prison last week (a life sentence without parole). Nichols shot and killed the Superior Court judge in his case, Rowland Barnes, and court reporter Julie Brandau, in Barnes’ courtroom. He shot and killed Fulton County sheriff’s deputy Hoyt Teasley on the street outside the courthouse, and U.S. Customs agent David Wilhelm later that night in Buckhead. In his defense his attorneys cited to his terrible childhood and to something that caught my attention and was all too familiar. Nichols had been the victim of a brutal hazing episode at a Black fraternity in college in 1990: "The witness said Nichols was subjected to brutal beatings during hazings when he was a fraternity pledge in the early 1990s at Newberry College in South Carolina. :
For more details on the legal ramifications of hazing: Read here. Law Offices of David Randolph Smith & Edmund J. Schmidt Announce Charitable Donation Program
A donation to Action Against Hunger is made by the firm from any attorneys' fees obtained by settlement or judgment. Action Against Hunger / Action Contre la Faim (ACF) is a global humanitarian organization committed to eliminating world hunger. Through integrated programs in nutrition, water and sanitation, and food security, ACF works to save the lives of malnourished children while ensuring families have access to safe water and sustainable solutions to hunger. Read more. Please donate here Yes We Did!
|
