Day on Torts
Where an HCLA plaintiff’s expert testified at his deposition that he was not very familiar with Kingsport and that he had only reviewed information about Kingsport the night before the deposition, rather than before forming his medical opinions, the trial court did not err by excluding the expert based on the locality rule.
In Jackson v. Thibault, No. E2021-00988-COA-R3-CV, 2022 WL 14162828 (Tenn. Ct. App. Oct. 25, 2022), the patient underwent a hysterectomy at a hospital in Kingsport, Tennessee. Complications arose during the surgery, and the patient later went into septic shock and died. Plaintiff, who was the administrator of the patient’s estate, brought this HCLA suit alleging negligence against a number of medical providers related to the patient’s care.
In her initial expert disclosures, plaintiff identified Dr. Steege from Chapel Hill, North Carolina. After deposing Dr. Steege, defendants moved to exclude Dr. Steege on the basis that he was not competent to testify under Tenn. Code Ann. § 26-26-115(b). The trial court ruled that “Dr. Steege did not meet the locality rule outlined in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011),” and accordingly excluded his testimony. After being granted multiple extensions on the deadline to disclose a new expert, plaintiff had still failed to do so, and defendants moved for summary judgment. The trial court granted summary judgment, finding that defendants’ expert had stated that defendants complied with the applicable standard of care and therefore negated an essential element of plaintiff’s claim. This ruling was affirmed on appeal.
When a plaintiff files an HCLA claim, he or she must prove certain elements through expert testimony, including “[t]he recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred[.]” (Tenn. Code Ann. § 29-26-115(a)). An HCLA expert witness must be licensed to practice in Tennessee or a contiguous bordering state “during the year preceding the date the alleged injury…occurred.” (Tenn. Code Ann. § 29-26-115(b)). In addition, the Tennessee Supreme Court has explained that HCLA standard of care experts must meet the locality rule, meaning that “a medical expert must demonstrate a modicum of familiarity with the medical community in which the defendant practices or a similar community.” (internal citation omitted). While firsthand knowledge of the community is not required, an expert must do more than “only testify as to a national standard of care,” as “Tennessee allows testimony of a national or uniform standard of care only once the expert has demonstrated his or her familiarity with the locality.” (internal citations omitted).
Here, the trial court found that plaintiff’s expert did not meet the locality rule, and the Court of Appeals agreed. During Dr. Steege’s deposition, he stated that when he thinks of “standard of care” he thinks about it on a national level; that he didn’t know if there was a different local standard of care in Kingsport; that he was “not very” familiar with Kingsport; that he looked up information about the Kingsport hospital the night before his deposition but not before forming his opinion in this case; that he was not provided with any demographics related to Kingsport; and that the hospital he worked in was “in a totally different league” than the hospital at issue here. Further, when talking about Kingsport, he guessed that it had a population of 250,000-500,000 people, when it actually had a population of about 50,000. Considering this testimony, the Court of Appeals agreed that “Dr. Steege failed to demonstrate the modicum of familiarity required by Shipley.”
The Court noted that by Dr. Steege’s own testimony, his familiarity with Kingsport did not go beyond a “cursory internet search of the facility’s current statistics.” Moreover, he admitted that he “did not gain this purported familiarity until well after he first opined that [defendant] breached the standard of care.” The Court reasoned that “[w]ithout an attempt to familiarize himself with the locality before forming his opinions, it is difficult to discern how Dr. Steege could conclude that the local standard is synonymous with the national standard, as required under Shipley.” The Court therefore affirmed the trial court’s exclusion of Dr. Steege.
Because plaintiff did not have expert testimony to support her HCLA claim, summary judgment for defendants was affirmed.
This case shows a potential pitfall with HCLA standard of care expert witnesses. Merely being licensed in Tennessee or a bordering state is not enough if the expert cannot also meet the locality rule.
Note: Chapter 49, Section 8 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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