Kelly on Malpractice

There are two new cases on the scene that test the confines of the Locality Rule. Specifically, how much does the plaintiff’s expert have to demonstrate via affidavit that his or her medical community is similar to the defendant’s medical community in order for that expert to be competent? There is no question that an expert must demonstrate “similarity” between his or her community and the defendant’s community in order to satisfy the stringent requirements of the Locality Rule. In Scott v. Miller, 2006 WL 3368767 (6th Cir.), the plaintiff filed a medical malpractice action in federal court. The plaintiff tendered the affidavit of Dr. Allen as their expert to oppose the defendants’ motion for summary judgment. The district court granted the defendants’ motion for summary judgment, holding that Dr. Allen failed to satisfy the Locality Rule. Without this evidence, the district court held that plaintiff failed to make out a case for medical malpractice and, as such, granted summary judgment to defendants.

Dr. Allen’s credentials and his curriculum vitae were impressive. As to his familiarity with the standard of care, Dr. Allen stated that he was familiar both with the standard of care in Nashville, Tennessee and in Louisville, Kentucky, which he stated was a similar community to Nashville. His Rule 26 report stated in part:

My practice is in Louisville, Kentucky. Louisville has a medical community that is very similar to the medical community in Nashville, Tennessee. While Louisville is smaller than Nashville, both cities have multiple hospitals, both have respected medical schools, and doctors in the both communities have equal access to medical educational opportunities, state of the art medical equipment, consulting and proctoring physicians for advice and training, and medical information in general. Additionally, there are many surgeons in Nashville, Tennessee who perform laparoscopic Roux-en-Y gastric bypass procedures and these surgeons follow up as I do in Louisville, Kentucky. In short, the doctors in Nashville, Tennessee who comply with the standard of care, perform laparoscopic Roux-en-Y gastric bypass surgery the same way I do in Louisville, Kentucky. Centennial Medical Center, at which Dr. Miller was working at the time he operated on Mrs. Scott, has access to the same quality medical equipment that I have at Norton Hospital, the hospital where I do the majority of my work. In addition to my Kentucky licensure, I am licensed in a number of other states-including Tennessee. I have lectured about gastric bypass surgery in Nashville to physicians practicing there; and I have proctored numerous surgeries in communities similar to Nashville. I am familiar with the standard of care in Nashville, Tennessee and similar communities that governs the conduct of doctors like Dr. Miller and me when we perform Roux-en-Y gastric bypass procedures and provide medical care following these procedures.

Dr. Allen demonstrated why Louisville’s medical community is similar to Nashville’s medical community. This was crucial to satisfaction of the “similarity” requirement embedded within the Locality Rule. Dr. Allen noted the similarities between Nashville and Louisville in terms of having multiple hospitals, respected medical schools, access to medical information, state of the art equipment, and consulting physicians. This was the key reason why the Sixth Circuit reversed the summary judgment.

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