Donna Faye Shipley v. Robin Williams

need, certainly recognized as in Tenn. 18—104(d)(3)(A),

Code Ann. to balance 4— goal enlisting public assistance against danger of being overrun

those who would take the without credit However,

doing any of the work. we have difficulty concluding little that Environ- private entity mental has acted as a successfully uncovered the fraud being against committed County, rath- parasitic plaintiff

er than a that was a arriving just latecomer piggy- time to government’s back on the investigation findings into or of fraud.

V. above, For the reasons discussed we affirm the conclusion of the trial court and of Appeals Court that Environmental

qualifies a proper qui plaintiff tam un-

der the Tennessee False Act. Claims We remand this case to the trial court for

further proceedings consistent with this

opinion opinion and the of the Court of Appeals upon the ap- issues raised on

peal before this Court. We tax the costs appeal to Knox County for which

execution, necessary, may if issue. Faye

Donna SHIPLEY et al. Robin WILLIAMS. Tennessee, Supreme Court of at Nashville. Oct. 2010 Session. Aug.

Wendy Lynne Longmire and Julie Bhat- Peak, Nashville, tacharya Tennessee, for Williams, appellant, Robin M.D. Bednarz, Sr., Nashville, Tennessee, Joe Walker, Steven R. Memphis, and Tennes- see, for appellee, Faye Donna Shipley, individually and as next friend and surviv- ing Shipley, wife of Frank deceased.

OPINION LEE, J.,

SHARON G. delivered the Court, opinion of the in which CORNELIA CLARK, C.J., HOLDER, A. JANICE M. WADE, JJ., joined. and GARY R. KOCH, JR., J., WILLIAM C. filed a separate opinion concurring part and dissenting part. JANICE M. HOLDER, J., separate concurring filed a opinion. actions, day, called November Ten- the next

In medical pain abdominal complaining of continued locality a for ex- rule adheres nessee degrees. fever of 102 are witnesses. Claimants pert medical Williamsi room, go emergency told her to prove by expert required by statute emergen- to inform the hospital called the recognized testimony Shipley com- cy room staff that Mrs. practice in the acceptable professional in, ing requested that she be seen community where the defendant medical emergency physician. room a similar commu- provider practices nity. Ann. 29-26-115 Tenn.Code Shipley saw Mrs. Leonard Walker (2000 locality Since the Supp.2010). & emergency room of Summit Medical Tennessee rule was enacted Sunday, in Nashville on November Center conclu- 18, have reached different courts took Mrs. Shipley’s Dr. Walker her, it. The rule does interpreting history, sions in examined or- community,” nor including complete “similar dered blood define tests count, x-ray, guidance urinalysis, amy- as to how chest serum provide does it lase, test, computed to be “simi- alcohol to- community is determined blood (“CT”) check community. mography lar” scan to for intra- to the defendant’s case, gallstones. abdominal abscess or clarify address and we white tests an elevated blood cell applicable courts should revealed standards 21,000, count of low blood approximately determining use in whether a medical pressure, high pulse and a rate. Dr. testify as an ex- qualified Shipley dehy- Walker believed Mrs. was in a medical pert witness (“I.V.”) an intravenous drated and ordered standards, these we Applying case. bag diagnosed of fluid. Dr. Walker her the trial court’s exclusion of hold that origin with of unclear and pain abdominal ex- proffered two medical claimant’s dehydration. perts locality rule was error. under grant summary The trial court’s Shipley being While Mrs. was still treat- part affirmed and vacat- judgment is room, ed at Dr. emergency Walker ed in part. provided called Dr. Williams and her Shipley’s information about Mrs. medical History and Procedural

Factual deposi- condition test results. In his Williams, tion, general surgeon, a Dr. testified as about Dr. Robin Walker follows Donna that performed surgery abdominal on conversation: January Dr. Faye of 2001. Shipley I I had patient told her [Dr. Williams] Shipley’s Mrs. colon and Williams removed of hers I thought here that needed to be portion her small intestine.1 On Sat- she had reexamined because abdominal 17, 2001, Shipley urday, November Mrs. pain explain. gave that I couldn’t And I results, of abdomi- complaining called Dr. Williams patient’s her all the lab most results, nal a sore throat. Dr. pain and Williams importantly, her CT asked she if make appointment told to call and day. her could be the next Based rechecked following Tuesday to call her on her results and white lab elevated count, thought pain might back if the worsened or Mrs. Dr. she sooner Williams dehydrated a fever. have developed Shipley significantly Mrs. been Shipley surgical negligence follow-up Shipley no care of Mrs. before Shipley 1. makes claims of Mrs. 17, performance regarding Williams’ of her Dr. November surgery post- nor Dr. Williams' abdominal bag asked for second of I.V. fluid and Shipley [a] Mrs. returned to the emer- she’d, gency glad see her in room and was said admitted critical office. condition with diagnosis sepsis, acute Dr. Shipley Walker also stated that Mrs. pneumonia, hypotension, acute renal fail- “needed least to be reexamined” and ure, pain. and abdominal In the course of it “understanding was his that she subsequent treatment, her Mrs. Shipley Shipley] would be seen Dr. [Mrs. suffered a debilitating stroke and other Dr. day.” Williams the next Walker reaf- alleged permanent damage. firmed in that “it agreed his affidavit was Shipley Mrs. against filed this action Shipley Ms. would not be admitted Drs. Walker and hospital, Williams and the the hospital, follow-up but would seek alleging negligence medical in failure to from Dr. my Williams” and that “[i]t admit her to the hospital on November understanding Shipley that Ms. going was properly failure to assess and diagnose her day.” to see Dr. Williams the next condition, and failure to provide necessary Dr. agreed Williams in her deposition treatment, including adequate fol- hydrate that “it was her up decided low-up care. hospital The Dr. and Walker up my she would follow office.” Dr. filed for summary judgment motions discharge Williams noted that the instruc- were unopposed by Shipley. Mrs. given Shipley tions to Mrs. told her to “call granted trial court hospital and Dr. Dr. AM arrange Williams recheck Walker summary judgment and those rul- and further care.” Dr. Williams that it said ings have not appealed. been her understanding that she would see defendant, Williams, The remaining Dr. Shipley Tuesday, Mrs. in her office on moved for partial summary judgment on November because Dr. Williams was the claim of negligent failure to admit ordinarily in her office on Mondays. hospital. motion, In support of her however, deposition, Later in her upon Williams relied the testimony of Williams testified that she understood that Shipley’s Mrs. two medical experts —Dr. her medical arranged assistant had for Stephen Rerych, K. gen- board-certified Shipley Mrs. to be primary seen her Asheville, surgeon practices eral who physician, Dr. Lisa Long, on Wednes- Carolina, Shaw, North and Dr. Ronald A. day, November 21.2Dr. Williams admitted physician in emergency board-certified 21,000 that a white blood cell count of in a practices medicine who Montgom- patient with Shipley’s history Mrs. medical Alabama, ery, Rerych area. Drs. and “a major physician was concern to the Shaw testified to effect that the treat- caring for her.” provided by ment Dr. Walker at the emer- Shipley alleges Mrs. in her complaint gency necessarily room did not fall below that she Dr. called Williams’ office several the standard of care and that the appropri- care, try times to to get follow-up but she care, given ate standard of Shipley’s Mrs. was informed that Dr. condition, Williams would not required either admis- see her non-surgieal because it was a mat- hospital sion to the on November 18 or a ter. On evening of November follow-up appointment and recheck the Long hospitalized 2. Because Dr. was with Grace Williams’ medical an [Dr. assistant] time, meningitis impossible appointed at that it Long's was for time ifor Dr. office was Shipley. her to have going seen Mrs. It unclear Shipley is to contact Ms. an for actual point at what Dr. patient given Williams' office became time. All I know is that the Long’s aware of Dr. condition. appointment going given Dr. Williams an or was to be stated, Long's gave appointment "I don’t know if Dr. Wednesday.” office seen on that Rerych release Dr. concluded patient her on November like this.” day after next granted partial patient sum- that “the line was this trial court bottom 18. The Dr. on the Williams 24 hours after the mary judgment should have been seen room,” claim based on the testi- admit and discharge emergency failure to from the Rerych case, Shaw that the Drs. there mony of that in this is devia- “clearly, necessarily not result admit did failure to tion from of care.” the standard the standard of care under a breach 1, 2006, Dr. On December Williams presented. the circumstances disqualification Rerych moved of Drs. testified it further that is Dr. Shaw summary and Shaw for full judgment. consulting physician, responsibility just These motions were filed over a Williams, to make the Dr. this case expiration month before trial and after patient to admit a whether decision of the disclosure deadline.3 The follow-up rechecking and provide how to Rerych trial that Drs. and Shaw court held consulting after with the medical care not requirements “do meet the Tenn. physician. room Dr. Shaw emergency and will Code Ann. 29-26-115 not sub- emergency room physicians stated that stantially pursuant of fact assist the trier pa- suggest assume that generally to Tenn. and 703.” Specifi- R. Evid. 702 pain rechecked with abdominal are tients Rerych that Dr. cally, trial court ruled discharge 24 hours of because of within familiarity “did demonstrate possibility patient’s rapidly condition surgeons general standard of care for Dr. Shaw testified that under worsening. Nashville ... Nor did he that demonstrate circumstances, in- “it was Shipley’s Mrs. Asheville, is a North Carolina similar com- examine on Dr. Williams either cumbent Nashville, munity to Tennessee.” As to her office or make some patient or—in Shaw, Dr. the trial court held that he to be seen somewhere.” arrangements specialty in a “does not is Rerych testified under the cir- Dr. relevant of care to the standard issues here, presented general “the cumstances this case.” trial court The excluded their follow-up absolutely impera- is surgeon’s testimony, summary granted Williams tive, follow-up this case should and the judgment, Mrs. Shipley’s and dismissed hours, ques- within no have been done case. Rerych tion about that.” stated Appeals upheld Court of the trial who regarding “general surgeon, Mrs. disqualify Shipley’s court’s decision to and who has recommended now consulted but, noting “Dr. experts, emergency come to patient that this the proof Williams ... no to negate offered room, general re- surgeon’s then it’s the Shipley’s remaining negligence Mrs. claims either admit the sponsibility patient to whatsoever, summary judg- but moved for day.” the day patient following or see the solely inadmissibility ment based on given Ship- Rerych testified Mrs. Mrs. reversed Shipley’s experts,” sum- inflammatory ley’s history of bowel disease mary upon finding its that Dr. judgment it “we must make sure that surgery, affirmatively negate an with the bowel” and that Williams failed to problem isn’t a vigi- Shipley’s to have essential element of Mrs. claims a “need extreme there was lance, prove to show you up need follow on a or that she could essen- deposed Rerych testimony 3. counsel exclude their motion for Dr. Williams’ 17, 1, January 2006 and Dr. Febru- summary on Shaw on judgment until December 27, 2006, ary did not to but file the motion Shipley termining tial element of the claim at trial. whether a motion for summary Williams, No. M2007-01217-COA-R3- judgment should granted, stating: (Tenn.Ct. CV, 2486199, at 2009 WL *6-7 moving party has the ultimate bur- 2009) App. Aug. (emphasis original). den of persuading the court that “there Regarding negligence Mrs. claim Shipley’s are disputed, no material facts creating based on Dr. Williams’ failure to admit her a genuine issue for trial ... and that he hospital, intermediate court not- is judgment entitled to as a matter of ed that sole means which Dr. Byrd, law.” 847 S.W.2d at 215. If the negated Williams had an element of her moving party properly makes a sup- (breach claim applicable motion, ported production burden of care) through testimony of Drs. then shifts to nonmoving party Rerych and Shaw. Because the trial court show that genuine issue material disqualified Rerych later Drs. and Shaw as fact exists. Id. expert witnesses and excluded their testi- mony, there was no proof the record to affirmatively negate an element of the fail- Tennessee, ... a moving party [I]n who

ure to admit claim. ruling, so seeks to shift the production burden of Appeals Court of observed that “there are to the nonmoving party who bears the dangers relying upon plaintiffs experts (1) proof burden of at trial must either: stage at one in the proceeding when their affirmatively negate an essential ele- testimony is beneficial and then later dis- claim; ment of the nonmoving party’s qualifying testimony [them] when their is (2) show that the nonmoving party can- not helpful.” Id. at *6 n. 3. not prove an essential element of the granted We permission appeal in or- claim at trial. clarify der to address and the standards a Tennessee court should use in determining Hannan, 270 S.W.3d at 8-9. It is insuf whether a medical expert qualified is moving ficient for the party “merely testify as an in a witness medical point to omissions in the nonmoving par negligence case. ty’s proof allege that the nonmoving party prove cannot the element at trial.”

Analysis Id. at 10. “Similarly, presentation Summary Judgment Standard evidence that raises doubts about the non- moving party’s ability to prove his or her

Summary judgment appropri is claim is also insufficient.” Martin v. Nor only ate when the moving party can dem (Tenn. Co., S. Ry. onstrate that there no genuine issue of folk 2008). If the party moving summary material fact and that it is entitled to judgment satisfy fails to its initial burden judgment aas matter of law. Tenn. R. production, the burden does not 56.04; Co., shift to Civ. P. Hannan Publ’g v. Alltel nonmovant, 1, (Tenn.2008); Hall, and the court must dismiss 270 S.W.3d 5 Byrd v. (Tenn.1993).4 208, summary judgment. 847 the motion for S.W.2d 214 In Han Hannan, nan, 5; 270 Court reaffirmed the basic S.W.3d at Blanchard v. Kel (Tenn.1998). lum, principles guiding 522, Tennessee courts in de- 975 S.W.2d 525 Co., summary judgment 4. Motions for Publishing are screen- nan v. Alltel 77 Tenn. L.Rev. 305, (2010) ing identify (observing devices to that are cases not "tri- 337 that "Tennessee Cornett, al-worthy.” Judy traditionally M. Trick or Treat? has favored merits-based deter- Summary Judgment efficiency”). in Tennessee Han- minations over After 536 Appeals correctly observed of by which our Court

The standard no presented in this case that Dr. Williams presented the evidence must assess courts to, Ship- an element of Mrs. negate a mo of, opposition proof and support admit except in her failure to ley’s is also well claims summary judgment tion for the intermediate hospital claim. As established: noted, excerpts “Dr. Williams filed court evidence and all must view the Courts that do not address deposition from her inferences therefrom reasonable care and wheth- standard of applicable non-moving favorable to light most Walker, Dr. it. er she met Unlike Omer, v. 952 S.W.2d Robinson party. filed no affidavit about Williams has (Tenn.1997). A 423, grant sum- 426 care and whether applicable when appropriate only mary judgment is 2486199, Shipley, met it.” 2009 WL she reasonable inferences facts and the appellate in her *1. Dr. Williams admits permit would a reason- from those facts not meet Hannan’s first that she did brief only to reach one conclusion. person able affirmatively ne- her to prong requiring Assocs., Inc., 15 v. & Staples CBL of the nonmov- gate an essential element (Tenn.2000). 83, making 89 S.W.3d however, argues, claim. She ing party’s assessment, this must discard Court successfully met Hannan’s that she has Byrd, 847 countervailing evidence. all by showing Ship- that Mrs. prong second at 210-11. S.W.2d element of ley prove cannot an essential Auth., Hous. Memphis v. Giggers at trial because the trial court her claim (Tenn.2009). This Court disqualified Shipley’s expert Mrs. summary applicable judgment stated the scheduling trial witnesses and the court’s “the non- in Martin as follows: expert deadlines for disclosure order m,ust accepted evidence moving party’s passed long before witnesses had true, concerning the any doubts as disqualification moved for Williams of material genuine of a issue existence summary judgment. Our resolution resolved in favor of the non- fact shall be hinges on the correctness of this issue Martin, 271 S.W.3d at 84 moving party.” Rerych ruling excluding Drs. trial court’s Serv., Quality Food (citing McCarley W. on witnesses based and Shaw (Tenn.1998)) (empha 960 S.W.2d section 29-26- Tennessee Code Annotated added). of a “Because the resolution sis summary judgment is a matter motion for law, judg the trial court’s we review Expert Testimony in Medical presumption no of correctness.” ment de novo with Malpractice Cases—The in, 271 S.W.3d at 84. Mart Locality Rule summary judgment princi These Tennessee Code Annotated section way in the same ples applicable are elements required sets forth the 29-26-115 malpractice force in a medical equal (a), require proof in subsection any case as in other civil action. See Cox proffered of a medi competency ments for Clinic, Urgent & Primary v. M.A. Care (b), in a medical cal subsection (Tenn.2010); Kelley v. 313 S.W.3d case: malpractice Physicians, Emergency Tenn. Middle (a) action, (Tenn.2004); the claimant P.C., 587, 591, In a 133 S.W.3d proving by have the burden of Hosp., shall v. St. Thomas Moon Henard, by (Tenn.1998); provided subsection 225, evidence Bowman v. 229 (b): (Tenn.1977). 527, 547 S.W.2d 529-30

537 (1) recognized The standard of accept- 718, Robinson v. LeCorps, 83 S.W.3d 724 (Tenn.2002),

able in professional pro- subject to the “common thereof, the specialty fession and if knowledge” exception that is not applicable any, practices that the defendant in here.5 community in which the defen- An essential element of a claimant’s practices dant or in a similar com- proof is the “recognized standard of ac- munity at the time the alleged injury ceptable professional practice ... occurred; wrongful or action in community which the defendant prac-

(2) That the defendant acted less tices or in a similar community.” Tenn.

than or failed to act with ordinary 29-26-115(a)(l). § Code Ann. This re- in and reasonable care accordance quirement is known “locality as the rule.” standard; with such Before the Legislature enacted the local (3) proximate As a result of the defen- 1975, in ity rule Tennessee applied courts omission, negligent dant’s act or rule, common law locality” “strict requir plaintiff injuries suffered which ing proof of the standard of would not otherwise have occurred. locality same as the defendant. Thompson (b) person No a health care profes- 650, v. Methodist Hosp., 211 Tenn. 367 requiring sion licensure under the (1962) 134, (“standards S.W.2d 136 prevail laws of this state shall be competent ing any hospital in Memphis”); Gres testify any court of law to Ford, 310, ham v. 192 Tenn. 241 S.W.2d establish the facts required to be (1951) (“in 408, 410 vicinity”); Floyd (a), by established subsection unless Walls, 151, v. 26 TenmApp. 168 S.W.2d the person was licensed to practice 602, (1941) (“the 607 locality where he contiguous the state or a border- Howard, practiced”); Haskins v. 159 ing profession state a or specialty 86, (1929) (“same 20, Tenn. 16 S.W.2d 23 which would make the person’s ex- locality”). justification The for the rule in pert testimony relevant to the issues Tennessee and elsewhere assump was the practiced the case and had tion that doctors in an urban (1) profession specialty or in one of had more access to medical resources and these during year preced- states opportunities than doctors in rural areas. ing the date that the alleged injury Platt, Sutphin 455, v. 720 S.W.2d 457 wrongful act occurred. (Tenn.1986); Jr., Joseph King, H. (2000 Tenn. Ann. Code 29-26-115 & Standard Care and Consent Informed Thus, Supp.2010). expert testimony must Under the Tennessee Medical Malpractice be provided by plaintiff Act, 225, (1977); to establish the 44 Tenn. L.Rev. 256-57 see, elements of his or her negligence e.g., Howard, 131, Small v. 128 Mass. case, (1880) (overruled Williams v. Baptist Hosp., Mem’l 136 Brune v. Belin 545, (Tenn.2006); 193 102, koff, Stovall 354 Mass. 235 N.E.2d Clarke, (1968)).6 (Tenn.2003); time, 5. See phone. Seavers v. Methodist Med. Ctr. significant Oak Since that and sub- (Tenn.1999); Ridge, 9 S.W.3d ma improvements technology stantial Bow n, 547 S.W.2d at 530-31. communications have made medical re- widely sources and information available to locality origins 6. The rule has its in Massa- settings. doctors in urban and rural See Mass, Small, chusetts in 1880. See Bruñe, 235 N.E.2d at 796-98. only years 136. This was four after Alexander patent Graham Bell was issued a for the tele- 538 community,” nor it inter “similar does more define society

As our became a any guidance as to how commu- transportation provide improved with connected communications, to that locality nity is determined to be “similar” the strict rule and Thus, it practices. local where the defendant more relaxed modified way to a gave states, to determine the including Tennes has fallen courts many ity rule Mitchell, Tenn.App. expert for a medical has McCay v. 62 standards when see. See (“Admit (1970) sufficiently or her familiari- 710, established his 424, 718 463 S.W.2d relaxed, community or a ty with the defendant’s ‘locality’ rule has been tedly the by physi community.” a “similar knowledge possessed and the to testi competent renders him cian which A court’s of whether trial determination can from sources and fy expert as an be qualified testimony expert provide an is locality in other than in the experience importance to a claimant’s is of critical arose”). of The the cause action which Bowman, action. See 547 malpractice locality of a “same or similar” adoption although sum (Stating S.W.2d at 530 that 1975, broad reflected a “somewhat rule mary in a medical judgment is disfavored compo geographic ened definition rule, general finding case as a care,” of nent to the medical standard of only “if the issue is one the exception the common law loosening of traditional must testimony kind on which be locality plain rule required that “strict” presented and is presented, nothing concerning tiff “to introduce evidence the challenge expert, sum affidavit of locality of care in the strict where mary judgment may proper”); Kenyon Sutphin, worked.” 720 defendant (Tenn. Handal, 743, 122 v. 758-59 S.W.3d (Tenn.1986). 457 Under this S.W.2d at now Ct.App.2003) (Noting that com “[i]t rule, expert in a Tennessee court a medical monplace practitioners for medical chal he or she is famil must demonstrate that qualifications patient’s ex lenge of iar either the standard the commu with pert” observing “[p]atients and who nity practices the defendant where to produce are unable an affidavit community.” Ann. Tenn.Code “similar face certain of their own almost dismissal § 29-26-115.7 Prieto, complaint”); v. Coyle of their 822 (Ob outset, 596, (Tenn.Ct.App.1991) we 598 At the make an observation S.W.2d im- ... serving “plaintiffs basic fundamental case stands or that is both and of on the the trial court’s portance analysis: to our the statute does falls correctness of 2010), subjected Malp.3d § locality (updated rule to much 3.5 and from 7. The has been commentators, courts, see, Robinson, Jo- from learned see e.g., criticism 724 Jr., King, seph H. Care and ("[W]e Standard encourage Assembly General Tennessee Consent Under the Medical statutory reconsider current framework of Informed Act, 225, 44 Malpractice Tenn. L.Rev. 262-63 rule.”); locality Klepper, Carpenter v. 205 ("Inflexible (1977) geographic limitations on ("The (Tenn.Ct.App.2006) 484 the standard of are inconsistent locality legislatively mandated ‘similar rule’ increasingly medicine uniform usefulness,” long has since outlived its and education, suggested in- modern medical implore Legislature relegate "We ... communications, ubiquitous stantaneous heap’ locality the 'ash the ‘similar rule’ to literature access to informa- Annapolis history.”); see also Shilkret Note, tion”); Behrens, Scott A. Call in Houdi- Ass’n, Hosp. Emergency Md. has ni: The Time Come to be Released from (1975) (reviewing A.2d rationales for Geographic Straitjacket Known as the Lo- locality rules a national standard medi- Rule, (2008); cality Drake L.Rev. see care, "justification concluding cal Pegalis, Community v. generally Steven E. Na- exists”). locality longer rules no Care, Law tional Standard 1 Am. Med. ruling” expert qualified practice that his in the smaller communities in testify). upon by Trial courts called to decide Middle Tennessee testifying that he al- knew that expert hospitals whether a claimant’s should be such have infectious testify are disease control lowed to therefore often decid- committees which up set precautions standards for ing pretrial evidentiary much more than a to be taken skirmish, discovered, once an infection is but rather whether the claim- and that they capability have the summarily ant’s action should be dis- to culture for bacteria, anaerobic missed, procedure, he stat- by allowed be evaluated recognized ed which the standard of jury of or her peers. his required in this case. A review of the Tennessee cases inter- ... Dr. Stratton’s testimony that he was preting applying and locality rule familiar with the acceptable standard of evaluating qualifications of a proffered practice medical in the Middle Tennes- expert medical reveals that its application see area with regard to the prevention entirely has been difficult and not consis- surgical treatment of wound infec- agree Appeals’ tent. We with the Court of tions implies that the same such stan- in Totty Thompson, observation dard throughout exists the Middle Ten- (Tenn.Ct.App.2003), result, nessee area. As a under the areas of American Jurisprudence “[f]ew circumstances of this case we are of the challenging have been more through the opinion that testimony was admissi- years than the development of the stan- ble. applicable malprac- dard of care in medical Id. at 64-65. The Court reversed the trial tice cases.” court’s decision to disqualify expert This first challenge Court considered a and its directed verdict in the defendant’s qualifications expert a claimant’s favor. Id. at 65. locality under the Bryant, rule in Searle v. In Sutphin, this upheld Court the locali- (Tenn.1986). 713 S.W.2d 62 proffered The ty “contiguous rule’s state” lim- geographic medical was an infectious disease qualification itation on the of a medical specialist microbiologist who served as expert, Tennessee Code Annotated section University director the Vanderbilt 29-26-115(b), against a constitutional due microbiology Medical Center clinical labo- process/equal protection challenge. In so ratory. testified that he had doing, the that “in light Court noted of a performed infectious disease consultations modern trend towards the national stan- many and visited hospitals smaller dardization of medical practices, especially area, in the Middle Tennessee and that he specialties, courts legislatures have was familiar with the accept- gradually expanded geograph- the relevant able medical in the Middle Ten- ic proving area for the medical standard of nessee area. Id. at 64. The Searle Court care.” Sutphin, 720 S.W.2d at 457. following regarding stated the the expert’s familiarity with the Middle Tennessee requested the claimant area: Court in Robinson to “enlarge scope

Although [plaintiff’s expert] Dr. Stratton ‘locality rule’ ... adopting a na- did not know the location of several tional standard care that would reflect Tennessee, cities Middle he was famil- changes improvements modern medicine, iar with Smithville and other cities. He the practice of medical technolo- indicated his familiarity recog- gy, with the and communication.” 83 S.W.3d at 722 added). nized standard of acceptable (emphasis The Court declined to Although he had never standard, its national standard. noting that national adopt a Tennessee, he testi- in in medicine practiced national standard a broad “adoption” of twenty be inconsistent reviewed over would that he had cases fied Tennessee, 723-24. The had testi- rule. Id. at from locality medical charts with the statutory the adhered to in malpractice cases Robinson Court in three other fied ex- proffered medical Tennessee, that sta- requirement and “had reviewed middle of the stan- knowledge “must have pert com- about the medical information tistical in the defen- Tennessee, professional dard County, in munity Williamson community knowledge applicable dant’s about the med- included information which care in a professional of the standard available specialists and resources ical to be similar is shown community that County Medical Center.” Williamson the community.” Id. at 724 defendant’s the omitted). (citation We observed Id. at 723 further But we original). (emphasis arguments doctor’s that the defendant mindful, howev- is that Court “[t]his stated proffered plaintiffs of the the exclusion the national er, many instances that weight the essentially contested representative would indeed misappre- and thus the doctor’s statements standard, for board especially the local this context of procedural hended “the “an and observed that specialists” certified respect proper analysis the case: of a applicability of the expert’s discussion evi- is whether summary judgment require not exclu- does national standard dence, light in a most favor- when viewed Robinson, In testimony.” Id. of the sion genuine raises a plaintiff, able to the issue expert “did not proffered we held that the Id. concluded a material fact.” We as to professional care establish the granting sum- the trial court erred that Tennessee, Nashville, or in a similar to the defendant doctors. mary judgment “testified community” where Id. at 725. of care applicable standard only that the Ura, v. 163 S.W.3d 686 In Hunter expected’ to be case ‘would be this (Tenn.2005), that argued the defendants of care and the national standard same as the testi- allowing court erred in the trial ‘[tjhere recog- is no differentiation “be- plaintiffs expert witness mony of locality opposed ... nized in one recognized stan- he did not know the cause other, comparable with localities certain ” care in the professional dard of Id. Nashville.’ practiced or in in which the defendant Ura Clarke, later, year A Stovall community.” Id. at 706-07. We a similar trial propriety of the considered Court by the following proof submitted held in favor of two summary judgment court’s Witt, suffi- expert, medical proffered pro- malpractice defendants medical testify: him to qualify cient to ap- regarding guidance further vided anesthesi- Dr. Witt was a board-certified locality rule. 113 S.W.3d plication Lexington, ologist practiced who had (Tenn.2003). The Stovall 722-23 1980. Dr. Witt testified Kentucky since the case before it from distinguished Court the Academic he was involved with to be suffi- proof and held the Robinson Program Di- of Anesthesia Association ex- proffered medical qualify cient to rectors, “with organization which was an County, testify in a Williamson pert Vanderbilt, Lexington, from people from Tennessee, negligence action. area.” Dr. Witt surrounding that he did proffered expert testified care, meeting of the Southern had attended national standard of rely upon of Anesthesia University Department with a the local standard equate nor did he Nashville, short, Chairs at Vanderbilt in Ten- Dr. Gordon’s affidavit simply nessee. Dr. Witt stated that he had asserts that he is familiar with appli- times, cable been to Nashville six or seven standard of care. As we have explained cases, in prior that he knew the Chair at a bare Vanderbilt’s assertion well, familiarity department very anesthesia insufficient under Ten- “familiar, nessee Code Annotated section regional he was in a set- 29-26- 115(a)(1). Accordingly, we ting, general kinds of care conclude that [with] the legally affidavit was in insufficient. Lexington offered as well in [ ] Nashville.” Dr. Witt several discussed Id. at 554.

hospitals in Nashville and stated that The Appeals Court of strug- has likewise professional the standard of in this in gled addressing question the ap- case be approximately “would the same plicable standards to determine whether a as what we would see at some of the expert medical has been qualified to testify hospitals I where have been in Nash- by showing familiarity with the defendant’s ville.” community medical or a similar communi- (brackets Id. at 708 in original). After ty. Inc., In Ayers v. Hosp., Rutherford reviewing our in holdings Robinson and 689 S.W.2d 155 (Tenn.Ct.App.1984), the Stovall, we reiterated that a medical ex- court affirmed the disqualification of a pert may “rely solely not aon national medical expert because it was not shown of care” but instead must that he practiced had in contig- medicine “ underlying some ‘show[] basis for his uous state during year the prior to the ” added). testimony.’ (emphasis Id. injury and because he had not sufficiently demonstrated that he was familiar with the Williams, we observed that “[e]xpert defendant’s medical community or a simi- may simply witnesses assert their fa- lar community. proffered expert stat- miliarity with the professional standard of ed in an affidavit that he was “familiar care in the defendant’s without with the required standard of care of phy- indicating the for their familiarity.” basis sicians in delivery perinatal care of 193 S.W.3d at 553. We summarized the pertain newborns as it would ato commu- proof proffered expert’s contained the nity Murfreesboro, such as Tennessee.” affidavit as follows and found it to be Id. at 159. But by also testified qualify testify: insufficient to him to deposition Gordon, a board-certified anesthesi- Murfreesboro, that he had never been to Winchester, ologist practiced who that he did not know where in Tennes- Tennessee, stated that he “familiar was located, see Murfreesboro was that he with recognized accept- knew nothing about the size of the com- professional able medical care munity, that he large did not know how metropolitan areas of Tennessee and was, hospital that he knew no one specifically in Memphis, Tennessee and ” Murfreesboro, from and that he knew no similar communities.... The affidavit practiced one who had ever medicine regarding contains no information city. basis familiarity Gordon’s with Id. When he was asked if he familiar the standard of care in Memphis, Ten- practitioners with the skills of the nessee, Mur- nor does it contain a basis for freesboro, proffered expert answered: finding that standard of care Memphis is similar to that in the they com- “Insofar as are and exam- trained munity practices. which Dr. Gordon developed ined and have the same sets literature, psychiatric skills, up- acceptable same the standard read the skills, to the same confer- in similar communities those go date their do, Polk, McMinn, I Bradley continuous education that ences for found give when I my come to conferences county Although malprac- area. He testified impose rigorous proce- them in Tennessee.” tice actions more vary “does not of care plaintiff, the standard once requirements dural on the country,” it is a throughout proof has been threshold standard, change “doesn’t crossed!,] national as it has here Plain- been locality.” with the Stuart, the case should tiffs’ then proceed trial on the merits. Id. review Applying scope as set Moskowitz, 742 In Ledford above, together out Court’s the defendant (Tenn.Ct.App.1987), summary are judgments gen view that Polk, Bradley, and in practiced doctor actions, erally inappropriate in tort Bow counties, proffered expert and the McMinn (Tenn. Henard, 547 S.W.2d 527 man Atlanta, in with “one-third of this practiced 1977), summary judgment of the tri coming referrals from small practice from al is is court reversed and cause area.” Atlanta Id. at towns outside the trial merits. remanded for on the court, that the did noting statute “[p]recise of a require knowledge” not Id. at 649. statistics,” medical community’s “specific Prieto, In Coyle v. the defendant doctor

id., in held that the trial court erred dis- in pathologist practicing Memphis, was a proffered witness qualifying plaintiffs expert was a doctor who summary judgment, stating: and reversed practiced and emergency internal medicine [plaintiffs expert] testified that Stuart room in at practice Missouri. of he was familiar with the standard (Tenn.Ct.App.1991). The court held Georgia. all over care in small towns by plain- following proof offered that was familiar with the He said he tiffs him a qualify sufficient to standard of care in Ducktown and Cleve- testifying expert: sense, in a and that he saw land broad Wettach, During the voir dire of Dr. he doing and the what doctors were stan- participated testified that he had in the examining pa- from dard of of hundred work-up perhaps pa- two on records referrals tients’ treatment cancer, lung with that he tients was areas, that outlying from recommen- familiar with the of care dations for treatment were sent back to diagnosis at a arriving adenocarci- in the referring physicians patient’s familiar lungs; noma in that he was with testify home area. Stuart did that he Memphis; the standard care Cleveland, Tennessee, had not been to Memphis in the the standard care hospi- the number of and did know community medical was similar doctors, tals, or there. physicians located Louis; familiar St. he was specific knowledge Precise of the medi- way profession goes the medical community, particular cal statistics of a arriving diagnosis; at a that he about however, requirement not a testify about the competent was stan- statute. pathologist arriving dard of care for a Id. The concluded: court at diagnosis; that because of net- Ledford that, whole, existing think as a Stuart’s work of medical information

We taken trial, proof creates material issue of fact on the time of the standard pretty throughout was much uniform Dr. Thomas failed to meet the standard country; finally, because his of care that “should have been avail- ” education, training, experience, Jackson, he in city able the size of Ten- competent expert opin- was render nessee. (Emphasis supplied). Dr. ion about the manner and method Shane’s statement concerning the stan- which the diag- defendant arrived at his dard of care that “should have been He nosis. stated that he arrived at his significant available” is in that it illus- position by reviewing x-rays in the trates that his statement in his affidavit file, patient’s medical the patient’s regarding histo- the standard of prem- care is ry, addition, physical; and the and in ised on the national standard of care and reading depositions some of the taken in not on the standard of care for Jackson the case. similar communities. Admittedly, discovery his deposition, he quite readily Coyle Id. The court did not indicate that admits his complete lack of knowledge of provided any the Missouri doctor further Jackson’s medical community!)] testimony elaborating supporting on or his statement “that the standard of care in Id. at 880. The court observed that “a Memphis complete lack of knowledge concerning a similar to that St. Louis.” But the court community’s medical resources would be proffered expert concluded that the “was contrary to knowledge of the required competent testify regard standard of care” and stated that “we can- recognized standard of medical acceptable not accept Dr. Shane’s bare assertion that practice. objection The by raised defen- the standard of care in Jackson is the goes dant more to weight the of the evi- same nationwide and that the level of care dence rather than to its admissibility.” Id. with which Dr. Shane is familiar should at 600. have been available in Jackson.” Id. at (emphasis original). 831 in

In Mahon v. Cnty. Jackson-Madison Hosp., (Tenn.Ct.App. Gen’l 968 S.W.2d 826 Bicknell, In v. Roberts 78 S.W.3d 106 1997), the defendant doctor a surgeon was (Tenn.Ct.App.2001), the court present- was Jackson, Tennessee, in practicing and the ed with a set of facts similar to those in plaintiffs expert a surgeon practicing Mabon, in practiced that the defendant in in Missouri. The Mahon court summa proffered Jackson and the expert “quite plaintiffs rized the expert’s testimony, candidly admitted to knowing nothing insufficient, which the court held to be Jackson, about practice the of medicine in follows: applicable Tennessee and the standard of

Dr. Shane states in his affidavit that he care for locality.” that Id. at 113. The court, recognized was familiar with the stan- affirming summary judgment and dard of acceptable practice in an disqualification the trial court’s of plain- Jackson, area such as Tennessee and at expert, tiffs reiterated that law on “[t]he facility witnesses, the size of Hospital. expert Tennessee, He fur- as it exists in ther states that the requires standard of care in to have some knowl- Hospital Jackson and at would be com- edge of the of in medicine parable to the cities and community facilities at at issue or a similar communi- practiced which he has ty,” medicine and is and stated that believe that it is “[w]e city same for New York and other reasonable to base knowledge, among such and, effect, large in cities is a national things, upon other information as the such standard. Dr. Shane also states that size of the community, the existence or court, reversing at teaching Id. 103. The Wilson hospitals of

non-existence of ex- disqualification location the trial court’s of the commu- community and judgment in (emphasis pert summary defen- original). nity.” Id. favor, “[ajlthough dant’s concluded Patterson, S.W.3d 95 In Wilson concerning testimony the simi- Swan’s (Tenn.Ct.App.2001), defendant doctor Memphis is larity Lexington some- Memphis, plaintiffs and the practiced in testimony what we believe this meager, Lexington, Kentucky. expert practiced conjunction testimony with Dr. Swan’s provided the follow- plaintiffs knowledge of the concerning his standard testimony: ing barely care of sufficient to Memphis Swan, deposition, in his indicates summary judg- withstand attack at a national standard of care that there is ment Id. at stage proceeding.” particular specialty physicians Handal, Kenyon v. he is familiar with the that therefore the court (Tenn.Ct.App.2003), affirmed Memphis, of care Tennessee. standard plaintiffs disqualification trial court’s affidavit, which was strick- In his second Douglasville, expert, practiced who court, he en the trial establishes that the Georgia, grounds expert’s on the the recognized he is familiar with stan- affidavit contain sufficient facts to did not in the field of of care obstetrics and dard opinion that his “is ei- demonstrate based Lexington, Kentucky, by gynecology familiarity ther on with the applicable his experience of his set out in his virtue professional practice in Galla- opines Lexing- He also affidavit. County knowledge tin or Sumner or on his ton, Kentucky Memphis, Tennessee professional applicable standard areas with regard are similar practice in a similar Gallatin acceptable profes- of care of County” or Sumner where defendant services, stating: “Both sional medical practiced. The court Id. 762. ob- Kentucky Lexington, Memphis, and served: regional are centers Tennessee medical Dr. Kumar’s Nothing are the locations their state medi- in affidavit indi-

and any personal The cates he has goes cal schools.” affidavit some- knowl- edge stating practice what further because of Dr. of the obstetrics and in in Gallatin or Sumner malprac- gynecology Swan’s involvement medical Coun- Tennessee,8 Memphis, ty. he can Accordingly, comply tice cases in he 26—115(a)(1) only that the Ann. opinion recognized has the stan- Tenn.Code 29— acceptable by demonstrating ap- care of that he knows the professional dard of plicable practice gyne- professional medical services of obstetrics and Memphis in is the that in in a that is similar to cology same as Galla- County. tin or Sumner Lexington. Swan, my expert, opinion plaintiffs further stetrics. This has confirmed recognized stated: that the standard care of ac- ceptable practice professional medical in in I have testified at least ten medical mal- gynecology in field of obstetrics Memphis, practice cases in As Tennessee. Memphis, the same as Tennessee is that of consequence, opportunity I have had Lexington, Kentucky regard way in depositions review the hear the of and patients diagnostic are evaluated for testimony Memphis, numerous Tennes- in laparoscopys and the manner which the physicians recognized see on standard executed. acceptable professional laparoscopic procedure is of care of medical Wilson, practice gynecology in the field of and ob- 73 S.W.3d at 100. Doug- ty

Dr. Kumar does not assert that Floyd County, I am familiar with lasville, he Georgia practices where is procedures and practices of County. similar to Gallatin or Sumner obstetricians in Georgia communities familiarity appli- He bases his with the similar to Gallatin.” He also states that cable standard of care of an obstetrician he is “familiar with the standard of care January Regional in 1998 at the Sumner for obstetrics gynecology in in Rome, Medical in Gallatin on Floyd Center his conclu- County, Georgia,” and that professional sion that the standards of he is “familiar with the standard of care Georgia in the State of are the for obstetrics gynecology in Columbus, same as those State of Tennessee. Muscogee County, Georgia.” regarding Generalizations similarity Finally, Dr. Engel states that he has professional of the standards visited hospitals communities similar contiguous Gallatin, two states are not specific and he has attended semi- enough information to demonstrate that nars where he further became familiar practitioner qualified a medical under with the standard of care for obstetri- locality opinion rule to render an cians communities similar to Gallatin. medical case. Reversing Id. the trial disqualifica- court’s plaintiffs’ tion of expert, Id. the court conclud- affidavit, that “Dr. Engel’s ed viewed in a Reg’l Bravo v. Sumner Health Sys., light most to the Plaintiffs, satis- favorable Inc., 148 (Tenn.Ct.App.2003), S.W.3d 357 fies the ‘locality requirements rule’ of the defendant, practicing a doctor in Galla- added). (emphasis statute.” Id. at 369 tin, argued that the affidavit of plain- In Carpenter Klepper, tiffs’ 205 S.W.3d 474 expert, practiced Georgia, who did (Tenn.Ct.App.2006), the satisfy court held that requirements locality two rule. Id. at 368. The court witnesses called to tes- disagreed, tify by the qualified defendants were not finding as follows: locality under the rule. The defendants affidavit, however, Engel’s sets out proffered testimony of a doctor who sufficient evidence to show that he was practiced in Kentucky, whose testimony familiar with the standard of care either the court summarized as follows: in Gallatin community. a similar Dr. Aaron testified as to the of affidavit, number that, Engel his states beds at the Clarksville hospital, through his service on the TennCare available, technology medical and the board, review he has “become familiar proximity city of the a larger metro- with the medical resources available to politan Clearly, area. Dr. Aaron’s testi- in obstetricians communities similar in mony established that he had Gallatin,” some size to he is and “familiar with knowledge community as the medical treatment, care and skill practi- of in Clarksville. in tioners communities similar to Galla- Further, tin.” he states that he has ... Dr. Aaron admittedly was unfamiliar reviewed literature regarding Clarksville, and data with the standard of care in Gallatin, compares he Louisville, it with com- having practiced solely in size, munities he are was, claims similar in Kentucky. He asserted that he Rome, namely Floyd County, however, Georgia, “intimately” familiar with the Columbus, Muscogee County, Geor- professional practice in com- that, gia. He Clarksville, asserts “[b]eeause munities similar to having I Muscogee referrals receive from federally Coun- served on a mandated medical laparoscopic sur- committee area and have done quality assurance statis- Kentucky gery hospitals collected on number of which those state of hos- participating information from tical occasions. throughout regions and medical

pitals my also role as a I’ve traveled state, of communi- some which had teacher to numerous communities that similar to Clarksville. ties very in other are similar to this states. he Dr. Aaron had Although testified sup- I think Dr. had provided Black simi- from communities patients treated says at that plement that I looked Clarksville, further stated that lar to he 135,- has about Montgomery County patients no differ- care of those his I people. I think mentioned be- provided the care he his ent than I the hospital, fore that know about patients Louisville. regular hospital, capabilities, the size of the its Although Dr. Aaron further Id. at 478-80. forth. and so “I do what the stan- testified that know trocar care for closure of sites dard of hospital has] defendants’ about [The any accredited institution in would be They 200 or so have emer- beds. surgeon. I Kentucky because am a I’m gency They room. have cancer treat- I those know familiar with standards They ment. have most of stan- applied,” are and asserted that they how I specialties represented. dard think “many from areas [patients] he had seen physicians have they about 150 staff Clarksville,” 479, 480, Id. at similar to privileges with there. es- held that he failed to Carpenter court necessary showing of familiari- tablish the have, know, you ... I encountered to Clarksville.

ty with a similar very other situations that are similar Id. at 480. my both own local environment prof- in Carpenter also The defendants Virginia, physicians who knowing a Dr. DeMa- expert testimony fered hospitals worked in working smaller ria, pro- general surgery chief of basis, regular with them on a as well surgery University Medical fessor of traveling to numerous smaller hos- Richmond, College Virginia located pitals, having develop a chance re- who was a fellow of the Virginia, also lationships surgeons, physicians. Id. at College Surgeons. American I offer at our institution. We courses regarding Dr. DeMaria testified as follows many surgeons have travel Rich- knowledge his the Clarksville days mond where we have several community: interaction, forth. and so Q. you How are familiar with the stan- court Carpenter Id. at 480-82. The held care [in dard of Clarksville]? sufficiently Dr. failed to DeMaria had Well, during in Rich- my A. tenure familiarity community establish his with a mond, practiced community I’ve Clarksville, reversed the trial similar hospitals city. outside of the I actual- verdict, entry jury court’s of the defense in a of Rich- ly county live outside remanded In reaching and for a new trial. mond that’s the same size about conclusion, this the court stated: County I Montgomery here. have approxi- logic why worked in several There is no or reason basis 200-bed— Virginia testimony Dr. Aaron hospitals mate of both size— Yes, into DeMaria is not admissible evidence A. sir. are, however, power in this case. We Q. type What of hospital is Northeast other than anything engage less to do Georgia Medical? hair-splitting in the tedious exercise of A. It’s a hospital full service based in manifested both in this case and in the Gainesville, Georgia, which is ap- Ferraraccio, recent case of Travis v. et proximately 40 miles north east of al., 2005 WL No. M2003- Georgia Atlanta. It’s a tertiary —of (Tenn.Ct.App. Sept. 00916-COA-R3-CV facility. subspecialties, Has all ar- 2005). only can fol again We once eas of medicine. It has a 20-county low Supreme the lead of the Court of catchment patients area of that are Robinson, Tennessee 83 S.W.3d at referred to it. 723-24, implore Legislature Q. Okay. you any And have made com- relegate locality the “similar rule” to the parisons with the work or practice heap” history. “ash that you have at the Northeast Carpenter, 205 Georgia facility Medical to Jackson- Taylor rel. ex Gneiwek v. Jackson- Madison County General Hospital? Dist., Cnty.

Madison Hosp. Gen’l A. I have. S.W.3d 361 (Tenn.Ct.App.2006), the de Q. And what comparisons were the Jackson, practiced fendant and the you . made? plaintiffs expert practiced in Northeast hospitals A. The fairly look similar. Georgia. The court the following found They both are hospitals. referral proof qual summarized to be sufficient to They large both have catchment ar- ify plaintiffs expert, Dr. Harkrider: They eas. very busy both have Dr. Harkrider testified that he had con- emergency departments. I think ducted research concerning the commu- County Jackson-Madison has some- Jackson, Tennessee, nity of including thousand, where around a hundred referencing concerning information phy- a hundred and five thousand. specialties sicians and medical in Jack- Georgia Northeast is between 75 son from a 1997 edition of the “Yellow 80,000. I types pa- see all Jackson[,] Pages” directory for Tennes- tients, and that would be the simi- see; reviewing information from the larity. County Madison Chamber of Commerce Jackson,

regarding court, Id. at 370. The Taylor affirm- Tennessee; reviewing information ing qualification the trial court’s about the Defendant Jackson-Madison witness, Harkrider as an County General Hospital. stated that “[although Dr. Harkrider tes- care,

tified to national standard of it ... appears rely that he did in fact upon a Furthermore, ... Dr. Harkrider also local in testifying regard- standard of care compared Hospital Defendant ing duty Taylor of care owed to Mr. Center, Northeast Georgia Medical case, and whether such standard of Gainesville, Georgia, based where Dr. care was breached.” Id. at 372. practiced, Harkrider and testified as fol- lows: Allen, In Eckler v. 231 S.W.3d 379 Doctor, Q. ... you’ve (Tenn.Ct.App.2006), men- Appeals the Court of what — previously tioned you significant layer worked added a novel and anal Georgia at Northeast ysis qualification Medical? to the issue of of medical Eckler, knowledge assert locality rule. Defendants experts under physicians gained by surveying other disqualified plaintiffs the trial court experi- by personal or firsthand that he did not and grounds expert on the under 29-26- familiarity with the ence is not sufficient sufficient demonstrate 115(a)(1). They submit that a non-ex- community ap- Memphis medical in pert survey physicians a com- Memphis care in could propriate standard munity if the mere collection of data summary judgment. granted the defendant knowledge. could constitute Defendants analyzed plaintiffs The Eckler court requires personal, assert statute testimony as follows: expert firsthand, knowledge or direct affidavit, Huang clearly Dr. stated In his expert an who applicable standard with the standard of that he was familiar community or in a practices in the simi- community. Dr. Memphis care in the community. agree. lar We spread- and attached Huang’s affidavit Huang omitted). that Dr. (internal sheet also demonstrate citations Id. at 386 knowledge applicable Thus, Eckler, obtained for the first time in the court by surveying physicians firsthand, standard of care or direct imposed “personal, a within the practice who Tennessee an knowledge” requirement upon expert, micrographic field of Mohs specialized expert’s attempts holding in effect including the one Mohs micro- surgery, himself or herself on the stan- educate Memphis who is not surgeon graphics in a where the dard of care Dr. Allen. partner [defendant] practiced always has not will fall short, because the has not obtained therefore, becomes, inquiry .... Our firsthand, knowledge direct” “personal, by survey- knowledge whether obtained community. court the medical spe- who ing physicians despite recogni- reached this conclusion its commu- field in the defendant’s cialized Robinson, that, we “in tion observed statute, nity sufficient under is many particularly in cases that cases personal, whether the statute demands specialty, involve a board-certified such as knowledge. firsthand us, the the case now before national stan- representative of the local stan- dard is bar, although Huang’s Dr. In the case at Eckler, at dard.” 281 S.W.3d supporting attached docu- affidavit later, year Less than a the Western person- that he has ments demonstrated again ap- of Appeals Section of the Court al the standard of knowledge of newly-minted “personal, first- plied the in Bir- specialized field applicable hand, knowledge” to dis- direct standard and, on a national mingham arguably, expert proffered by qualify medical level, nothing person- to indicate there is Allen v. Methodist hospital. defendant of the standard of care knowledge al Memphis Hosps., Healthcare Memphis. Personal is applicable The Allen court (Tenn.Ct.App.2007). without the intervention person “done stated: knowledge Personal is of another.” undisputed VanHooydonk It that Dr. knowledge. Huang’s

“first-hand” expert] practices Nash- familiarity with the of care in [defendant’s Memphis. only in- ville and not Van- Memphis garnered through ... of the facul- Hooydonk in the com- is member terviewing physicians other Vanderbilt, ty hospitals and all the at munity; any on first- it was not based privileges he are located in which holds experience. hand However, Hospital Nashville. pursuant of- to a jury defense verdict and fered no evidence that Nashville is a remanded for a new trial. Id.

community similar to Memphis. Allen, years Two after a panel of the accordingly We turn to whether Dr. Eastern Section of the Court of Appeals VanHooydonk knowledge demonstrated Farley Ridge P.C., Imaging, Oak Med. of the of care applicable standard E2008-01731-CQA-R3-CV, No. 2009 WL in Memphis hospital practice nurses for 2474742, at *10 (Tenn.Ct.App. Aug. 29-26-115(a)(l). purposes of The 2009), declined to follow the “personal, Hospital VanHooydonk asserts Dr. firsthand, knowledge” direct standard set familiarity demonstrated with the appli- Allen, forth in Eckler stating: cable of care standard where he testi- We do not believe Eckler went so far as fied that he has with Mem- interacted bridge similarity hold from phis physicians and nurses at a number the community where the expert prac- taught medical lectures where he community tices to the where the defen- continuing medical education in Mem- practices, dant doctor must all be built phis timely on intervention in obstetrics. personal, on firsthand knowledge. Hospital that Dr. VanHooy- asserts just There is too much authority to the teaching experience donk’s regarding contrary that was not even discussed in intervention in obstetrics makes him Eckler. particularly qualified to testify in this The Farley court then surveyed and re- Although Hospital matter. argu- viewed earlier Tennessee cases where a ably VanHooydonk’s has shown that Dr. had, means, various edu- credentials demonstrate knowledge of cated himself or herself on the characteris- an optimum or national standard tics of a community defendant’s medical care, agree we with Ms. Allen that the testify and was allowed to in a Hospital has failed to demonstrate case, and concluded: knowledge of the standard of care in Memphis, or in a community, similar review, Based on the above we conclude the purposes of the statute. holding cannot be Eckler

extrapolated require expert’s that an comparison of a standard of care in a We likewise hold here that Dr. Van- community contiguous state to a Hooydonk’s Memphis discussions with community standard of care in the physicians and nurses at medical lec- alleged malpractice solely be made on tures does not constitute personal personal the basis of knowledge. If the knowledge of the appli- qualified, is otherwise it Memphis cable in under the section. if enough actually he or she is practicing that, We also hold although Dr. Van- community some in a contiguous Hooydonk’s teaching of continuing edu- state, and “connects the dots” between cation classes obstetric intervention community the standard in that and the implies knowledge of a national standard alleged malprac- where the care, it does not demonstrate knowl- tice occurred.... from and Referrals edge of the standard of care in the interaction with medical providers Memphis community. communities, neighboring combined with Allen, 287 S.W.3d at 296-97. The comparison court “a of information such as size, location, vacated the trial judgment court’s entered presence [or absence] practices defendant munity two which the hospitals in the should teaching of a similar at time or in suffice. alleged wrongful or action injury *11. Id. at occurred; review of Tennessee Code Our (2) acted with That the defendant less pertinent 29-26-115 and section Annotated ordinary failed with and than or to act leads us to law since 1986 Tennessee case reasonable care in accordance such (b) First, subsection conclusions. several standard; and 29- Annotated section Code of Tennessee (3) proximate a of the As result defen- requirements forth the three 26-115 sets omission, negligent or dant’s act competent to be to expert witness for an injuries which would plaintiff suffered case. The negligence in a medical testify not otherwise have occurred. (1) practice to must be “licensed witness negligence The claimant most medical state,” contiguous bordering the state or a to provide expert testimony cases9 must (2) or which would profession specialty “a required establish the elements subsec- testimony rele- person’s expert make the (a). Id.; Williams, 553; 193 S.W.3d at tion case,” (3) the issues in the vant to Stovall, 723; Robinson, at S.W.3d profession practiced “had this must have at 724. ... of these states or one specialty (a) (b) preceding the date that Subsections serve two dis- during year (a) provides act oc- injury wrongful purposes. or tinct Subsection alleged Therefore, only grounds proven the elements must be in a curred.” incompe- negligence as action and subsection disqualifying expert a medical medical (1) (b) testify to testify prescribes competent are the witness was who is tent to Tennessee, satisfy practice requirements subsection not licensed (a). Therefore, Alabama, Arkansas, determining Mississippi, when whether Georgia, Carolina, Missouri, Kentucky, testify, or the trial competent North a witness (2) (b), was not li- Virginia; that the witness court should look to subsection (a). profession specialty or practice censed to subsection expert testi- person’s that would make the Any to the challenge admissi case; in the or mony relevant issues bility of a medical testimony from (3) practice witness did not this that the testify under competent who is section during profession in one these states 26—115(b)can made based on the 29— alleged year preceding date particu Tennessee Rules of Evidence. Ann. injury wrongful or act. Tenn.Code lar, Tennessee Evidence 702 Rules of 29-26-115(b). Rule 702 play. pro 703 are called into (a) Anno- Code Subsection Tennessee scientific, technical, or other “[i]f vides sets forth the tated section 29-26-115 substantially will as specialized knowledge plaintiff must establish to three elements the trier of fact to understand the sist action: negligence recover in a issue, or to a fact evidence determine (1)The accept- qualified as an knowl recognized standard witness skill, experience, training, edu profes- edge, professional able thereof, of an any, may testify opinion if cation in the form specialty sion and the otherwise,” provides: Rule 703 that the defendant com- or practices 92; rule, Seavers, exception general ception. See Bow- 9. The al- noted, man, knowledge” ready S.W.2d at 530-31. is the "common ex- particular The facts or data the case which the opinion is based are not trust- upon opinion worthy pursuant which an bases an to Rules 702 and 703. may inference perceived or be those In its role as a gatekeeper, the by or made known to the at or (1) trial court is to determine whether the hearing. before the If of a rea- type witness meets the competency require sonably upon by experts relied in the ments of Tennessee Code Annotated sec particular forming opinions field in or 16—115(b) (2) and, tion whether the 29— upon subject, inferences the the facts testimony witness’ meets the admissibility or data need not be admissible evi- requirements of Rules 702 and 703. The dence. Facts or data that are other- trial court is not to decide how much wise inadmissible shall not be disclosed weight given is to be to the witness’ testi jury by proponent the mony. Once the minimum requirements opinion or inference unless the court met, any questions are may the trial court that their probative determines value have about the extent of the witness’s assisting jury to evaluate the skill, knowledge, experience, training, or expert’s substantially opinion outweighs pertain only education weight of the prejudicial their effect. The court testimony, not to admissibility. its See testimony shall disallow in the form of Stovall, 113 S.W.3d at 725 (noting that opinion underly- or inference if the arguments concerning a expert’s ing facts or data indicate lack of trust- qualifications and competency testify worthiness. “take primarily issue with expert’s] [the qualifications and the describing weight that function of Rules 702 should 703, given opinions his .... we have stated are is [t]hese sues for trial and not summary judg

that the preliminary question under ment”) (emphasis original); Coyle, 822 Tenn. R. Evid. 104 is one of admissibility (“The S.W.2d at objection 600 raised evidence. Once the evidence is [regarding defendant the expert’s admitted, it will thereafter be tested qualifications competency] goes more vigorous the crucible of cross-exam- to the weight of the evidence rather than countervailing ination and proof. After admissibility”). its occurs, may, course, a defendant challenge sufficiency of the evidence In deciding a motion for sum by moving for a directed verdict at the mary judgment, the trial court does not appropriate times. See Tenn. R. Civ. P. evidence, Martin, weigh the 271 at S.W.3d 50. Yet it is important emphasize 87, but accept must the nonmoving party’s weight to be given to stated true, evidence as id. at and view both theories, scientific and the resolution of the evidence and all reasonable inferences legitimate competing but scientific that can be drawn light therefrom in the views, are matters appropriately en- most favorable to the nonmoving party. trusted to the trier of fact. 364; Giggers, 277 S.W.3d at Kelley, 133 Inc., McDaniel v. CSX Transp., 955 at A S.W.3d trial court’s failure to (citation (Tenn.1997) S.W.2d 265 omit- properly determine expert’s competen ted). A trial court should admit cy, the testi- the admissibility expert’s testi mony of a competent expert unless mony, or its failure expert’s to view the party opposing the expert’s testimony testimony light most favorable to substantially shows it will not assist the nonmovant is reversible error. Cf. Stovall, the trier 721; Searle, of fact or if the facts or data on 113 at S.W.3d verdict); type of medical facilities the number and (reversing directed S.W.2d at 65 Wilson, 863, 369; community, and medical services Bravo, at in the S.W.3d Perales, area; 104; available in the specialized practices Church S.W.3d (Tenn.Ct.App.2000); providers other medical 166-67 has discussed with A trial at 648-49.10 neighbor- or a Ledford, pertinent disqualify an accept to or applicable court’s decision ing regarding one reviewed under witness is expert medical presented; of care relevant to the issues A trial standard. the abuse of discretion community hospital or or has visited the disqual- when it abuses its discretion court will practices, be suf- where the defendant competency meets the witness who ifies a testimony expert’s ficient to establish 16—115(b)and of section requirements 29— “substantially to probative relevant and as require- meets the testimony that excludes fact to understand the assist the trier of Contrary to and 703. of Rule 702 ments a fact in issue” evidence or to determine dissent, in the Tennessee made statements Rule of Evidence 702 in a under Tennessee rule majority continues to follow case and to demon- malpractice medical to of discretion standard apply the abuse proffered which the that the facts on strate admissibility of ev- regarding decisions trustworthy pursuant expert relies are unchanged remains idence. This standard 703. Tennessee Rule of Evidence opinion. this firsthand, Third, “personal, Second, locality rule re knowledge” standard set forth direct demonstrate the claimant quires Allen too restrictive. There Eckler and is acceptable recognized standard “[t]he precedent Tennessee allow is substantial community ... professional qualified by educat ing experts to become or in a practices in which defendant by various means on the ing themselves Ann. community.” Tenn.Code similar a characteristics of Tennessee medical 26—115(a)(1). not The statute does 29— Stovall, community. at See S.W.3d or manner of require particular a means 723; Searle, 64-65; Taylor, at 713 S.W.2d a “similar com constitutes proving what 368-71; v. 231 S.W.3d at Pullum Robi term. munity,” nor does it define (Tenn.Ct. 124, nette, 174 132-33 compel us Principles of stare decisis 360-61; Bravo, at App.2004); requirement a medical adhere to the A Ledford, proffered 742 S.W.2d at 648. a modicum expert must demonstrate required medical to demon is community familiarity with the medical and “direct” knowle strate “firsthand” a similar practices which the defendant community of a medical and the dge11 Generally, expert’s an testi community. care there appropriate standard of medical is mony that he or has reviewed and she qualify competent testify informa order with statistical pertinent familiar size, size, A proffered in a case. community hospital medical tion such as that, nothing although Bradley-Polk, We note there is v. No. 10. See also Plunkett E2008-00774-COA-R3-CV, knowledge WL wrong requiring expert’s *6, 30, (Tenn.Ct.App. Sept. *8 at "personal,” as a semantical matter such to be 2009); Damp, No. M2005- Waterman nothing analysis. requirement adds *7, 01265-COA-R3-CV, 2006 WL at may Although philosophers point, debate * 9, 2006); (Tenn.Ct.App. Oct. Travis v. legal purposes knowledge practical all R3-CV, Ferraraccio, No. M2003-00916-COA— obtained, possessed by person, however (Tenn.Ct.App. WL *5-6 knowledge. "personal” 19, 2005). Sept. may educate himself or herself on element of the expert witness’ knowledge the characteristics of a of the standard of care in the same or competent in order to provide testimony in similar community. Contrary to state variety ways, including but not limited dissent, ments made recognition reading reference perti- materials on is neither a nor a dilution relaxation nor an nent statistical information such as com- invitation of reliance on a national or re munity hospital size the num- and/or gional standard of care. It is simply a type ber and of medical facilities in the common recognition sense of the current area, conversing with pro- other medical modern state of medical training, certifica pertinent viders in the community or a tion, communication, and information shar one, neighboring or similar visiting the ing technology, as demonstrated in the community or hospital where the defen- numerous instances of sworn testimony of practices, dant or other means. We ex- by fered medical experts in the above- firsthand, pressly reject the “personal, di- cases, reviewed as well as thoughtful the rect knowledge” by standard formulated analysis and discussion courts sever Appeals the Court of in Eckler and Allen. al jurisdictions, other the consider Fourth, in adopt this case we do not ation of testimony See, such justified. is national standard of care in medical mal e.g., Shilkret v. Annapolis Hosp. Emer. practice Any cases. change locality Ass’n, 187, 276 (1975); Md. 349 A.2d 245 rule must come from legislature, not Belinkoff, 102, Brune v. 354 Mass. 235 However, judiciary. we recognize that (1968); Hilbun, N.E.2d 793 Hall v. 466 in many instances the national standard is (Miss.1985). So.2d 856 representative of the local standard. Rob inson, 724; Pullum, 83 S.W.3d at see also Only after a expert medical 174 S.W.3d at 129-30. A number of medi witness has sufficiently established his or experts cal have testified in Tennessee familiarity her with the standard of care in cases that there is either a uniform nation the same or similar community as the de al standard of care or a pertinent standard fendant, may the testify witness that there to a geographic broad applicable area is a national standard of providers. medical care medical care to Examples of such Stovall, which testimony are members of his or profession found 113 her S.W.3d 719; Robinson, 721; at 83 Tay S.W.3d at specialty must adhere. This testi and/or lor, 371-72; 231 Carpenter, S.W.3d at 205 mony, coupled expert’s with the explana 479-80; Pullum, S.W.3d at 174 at S.W.3d why tion of applies national standard 131-32; Kenyon, 762; 122 at S.W.3d Tat circumstances, permissible under is 678; Wilson, ty, 121 at S.W.3d pertinent support expert’s opin 99; Mahon, 828; at Coyle, S.W.2d at ion on the standard care. The mere 598; at Ayers, 689 S.W.2d mention of a national standard of care at 159.12 disqualify should not an expert from testi However, fying. expert may

Therefore, rely not expert medical testi solely on a bare assertion mony regarding of the existence regional a broader stan dard or a national of an applicable not be national should standard of care barred, but should be considered as an proffered testimony order for his or her Richardson, *9; Ctr., 12. See also Johnson at Sandlin v. Univ. Med. M2001-00679-COA-R3-CV, (Tenn.Ct.App.2010); Farley, S.W.3d 816 No. 2002 WL *12; Travis, 25, 2002). WL (Tenn.Ct.App. July 2005 WL at *6 national stan- or a regional standard broad Rules of Evidence under to be admissible members care to which of medical dard 702 and specialty must profession his or her and/or (1) summary judg- at the summary, adhere, expert’s explana- with the coupled courts trial proceedings, stage of ment national stan- why regional or tion of but must the evidence weigh should the circumstances. applies under dard qualified testimony of view nonmoving party by the proffered Qualification Expert Witnesses nonmoving par- most favorable light Rerych and Dr. Shaw Dr. (2) prove required A claimant ty. acceptable recognized standard “[t]he application turn to an We now community ... in the practice professional to the testi principles the above-discussed or in a practices defendant in which the experts medical mony proffered of the two Ann. Tenn.Code community.” similar case, and Dr. Rerych Dr. present 26—115(a)(1). The medical § 29— vitae was Rerych’s curriculum Shaw. satisfy this by the claimant experts used Rerych has in the record. included some fa- requirement must demonstrate medicine been licensed miliarity with the prac and has since 1986 North Carolina or a similar practices, the defendant which vascular general, as a ticed in Asheville expert’s testi- in order for community, surgeon since thoracic and noncardiac Rules 702 under mony to be admissible general sur He is board-certified competent expert’s Generally, a and 703. he had testified that Rerych Dr. gery. has reviewed and he or she testimony that testify as a medi Nashville to traveled to infor- statistical pertinent is familiar before, and twice had expert cal once or size, community hospital mation such as area in the Tennessee Tri-Cities testified facili- size, of medical type number and to According previous occasion. on one and medical ser- community, ties in the testimony, previ he had been Rerych’s Dr. available practices specialized vices or expert provide medical ously qualified with other area; had discussions has testify did so testimony in Tennessee and pertinent commu- providers medical Dr. three earlier occasions. on two or regarding one nity neighboring aor he had traveled Rerych testified that relevant to the of care applicable standard and once occasions Nashville on several the com- has visited presented; or issues community hospitals toured one the defendant where munity hospital that he reviewed He also testified there. to establish will be sufficient practices, Nashville, information about demographic (3) A admissible. testimony as expert’s medi County, hospitals Davidson required to demon- expert is not medical Nashville, and Summit cal facilities knowledge “direct” “firsthand” and strate prac where Williams Medical Center appropri- and the of a medical tices, forming his considered in which he in order care there of medical ate standard commu is a similar opinion that Asheville in a testify competent qualify facts applies to the Nashville “as it nity to ex- proffered A case. malpractice medical case,” although of this and circumstances on the himself or herself pert may educate any re not do he did he also admitted community in a a medical characteristics of familiar with and was not search on already have noted. variety ways, as we Hospital. of Summit characteristics (4) testimony indicating In addition Rerych care, deposition, During his local standard familiarity with the in a semantical engaged defense counsel testify that there is may medical in a typical Q: you battle case How do know that?

where defense counsel tries to elicit testi- A: Because Crohn’s disease I see here. mony support argument that will Ulcerative colitis I see here. That’s relied on a national how I know. I mean that was not care, the expert may genuinely and where problem. case of an exotic believe in an applicable national standard the circumstances but under is concerned Q: you say Would the standard of care saying will disqualifi- so result his is the same all over the United cation: States for surgery? Q: you Do know if Hospital [Summit A: necessarily, Not no. But the bot- all hospital similar to the is] tom line is looking we’re at similar your community? communities. A: likely It most is. Q: Well, how are the communities Q: you How do that? know Nashville and Asheville the same? A: How do I know that? Because I’ve A: We see the patients. same before, been to that area and in medical doctors are similar in terms addition we have the same I training their experience. say systems, wouldn’t overall but Q: You don’t any have firsthand knowl- hospitals are the same. We edge of practicing medicine in Her- have acute general beds. We have Nashville, mitage or you? do surgeons and so on who take care of A: I any don’t have firsthand knowl- patients through.

these who come

edge, hand, but on the other medi- medicine; cine is diseases are dis- Q: youDo have opinion an as to wheth- eases; training is similar. er or not the standard of care in Q: you’re Medicine is medicine. So Asheville, Carolina, North is the saying the standard of care is the same or similar to the standard of Columbus, Ohio, same in as it inis care in Nashville or Hermitage, Asheville, North Carolina? Tennessee? A: I’m saying that there stan- [are]

A: It is. similar,

dards of care which are governed by training, similar simi- Q: you How do know that? What’s the lar experience, similar in education opinion? basis for that similar communities. A: I’ve been there before terms of Q: Regardless you of where are? the vicinity, Nashville I’ve testi- A: That’s correct. But not a national fied in Nashville. standard of care. I’m going not Q: there, I you’ve know testified but get off into that stuff. the your opinion what’s basis for you that see the same number of

patients? Well, Q: you agree would that the stan- A: Not the might same number. It be Sacramento, dard of care in Califor- they’re nia,

different numbers. But Asheville, is the same as North similar communities. Carolina?

Q: they How are similar? circumstances, A: Given the similar A: We see the types patients. same perhaps.

556

115(b) person that in a provides “[n]o profession requiring health care licensure Okay. question you is do Q: And testify ... ... competent un- shall that the standard of care believe practice less was licensed to person California, Sacramento, is the same contiguous bordering the state or a state a Asheville, North Car- as profession specialty which would make olina? person’s expert testimony relevant your question. A: I don’t understand (Emphasis in the case ...” issues add- ed). you having Q: What is the basis recognized Our courts have on a

knowledge to the standard of as Sacramento, number of occasions that section 29-26- care California? requirement 115 no wit “contains California, Sacramento, nothing A: has practice specialty ness same as the I with case. don’t want to to do Searle, S.W.2d at defendant.” 65 question. answer that (holding competent that the witness was Well, I’m to ask for Q: going sanctions. “the testify regarding applicable standards Dr. Rerych’s reviewed carefully We have prevention surgeons and treat testimony and credentials conclude infections ... surgical ment of wound even sufficiently Rerych established his surgeon”); though he was himself familiarity recognized with the standard of Bechtol, 724 S.W.2d Cardwell practice in the acceptable professional (Tenn.1987) (statute require does not wit prac- in which the defendant ness specialty same defen community. tices or in similar Conse- dant, but “the witness must demonstrate holding erred in quently, trial court familiarity sufficient disqualified him to render medi- testimony probative must be opinion cal this case. Pullum, involved”); of the issue testimony Regarding Dr. Shaw’s 142; Church, S.W.3d at qualifications, Appeals the Court of 17; Ledford, n. at 647. Conse only following: stated quently, carefully courts must look at found that Dr. The trial court first particular presented issues in the case to Shaw, physician, an room emergency expert practices profes determine if an a requirements failed to meet of Tenn. specialty sion or would make the ex §Ann. since he did not Code 29-26-115 testimony those pert’s relevant to issues. i.e., speciality, appropriate case, Shaw, physician Dr. this board- of dis- surgery. upon Based abuse who emergency certified in medicine had standard, disagree cannot cretion we practiced years, medicine for 33 testified physician’s that an room emergency familiar he was opinion determining helpful not care applicable surgeon to for limited a surgeon malprac- whether committed area the standard communication of be tice. referring tween a doctor and an emergen doctor, cy apportionment This and the Shipley, 2009 WL *5. room responsibility whether appears comport deciding pa statement to with reason face, how, admitted, when, tient and common sense on its and we should patient if the and whom a receive agree by would be inclined to issues should fol noted, pertained surgery. But Ten- care. As the issues this low-up this case to allegations Dr. regarding section 29-26- case of Williams’ nessee Code Annotated to negligence pertain surgery per- appeal do not are appellant, assessed to the Dr. surgical Dr. Williams or formed related Robin Williams.

care, pro- but rather whether Dr. Williams timely appropriate follow-up vided KOCH, JR., J., WILLIAM C. filed a presented, under circumstances separate opinion concurring part including Shipley’s Mrs. medical condition dissenting part. presented at the time she to the emergen- HOLDER, J„ M. JANICE filed cy room the first time. Dr. Shaw thus was separate concurring opinion. qualified testify as an expert because his testimony probative and relevant HOLDER, J., M. JANICE concurring. the issues and allegations presented in I concur in the majority opinion but Shipley’s Mrs. lawsuit.13 separately write to address the dissenting Conclusion opinion’s assertion that “sky is falling.” The majority opinion has not substantially judg We reverse the trial court’s “the altered standard of review of sum- Rerych ment that Dr. Shaw were mary judgments based on the qualified not inadmissibil- render ity of evidence opinions relating to an pursuant to Tennessee Code An essential element of the Regarding nonmoving party’s notated section 29-26-115. case.” Shipley’s Despite Mrs. claim based on failure to Justice Koch’s statements to the admit hospital contrary, to the on November after the opinion, release of this successfully Dr. Williams affirmative appellate courts will continue to review ly negated an element of that claim— evidentiary determinations using abuse breach applicable of the standard of care— of discretion standard. Stating otherwise by pointing testimony Rer- Drs. does advance this discussion. ych and Shaw that the failure to admit was cases, Medical like Ms. not a appropriate breach of the Shipley’s Williams, claim against Dr. are of care. We judgment reverse the governed part by a statute that sets Appeals part Court and reinstate plaintiff forth the elements a prove must summary judgment in Dr. Williams’ favor damages. § recover Tenn.Code Ann. 29- on the failure to admit claim. Because 26-115(a) (Supp.2010). The statute also

Williams failed to either affirmatively ne governs competency ex- testifying gate an essential element of Shipley’s Mrs. 29-26-115(b). perts. Tenn.Code Ann. claims, remaining Ship- show that Mrs. interplay Added are the Tennessee ley prove cannot an essential element of Rules of.Evidence. trial, her claims at the burden did not shift to When we construe a statute Shipley ap Mrs. to and its genuine demonstrate fact, case, plication issue of to summary judg material the facts of a our review . Ball, ment Dr. in Williams’ favor is de novo. improper was Larsen-Ball v (Tenn.2010). ly granted. We therefore vacate the S.W.3d An expert granting summary court’s order judgment “competent testify” concerning must to and remand the case trial. Costs on the three plaintiff prove elements the must Although recognized acceptable there is no indication in the rec- profession- standard of ord or the trial court’s order that it found Dr. practice al in Nashville or a similar communi- disqualified locality Shaw to be because of the ty principles under the and standards dis- rule, testimony we note that Dr. Shaw’s was cussed herein. familiarity sufficient to establish his with the (3) care; and competency comply with the standard of expert’s The is recover.

to plaintiff injuries the as a requirements of sub- suffered the two governed by (b). failure proximate must be result defendant’s proffered expert section The the of care. comply or a con- to standard to the state practice “licensed 29-26-115(a). § or Tenn.Code bordering profession state a Ann. tiguous person’s would make the which specialty judg- Williams summary moved for Dr. issues in testimony relevant to the expert part the basis that one of Ms. ment on § 29-26- Ann. the case.” TenmCode proffered experts, Rerych, Dr. Shipley’s 115(b). also must proffered The of unfamiliar with the standard care profession specialty this or “practiced have (a)(1).2 This sub- set forth in subsection year during the in one ... these states of plaintiff prove the must section states that alleged injury that the preceding the date acceptable recognized standard “[t]he wrongful occurred.” Tenn.Code or act profession in the professional practice 26—115(b).1 § Section 29-26-115 Ann. 29— thereof, any, if that the de- specialty the subsec- who satisfies is clear that a witness practices community fendant (b) testify the competent tion is in a practices which the or simi- defendant (a), including the elements in subsection inju- community alleged lar at the time the plaintiff prove. must standard of care the ry or action occurred.” Tenn. wrongful 29-26-115(a)(l) (“the Ann. competency locality § is estab- expert’s Once the Code rule”). lished, provide Shipley has the burden of the must evidence Ms. plaintiff “by proving preponderance the three this element through its elements 29-26-115(a): (1) § Ann. 29- evidence.” TenmCode set forth in subsection 115(d). jury concerning care A is instructed recognized 26— com- role in TenmCode in a similar its this determination.3 defendant’s 29-26-115(d). (2) munity; may failed to Ann. trial court defendant patient's provides, responsible "The court who are for the 1. The also subsection (b) following emergency room visit. Because may waive when it deter- this subsection malpractice Shipley’s Ms. medical claim con appropriate mines witnesses other- that the following cerns Williams's actions Ms. Tenn.Code wise would not be available." visit, Shipley's emergency majority room 29-26-115(b). §Ann. correctly reversed the decision of the lower excluding testimony. courts Dr. Shaw’s testimony 2. The trial also excluded the court Shaw, emergency physician of Dr. room Jury 3.The Tennessee Pattern Instructions for Shipley's proffered who was of Ms. ex one "Standard of Medical Care Determined compe perts, finding Shaw was state, Testimony” Expert testify pursuant tent to section 29-26- observes, 115(b). majority opinion As the your obligation recog- It is determine (b) phy physician satisfy if the can subsection acceptable professional nized practices specialty sician in a that is relevant profession for in a defendant’s this claim. See Card community. making aor similar Bechtol, (Tenn. well v. 724 S.W.2d determination, may only you consider 1987); Bryant, Searle opinions physicians, including (Tenn. 1986). who physician Dr. Shaw is a defendant, concerning who have testified emergency medicine and board-certified opinion this standard. Consider each practiced thirty-three who has medicine for given opinion, as the reasons for this well witnesses, years. He that he was familiar with testified qualifications giving as the of the applicable to a weight both the care opinion you it de- each believe emergen surgeon with an who communicates serves. Jury cy concerning patient physician room 8 Tenn. Prac. Pattern Instr. T.P.I.-Civil 6.18, ed.2008). (9th applicable physicians p. § judgment for that of the Rerych’s not substitute its Dr. competency to testify pur- trier of fact. suant to Tennessee Code Annotated sec- 29-26-115(b) tion undisputed. was The trial court ruled that Dr. Williams pertinent issue therefore is whether Dr. summary judgment was entitled to be Rerych’s opinion of the standard of care in testimony Rerych cause the of Dr. Nashville or a similar community was pursuant locality inadmissible to the rule. sufficiently based on trustworthy facts or admissible, Dr. Rerych’s expert To be tes data so that it would substantially assist timony comply with must Tennessee Rules the trier of fact in determining applica- of Evidence 702 and 703. Brown v. Crown ble standard of care. Tenn.Code Ann. (Tenn. Equip. Corp., 181 S.W.3d 26—115(a)(1); Tenn. R. Evid. 2005). 29— 703. As stated in the majority opinion, Dr. Tennessee Rule of pro- Evidence 702 Rerych testified in his deposition as to expert may testify vides that an witness specific supporting facts his assertion that opinion the form of an if the witness’s he is familiar with the applicable standard specialized knowledge substantially “will of care. See Tenn. R. Civ. P. 56.06. It is assist the trier of fact.” Tennessee Rule necessary the trial court agree of Evidence 703 an permits expert witness Rerych. Dr. It only necessary that opinion “per- to base his on facts or data the trial court find that Dr. Rerych has the ceived or made known at appropriate qualifications pursuant to Ten- Furthermore, hearing.” or before the nessee Code Annotated section 29-26- Rule 703 allows an witness to devel- 115(b) and Tennessee Rule of Evidence op opinion an based on facts or data that 702 and that he opinion bases his on trust- inadmissible, are but the rule instructs worthy facts data required by Ten- expert’s opinion courts disallow an nessee Rule of Evidence 703. The trial based on facts or data that “indicate a lack court must bear in mind that Rerych’s Dr. of trustworthiness.” Tenn. R. Evid. 703. testimony subject would “vigorous We will reverse a trial court’s determi- cross-examination countervailing nation admissibility as to the of expert Brovm, proof.” 181 S.W.3d at 275. The testimony only if the trial court abused its fact, court, trier of not the trial bears the discretion, example, by an applying responsibility weighing expert testimony legal thereby prej- incorrect standard and resolving “legitimate but competing Brown, udicing the complaining party. expert opinions.” Id. ease, 181 S.W.3d at 273. In this the trial court Rerych found that Dr. “does not Applying Tennessee Rules of Evidence satisfy requirements Brown, Rerych’s Tenn.Code 702 and 703 and §Ann. 29-26-115.” The testimony substantially trial court elabo- will assist the tri- rated, “Dr. Rerych did not determining demonstrate er of fact in the element set familiarity 29-26-115(a)(l), with the standard of care for forth in section the stan- Nashville, general surgeons in Davidson dard of care in Nashville or a similar Tennessee,” County, community. where Dr. Williams The trial court failed to rec- practiced Shipley’s inju- the time of Ms. ognize interplay Evi- Rules of 29-26-115(a)(l). ry. “Nor did he demonstrate that Ashe- dence and section ville, Carolina,” North applying legal analysis, incorrect Rerych which practiced at the time precluded Shipley trial court Ms. from Shipley’s injury, Ms. presenting competent “is similar commu- evidence of her Nashville, nity to Tennessee.” claim to a trier of (1) on altera- trial therefore abused its decision rests a substantial The court fact. of summary tion of the standard review of discretion. inadmissibility on judgments based the of majority has fallen. The sky The not an relating evidence to essential element of territory. new In- has not charted opinion (2) a nonmoving party’s the case and sig- stead, abuse of applied it has discretion “locality relaxation of the rule” nificant in trial reviewing in the court’s ex- §Ann. 29-26-115. Tenn.Code Rerych’s opinion and has of clusion determined, correctly, that the trial court logical I legal no or basis for chang- find erred. ing of for relaxing the standard review or the of Ann. requirements Tenn.Code 29- J., KOCH, JR., C. WILLIAM summary 26-115. The motion for judg- part dissenting part. in in concurring ment in this was filed at issue case four years complaint By after the was filed. application the originally granted We time, plaintiff given that the had been over appeal to this case to ad- permission years identify qualified two “standard of summary judg- question regarding a dress care” experts, discovery parties the of the cases that ments medical experts completed, had the been Alltel was left unanswered Hannan v. (Tenn.2008). the Co., Reviewing case had been set for trial. Publishing 270 S.W.3d this on record based the standards tradi- a defendant in a question That is whether sort, tionally used to review cases of this I malpractice case who does not both plaintiffs would find that ex- evidence that his her conduct present satisfy perts requirements failed to the complied applicable locality rule and that the summary thus defen- judgment entitled a care is dant entitled demonstrated that she was when he or she demonstrates that By as a matter law. judgment estab- plaintiff witness or witnesses the lishing plaintiffs that the standard of care not plans present satisfy at trial do experts competent testify, were she §Ann. requirements of Tenn.Code 29-26- affirmatively negated an essential element (Supp.2010).1 case. plaintiffs case, In this trial court both the Appeals, using princi- rules and Court I. traditionally have been

ples employed sort, In mid-January Faye of this determined that the Donna Ship- cases ley of care” plaintiffs experts emergency surgery two “standard underwent at Sum- satisfy mit requirements did not of Tenn. Medical Center Nashville for a rup- §Ann. now tured The surgery performed Code 29-26-115. Court colon. was decisions, Williams, general surgeon reverses those but not on the Dr. Robin proce- ground present practicing the defendant did not Nashville. Part of dure a tempo- evidence her conduct consistent included the construction of rary ileostomy.2 care. During with the standard of The Court’s the months fol- Co., Judy Publishing 1. Cornett nan Alltel 77 Tenn. Professor M. addressed L.Rev. (2010). very 342-43 circumstance in her recent article de fending this Court’s decision Hannan v. ileostomy surgically opening An created Co., (Tenn. Publishing Alltel that connects small intestine out- 2008). Cornett, Judy M. Trick or Treat? provides side It an exit wall of abdomen. Summary Judgment in Tennessee Han After from the small intestine to the surface re-examined, lowing surgery, Shipley her Ms. returned should be Dr. Williams told hospital several times because him that happy she would be to see Ms. ileostomy. infections with the associated Shipley in her office. Because Ms. Shipley Shipley Ms. remained under the care of dehydrated, Dr. Williams asked Dr. Dr. Williams. Walker to order a bag second of IV fluids releasing before her. Dr. Walker released 17, 2001, Saturday,

On November Ms. Shipley Ms. from the emergency room af- telephoned Dr. Shipley complain- Williams ter she received the additional IV fluids. ing pain of abdominal a sore and throat. rest, He instructed her to drink fluids Dr. Williams instructed Shipley Ms. to vigorously, stay on a liquid clear diet for make appointment Tuesday, an office hours, ten to twelve 20, 2001, and to contact Dr. November and to her contact Williams on Monday morning Tuesday arrange before if pain worsened or if appointment. for an developed Shipley she a fever. Ms. tele- phoned Dr. Sunday, Williams on Novem- Dr. Williams customarily did not see 18, 2001, ber complaining pain of increased patients in her office Monday. on Accord- and a 102° fever. Dr. Williams instructed ingly, she understood that she would see Shipley go Ms. to the emergency room Shipley Ms. in her Tuesday, office on No- at Summit Medical Center and then alert- However, vember for some rea- emergency ed the room staff that Ms. record, son not clearly explained in this en Shipley was route. Dr. Williams’s office made arrangements Walker, Dr. Leonard A. III examined Shipley for Ms. primary see her care Shipley emergency Ms. room. Dur- physician Wednesday, on November ing Shipley’s lengthy stay Ms. in the emer- Williams, 2001. Unbeknownst to Dr. Ms. room, gency Dr. Walker ordered a number Shipley’s primary physician contract- tests, including scan CT and a chest meningitis ed and could not see Ship- Ms. X-ray. Dr. Walker strep ruled out throat ley planned. On the evening of Novem- pneumonia and signs and saw no of sepsis. 21, 2001, ber Shipley Ms. returned to the However, Shipley appeared because Ms. Summit Medical Center emergency room. dehydrated, Dr. Walker ordered IV She was hospital admitted to the with sep- though fluids. Even he was unable to pneumonia. sis and specific formulate a diagnosis, Dr. Walker was concerned that Ms. Shipley “was de- 7, 2002, On Shipley November Ms. veloping type some of intra-abdominal her husband filed medical problem” because of her pain abdominal suit the Circuit Court for Davidson and elevated white blood cell count. County against Drs. Williams and Walker and Summit They Medical Center. al- Walker talked Dr. Williams leged physicians telephone Shipley negligent while Ms. were was in the emergency they room. Dr. because failed to admit passed Shipley Walker Ms. tests, 18, 2001, along hospital the results of the on November laboratory scan, X-ray Shipley “[got] CT and the because Ms. the run gave also around impression Ship- days” Williams his of Ms. for several before she returned to ley’s condition based on his examination. hospital on November 2001. Ms. $3,000,000 When Dr. Walker Shipley Shipley stated Ms. sought damages, patient’s permits pouch generally skin that emptied eight collection and five to individually elimination of in an waste fitted day. times pouch drainable that is worn at all times. $500,000 2006, damages deposition and Dr. Shaw’s was taken Shipley sought

Mr. 27, and consortium of February the loss of services on 2006. “for wife.” his 10, 2006, April the trial court entered On against Dr. Walker Shipleys’ claims

The setting for agreed an order the case trial by fell Summit Medical Center 22, 30, 2006, on October 2006.6 On June order,3 relatively short and the wayside partial Dr. filed a motion for Williams Dr. against alone. case continued Williams summary judgment seeking dismissal of Dr. on Oc Shipleys deposed The Williams negligent the claim that she had been for 22, la than one month tober 2003. Less hospital to the failing Shipley admit Ms. 2003, 17, ter, the trial court on November 18, 2001. The trial court on November management and schedul entered a case 1, 2006, an on September entered order directing Shipleys disclose ing order dismissing granting the motion and this 2, by February their witnesses claim. 23, 2004, February On three 2004.4 weeks 11, 2006, September On the trial court deadline, Shipleys filed Tenn. past the management a entered case and schedul- 26.02(4) identifying P. disclosures R. Civ. order all ing requiring dispositive motions Shaw, emergency Dr. Ronald room A. to be on or to be docketed heard before Ala practicing Montgomery, physician 26, January 2007. on Decem- Accordingly, bama, K. Stephen Rerych, gen Dr. 1, 2006, ber Dr. Williams filed “motion Asheville, surgeon practicing eral North Stephen summary judgment for exclude Carolina, care” ex as their “standard of Shaw, Rerych, M.D.” Ronald M.D[J They perts. also disclosed Dr. Gerald R. omitted). motion (capitalization This was Donowitz, sub-speciality an internist with a accompanied by undisputed a statement of practicing in infectious diseases Char- facts and a memorandum of law and was lottesville, as their “causation” Virginia, 12, to be January set heard on 2007. In expert.5 motion, response Shipleys their to the Ship- trial later The court extended in Dr. admitted the facts Williams’s state- experts to Janu- leys’ deadline to disclose undisputed purpose ment of facts for the 15, ary 2005 and Dr. Williams’s disclosure of motion. 1, deadline to 2005. In an effort to March The deadline, trial court heard Dr. Williams’s mo- deposition meet the Dr. Donowitz 20, 17, judgment January tion for deposed July summary Dr. Rer- on was on 2005. 6, January 17, 2007, ych’s deposition February was taken on 2007. On the court 30, 2003, i.e., case, April apply 3. On the trial court dismissed violations that as opposition. Center respective physician Summit Medical without duties of ER party Walker as Dr. was dismissed on Janu- general During surgeon.” Donowitz’s de- 8, ary 20, 2004. 2005, position July Shipleys’ on lead certainly counsel stated "I do not intend to dis- 4. The order also directed Dr. Williams to ask him or not Williams whether violat- [Dr.] 5, 2004, April close her witnesses ed the care.” When asked "are discovery depositions and directed that all be you saying you're offering [Dr. him Do- 17, by September taken The deadline 2004. any nowitz] for standard care issues what- taking discovery depositions was later ex- soever?,” responded “Exactly.” counsel September tended to later, 14, 2006, 26.02(4) July on 6.Three months Shipleys' 5. The Tenn. R. dis- Civ. P. trial date moved from regarding closure in the rec- October Donowitz is February a conflict ord. It that “Dr. will not "due to states Donowitz testifying specific Plaintiff’s counsel's calendar.” granting summary judg- entered an order this ease.” The trial court also denied Ms. Shipley’s ment. order stated that Dr. motion to alter or amend. undisputed Williams’s statement of acts Shipley Ms. a timely filed ap- notice of would be deemed admitted because it was peal. The Appeals Court of opin- filed its that the unopposed testify- “Plaintiffs 14, ion August on 2009. Shipley v. ing experts ... do not require- meet the Williams, No. M2007-01217-COA-R3-CV, § ments of Ann. Tenn.Code 29-26-115 and 2009 WL (Tenn.Ct.App. 14, Aug. substantially will not assist trier of fact 2009). The court affirmed the trial court’s pursuant to Tenn. R. Evid. 702 and 703.”7 decision that Dr. Shaw qualified was not give opinion an regarding Dr. Shipley

Ms. filed a Tenn. R. Civ. P. Williams’s Williams, Shipley care. 8, 59.04 motion to alter or amend on March 2486199, 2009 WL It *5. also 2007. affirmed Attached to this motion were the the trial court’s Rerych decision that Dr. affidavits of two new “standard of care” could not render a standard of opinion experts.8 complained She also that because he prove had failed to trial court explained had not its reasons Asheville, medical communities of North granting summary for judgment and Nashville, Carolina and Tennessee are requested the trial court to set a new trial Williams, similar. Shipley v. 2009 WL date. 2486199,at *5. 10, 2007, May On the trial court filed conclusions, Notwithstanding these “findings of fact and conclusions of law.” Appeals Court of reversed the trial court’s omitted). (capitalization The ex- court summary judgment. The court decided 6, plained the basis for February its the claim based on Dr. Williams’s by pointing order Stephen out that “Dr. failure to admit Ms. Shipley hospital Rerych[] satisfy does not the require- 18, on November 2001 should not have § ments of Tenn.Code Ann. 29-26-115. been dismissed because Dr. Williams had Rerych familiarity did not demonstrate solely Rerych’s relied on Dr. testimony with the standard of care general sur- that the trial court later found to be inad- Nashville, geons in County, Davidson Ten- missible. The court reasoned that without nessee. Nor he did demonstrate that Dr. Rerych’s testimony, Dr. had Williams Ash[e]ville, North Carolina is a similar present proof failed to negating an essen- Nashville, community to Tennessee.” tial element of Ms. Shipley’s “failure to regard Shaw, With to Dr. Ronald the trial Williams, admit” claim. Shipley v. explained court that “Dr. Ronald Shaw[] WL at *6. satisfy requirements does not of Tenn. Code Ann. 29-26-115. Dr. Ronald Shaw The intermediate appellate court then practice does not in a specialty that turned its attention to Shipley’s Ms. re- relevant to the care issues in maining negligence claims.9 The court de- Shipleys’ 7. prepared competing The counsel Shipleys’ been disclosed as the “causation” signed order which expert. the trial court Despite express filed limitations that However, February on they 2007. placed testimony, an order had on Dr. Donowitz's 6, 2007, filed Shipley on March the trial present stated that Ms. now desired to him as a entry February expert. 2007 order was "standard of care” erroneous. (1) 9.The court characterized these claims as signed by The first affidavit was negligent properly Dr. Carl R. failure to assess her condi- Doerhoff, tion, (2) general surgeon practicing negligent provide necessary Jef- failure to treatment, City, (3) ferson Missouri. The negligent second affidavit failure to signed doctor, properly Dr. Donowitz who had earlier have her referred to another P. R.App. Tenn. enti- answer to Williams’s was not Dr. Williams

termined Shipley insisted that on these Ms. summary judgment application, tled to negate by failing failed to Appeals had had erred because she the Court claims case Shipley’s of Ms. testimony Rerych element of Drs. essential to consider and, therefore, never shift- that the burden most favorable to her. light Shaw in a to demonstrate Shipley to Ms. ed back fact war- of material dispute of a existence II. its deci- The court based

ranting a trial. summary judg- governing principles (1) excerpts conclusions that sion on its un- in Tennessee have been ment sup- deposition filed Dr. Williams’s of result, scrutiny of late. As der renewed summary judgment did not her port of refocused the significantly has Court appli- familiarity with the her own address standards, as well as persuasion of burden whether she of care and cable standard that must be met before requirements (2) the affidavit and with it and complied granted. can be summary judgment likewise of Dr. Walker excerpts deposition have wrought changes judicially These address Dr. Williams’s did not utility summary judg- of marginalized complied with it. whether she care and “screening proceedings device[s] ment 2486199, Williams, WL at v. 2009 Shipley identify cases that are not ... those *7. trial-worthy.”10 R.App. application P. 11 In her Tenn. not, recent decisions have The Court’s as- appeal, Williams permission for however, displaced requirement (1) had Appeals that the Court of serted P. that the evidence Tenn. R. Civ. 56.0611 concluding that had relied on by erred she oppose or to a motion for support used to Rerych and Shaw to opinions of Drs. summary judgment must be admissible. summary judgment her motion for support Urgent & Primary v. M.A. Care Clin- Cox (2) erred that the court had also (Tenn.2010); 240, ic, 247 n. 5 313 S.W.3d that, by disqualifying Ms. failing to find Green, 493, 513 v. 293 S.W.3d Green experts two “standard of care Shipley’s Hall, (Tenn.2009); 847 S.W.2d at Byrd v. disclosing experts after the deadline summary judgment stage, At the 215-16. successfully she had shown passed,” had princi- admissibility determinations focus an essen- Shipley prove that Ms. could not In on the content or substance pally of her claim at trial. her tial element 56, Similarly, (4) advisory the au negligent up her comm’n cmt. failure to follow on Williams, procedure WL progress. Shipley v. 2009 on civil thors of a definitive treatise 2486199, at *6. summary judgments provide have stated that justice expeditious by win parties Cornett, at generally 77 Tenn. L.Rev. 10. See claims, nowing specious deni out unfounded (discussing challenges properly bal 337 als, Alan defenses. 10A Charles and sham judgment). ancing summary This Court has al., Wright Federal Practice and Procedure et summary judgment pro likewise noted (3ded.l998). 2712, at 198 pierce the ceedings “enable the courts to justi pleadings to determine whether the case requires "[s]up- 11. Tenn. R. Civ. P. 56.06 Byrd expense time and of a trial.’’ v. fies the opposing be made porting and affidavits shall Hall, 208, 1993). (Tenn. In S.W.2d 210 847 knowledge, personal shall set forth such 56, on Civ. P. official comment to Tenn. R. its evidence, and would be admissible in facts as Advisory this Court’s Commission on affirmatively that the affiant is shall show emphasizes Rules of Practice and Procedure litiga testify stated competent the rule was intended to accelerate matters issues, tion, remove insubstantial and confine therein.” only genuine P. issues. Tenn. R. Civ. trials to

565 evidence, necessarily Byrd not its form.12 apply to threshold decisions regarding the Hall, 215-16; v. 847 Roy City admissibility S.W.2d v. of the evidence. (Tenn. Harriman, 296, 279 S.W.3d summary judgment proceedings, it is Indus., Ct.App.2008); Messer Griesheim necessary distinguish questions between Inc., Cryotech Kingsport,

Inc. v. involving the admissibility of evidence and S.W.3d 598 (Tenn.Ct.App.2001). To questions involving the weight of the evi admissible, be summary evidence at the dence. A summary judgment proceeding judgment stage satisfy require must substitute for a trial of disputed Evidence, ments of the Tennessee Rules of factual issues. Holdings, CAO Inc. v. any as well as other requirements control Trost, (Tenn.2010); ling the admissibility particular types Doe, (Tenn. Fruge Thus, evidence. evidence that would 1997). Because resolving factual disputes substantively inadmissible at trial would weighing the evidence are the fact- likewise be inadmissible at the summary prerogative, finder’s the courts may not judgment stage. weigh the evidence or resolve factual dis putes in a summary judgment proceeding. Despite protestations its to the contrary, Bush, Downs ex rel. v. Downs 263 S.W.3d case, the opinion subtly Court’s in this but 812, (Tenn.2008); 815 Teter Republic v. significantly, changes the standard used to Inc., Parking Sys., 330, 181 S.W.3d 337 review regarding decisions the admissibili (Tenn.2005); Dixie, v. Rollins Winn 780 ty support of evidence used to or oppose to 765, S.W.2d (Tenn.Ct.App.1989). 767 summary judgment motions. Because de hand, On the other issues regarding involving cisions the the admissibility of evi admissibility of evidence are not questions customarily dence have been viewed as jury addressed to the or the fact-finder. discretionary, appellate courts have re These questions are addressed to the viewed them—no matter the context —us Housler, court. 476, State v. 193 S.W.3d ing the deferential “abuse-of-discretion” (Tenn.2006); 489 Currier v. Bank standard. generally See v. of Sanford Louisville, (5 Cold.) 460, 45 Tenn. 462 Co., (Tenn. 836, Waugh & 328 S.W.3d 847 (1868); Dimick, 865, Godbee v. 213 S.W.3d 2010); Univ., Inc., Mercer v. Vanderbilt 882 (Tenn.Ct.App.2006); see also Tenn. R. (Tenn.2004). 121, 134 S.W.3d 131 Even 104(a). Evid. regard, the courts though we have used this standard to re protect the integrity of the fact-finding view involving decisions the admissibility process by acting gatekeepers to assure summary evidence in judgment proceed that the fact-finder’s only decision is based ings, v. Ry., Martin S. 271 S.W.3d Norfolk Scott, on admissible evidence. State v. 275 76, (Tenn.2008), 87 the Court has now 395, (Tenn.2009); 401 Johnson v. diluted this standard requiring courts Funds, 414, John Hancock 425 to view the light evidence in the most (Tenn.Ct.App.2006). favorable to the nonmoving party when deciding whether nonmoving party’s An overwhelming majority of federal evidence is admissible. The liberal con and state recognize courts in sum- struction of the principle evidence favoring mary judgment proceedings, issues involv- nonmoving parties was never ing intended to the admissibility sepa- of evidence are example, parties commonly For affida- summary judg- use the evidence inadmissible for However, depositions support vits and oppose to purposes. regardless or to ment of its form, summary judgment motions. The fact that the evidence could be excluded if it is the evidence inis this form does not render substantively found to be inadmissible.

566 a mal in medical involving from issues the ment for defendants rate and distinct appropriate case was where issues fact suffi- genuine existence of to summary plaintiffs competent a sole judgment. preclude cient to care). Joiner, 136, Evi testify v. 522 U.S. about standard Co. Electric Gen. 512, be 508 found to be inadmissible cannot 142-43, S.Ct. 139 L.Ed.2d dence 118 Pressman, However, (1997); the evidence found 151 Ida- considered. Suhadolnik (2011) 11, may be considered 110, (quoting P.3d 15 be admissible ho 254 Ctr., light nonmoving par Alphonsus Reg’l most favorable to the St. Med. Dulaney v. 15 (2002)). 816, 160, ty deciding court when trial is P.3d Idaho fact they genuine “abuse-of-discre- whether issues material Accordingly, use the reviewing party seeking or whether tion” when decisions exist judg entitled a admissibility summary judgment of evidence in involving summary judgment pro- principle ment as a matter of law. The the context of today, liberal the evi requiring At least until Tennes- construction of ceeding.13 majority nonmoving party favor see’s have followed dence in courts applies only to been rule.14 evidence has v. Nord found to admissible. Bozzi only evidence can be Because admissible strom, Inc., Cal.App.4th 111 Cal. summary support oppose used (2010); Rptr.3d Ins. Gem State motion, judgment court’s first order trial Hutchison, Co. v. 145 Idaho 175 P.3d challenges all of business is to resolve (2007). 172, 175 of See admissibility evidence. Cox v. Clinic, appellate & 313 courts use a combined Primary Urgent M.A. Care Most (holding summary judg- review cases where S.W.3d at 261 485, Joiner, 734, (2007); 13.See, e.g., Co. v. 656 491 Pali Gen. Electric 522 W.Va. S.E.2d 512; 142-43, Kalal, Supe 118 App. U.S. S.Ct. Carnes v. at Collection LLC v. 2010 WI sades Court, 688, Cal.App.4th 180, 503, 126 38, 10, rior 23 Cal. If 324 Wis.2d 781 N.W.2d Palmer, 915, (2005); Rptr.3d v. 919 Barlow 96 507; Woods, generally v. WY see White 2009 88, 835, (2008); 837 Conn.App. 898 A.2d Ha 29A, 18, 597, ¶ 208 P.3d 602-03. Inc., Clothing, gan Goody's Family 227 Ga. v. 585, 107, (1997); App. S.E.2d 109 J-U-B 490 See, e.g., Ry., 14. v. S. 271 Martin Norfolk Hartford, Eng'rs, Inc. v. Sec. Ins. Co. 146 87, Ear, at v. Nashville Nose & S.W.3d Jacobs 311, 858, (2008); 861-62 193 P.3d Idaho Clinic, 466, (Tenn.Ct. 338 S.W.3d Throat 476 Mech., Albany-Floyd Cnty. Inc. v. Starks New Funds, App.2010); Johnson v. John Hancock 936, (Ind. Corp., N.E.2d 939 Consol. Sch. 854 425-26; Haykal, at Dubois v. 165 217 S.W.3d Amite, City Ct.App.2006); Carrier 6 So.3d v. 634, (Tenn.Ct.App.2004); Wil S.W.3d 636-37 893, Injured (La.Ct.App.2009); Workers' 897 Patterson, 95, (Tenn.Ct. son v. 73 S.W.3d 101 Serv., Express Delivery Ins. Fund v. Orient Ayers Ayers App.2001); ex rel. v. Rutherford Inc., 438, 1120, Md.App. 988 A.2d 1127- 190 Inc., 155, (Tenn.Ct. Hosp., 689 S.W.2d 160 (Md.Spec.Ct.App.2010); Glenn v. 29 Overhead 1984); Rustom, v. App. see also McDaniel No. (¶ 12), Corp., Door 2004-CA-01248-COA 935 W2008-00674-COA-R3-CV, WL 2009 1074, (Miss.Ct.App.2006); 1079 Rich So.2d 5, 2009) 1211335, (Tenn.Ct.App. May at *6 ¶ 453, 39, Cnty., 2009 MT ards v. Missoula (No filed); R.App. application Tenn. P. 11 883; 334, 878, 223 354 Mont. P.3d HSI North Ferraraccio, v. No. Travis M2003-00916- Carolina, v. Fire Wil LLC Prot. Diversified COA-R3-CV, 2277589, WL at *5-6 2005 Inc., 767, mington, N.C.App. 169 611 S.E.2d 19, 2005) (No (Tenn.Ct.App. Sept. Tenn. 224, Silchuk, (2005); v. 228 Andrushchenko filed). application R.App. P. 11 8-20, 854-57; ¶¶8, 850, 2008 N.W.2d SD 744 Longoria, Blood Servs. v. 938 S.W.2d United 29, 1997); Ry., (Tex. generally v. 271 See Martin S. Corp., Asbestos 30 Allen v. 138 Norfolk 84; 564, 406, (2007); at Wait v. Travelers Indem. Co. Wash.App. 157 S.W.3d P.3d 408-09 Int'l, Inc., Ill., 220, (Tenn.2007). Wendy’s v. S.W.3d 224 San Francisco 221 240

567 summary with grant judgment premised regard of a involving issues the admis- First, evidentiary ruling. they sibility on an de of evidence.

termine whether the trial court’s exclusion using

of the evidence was correct III. commonly “abuse-of-discretion” standard Tenn. R. permits Civ. P. 56 party evidentiary rulings. associated with Sec seek a summary judgment on ground ond, they consider the trial court’s decision that the nonmoving party prove cannot grant summary judgment novo de essential element of a claim or defense at all of the considering admissible evidence trial. Martin v. Ry., S. 271 Norfolk in the light most favorable to the nonmov- 83-84; at S.W.3d Hannan v. Alltel Publ’g ing party.16 today, At least until Tennes Co., 270 S.W.3d at 6. A jury trial on a employed see’s courts have the same com particular claim or defense is unnecessary by bined standard of review used most of whenever there is a complete failure of counterparts. our federal and state Ja proof regard to an essential element Ear, cobs v. Nashville Nose & Throat of a claim or defense. Alexander v. Mem Clinic, 476; Hay 338 S.W.3d at Dubois v. phis Ass’n, Individual Practice 870 kal, 636-37; at Wilson v. Pat 278, (Tenn.1993) S.W.2d 280 (citing Celotex terson, 101; at Ayers S.W.3d ex rel. 477 U.S. Catrett, 317, Corp. v. 106 S.Ct. Inc.,

Ayers Hosp., Rutherford (1986)); 91 L.Ed.2d 265 Byrd v. 160; at see also McDaniel v. Rus Hall, 847 S.W.2d at 213 (citing Celotex tom, *6-7; at WL Travis v. 477 U.S. at Catrett, 321-25, Corp. v. Ferraraccio, WL *5-6. 2548). Judge S.Ct. As recently Susano noted, “in seeking summary judgment, it is The combined standard of review tradi- enough party negate one element tionally pre- used Tennessee’s courts claim; of a it is not necessary every serves the distinction between admissibili- element negated. any If one element is ty regarding issues and issues whether the negated, disputes factual as to other [the] party seeking summary judgment a is enti- elements are immaterial to the issue of tled a judgment as a matter of law. It summary judgment.” Jacobs v. Nashville objective utilizes criteria that does not fa- Ear, Clinic, Nose & Throat 338 S.W.3d at party. Using vor either the liberal review 477. by today standard advocated the Court admissibility questions Summary decide relaxes the judgment motions have been rules of nonmoving employed evidence to favor the cases for offered, party. The Court has not and I In decades.17 cases where the testifying envision, cannot cogent depart- experts reasons for have been discovery disclosed and ing existing practice from or for tipping completed, has been it is now common- the scales in favor of the nonmoving party place parties to file a motion for sum- (2010); Bank, Curren, generally Presbyterian 16. See Church Sudan Chase USA v. 2010- Inc., 244, Energy, Ohio-6596, ¶ 16, 507, v. Talisman 582 F.3d App.3d 191 Ohio (2d Walker, Cir.2009); 816; Gunville v. 583 F.3d 810, Cnty., N.E.2d Ellison v. Utah No. 979, (7th Cir.2009); Monks v. Gen. Elec 20080145-CA, 707647, (Utah 2009 WL *1 at Co., 1189, (6th tric 919 F.2d 1192-93 Cir. 19, 2009). Ct.App. Mar. 1990); Montgomery Montgomery, v. 147 Idaho 1, 650, (2009); 205 P.3d 655-56 In re Belan Henard, 527, 17. See Bowman v. Estate, 39, (Ind.Ct. ger’s 433 N.E.2d 42-43 (Tenn.1977); Currey, 530-31 Teeters v. App.1982); of Hanges Prop. Estate v. Metro. & 512, (Tenn.1974). 513-14 Cas. Ins. Co.. 202 N.J. 369. 997 A.2d 954. 964 as a matter of judgment to a moving party qualifica- the challenging judgment mary successfully demon- it has law because expert. party’s opposing of an tions “nonmoving party cannot the strated that motion, party asserts moving the a such the claim element of an essential establish challenged expert testimony of the that the at trial.”21 not the does because is inadmissible the requirements satisfy applicable insisted, Shipley does as Ms. Some have Tenn. or of of Evidence18 Rules Tennessee case, a party a who seeks in this that Using the chal- §Ann. 29-26-115. Code malprac- in a medical summary judgment affidavits, depositions, expert’s lenged evi- filing without cannot succeed tice case record,19 evidentiary materials other establishing its own dentiary materials of summary judgment seeking party a judgment a as entitled to it demonstrating that the has the burden merely They argue law. matter of opin- to render qualified expert is not nonmoving party’s on the casting doubt ion. of its an essential element ability prove summary judg- warrant a case does not raise eviden- these motions though Even is overstated be- ment.22 This assertion issues, they can be outcome-determi- tiary procedural pos- it fails to take the cause that the trial court determines native if the ture of the case into consideration. regard- expert evidence nonmoving party’s of a claim or element ing an essential general scheduling a existence of In cases in which is inadmissible. order, plays defense import, of similar or an order summary judgment seeking party nonmoving in the fate of a pivotal a role regarding cau- evidence presented also challenged has when party’s claim or defense care, successfully sation or the standard motion. See summary judgment nonmoving party’s expert Oneida, challenging No. E2009- City Dykes judgment to a moving party 00717-COA-R3-CV, entitles the at 2010 WL “ 2010) (No ‘affirma- it has matter of law because Tenn. (Tenn.Ct.App. *7 Feb. filed); element of an essential tively negate[d] application P. 11 see also R.App. ”20 Rustom, because claim’ nonmoving party’s 2009 WL McDaniel v. uncontradicted, now exists or if remaining, scheduling n. If no order *15 moving party’s discovery claim for disclosure supports evidence the deadlines mo nonmoving summary judgment passed, In cases have not or defense. where plaintiff cannot es asserting its own evidence tion presented party has claim at disclosing experts element of its for tablish an essential and the deadlines v. Johnsey See they premature. would be discovery passed have trial taking —as Inc., Manor, No. W2008- successfully challenging Northbrooke had in this case— 1349202, 01118-COA-R3-CV, at 2009 WL experts entitles nonmoving party’s Co., at Publ'g 270 S.W.3d satisfy relevancy 20. Hannan v. Alltel re experts must 18. All Hall, n. Byrd v. 847 S.W.2d at 215 (quoting 6 and 402 and R. Evid. 401 quirements in Tenn. 5). expert witnesses requirements Johnson v. John Evid. 702 and 703. Tenn. R. 425; Co., Funds, Kenyon at Publ'g 270 S.W.3d 217 S.W.3d 21. Hannan v. Alltel Hancock 743, Handal, (Tenn.Ct.App. 759 v. 122 S.W.3d 7. 149, Perales, 2003); S.W.3d 166 v. 39 Church Cornett, (Tenn.Ct.App.2000). Tenn. L.Rev. at 342-43 22. 77 See summary judg- (discussing the mechanics of qualifications plaintiff’s expert's Hosp., when a Baptist Mem’l 193 ment v. 19. Williams issue). 545, (Tenn.2006). are at 553 S.W.3d 2009) (No 14, (Tenn.Ct.App. May *9 n. 5 of care in the community in which the filed). Tenn. P. R.App. application physician defendant practices or in a simi- However, motion, a similar filed after the community. lar Neither the plain language imposed scheduling 26—115(a)(1) deadlines in a order § of Tenn.Code Ann. nor 29— have will passed, moving succeed if the prior this Court’s interpretations of Tenn. party 29-26-115(a)(l) able to § convince the trial court Code Ann. support this that the upon plaintiff evidence which the change in direction. prove

relies to an essential element of its claim or defense is inadmissible. McDan A. Rustom, 1211335, iel v. 2009 WL at *15 n. Geographic always considerations have played a significant role in analysis trial of care and court causation issues entered numerous sched- uling qualification witness orders this case. Dr. issues in medi Williams did cal not file her cases. summary judgment Well before the motion Assembly General challenging qualifications addressed the subject of Drs. Rer- 1975, ych recognized and Shaw until nine courts had months after the that the physicians conduct of taking of the expert deposition. last should be measured By time, against the conduct of physicians deadline for other taking deposi- the same or a expired tions had been similar location. Quinley for more than one Cocke, 428, 436, year, 992, 183 Tenn. and the deadline for the disclosure of (1946) (consideration testifying experts expired limited to a “giv had for almost en years. circumstances, locality”); two Blankenship Under these v. Baptist Hosp., Mem’l 26 Tenn.App. 142-43, there can be no reasonable doubt (1942) (consideration Williams would have been entitled to a limited to the neighborhood”). “same summary judgment if successfully she demonstrated that the testimony of Drs. A review of the decisions handed Rerych and Shaw was By inadmissible. down prior to 1975 reflect lack of uni- time summary Williams filed her formity regarding the weight geo- motion, judgment the deadlines in the graphical given considerations should be scheduling long orders had since passed. in medical malpractice cases. Some de- “ imposed cisions locality” strict ‘same’ “ IV. requirements; others employed ‘same ” Along with employing admissibility locality or similar’ requirements; analysis that tilts in favor of the nonmov- still appeared impose others no locali- ing party, the Court also ty dilutes locali- requirement at all. Joseph King, H. ty Jr., rule in Tenn.Code Ann. 29-26- The Standard Care and Informed 115(a)(1) by placing emphasis more on na- Consent Under Tennessee Medical regional tional or Act, standards of care than Malpractice 44 Tenn. L.Rev. (1977) has permitted heretofore been in medical 258-59 (“King”). A review of malpractice cases. requiring Rather than these decisions also reflects that the that attention be focused on the medical courts were gradually de-emphasizing community in which the physi- importance defendant the of geographical consider- practices cian or a community, similar ations in medical malpractice Ay- cases. Court now invites reliance on a national or Ayers ers ex rel. v. Hosp., Rutherford Inc., regional standard of care as a basis for (quoting 689 S.W.2d at 162 Scar- establishing familiarity Clinic, with borough the standard v. Orthopedic Knoxville

570 1977) 19, offer- (Tenn.Ct.App. July unequivocally requires experts and

No. 608 (Tenn. 12, Dec. cases ing opinions denied in medical perm. app. 1977)); Mitchell, Tenn.App. v. 62 in Tennessee or in one of McCay licensed (1970). 710, 439, 424, 718 contiguous S.W.2d to Tennessee eight 468 states practiced in one those nine to have 1975, Assem Tennessee General during year preceding states the date now we refer to as the bly codified what alleged or act oc- injury wrongful it the Medical “locality when enacted rule” these Similarly, requires curred. it that Board and Claims Act Malpractice Review experts testimony on rec- “[t]he base their result, locality rule of 1975.23 As a ognized accepted professional statute,” Chapman became a “creature in practice profession specialty and the (Tenn. 736, S.W.3d 740 Bearfield, v. 207 thereof, prac- if that the defendant any, 2006), and “hallmark of medical mal community in the the claim- tices which Wampler, practice Fly cases.” Andrew T. community in a similar at practices ant or in the Tennessee’s Desire to Buttermilk: wrongful alleged injury the time the or Dispense Layperson Sense with Common §Ann. 29- action occurred.” Tenn.Code Malpractice Locality and the Medical 26-115(a)(l). (2002) Rule, 385, 422 69 Tenn. L.Rev. (“Wampler”). locality Because the rule is a belief locality rule evolved from is statutory, obligation now our task and vary that customs and practices fully apply way construe it a that depending particular on the area in which Assembly’s pur effectuates General Platt, v. physician practices. Sutphin limiting expanding pose without (Tenn.1986) 455, (citing 720 S.W.2d scope. its intended beyond statute 256). Cf. at King, Tenn. L.Rev. Numerous Tuetken, 262, v. Tuetken 268 justifications have been offered for the rule (Tenn.2010); Cooper v. Nichols Jack years.24 Accordingly, over this Court Co., 354, Transp. 318 S.W.3d 359-60 “[tjhere has held is that an undeniable Bank, (Tenn.2010); v. U.S. N.A. Tenn. legitimate assuring interest state Co., 381, Farmers Ins. 277 S.W.3d Mut. in this charged negligence doctors (Tenn.2009). fair of their State receive a assessment 29-26-115(a)(l) community conduct relation to stan- §

Tenn.Code Ann. em- they dards similar to the in which one[s] bodies the “same or similar” Platt, at requirement adopted by practice.” Sutphin Tennessee some clearly, It 458. prior plainly, courts to 1975. 299, 14, physicians might § May

23. Act of ch. rural to a national (codified discourage Tenn. Pub. Acts 669-70 physicians practicing from in ru- 29-26-115). areas; amended Ann. at Tenn.Code (5) important ral because of the role physicians play, “society al- should not Lawyers analyzing Ten- and academicians just anyone second-guess” physi- low locality nessee's rule have identified least decision; (6) not cian’s because "medicine is justifications They seven for the rule. in- science,” physician’s discretionary an exact (1) physicians clude: smaller communities easily decisions should not be condemned opportuni- "do[ ] have access the same (7) hindsight; because physicians ties and medical resources as do "complex experimental medicine ... areas]”; (2) quality "the of medical [urban opin- experts their should be forced base vary information and resources continues to practices actually are ions on used (3) geographically”; have re- some diseases 423-24; Wampler, field.” 69 Tenn. L.Rev. at gional suggest concentrations which "con- BCing,44 at Tenn. L.Rev. 257. regional prac- comitant in medical variations allocations”; (4) holding tices resource

571 satisfy requirements To of Tenn. which the defendant physician practices, 29-26-115(a)(l), § an expert they explain Ann. must only Code basis not of the knowledge understanding witness must “have stan their of the standard of in professional dard of the defen care the similar community but also for applicable community knowledge dant’s or their belief that this community is similar professional community of the standard of care in a in which the defendant community physician practices. that is shozm to be similar to See Robinson v. Le community.” Corps, the defendant’s Robinson v. 83 S.W.3d at 725. (Tenn.2002). 718, LeCorps, 83 S.W.3d 724 Just as it was over forty years ago, complete knowledge While lack of of the 29-26-115(a)(l) § TenmCode Ann. permits applicable community’s medical resources expert gain an knowledge applica preclude expert testifying,

would an from ble standard of care “from sources and Cnty. Mabon v. Jackson-Madison Gen. experience other than in locality 826, Hosp., (Tenn.Ct.App. 968 S.W.2d 831 which the cause of action McCay arose.” 1997), expert an need not be familiar with Mitchell, 439, v. 62 Tenn.App. at 463 all applicable the medical statistics of the S.W.2d at 718. I Accordingly, agree with Moskowitz, community. v. 742 Ledford the Court’s conclusion “personal, that the 645, (Tenn.Ct.App.1987). S.W.2d 648 firsthand, or direct knowledge” require inquiry by The focus of the should be on ment fashioned the Court of Appeals in knowledge the expert’s of the standards of Allen v. Methodist Memphis Healthcare (Tenn.Ct. community in which the Hospitals, 237 S.W.3d Allen, physician practices defendant or a similar App.2007) and Eckler v. standards,

community, not on (Tenn.Ct.App.2006) national re- goes too far. standards, gional or even today, statewide stan- As the Court holds in a Handal, Kenzjon dards. v. at may S.W.3d medical case educate him Testimony involving 762. national stan- self or herself on the characteristics of the presumably regional dards or community [and state- medical in which the defendant wide is no physician practices standards] substitute for the or regarding the factu evidence required Tenn.Code Ann. al for concluding community basis that the 29-26-115(a)(l). § Robinson v. LeCorps, with which the is personally famil S.W.3d iar is similar to the medical community physician which the defendant practices.

Expert satisfy witnesses cannot the re- quirements of TenmCode Ann. 29-26- Demonstrating familiarity with the med- 115(a)(1) simply by asserting they community are ical in which the defendant familiar with the physician practices standard of care in the insurmountably is not physician’s community defendant inor a difficult. Chamber Commerce demo- similar community. They must explain graphic information about the community, familiarity the basis for their with the social or recreational visits to the commu- physician’s defendant medical community. nity, simply extrapolating community Baptist Williams v. Mem’l Hosp., 193 standards from regional national or stan- 553; Clarke, However, S.W.3d at Stovall v. suffice. 113 dards will not the re- (Tenn.2003); from, 722-23 quired familiarity Robinson can be derived (1) 724-25; v. LeCorps, Kenyon 83 S.W.3d at among things, attending other medical Handal, (2) Tennessee; they S.W.3d at 762. If having internship, school opinion base their on familiarity residency, their specialty training or advanced Tennessee; (3) similar to the formerly one practicing (4) testimony er his in these cases related to Tennessee; teaching or presenting general surgeons. care for the standard of by physi- Tennessee attended seminars (5) ed- cians; attending continuing medical knowledge Dr. of Shaw’s seminars practice-related other ucation or in general surgeons care of Nashville and (6) Tennessee; with collaborating physi- in that the basis for his belief medical on papers in Tennessee on practicing cians Montgomery, in Alabama is community published pro- are in subjects that relevant community in similar to the medical Nash- (7) in cre- participating journals; fessional than Dr. Rerych’s. ville is even weaker physi- licensing or of Tennessee dentialing familiarity no direct displayed Dr. Shaw (8) facilities; consulting or or medical cians community in with the Nashville. medical physicians. Tennessee on cases with He stated he had never consulted on a that physician, case with a Nashville and that in to activities described In addition physician he “interacted with a while had paragraph an re- preceding Nashville,” had “not done on a from he so give opinion an in medical tained to frequent basis.” basis permanent or (1) may in ob- case Tennessee Dr. that the for Shaw’s conclusion fa- regarding the medical tain information Montgomery, in Alabama was community in practicing professionals cilities community similar the medical Nash- (2) area, physicians consult with relevant (1) ville was belief that “the based on his regarding the rele- practicing in Tennessee conditions that we medical diseases and (3) care, the rele- review vant standard (2) similar,” are that in a treat “we’re by prepared and literature vant articles (3) part country,” that “the similar (4) Tennessee, physicians practicing (4) similar,” Montgom- case mix that facilities in the area. tour the relevant ery geogra- have “similar Nashville disease, history of phy, similar natural populations.” patient [and] similar B. addition, explain In Dr. Shaw failed to traditionally the standards em- Applying emergency how his room enabled sort, of this there is little ployed in cases testify regarding him to the standard of question deposition the affidavit and that general surgeon regard care of Rerych and Shaw testimony of both Drs. patients scheduling appointments re- they that are suffi- fails to demonstrate fact, covering surgery. from thoracic prac- with the standards of ciently familiar deposition Shaw stated his on sever- or in surgeons Nashville general tice of not giving al occasions that he was a community similar to Nashville to be opinion general regarding surgeon’s permitted testify against Dr. Williams. care. that of his visits Rerych conceded most my testimony were Based review of area recreational. on Nashville Shaw, Rerych I no of the Drs. find basis to He not remember name could any- conclude either the trial court or the hospital he “toured” or that their hospital. Appeals he abused discretion thing specific about While Court these previously by determining he had testified witnesses had testified that they satisfy failed to re- one in Nashville and one case demonstrate or two cases area, Ann. provided quirements he little infor- of Tenn.Code 29-26- tri-city 115(a)(1). cases, I would also find the nature of the Court regarding mation reversing Appeals the trial qualifications testify whether his were erred cases, solely court because Dr. Williams did not of these or wheth- challenged any her establishing evidence present of Ms. Shipley

treatment was consistent general standard of care of sur- area. the Nashville geons practicing I trial Accordingly, would affirm the grant decision to court’s Williams’s summary judgment. motion for STATE of Tennessee MONTGOMERY, III. Paul Alexander Tennessee, Appeals of Criminal Court at Nashville. Assigned on Briefs Oct. 2010. March

Case Details

Case Name: Donna Faye Shipley v. Robin Williams

Court Name: Tennessee Supreme Court

Date Published: Aug 11, 2011

Citation: 350 S.W.3d 527

Docket Number: M2007-01217-SC-R11-CV

Court Abbreviation: Tenn.