Day on Torts
When a doctor is practicing in Tennessee but not licensed in Tennessee or in a contiguous state, but is instead practicing under a statutory licensure exemption as part of a fellowship program, he does not meet the requirements to testify as to standard of care and breach of said standard under the HCLA.
In Young v. Frist Cardiology, No. M2019-00316-SC-R11-CV (Tenn. April 20, 2020), plaintiff filed a health care liability case based on the alleged negligent treatment of decedent during a cardiac procedure and his subsequent death. Pursuant to the case management order, plaintiff identified Dr. Jason Rytlewski as “the expert witness who would testify that [defendant] deviated from the applicable standard of care in his treatment of [decedent].”
Defendants filed motions for summary judgment, asserting that Dr. Rytlewski was not competent to testify because he “did not have a medical license in Tennessee or a contiguous state during the year before [decedent’s] heart procedure, as required by Tennessee Code Annotated section 29-26-115(b).” Plaintiff responded that Dr. Rytlewski was “familiar with the standards of acceptable professional practice for [decedent’s] heart procedure in the Davidson County area,” and that the “Tennessee Board of Medical Examiners had granted Dr. Rytlewski an exemption that allowed him to practice medicine without a medical license during his fellowship at Vanderbilt University.” Plaintiff argued that due to this exemption, the licensure requirement of Tenn. Code Ann. § 29-26-115(b) did not apply to him, as it only applies “if one is required to have a license.”
The trial court denied the motion for summary judgment, but it also granted defendants’ application for interlocutory appeal. The Court of Appeals denied the appeal, but the Supreme Court granted it and reversed the trial court’s ruling.
The only issue here was how the licensure requirement in the HCLA expert witness provision should be interpreted when a potential expert was not licensed here but practicing under a statutory license exemption. The Supreme Court began its analysis by noting that “[w]hen the language of a statute is clear, we enforce the statute by applying the plain meaning of the written language ‘without complicating the task.’” (internal citations omitted).
Tenn. Code Ann. § 29-26-115(b) requires that an expert in an HCLA case who is to testify regarding standard of care, breach, and causation must be “licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of these states during the year preceding the date that the alleged injury…occurred.” Here, it was undisputed that Dr. Rytlewski was not licensed in Tennessee or any bordering state, but the issue was whether he was nonetheless qualified to testify due to his practice under a statutory licensure exemption as a fellow at a Nashville hospital.
Based on the language of the statute, the Court ruled that Dr. Rytlewski was not qualified to testify:
Our main focus is on the meaning of the introductory language of section 29-26-115(b): ‘No person in a health care profession requiring licensure under the laws of this state…’ We find that the meaning of this language is clear and unambiguous. The phrase ‘requiring licensure under the laws of this state’ modifies the term ‘health care profession’ that immediately precedes it in the sentence, not ‘person’ that comes earlier in the sentence. Thus, the statute refers to a profession that requires licensure, not to the person requiring the licensure. The practice of medicine is a ‘profession requiring licensure under the laws of this state.’ In short, a person who practices medicine may be competent to testify as an expert witness if that person meets the license and practice requirements of section 29-26-115(b). A licensure exemption for a person who practices medicine does not eliminate the license requirement in section 29-26-115(b). …A contrary finding—that Dr. Rylewski was competent to testify as an expert witness even though he was not licensed in Tennessee—would make the licensure requirement of section 29-26-115(b) ‘inoperative, superfluous, void or insignificant,’ which our standard of review does not allow.
(internal citations omitted).
Accordingly, the Court held that because Dr. Rytlewski was not licensed to practice in Tennessee or a bordering state, he was not qualified to be an expert witness in this HCLA case, and the trial court’s ruling was reversed.
This is a fairly specific fact scenario, but it is nonetheless important for those practicing in the HCLA area to note. Pursuant to this decision, it is critical to ensure that any HCLA expert witness be licensed to practice medicine and not simply be practicing in Tennessee pursuant to some licensure exemption.