Statutory Buzz Words Are Recommended But Not Necessarily Required
posted on December 28th, 2007 in Uncategorized, Locality Rule by clintA ritualistic incantation of statutory buzz words is not always necessary to prove a deviation from the standard of care in medical malpractice cases. Williams v. Baptist Memorial Hosp., 2004 WL 3396474 (Tenn.Ct.App.). Sometimes, it is not possible to frame opinions in the precise words of the statute because of differences in the medical and legal vocabularies and frames of reference. Mitchell v. Ensor, 2002 WL 31730908 (Tenn.Ct.App.). The Court of Appeals has held that TENN.CODE ANN. § 29-26-115 is not “holy writ,” and should never be so rigidly applied that it requires the use its precise terms in order to maintain a malpractice claim. However, these buzz words are recommended to avoid traps in motion practice. In Wicks v. Vanderbilt, 2007 WL 858780 (Tenn.Ct.App.), the Court of Appeals recognized that “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.” Personal preference of what an expert would or should do is irrelevant. Lewis v. Hill, 770 S.W.2d 751 (Tenn.Ct.App.1988); Godbee v. Dimick, 213 S.W.3d 865 (Tenn.Ct.App.2006). Make sure that your expert uses the statutory phrase “recognized standard of acceptable professional practice” when testifying about a deviation from the standard of care. In Godbee, the Court of Appeals held that testimony which referred to a “generally accepted practice” was consistent with the standard of care. Nevertheless, it is preferable to couch the terms in accordance with the language of TENN.CODE ANN. § 29-26-115. These buzz words prevent heartburn. So, make sure your expert is acquainted with the standard of care in terms of art as “the recognized standard of acceptable professional practice.”