Blue Chipper – Medical Malpractice – Locality Rule

The case: Robinson v. LeCorps, 83 S.W.3d 718 (Tenn. 2002). Author: Justice E. Riley Anderson

Why it is a Blue Chipper: Robinson made it crystal clear that a standard of care expert in a medical malpractice case may not base that testimony on a national standard of care and that an expert’s testimony will be excluded if it based solely on a national standard.

The bottom line:

A. Plaintiff first attempted to argue that Tennessee courts should adopt a national standard of care in medical malpractice cases:

“Despite the clear statutory language and evidence of legislative intent, Robinson asserts that the locality rule in Tenn.Code Ann. ㋔ 29-26-115(a)(1) should be enlarged or broadened by adopting a national standard of professional care for all malpractice actions, malpractice actions involving physicians who are board-certified in a particular area, or malpractice actions involving a specific treatment issue or area of medicine. There is no statutory language or other evidence of legislative intent, however, that would support such an interpretation.

…[W]e decline to adopt the plaintiff’s interpretation based either on policy arguments or alleged evidence of the existence of a national standard of care in the medical community that are better addressed to the legislature.”
Id. at 723-24.

B. Plaintiff also attempted to argue that his expert was qualified to testify against an orthopedic surgeon in Nashville.

“Accordingly, in applying Tenn.Code Ann. ㋔ 29-26-115(a)(1) to the scant evidence in this case, it is clear that [Plaintiff’s expert] Dr. Kennedy’s testimony did not establish the standard of professional care in Nashville, Tennessee, or in a similar community. Although Dr. Kennedy was licensed in Tennessee, practiced in Johnson City, Tennessee, and was board certified in orthopaedic surgery, he testified only that the applicable standard of care in this case “would be expected” to be the same as the national standard of care and that “[t]here is no differentiation recognized in �?�?�? one locality as opposed to the other, certain localities comparable with Nashville�?�?�?�?” Dr. Kennedy also stated that orthopaedic surgeons “would stand the same test and would be expected to have the same knowledge and to practice in very similar fashions by the American Board of Orthopaedic Surgeons.” He did not, however, relate the basis for his knowledge of the standard of care in Nashville or indicate why the Nashville medical community was similar to, and thus had the same standard of professional care as, the community with which Dr. Kennedy was familiar.

We therefore agree with the Court of Appeals’ conclusion that the trial court did not abuse its discretion by excluding the deposition testimony.”
Id. at 724-25.