“Similarity” is now the touchstone for complying with the Locality Rule
posted on February 7th, 2008 in Locality Rule by clintThere are two new cases on the scene that test the confines of the Locality Rule in Tennessee’s medical malpractice statute. 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.
An expert must demonstrate “similarity” between his community and the defendant’s community to satisfy the stringent requirements of the Locality Rule. In Eckler v. Allen, 2006 WL 3422105 (Tenn.Ct.App.), is a case in which the plaintiff’s expert failed to demonstrate how his community is similar to the defendant’s community. General statements will not suffice. This expert’s affidavit looks good at first blush. See if you can find anything wrong with it:
1. I, Conway C. Huang, am an Assistant Professor at the University of Alabama at Birmingham. I am the Director of Dermatologic Surgery and Cutaneous Laser Surgery. My curriculum vitae is attached.
2. I am familiar with the standard of care for Mohs micrographic Surgeons in communities similar to Memphis, TN.
3. I have become familiar with the standards of care in the Memphis community and throughout the State of Tennessee.
4. I have discussed the standard of care for obtaining informed consent with all the fellowship trained Mohs surgeons in Tennessee. “Fellowship trained” refers to Mohs surgeons who have specialized training in Mohs micrographic surgery for 1-2 years after completing a dermatology or related residency.
5. These fellowships are accredited by the American College of Mohs Micrographic Surgery and Cutaneous Oncology. In the past two years, many of these fellowships have also become accredited by the American Board of Medical Specialties under the newly recognized specialty of Procedural Dermatology.
6. There are sixteen (16) Mohs surgeons in Tennessee including the Defendant. Seven of the Mohs surgeons are partners with the Defendant. Therefore they were not consulted.
7. Besides Dr. Allen and his partners, I consulted with Dr. Malika Tuli of Memphis, Tennessee and was advised that written and oral informed consent are obtained in the Memphis, Tennessee community.
8. I also consulted with the remaining six Mohs surgeons in Tennessee and was advised that the written and oral informed consent are obtained in their community. See attached spreadsheet of my investigation.
9. As I previously stated in my original affidavit, I reviewed the medical records of Jerry Eckler from June 13, 2003, June 20, 2003 and June 30, 2003. These records included clinical notes and photos. There is no written evidence that an informed consent was obtained from Mr. Eckler. Informed consent may have been verbally obtained, but there is no written documentation that would substantiate that is was obtained (see attached affidavit).
10. Based on my investigation Dr. Allen failed to obtain proper informed consent according to the standard of care for Memphis, TN. There is no evidence that Mr. Eckler understood the procedure, disease, treatment options, risks and benefits of those treatment options.
In this case, the Court of Appeals found that Dr. Huang’s affidavit and curriculum vitae demonstrated that he had expert knowledge of the specialized field of dermatological surgery. The affidavit also contained sufficient knowledge of the standard of care in Birmingham, Alabama. However, there was nothing in Dr. Huang’s affidavit or supporting documents to demonstrate or suggest that Birmingham, Alabama, was a community similar to Memphis, Tennessee. The general statement in Section #2 was not enough. Knowledge of the applicable standard of care must be either firsthand knowledge of the standard of care by one who practices in the community in which the defendant practices, or firsthand knowledge by one who practices in a community demonstrated to be similar to that of the defendant. In other words, the affidavit lacked evidence of “similarity” between Birmingham and Memphis. The experts failure to bridge Birmingham and Memphis was a fatal mistake that doomed the case.
Take the time to investigate the medical statistics of the similar community and marry them to the defendant’s community in your expert’s affidavit. It is a vital task to make sure that your expert complies with the Locality Rule of Tennessee’s medical malpractice statute.