Tennessee Medical Malpractice Law Blog

The Western Section Court of Appeals ruled on an informed consent medical malpractice case today, affirming the exclusion of the plaintiff's standard of care expert witness for failing to comply with the locality rule. The out-of-state expert relied, in part, on surveying other speciailists in the community and around the State of Tennessee to demonstrate what the standard of care required. The Court of Appeals rejected this approach as a proper basis for knowledge of the standard of care, saying:

Defendants assert that knowledge gained by surveying other physicians and not by personal
or firsthand experience is not sufficient under § 29-26-115(a)(1). They submit that a non-expert could survey physicians in a community if the mere collection of data could constitute knowledge. Defendants assert the statute requires personal, firsthand, or direct knowledge of the applicable standard by an expert who practices in the community or in a similar community. We agree.

Knowledge of or familiarity with the standard of care, particularly with respect to informed
consent, does not require that the plaintiff’s expert practice in the same specialized field as the defendant. Johnson, 2005 WL 136436, at *9. It does, however, require that the expert be
sufficiently familiar with the standard of care in the specialty to provide relevant testimony. Id.
Under Tennessee Code Annotated § 29-26-115(a)(1), knowledge of the applicable standard of care must be either firsthand knowledge of the standard of care by one who practices in the community in which the defendant practices, or firsthand knowledge by one who practices in a community demonstrated to be similar to that of the defendant.

The case is Eckler v. Dr. Lee Allen.  It's also worth taking a look at John Day's earlier post on Day on Torts about a case in which the Florida Supreme Court decided that an expert cannot "conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care."

Tennessee Rule of Civil Procedure 32.01(3) provides that, a party’s “discovery” deposition of another party’s expert witness is inadmissible except to impeach the same expert at trial.   There are a few exceptions to this Rule, however.  One important exception is that the rule is limited to admissibility at trial of a withdrawn expert’s deposition testimony. Tenn. R. Civ. P. 32.01(3). Thus, a withdrawn expert witness’s deposition testimony may be considered by the court at any other stage in the proceeding, including a summary judgment motion.  Take a look at Dial v. Harrington, 138 S.W.3d 895, 899 (Tenn. App. 2003), appeal denied (March 20, 2004), for some additional insight.

John Day posted on Day on Torts about an expert witness who sued three doctors and the Florida Medical Association. The lawsuit stems from a disciplinary proceeding alleging that the expert's testimony in a medical malpractice case against the three doctors fell below reasonable professional standards. Read more details over on Day on Torts.

Over on our firm's Tennessee Business Litigation blog, James Streett posted about the admissibility of expert testimony in diversity cases. The leading case that he points to is a Sixth Circuit Court of Appeals case dealing with competency of an expert witness in a diversity case applying the Tennessee Medical Malpractice Act, Legg v. Chopra. A good case to keep in mind if you've got an out-of-state patient and the potential for filing in or removal to federal court.

The Court of Appeals for the Middle Section of Tennessee reversed a summary judgment for a defendant doctor on Monday, saying the trial court erred in refusing to allow the plaintiff more time to marshal proof in opposition to the motion and in failing to consider additional evidence presented by the plaintiff on a motion to alter or amend.

In Grisham v. McLaughlin, the defendant orthopedic surgeon filed a motion for summary judgment supported by his own affidavit. The short version of a long procedural history is that the hearing was postponed until after the doctor could be deposed, but was then set for a hearing 15 days after the deposition. The Court of Appeals noted that left the plaintiff with fifteen days to (1) obtain a transcribed copy of the doctor's deposition from the court reporter, (2) obtain the doctor's signature on the deposition, (3) provide the plaintiff's standard of care expert with a copy of the dcotor's deposition, and (4) obtain and file her expert’s affidavit opposing the motion for summary judgment. For these reasons, the Court of Appeals ruled that the trial court erred in denying the plaintiff's motion for an extension to respond to the summary judgment motion, and also erred in denying the plaintiff's motion to alter or amend the judgment after providing the court with a standard of care expert's affidavit. Note the text in footnote 4:

We find nothing unreasonable or extraordinary in the notion that a patient in a medical malpractice case might desire to depose a defendant before responding to a summary judgment motion. It is quite conceivable that careful experts will withhold rendering an opinion based on medical records or supporting affidavits alone.

This is a response brief to a motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case for the drowning of a three-year-old boy to testify regarding the present value of the child's loss of earning capacity. Obviously, with a child so young there is very little empirical evidence to establish the child's likely career path. The economist was asked, then, to simply address the likely present value of the child's earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We then prepared to prove the child's likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today's dollars. The Defendants moved to exclude the economist's testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist's original report did not include a deduction for personal maintenance expenses, which the Defendants' termed as "mandatory" under the Tennessee Supreme Court's holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

Download file

The Court of Appeals for the Middle Section has released a new opinion of the application of the locality rule - and this time used it bar testimony by two witnesses offered on behalf of the defendant. Read about it here at www.dayontorts.com.

For information on Rule 702 and the Daubert opinion check out this website. It offers links to federal and state court opinions and a wealth of other information on these issues.

The October 27, 2005, opinion of the Tennessee Supreme Court in Brown v. Crown Equipment Corporation discusses use of the McDaniel factors in determining whether an expert's opinions should be admitted into evidence. The Supreme Court explained that an expert witness' testimony should not necessarily be excluded based upon the outcome of the application of the McDaniel factors. The Court recognized that, for some expert opinion, the McDaniel factors do not provide a reasonable measure of the reliability of the expert's methodologies. This is definitely a case to read.

You may want to consider filing a motion early in your medical malpractice case asking the court to set a limit on the number of expert witnesses who may be disclosed by the opposing party. Let me give you an example.
A few years ago we represented an infant who suffered brain damage at birth. The family had limitted resources, and needed those resources to care for the infant and other children. The lawsuit which arose from the infant's injury involved four defendant doctors, the doctors' medical groups, and two major hospitals. Early in the litigation the defendants indicated their intent to disclose more than thirty-seven experts in the case. The cost to the plaintiffs of discovery depositions alone of these thirty-seven or more experts would have been astronomical. Therefore, we filed a motion asking the court to limit the number of expert witnesses identified by each party. Specifically, we proposed that the trial court limit(1) the number of non-party obstetrical expert witnesses to one per defendant and (2) the number of expert witnesses in other medical specialties to two, per defendant, per specialty.
We relied on Rule 16 of the Tennessee Rules of Civil Procedure which authorizes the trial court, upon motion, to take pretrial action to: “(1) expedite the disposition of the action . . . [and] (3) discourage wasteful pretrial activities.” The court is authorized pursuant to Rule 16.03 to take action with respect to: “(3) . . . advance rulings from the court on the admissibility of evidence, (4) the avoidance of unnecessary proof and of cumulative evidence. . ., (10) the need for adopting special procedures for managing . . . multiple parties. . ., and (11) such other matters as may aid in the disposition of the action.”
The trial court declined to put an outright limit on the number of experts disclosed by each party but did give us an order providing that, should any Defendant identify as experts more than one non-party obstetrical expert witness and/or more than two expert witnesses in each other medical specialty per defendant, that Defendant would be required to pay the court reporter fee, transcript fee and any expert witness fees associated with the Plaintiffs’ efforts to take a discovery deposition of the additional expert witness(es).

Say a defendant's expert witness testifies that the expert doctor actually does what the plaintiff says is required by the standard of care. The expert doctor goes on to say, however, that the expert does not think it is required by the standard of care; it's just that the expert witness goes above and beyond the norm. You should be allowed to impeach the expert using his or her own personal practices to contradict the expert's definition of the standard of care.

This is a brief in response to a motion in limine where the defendant sought to prevent any testimony from expert witnesses on what he or she does under the circumstances. Download file. The research is helpful for a bench brief when getting ready for trial if the issue has not already been raised by motion. If you would like a copy of the original to cut and paste into a bench brief, email me.

The Middle Section Court of Appeals ruled yesterday that the locality rule does not require an expert witness to testify that that she is aware of how other physicians in the defendant's community actually practice. The doctor in the case even testified that the demographic information he reviewed regarding the defendant's community did not influence his opinions in the case.

You must be able to establish that the doctor is familiar with the standard of care in a similar community, not necessarily that the doctor is familiar with the standard of care in the exact same community. You only need to put on proof that the expert witness practices in a similar community and knows the standard of care in her own community. The Court said:

We have never held that a plaintiff’s expert must be familiar with the actual standard of professional practice in the defendant’s own community in order to be able to testify that the defendant’s community is similar to another community with which the expert is familiar. To do so would contradict the express wording of the statute. Therefore, the trial court erred by applying an incorrect legal standard in determining the admissibility of Dr. Abrams’s testimony.

Ada Travis v. Blaise Ferraraccio.

Under the Bearman Rule of Tenn. R. Civ. P. 32.01(3), a discovery deposition of an expert witness cannot be used at trial except to impeach the same witness at trial.

Say the defendant discloses 3 expert witnesses on the same topic. Each expert is deposed, and the 3 witnesses do not agree on critical subjects in the case. They read each other's deposition testimony. When it's time for trial, lo and behold, the defendant only wants to use the best witness.

Can you ask the testifying expert witness about the opinions of the withdrawn experts? According to Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn.App., 1994), you can. The trial judge should give a limiting instruction on the difference between impeachment and substantive evidence, but other than that, it is generally an appropriate subject of impeachment.

One sentence from the Court of Appeals that is vital to being able to adequately cross an expert:

We are of the opinion that full cross-examination of an expert can not and should not be curtailed simply by having the expert deny that he relied on any materials he reviewed and considered with which he disagrees.

I ran into the link to this article from Medical Economics magazine over at the Illinois Trial Practice Weblog. The article is essentially a prep sheet for doctors sued in medical malpractice cases. It goes through a list of generic medical malpractice deposition questions, and the "suggested responses" by a medical negligence defense lawyer. It's a nice mini-insight into the defendant doctor's deposition prep, and a reminder of the type of questions they are expecting you to ask.

The Sixth Circuit Court of Appeals reversed a ruling of the trial judge excluding certain experts in a medical negligence case, stating that Daubert’s role of ensuring that the courtroom door remains closed to junk science is not served by the exclusion of testimony supported by relevant experience. The Court further held the "exclusion of testimony in cases of medical experts is rarely justified as opposed to supposed experts in the area of product liability."

Click here to read the opinion.

Expert witnesses. Can't live with 'em. Can't live without 'em. Can't kill 'em.

Buy me a drink sometime and I will tell you expert witness stories that will make your head spin. Or, let me buy you a drink and I will bore you with the same stories.

But I must confess that I never had an expert I had difficulty reaching because he was in jail. That's right: jail. Read the opinion.

The Court said "[t]he fact that plaintiff's attorney chose an incarcerated health professional to determine if a meritorious cause existed and had difficulty communicating with him because of his incarceration does not amount to good cause."

I wonder why this doctor was in jail. I wonder if he was in jail when he was hired. I wonder if the lawyer knew he was in jail when he hired him. And, I wonder, wonder, wonder, wonder who, who wrote the book of love.

Thanks Evan for finding this opinion for us.