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.