Defendant Doctor Denied Waiver of Contiguous State Rule for Expert Witness in Tennessee Medical Malpractice Case

Tennessee law has an unusual rule concerning expert witnesses in health care liability cases – the "contiguous state rule."  Usually, the rule hurts patients because it limits the pool of expert witnesses available to testify on their behalf.  Sometimes, however, it comes back to bit health care providers.

An ophthalmologist in a medical negligence case requested that the trial court waive the expert competency requirement known as the contiguous state rule  under Tenn. Code Ann. § 29-26-115(b).  Under this rule, in order for an expert to testify in a Tennessee medical malpractice case, the expert must have been licensed to practice and did practice in a relevant specialty in Tennessee or a contiguous bordering state within the year preceding the date of the alleged malpractice. This requirement can be waived by a court when the court “determines that the appropriate witness otherwise would not be available.” Tenn. Code Ann. § 29-26-115(b).

In Gilbert v. Wessels, E2013- 00255-COA-R10-CV (Tenn. Ct. App. Nov. 18, 2013), the defendant ophthalmologist’s attorney spent approximately 35 hours searching for an expert and contacted 13 doctors in Tennessee and contiguous states before finding an expert in Florida. The defendant argued that this was sufficient to warrant a waiver of the contiguous state rule and also argued that the Florida expert had actual experience performing the procedure at issue and therefore was more qualified to testify than an expert who might meet the contiguous state requirements but had no experience with the procedure. 

The plaintiff opposed the defendant’s efforts to secure a waiver. The plaintiff’s attorneys filed an affidavit demonstrating that more than 2,300 ophthalmologists practice in Tennessee and contiguous states, and argued that contacting only 13 of these physicians was not sufficient to require a waiver of the rule. 

The Tennessee Court of Appeals upheld the trial court’s denial of a waiver finding that contacting only 13 doctors out of more than 2,300 was only a cursory effort to find an appropriate expert and did not constitute a diligent search.

The court also found that the defense had unnecessarily limited its search to only doctors who had performed the procedure at issue. Relying on Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), the court reiterated that an expert is not required to have actual experience in performing the procedure at issue. The court also explained that a trial court is not required to waive the contiguous state rule just because an expert outside of the required geographical area is more qualified than an expert found in this state or a contiguous state.

So, how much of an effort is enough?  The answer to that question depends on the circumstances of each case.  Clearly, however, both plaintiff’s lawyers and defense lawyers now have another case to point to on the issue, although at the end of the day the appellate courts will usually defer to the discretion of the trial judge.

See other information about the Tennessee contiguous state rule for expert witnesses in medical malpractice cases by clicking on the link.