David Randolph Smith

Expert Witnesses in Medical Malpractice Cases.

A Dec. 21, 2003 New York Times article notes increasing efforts in medical associations to deter physicians from testifying as experts and a movement in states to limit doctors to testify only in their field of speciality.

The Tennessee Court of Appeals recently decided a case on just this issue. Bravo v. Sumner Regional Health Systems, Inc., 2003 WL 22927143, (Tenn.Ct.App., December 23, 2003). The case involved an Atlanta gynecologist who had not practiced obstetrics in several years but offered opinion testimony on the standard of care of an obstetrician. The Court noted: " [First,] [t]he affiant must demonstrate that he or she meets the geographic and durational residence and practice requirements. Second, the affiant must demonstrate that he or she practices in a profession or specialty that makes the affiant's opinion relevant to the issues in the case. Third, the affiant must demonstrate that familiarity with the recognized standard of professional practice in the community where the defendant practices or in similar communities. Fourth, the affiant must give an opinion concerning whether the defendant physician met or failed to meet the relevant standard of professional practice. Finally, the affiant must opine whether the defendant physician's negligence more likely than not caused the patient injuries that he or she would not otherwise have suffered.Church v. Perales, 39 S.W.3d 149, 166 (Tenn.2000).Clearly, then, the trial court's statement of the standard in this case was erroneous; it is not necessary for the proffered expert to have practiced the same specialty as the defendant during the year preceding the date of the occurrence. Rather, it is required that he practice in a profession or specialty "which would make the person's expert testimony relevant to the issues in the case" during the year preceding the occurrence. Tenn.Code Ann. § 29-26-115(b); See Ledford v. Moskowitz, 742 S.W.2d 645, 647 (Tenn.Ct.App.1987)."

In Keylon v. Hill, 2003 WL 22927143 (Tenn. Ct. App., Dec. 11,2003) the Court appeals reversed a directed verdict for the doctor (based on the locality rule) and chastised the defense counsel (Heidi A. Barcus and James Harry London, Knoxville, Tennessee): "At the outset, we note that the Appellee's brief takes undue liberties with the art of advocacy by the mischaracterization of testimony and the non- contextual recital of selected segments. The difficulties attendant upon such practices are self-evident and the practice is never productive." The Court found that the locality test was met and approved this "qualifying testimony": " I commonly treat patients for stroke. I commonly receive referrals of stroke patients from primary care doctors, hospitals and emergency rooms located throughout the East Tennessee community, including Knox County, Roane County, Cocke Count Cumberland County, Hamblen County, Loudon County, McMinn County, Monroe County and Sevier County. Stroke is a common medical condition that is treated by primary care doctors, hospitals and emergency rooms in East Tennessee on a regular basis. Roane, Cocke, Cumberland, Hamblen, Loudon, McMinn, Monroe, and Sevier counties are all geographically close to Knox County, all lying within 25 miles of Knox County. Roane County is contiguous to Knox County and is approximately ten miles away from the Fort Sanders Parkwest Medical Center. These counties generally have only one hospital and one emergency room, although there are two hospitals in Hamblen County and McMinn County. Populations in these counties are less than Knox County, and the hospitals are smaller and there are fewer specialists. Most hospitals in these counties, including Roane Medical Center, have MRI and CT scanning equipment. ER doctors in these hospitals commonly treat stroke patients with thrombolytics. None of these hospitals are teaching hospitals; none have medical schools. I commonly examine treatment records of stroke patients referred from these counties, and I commonly have contact with primary care doctors, hospitals and emergency rooms from these counties, including discussions of the patient's medical history and treatment received in those counties. I commonly send recommendations for treatment back to the referring physicians in the patient's home area. My contact with primary care doctors, hospitals and emergency rooms in these counties has made me familiar with the standard of care for recognizing stroke in each of these counties, including Roane County. The standard of care for recognizing stroke in each of the counties is the same. All doctors in these counties who see patients on an initial basis, including primary care doctors and emergency room doctors, must be able to recognize stroke, and are governed by this standard of care."

See also Stovall v. Clarke, 113 S.W. 3d 715 (Tenn. 2003) where the court stated:

  • "First, Dr. Uhrig did not rely upon a national standard of care, nor did he simply equate the local standard with a national standard. Moreover, although Dr. Uhrig had never practiced medicine in the State of Tennessee, he testified that he had reviewed over twenty medical charts from the State of Tennessee and had testified in three other malpractice cases in middle Tennessee. In addition, Dr. Uhrig stated in his supplemental affidavit that he had reviewed statistical information about the medical community in Williamson County, Tennessee, which included information about the medical specialists and resources available at the Williamson County Medical Center. Unlike the expert proof in Robinson, Dr. Uhrig also expressed understanding of the locality rule and explained that he had applied the locality standard of care--and not a national standard--to the facts and circumstances in this case. Moreover, Dr. Uhrig did not simply offer a vague, conclusory statement that he was familiar with the local standard but instead showed some underlying basis for his testimony. In sum, all of these factors distinguish this case from Robinson and should be considered by the trial court when determining whether an expert's testimony satisfies the requirements of Tennessee Code Annotated section 29-26-115(a)(1). Dr. Clarke, however, contends that the trial court should not have considered Dr. Uhrig's supplemental affidavit and that his statements were based on information provided several years after the alleged malpractice in this case. We are not persuaded. First, we find no error in the trial court's consideration of Dr. Uhrig's supplemental affidavit because it was filed in opposition to the defendant's motion for summary judgment before the trial court's ruling. Second, we note that Dr. Clarke's arguments essentially contest the weight of Dr. Uhrig's statements and thus misapprehend the procedural context of this case: the proper analysis with respect to summary judgment is whether the evidence, when viewed in a light most favorable to the plaintiff, raises a genuine issue as to a material fact. Accordingly, we conclude that the Court of Appeals properly held that the trial court erred in granting summary judgment to Dr. Clarke. It follows that the trial court's denial of the plaintiff's motion to alter or amend the summary judgment in favor of Dr. Clarke was also erroneous. As we have reached this conclusion based solely on the testimony and supplemental affidavit of Dr. Uhrig, we need not reach the question of whether the trial court was required to consider the supplemental affidavits in ruling on the plaintiff's motion to alter or amend as it applied to the summary judgment in favor of Dr. Clarke."