Excerpt from
Tennessee Tort Law Letter
A monthly survey of employment law developments in TENNESSEE
John A. Day, Editor
Vol. 3, No. 1
January 1997
"Unqualified" Expert Dooms Medical Malpractice Action
Background
This case involves two medical malpractice actions that were
consolidated. The plaintiffs in each case, Herbert Rose and Daniel
Hoffman, had pedicle screws inserted into their backs during spinal
surgery. Both had surgery at Centennial Medical Center, performed by
Dr. David McCord. Rose later discovered that one of the pedicle screws
that had been inserted had loosened, and it eventually had to be
removed by another surgery. In Hoffman's case, one of the screws had
loosened and had to be removed.
Nineteen months after the operation to remove the loose screw, Rose
saw an episode of the television show "20/20" featuring a segment on
the problems of pedicle screws in back surgery. Hoffman saw the same
episode of "20/20," and both of them went to see the same attorney,
who filed suit against the manufacturer of the screws, Dr. McCord,
Tennessee Spine Center, and Centennial.
Both lawsuits alleged negligence against Centennial for allowing
McCord to perform surgery at the hospital and in failing to monitor
his use of pedicle screws, which allegedly had been used in a manner
not approved by the FDA. Centennial filed motions for summary judgment
in both cases, supported by the affidavits of two experts, Scharf and
Adler. Scharf, who was Centennial's medical staff coordinator, averred
that though Dr. McCord had privileges to practice at Centennial, he
was not an employee, and Centennial did not exercise control over his
methods of practice. Adler, a nurse, opined that Centennial did not
select the instruments used in surgery by doctors there.
Both Rose and Hoffman responded to the motion with the affidavit of
the same expert, Dr. Arthur Kaufman. He testified that the hospital
had failed in its duty to ascertain the regulatory status of the
pedicle screws when it acquired them for Dr. McCord. Centennial moved
to strike Kaufman's affidavit on the grounds that he was not a
competent witness under Tenn. Code Ann. sec. 29-26-115(b). Kaufman
was not licensed in Tennessee or a contiguous state but was only
licensed to practice medicine in Maryland and West Virginia. The
plaintiffs' counsel filed affidavits stating that they had diligently
searched for an expert in Tennessee or a contiguous state but had been
unable to find one. They requested a waiver of the licensing
requirements of Tenn. Code Ann. sec. 29-26-115(b).
The trial court denied the plaintiffs' motions for waiver, struck
Kaufman's affidavit in both cases, and granted summary judgment to
Centennial. In the Rose case, the trial court also found that the
statute of limitations had run. Both Hoffman and Rose moved for the
trial court to alter or amend its judgment and filed another affidavit
of an expert who resided in North Carolina but also was not licensed
in Tennessee or a contiguous state. The trial court denied these
motions to amend. The judgments as to Centennial were made final under
T.R.C.P. 54.02, and both plaintiffs appealed.
Ruling
The Court of Appeals found that Kaufman, the plaintiffs' expert, did
not meet the requirements of Tenn. Code Ann. sec. 29-26-115(b).
Therefore, the only real issue was whether the plaintiffs were
entitled to a waiver of the statutory licensing requirement. The
statute provides that the requirement can be waived if the trial court
"determines that the appropriate witnesses otherwise would not be
available." Moreover, "trial courts have broad discretion in
determining the competency of experts" and may only be reversed upon a
finding of "abuse of discretion."
The Court of Appeals reviewed the record supporting the plaintiffs'
request for a waiver. The plaintiffs' counsel's affidavit reported his
"diligent" search for an expert and included his belief that the size
of Centennial's parent corporation, the Columbia/HCA System, made it
difficult to find an expert without a conflict, citing one such
example. The plaintiffs' other counsel submitted an affidavit saying
that he had also diligently searched for an expert and had even hired
an unnamed professional witness finder without any success. Kaufman
himself also filed an affidavit saying he was unable to locate an
expert in Tennessee or a contiguous state.
In response, Centennial filed the same three affidavits in both cases,
setting forth the number of physicians and hospitals in Tennessee and
contiguous states. The trial court had found that both Rose and
Hoffman had "failed to make sufficient showing of non-availability of
other experts to allow for the admissibility" of Kaufman's affidavit.
The Court of Appeals found no abuse of discretion in this ruling.
The Court stated that the affidavits submitted by the plaintiffs were
"generalized and unspecific" and showed only a "cursory" attempt to
find an appropriate expert from Tennessee or a contiguous state. The
Court took particular note of the fact that no names of any specific
individuals were included in the affidavits describing the plaintiffs'
counsels' search for an expert. Supplementary affidavits submitted by
the plaintiffs failed to cure these problems. Because of the exclusion
of Dr. Kaufman's affidavit, there was not an affidavit to oppose the
affidavits filed by Centennial on the question of violation of
standard of care, making the trial court's grant of summary judgment
appropriate.
Both Rose and Hoffman also filed motions in the Court of Appeals
requesting the consideration of post-judgment facts -- namely, that
they had found an expert from a contiguous state. The Court denied the
motions, finding that the existence of such a witness was not a
post-judgment fact. T.R.A.P. 14(a).
Commentary
The "contiguous state" rule in Tennessee medical negligence law is a
unique animal. Other states impose a local standard of care, but no
other state imposes limits on where the potential expert practices his
or her profession as a condition precedent to being qualified to give
expert testimony.
Nevertheless, Tenn. Code Ann. sec. 29-26-115(b) is still the law, and
all parties in a medical negligence action must follow it or persuade
a trial judge to waive it. The ruling of the trial judge is
discretionary and will not usually be disturbed on appeal. For an
example of a ruling affirming the grant of a waiver, read Steele v.
Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn. App. 1994),
1 TTLL 1-9 (January 1995).
Rose v. HCA Health Services of Tennessee Inc., 21 TAM 52-14 (CA WS at
Nashville), Lillard, 8 pp.
Copyright 1997 M. Lee Smith Publishers & Printers LLC
Tennessee Tort Law Letter seeks only to provide information and
commentary on current developments in Tennessee tort law. The authors
are not engaged in rendering legal or other professional services by
publication of this newsletter, and information contained herein
should not be used as a substitute for independent legal research
appropriate to the particular case or legal issue.
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