Tennessee Medical Malpractice Law Blog

When reviewing a case with voluminous medical records, we find it helpful to create a typed chronology of medical events.  We make sure to include information in the chronology such as the name of the medical provider; the date of service; whether it was an office visit or hospital stay; the complaints voiced by the patient; the results of any physical examinations performed; what specific tests/x-rays were performed; what were the test results; what the diagnoses were at the time; what the treatment plan was; and any other information that we feel is pertinent to our case.  The most important thing to remember when creating a chronology is to make sure to bates number your medical records and include those bates numbers in your chronology so you can quickly and easily find the important information in the chart when needed.       

For cases in Tennessee state courts, Tenn. Code Ann. sec. 24-9-101 sets out the persons who cannot be subpoenaed to trial, and subsec. (6) includes practicing physicians, psychologists, senior psychological examiners, chiropractors, and dentists. If the person cannot be subpoenaed to trial, they are unavailable and their testimony is likely subject to the "former testimony" hearsay exception at Tenn. R. Evid. 804(b)(1) and Tenn. R. Civ. P. 32.01(3). Anyone else is generally available to be subpoenaed if in the geographic range of the Court, and the former testimony exception will not apply unless there is a separate basis for it.

In Federal court, on the other hand, Tenn. Code Ann. sec. 24-9-101 does not apply. Health care providers' hearsay testimony will likely not come into evidence unless they are immune from subpoena for another reason.

When sending interrogatories and requests for production of documents to medical provider defendants, make sure to always ask for information regarding the continuing medical education courses the defendants have taken during the prior few years.  Make sure to request information such as the names of the courses, when and where the courses were taken, and who provided the courses.  Additionally, ask for information regarding any courses provided by their employers.  Some medical providers and/or their employers maintain a listing of all continuing medical education courses taken by the medical provider, so you would want to request this list.  Often times the medical provider has taken courses which relate to the topics in your case.  In those instances, it is also helpful to see if the medical provider has maintained handouts from those courses and to request copies of those handouts.       

Tennessee Rule of Civil Procedure 36 is clear - a request for admission that is not responded to within 30 days after service is admitted. In a 1986 opinion, however, the Tennessee Supreme Court stated that "admissions under Rule 36 should be brought to the trial court's attention through one of three methods: at a pretrial conference where issues may be eliminated or narrowed, on motion for summary judgment (Rule 56, T.R.C.P.), or by specific motion dealing with the requested admissions." Tennessee Dep't of Human Servs. v. Barbee, 714 S.W.2d 263, 266 (Tenn. 1986). The Supreme Court ruled: "Under the highly unusual circumstances of [Barbee], in order to be certain that the failure to respond would be binding on the Defendant so that Plaintiff need not prepare evidence for trial on the issue involved, Plaintiff should have sought an order deeming the issues to be admitted." Id. at 267. 

In light of Barbee, we generally file motions or otherwise bring to the Court's attention a party's failure to respond to requests for admissions, rather than relying on the failure to respond standing alone. Here is an example of a form memorandum of law in support of a motion to rely upon unaddressed requests for admission:

Download file

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.

In many cases we file a motion to strike portions of the defendant's answer because it falls short of the requirements of pleading under Tennessee law. The most common concern we have is a comparative fault defense that does not actually identify the person (or persons) that the defendant intends to blame. Tennessee law is clear on this point: a defendant cannot attribute fault to a nonparty who is not sufficiently identified to allow the plaintiff to plead and serve process on the nonparty under Tenn. Code Ann. sec. 20-1-119. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 786 (Tenn. 2000).  This rule is vital to plaintiffs - who need a specific allegation against a nonparty in order to invoke the 90 day rule of T.C.A. 20-1-119 - and to courts - who need to balance their dockets by having a definite cutoff where all the potential parties are in the case.

We generally try to enforce the rule by filing a timely motion to strike if a defendant's answer says the defendant wants to rely on comparative fault to reduce the plaintiff's damages, but does not actually name any alleged tortfeasors (or their alleged negligent acts and/or omissions). Here is one example of a Memorandum in Support of a Motion to Strike we used in a recent case. Download the file here.

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

Both houses of the Tennessee General Assembly have now passed the proposed amendments to Tennessee's rules of procedure and evidence. These amendments will take effect on July 1, 2006. To review the amendments visit the website of the Administrative Office of the Courts.

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.

When deposing a doctor or other medical professional that I expect to see again testifying at trial for the defense I often take the time to inquire as to what medical journals or texts that professional reviews on a regular basis. You would be surprised how often one or more of those sources have included recent articles on the very subject matter of the case, and often the content of the article is consistent with the plaintiff's position in the case. This article or text may then be something to talk about on cross examination. If you haven't tried this, you might want to consider it.

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).

The Tennessee Medical Malpractice Act's three year statute of repose on filing lawsuits has an exception "where there is fraudulent concealment on the part of the defendant." Basically, a defendant cannot actively prevent the plaintiff from learning about the defendant's wrongdoing, then dodge a lawsuit because the plaintiff did not file in time. The Tennessee Supreme Court described the requirements of the fraudulent concealment exception in Shadrick v. Coker, a 1998 opinion:

(1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) that the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) that the defendant had knowledge of the facts giving rise to the cause of action; and (4) that the defendant concealed material facts from the plaintiff by withholding information or making use of some device to mislead the plaintiff, or by failing to disclose information when he or she had a duty to do so.

The Supreme Court in Shadrick put the burden on the plaintiff to prove the exception, presumably after the defendant has satisfied its own burden of proving the statute of repose as an affirmative defense.

As an attorney investigating a Tennessee medical malpractice claim, it is wise that you track your efforts to obtain an expert. Once you begin to get the idea that you may need to request exemption from Tennessee's contiguous state rule for testifying medical experts (T.C.A. 29-26-115(b))it is imperative that you do so. Most likely, in order to be exempted, you will be required to provide detailed information regarding your efforts to find an expert in a contiguous state. In Rose v. H.C.A. Health Services of Tennessee, Inc., 947 S.W.2d 144 (Tenn. App. 1996), the Court of Appeals declined to grant exemption to plaintiffs despite affidavits from both of plaintiff's lawyers and a medical doctor describing the difficulty they had experienced in trying to find a medical expert who complied with the rule. Neither the trial court nor the Court of Appeals were moved by the affidavits which they found "generalized and unspecific". If you employ a service to assist you in finding an expert, be sure that the service also keeps track of its efforts and can provide you with a detailed report if necessary.

The "loss of chance" or "increased risk of harm" doctrine applies to those situtations in which a plaintiff suffers from a preexisting medical condition such that he has less than a 51% chance of recovering even with optimal care. Tennessee does not allow recovery from a negligent physician in these situations for his tortious conduct which contributed to the harm by permitting a preexisting condition to progress or by accelerating its harmfull effects. See Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993).

The statute of limitations for medical malpractice actions in Tennessee is one year. See T.C.A. 29-26-115. If the injury is not discovered within this one year period, the statute of limitations may be extended to one year after discovery of the injury. Tennessee's statute of repose, however, limits the filing of any medical malpractice action to three years after the date of the negligent act or omission. There is an exception to these time limitations where a foreign object is discovered in the patient's body, in which case the statute of limitations is one year after discovery of a foreign object.

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.

A long line of cases in Tennessee say that a plaintiff cannot recover a penny more than the amount demanded in her complaint. According to the Western Section Court of Appeals, though, a planitiff does not have to include a specific ad damnum amount in a medical malpractice complaint. In Romine v. Fernandez, the Western Section held that it is the plaintiff's choice to decide whether she wants to state a specific amount in a medical malpractice case. If the plaintiff asks for monetary damages but does not list the amount, then she can take whatever the trial court awards.

Note that, while Judge Farmer dissented in the case, he agreed with the Court's decision that a medical malpractice plaintiff does not have to state a specific ad damnum amount. Also, appeal was denied by the Supreme Court. An important decision to keep in mind in framing any complaint in a medical malpractice case.

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.

Effective July 1, 2005, it is now possible to subpoena documentary evidence without requiring the custodian of records to appear at a deposition. The amendment does require serving notice of the subpoena on all parties. The amendment also requires the custodian to swear or affirm as to whether all responsive documents are being produced and to the authenticity of the documents produced. Documents are to be made available to all parties. Visit the Administrative Office of the Courts website for the language of the amendment and the comments.

Effective July 1, 2005, Rule 4.03 of the Tennessee Rules of Civil Procedure provides that a summons expires of not returned served within 90 days. This is a change from 30 days. Visit the Administrative Office of the Court's wesite for the language of the amendment and comments.

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.

T.C.A. 29-26-115(b)states that no person in a health care profession requiring licensure under the laws of the state of Tennessee shall be competent to testify to establish (1) the requisite standard of care,(2) a breach thereof, or (3) proximate cause, unless that witness practiced in the state of Tennessee or a contiguous state during the year preceding the date that the alleged injury or wrongful act occurred. Does this mean that the expert had to practice in the contiguous state during the entire year preceding the alleged injury or wrongful act? No. In Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn. App. 1994) the Court of Appeals explained that "during" means at some time during the preceding year. The expert at issue in Steele was permitted to testify even though he had practiced in a contiguous state for only two months of the year preceding the plaintiff's injury.

The Texas Supreme Court has held that it is not error for a judge to permit a lawyer who regularly represents defendants in medical negligence cases to sit on a medical neligence jury.

The lawyer/juror candidly admitted that he would tend to relate to the defense lawyers in the case and that he would tend to look at the case from their perspective. He did say he would do his best to be objective.

I would love to know why the plaintiff's lawyer let this guy sit on the jury given these answers; perhaps there were worse jurors and the lawyer had to use all of the preemptory challenges on them. I certainly wouldn't second guess the lawyer for the call (especially without knowing a whole lot more about the facts) - picking a jury is the hardest part of a trial. Judgments must be made quickly, often on gut instinct (even when you use a consultant) and require you do look across the venire and think what you will get if you use a challenge on the potential juror you are evaluating.

This reminds me of a statement made years ago by my mentor which he learned from his own mentor over 50 years ago. He said: "There are three things you can never figure out. First, why one person picks another person as a spouse. Second, what a jury is going to do. And third, why bird sh*t is always white on top."

Now, those of you who know the answer to the last question please don't tell me what it is - it will ruin a story that I have been telling for over 20 years.

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.

The Tennessee Supreme Court has held that the three-year statute of repose for medical negligence cases does not violate due process when applied to those who are mentally incompetent. The plaintiff argued that due process required that the statute of repose should be tolled during the period of incompetency. Read Mills v. Wong at http://www.tsc.state.tn.us/OPINIONS/TSC/Sc1qtr2005.htm.

As a result of this opinion, brain-injured adults and others who are incompetent lose their legal right to sue for medical negligence unless they file suit within one year of the date of discovery but no more than three years after the date of the negligent act or omission causing the injury (unless another exception to the statute of repose applies).