Day on Torts
Where plaintiff could only show that his expert in an HCLA case was a neurosurgeon consultant during the year prior to the incident, yet the alleged negligence was committed by a medical assistant and licensed practical nurse (LPN) in an urgent care clinic, plaintiff’s expert was not qualified to testify and summary judgment was affirmed.
In Estate of Shelton v. Greeneville Urgent Care and Occupational Medicine Clinic, No. E2018-00862-COA-R3-CV (Tenn. Ct. App. June 24, 2019), plaintiff had gone to defendant urgent care clinic seeking pain medication. A medical assistant there asked him to get on the examination table. According to plaintiff, he told the assistant that he could not get onto the table, but she insisted, and while he was using a stool to get up, the “stool slipped or moved causing Plaintiff to lose his balance and fall.” Though the severity of the fall was disputed and there was no fall documented in plaintiff’s file, plaintiff was seen by a nurse practitioner who arranged for him to be x-rayed at the adjacent hospital. He was sent home after the x-ray, despite his complaints of pain, but was called the next day and told to return to the hospital for treatment for a broken back. Plaintiff eventually had surgery and physical therapy.
Plaintiff filed an HCLA claim against the clinic and the hospital, alleging that the stool was dangerous and that the clinic staff negligently insisted that he use it, and that “the Hospital failed to promptly diagnose and treat his injuries.” Plaintiff identified Dr. Edward Kaplan as an expert, who was a neurosurgeon consultant, and defendant filed a motion for summary judgment, arguing that plaintiff’s expert should be disqualified. The trial court agreed, granting summary judgment, and the Court of Appeals affirmed.
The primary issue on appeal was whether the trial court correctly disqualified plaintiff’s expert. Under the HCLA, plaintiff needed to show that “in the year preceding April 2013, Dr. Kaplan practiced in a similar specialty to render an opinion about the standard of acceptable professional practice governing Nurse Practitioner Montemarano, Nurse Seaton, or Medical Assistant Hayes.” In his deposition, Dr. Kaplan testified that he provided neurosurgery consults at a health center; that he “had dealt” with LPNs and nurse practitioners, but that he “had not worked with LPNs or nurse practitioners in an urgent care setting during the relevant time period;” that “he was familiar with urgent care facilities because he had taken his wife to one several times;” that his experience in nursing homes was similar to an urgent care setting because both had “examining rooms…staffed by nurses, nurses assistants, nurse practitioners;” and that he had never worked in an urgent care setting.
Based on the evidence, the Court of Appeals affirmed the ruling that Dr. Kaplan could not testify as to the relevant standard of care in this case. The Court reasoned:
Plaintiff asserts in his brief on appeal that because Dr. Kaplan himself examines patients his opinions about patient safety in an examination room and charting entries in a medical record are relevant. …If this were the case then any provider who examined patients in any examination room would be competent to testify in this case, an outcome which clearly does not comport with [the HCLA]. Dr. Kaplan’s experience is in the area of neurological and neurosurgical work. He admittedly has no experience in the urgent care setting either in practicing urgent care medicine or in supervising LPNs, medical assistants, or nurse practitioners who practice urgent care medicine.
The Court also ruled that the same reasoning applied to plaintiff’s claims against the hospital based on the actions of the emergency room physician, and that Dr. Kaplan was not qualified to testify as to the standard of care in an emergency room.
Interestingly, the Court of Appeals overturned one portion of the trial court’s decision to disqualify Dr. Kaplan. The trial court held that Dr. Kaplan did not practice medicine during the year preceding the incident, which is a requirement for an expert under the HCLA. The Court of Appeals, however, found that his consultation work at the Church Health Clinic constituted practice, though this did not change the outcome of the case.
Finally, the Court of Appeals rejected plaintiff’s assertion that no expert testimony was needed in this case. Plaintiff alleged that “the issues in this case fall within acts of negligence so obvious that they are within the common knowledge of laymen,” but the Court disagreed. The Court ruled that res ipsa loquitur did not apply here, as the instrumentality causing the injury was not in defendant’s exclusive control, as part of the cause of the injury was plaintiff’s own walking/stepping. Plaintiff also “failed to show that his alleged injury was one which ordinarily doesn’t occur in the absence of negligence,” and an expert was needed to testify regarding what a medical assistant should have done in the factual situation at issue.
Because an expert was needed, and because plaintiff’s proffered expert did not have experience in a relevant field, summary judgment was affirmed.
A plaintiff filing a HCLA must think closely about the statute’s requirements when identifying an expert witness. Failure to comply with expert requirements can lead to dismissal of what otherwise might have been a meritorious claim.