Court of Appeals Rules Survey of Physicians Does Not Create Knowledge of Standard of Care
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."