Kelly on Malpractice

In Geesling v. Livingston Regional Hosp., LLC, 2008 WL 5272476 (Tenn.Ct.App.), plaintiff brought a medical malpractice action alleging that the nursing staff of the Hospital violated the applicable standard of care, thereby causing his wife’s fall and eventual death. The Hospital filed a motion for summary judgment supported by its expert. The trial court found that the affidavit from Cindy Wilson, R.N., the plaintiff’s sole medical expert, did not satisfy the requirements for competency and admissibility under Tenn.Code Ann. § 29-26-115 and was therefore inadmissible. The trial court granted the motion for summary judgment.

In her affidavit, Nurse Wilson states that she is currently employed by Cumberland Medical Center in Crossville, Tennessee. She further states that she is familiar with the standard of care for hospitals in the Upper Cumberland Community, the region where she has practiced nursing for the last 27 years. While she states a familiarity with the Upper Cumberland region, her affidavit does not state that she is familiar with the standard of care in Livingston, Tennessee. Nor does she state that Livingston and Crossville are similar communities for purposes of the locality rule. Nurse Wilson’s affidavit, however, refers only to the “Upper Cumberland community,” not Livingston, Tennessee and the Upper Cumberland Community around Livingston. Nurse Wilson’s affidavit did not contain a specific reference to knowledge of the Livingston, Tennessee community. This was a fatal violation of the Locality Rule.

The plaintiff next challenged the trial court’s ruling that the affidavit of Nurse Wilson failed to establish what the nursing standard of care requires. The trial court found that Nurse Wilson’s affidavit offered only general criticisms/deviations of an unidentified and undefined standard of care, which was not sufficient to meet the plaintiff’s burden of proof placed upon him by Tenn.Code Ann. § 29-26-115(a)(1). The testimony of a physician as to what he would do or his opinion of what should have been done does not prove the statutory standard of medical practice. Roddy v. Volunteer Medical Clinic, Inc., 926 S.W.2d 572, 578 (Tenn.Ct.App.1998) (citing Lewis v. Hill, 770 S.W.2d 751 (Tenn.Ct.App.1988)). The affidavit must point out the diagnosis, if any, that should have been made as well as the treatment or intervention that should have occurred to prevent the plaintiff decedent’s death. Estate of Henderson v. Mire, 955 S.W.2d 56, 59 (Tenn.Ct.App.1997). Finally, internal policy and procedure cannot, on their own, establish the applicable standard of care in the medical community. Richardson v. Miller, 44 S.W.3d 1, 25 (Tenn.Ct.App.2000).

The affidavit of Nurse Wilson relied upon the Fall Prevention Guidelines from the Livingston Regional Hospital when stating the applicable standard of care. Aside from these internal guidelines, the affidavit did not expound upon what was allegedly required by the applicable standard of care. Instead, Nurse Wilson simply pointed out the deviations from the guidelines that she believes had occurred. Because a plaintiff cannot solely rely upon internal policy and procedure, such as the Fall Prevention Guidelines from the Livingston Regional Hospital, to establish the applicable standard of care, the plaintiff was required to provide other evidence of the applicable standard of care in the Livingston community. Nurse Wilson’s affidavit was the lone medical expert affidavit that the plaintiff relied upon at the summary judgment hearing. In her affidavit, Nurse Wilson cited only to internal hospital documents in establishing the relevant standard of care. In the absence of any additional showing of the applicable standard of care, we do not find that the trial court abused its discretion in holding that the plaintiff failed to meet the burden of proof placed upon him by Tenn.Code Ann. § 29-26-115(a)(1).