Kelly on Malpractice

There was some doubt over the years whether the defendant must present experts who comply with the locality rule. That doubt was extingushed in two recent cases. In Allen v. Methodist Healthcare Methodist Hospitals, 237 S.W.3d 293 (Tenn.Ct.App.2007), the plaintiff lost a medical malpractice case in Memphis. The plaintiff appealed, asserting that the Hospital failed to carry its burden to demonstrate that Dr. VanHooydonk, an Ob/Gyn defense expert, was qualified to offer expert testimony under § 29-26-115(a)(1). It was undisputed that Dr. VanHooydonk practiced in Nashville and not in Memphis. Dr. VanHooydonk completed his medical residency at Vanderbilt Hospital in Nashville, was a member of the faculty at Vanderbilt, and all the hospitals at which he holds privileges are located in Nashville. However, the Hospital offered no evidence that Nashville was a community similar to Memphis. The Court of Appeal looked to whether Dr. VanHooydonk demonstrated knowledge of the standard of care applicable to nurses in Memphis hospital practice for the purposes of § 29-26-115(a)(1). The Hospital asserted Dr. VanHooydonk demonstrated familiarity with the applicable standard of care where he testified that he has interacted with Memphis physicians and nurses at a number of medical lectures and where he taught a continuing medical education in Memphis on timely intervention in obstetrics. The Hospital asserted that Dr. VanHooydonk’s teaching experience regarding intervention in obstetrics made him particularly qualified to testify in this matter. Although the Hospital arguably showed that Dr. VanHooydonk’s credentials demonstrated knowledge of an optimum or national standard of care, the Court of Appeals held that the Hospital has failed to demonstrate knowledge of the standard of care in Memphis, or in a similar community, for the purposes of the statute. The Court likewise held that Dr. VanHooydonk’s discussions with Memphis physicians and nurses at medical lectures did not constitute personal knowledge of the standard of care applicable in Memphis under the locality rule. The Court also held that, although Dr. VanHooydonk’s teaching of continuing education classes in obstetric intervention implies knowledge of a national standard of care, it did not demonstrate knowledge of the standard of care in the Memphis community.

Similarly, in Carpenter v. Klepper, 205 S.W.3d 474 (Tenn.Ct.App.2006), the plaintiff lost a medical malpractice case in Clarksville. The Plaintiff appealed the admission into evidence of expert testimony offered by two physicians under the locality rule. The trial court overruled the Plaintiff’s objections to the qualifications of the Defendant’s experts under the locality rule and allowed them to testify. One of those experts appeared to base his knowledge solely on “national accreditation standards” rather than on personal experience. The other defense expert, who had never been to Clarksville, testified in “generalities.” The trial court held firm to the position that it is the Plaintiff, not the Defendant, who is charged with the burden of proof as to the standard of care in the community in which the defendant practices or in a similar community in accordance with the locality rule at § 29-26-115(a)(1). The trial court believed that shifting this burden to the Defendant directly contradicted the plain language of the statute and would render it a nullity. The Court of Appeals disagreed. The Court held that the locality rule applies to an expert regardless of whether that expert is offered by the plaintiff or the defendant.

The lesson of these cases is that plaintiff’s counsel should always test the defense experts under the locality rule, because the rule applies to both sides in medical malpractice cases.

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