Day on Torts
A doctor’s experience in an emergency room did not make him competent to testify under the HCLA about the post-surgical care the plaintiff received.
In Hurley v. Pickens, No. E2023-01610-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2025), the plaintiff filed a health care liability claim based on the care he received after a planned bladder surgery in 2014. Despite the plaintiff’s complaints during his hospitalization after the surgery, no follow up testing was ordered until the plaintiff was diagnosed with septic shock. The plaintiff suffered severe complications which resulted in a three-week coma and two additional surgeries.
The plaintiff filed this HCLA case, and he named as his expert Dr. Orr. Dr. Orr was licensed to practice medicine in Mississippi, and during 2013, he entered a surgical oncology fellowship. During 2013, he also worked at least some amount of time in an emergency room.
The defendant moved to exclude Dr. Orr, arguing that he was not competent as an expert under the HCLA statutory requirements. The trial court agreed and excluded Dr. Orr, which lead to dismissal of the plaintiff’s case. This ruling was affirmed on appeal.
An HCLA plaintiff must prove the standard of care, a deviation therefrom, and an injury caused by the deviation through expert testimony. In order to be competent as an expert in an HCLA case, the expert must meet three requirements: “(1) be licensed to practice in Tennessee or one of its eight contiguous bordering states, (2) practice a profession or specialty that would make the witness’s expert testimony relevant to the issues in the case, and (3) have practiced this profession or specialty in one of those states during the year preceding the date of the alleged injury.” (internal citation omitted). In this case, the second requirement was at issue.
The allegations of negligence in this case focused on the defendant’s post-surgical care and monitoring of the plaintiff. The trial court found that the expert’s limited experience in the emergency room would not make his testimony relevant to the issues in this case, and the Court of Appeals agreed. The Court pointed out that this was not a case where the plaintiff left the hospital then came back to the emergency room for complications, but instead dealt with immediate post-surgical care while the plaintiff was still admitted as a patient. Dr. Orr provided no evidence that he had experience in 2013 being responsible for post-surgery patients.
The Court concluded:
In sum, we agree with the trial court’s observation that Dr. Orr’s resume shows that, after he completed his residency and his fellowship training in surgical oncology, he returned to Mississippi in mid-2015 and became “an accomplished and well-qualified surgeon.” … [H]owever, the record in this case contains no evidence to support a finding that Dr. Orr’s experience as an emergency room physician during the year preceding [plaintiff’s] surgery provided him with expertise regarding an alleged failure by an attending surgeon to diagnose post-operative complications from a specialized surgery over the course of several days of post-operative admission to the hospital.
Exclusion of the expert and dismissal of the case was therefore affirmed.
When considering whether an expert is right for an HCLA case, it is important to look at the expert’s practice the year preceding the injury. Here, the expert’s later experience might have been relevant to the issues in the case, but his experience in 2013 was not.
This opinion was released ten months after oral arguments in this case.