Tennessee Court Waives Compliance With “Contiguous State” Rule for Expert Witness in Medical Malpractice Case

Tennessee has a goofy rule concerning expert witnesses that, to my knowledge and belief, exists in no other state.
Tenn. Code Ann. § 29-26-115(b) requires any expert witness in a medical malpractice state to practice in Tennessee or a border state unless the trial court “determines that the appropriate witnesses otherwise would not be available.”

The alleged purpose of the contiguous state rule is to increase the likelihood that the witness will know the applicable standard of care.  The actual result of this rule is to make it more difficult to find expert witnesses, particularly in specialty medical areas or when the defendant is well-known.  
In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012),  Plaintiff moved for waiver of the contiguous state rule supported by an affidavit from Plaintiffs’ counsel. The affidavit explained that Plaintiff originally had an expert, but the expert developed health concerns that required him to decline to testify. Plaintiffs’ counsel then spoke with more than a dozen experts from Tennessee and border states, all of whom stated that Plaintiff had a meritorious case but they would not testify for fear of retaliation by

Defendant Doctor’s father, a prominent physician in the area. The trial court granted Plaintiff ’s motion.
Defendant contested the waiver, asserting that Plaintiff ’s difficulty in obtaining an expert from Tennessee or a border state was akin to a patient unable to find a testifying expert because no malpractice occurred. The parties and the Court of Appeals looked to Rose v.
H.C.A. Health Servs. of Tenn., 947 S.W.2d 144 (Tenn. Ct. App. 1996) for guidance:

In Rose v. H.C.A. Health Servs., the plaintiffs  searched unsuccessfully in Tennessee and bordering states for an expert in hospital risk management and quality assurance. Plaintiffs’ counsel submitted an affidavit stating that health care professionals in these areas would talk to him only if they were not identified. The affidavit expressed counsel’s belief that the size of defendant H.C.A. would make it difficult to find a witness in Tennessee or a contiguous state. The plaintiffs asked the trial court to waive the contiguous state requirement, and this request was denied. The plaintiffs appealed. The appellate court found no abuse of the trial court’s discretion, holding that the difficulties described by plaintiffs’ counsel in that case were “generalized and unspecific,” and reflected “only a cursory effort to find an appropriate expert.”Additionally, the plaintiffs’ counsel cited only a conversation with a single hospital administration in support of his assertion that the large size of the defendant corporation would make it difficult to find an expert without a conflict of interest. [Citations omitted.]

The Court of Appeals distinguished Rose because the appellate court in Rose merely affirmed a trial court’s denial of the waiver request under the circumstances; the Rose Court did not state that the circumstances mandated denial of the waiver request. In this case, the Court of Appeals
found the evidence submitted by Plaintiff ’s counsel sufficient to make waiver by the trial court “within the range of acceptable alternatives,” and therefore affirmed the trial court’s decision.
Plaintiff’s counsel put in the extra effort that made a record to save the case.  This effort should not be necessary and the contiguous state rule should be abolished.  However, given the current composition of the Tennessee Legislature, that is not going to happen and Tennessee lawyers would be wise to follow the example set forth by the lawyer for the plaintiff in this case.
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