Waiver of Expert Witness Rule

Back in 1975 the Tennessee Legislature determined that the only health care providers who could testify against a Tennessee health care provider in a malpractice case where experts from contigious states. This is an assine rule – but it is still the law.

You can avoid the contigious state rule with permission of the trial judge. This opinion in Steele v. Berkman reminds us that we have to have some proof of the efforts made find an expert from a contigious state so that the court can determine that a waiver of the rule is appropriate.

The waiver has been applied in Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn.1991) and Steele v. Ft. Sanders Anesthesia Group, 897 S.W. 2d 270, 281 (Tenn.Ct.App. 1994). It was denied in Rose v. HCA Health Services of Tennessee, 947 S.W. 2d
144, 148 (Tenn.Ct.App.1996).

Note: this is a Tennessee Court of Appeals Rule 10 appeal. Rule 10 says this: “The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion, it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in any unrelated case.” Nothwithstanding its lack of precedential value, it is worthy of being cited in this blog if only to remind us that the rule exists.