Day on Torts

Plaintiff filed an affidavit from an expert witness in opposition to a motion for summary judgment in a medical negligence case.  The expert - from UAB in Birmingham - explained that he understood the standard of care in Memphis because of the following:

2. I am familiar with the standard of care for Mohs micrographic Surgeons in communities similar to Memphis, TN.
3. I have become familiar with the standards of care in the Memphis community and throughout the State of Tennessee.
4. I have discussed the standard of care for obtaining informed consent with all the fellowship trained Mohs surgeons in Tennessee. “Fellowship trained” refers to Mohs surgeons who have specialized training in Mohs micrographic surgery for 1-2 years after completing a dermatology or related residency.
5. These fellowships are accredited by the American College of Mohs Micrographic Surgery and Cutaneous Oncology. In the past two years, many of these fellowships have also become accredited by the American Board of Medical Specialties under the newly recognized specialty of Procedural Dermatology.
6. There are sixteen (16) Mohs surgeons in Tennessee including the Defendant. Seven of the Mohs surgeons are partners with the Defendant. Therefore they were not consulted.
7. Besides Dr. Allen and his partners, I consulted with Dr. Malika Tuli of Memphis, Tennessee and was advised that written and oral informed consent are obtained in the Memphis, Tennessee community.
8. I also consulted with the remaining six Mohs surgeons in Tennessee and was advised that the written and oral informed consent are obtained in their community. See attached spreadsheet of my investigation.

Not good enough.  "Defendants assert that knowledge gained by surveying other physicians and not by personal or firsthand experience is not sufficient under § 29-26-115(a)(1). They submit that a non-expert could survey physicians in a community if the mere collection of data could constitute knowledge. Defendants assert the statute requires personal, firsthand, or direct knowledge of the applicable standard by an expert who practices in the community or in a similar community. We agree."

The case is Eckler v. Allen, No. W2005-02501-COA-R3-CV  (Tenn. Ct. App. Nov. 29, 2006); the opinion was authored by Judge David Farmer of the Western Section of the Court of Appeals.  Read it here.

The problem was easily avoided if the expert's affidavit had merely contained information establishing that the communities of Birmingham, AL and Memphis, TN were similar. It is not required that the expert know the standard of care in the community in which the defendant practices, merely that the expert is familiar with the standard of care in a similar community. But the affidavit or testimony must show facts and a basis for the opinion that the communities are similar. The med mal expert foundation is like the board game "Clue"--Mr. Green, in the conservatory, with the lead pipe! Standard of care of the defendant in the community OR a similar community.