Day on Torts
Where plaintiff’s medical malpractice expert was a registered nurse with extensive experience in wound care, the fact that the expert had not practiced in a hospital went “to the weight of her testimony, not to whether she [was] competent.” (internal citation omitted). The trial court’s ruling excluding her as an expert was thus overturned.
In Owens v. Vanderbilt University Medical Center, No. M2021-01273-COA-R3-CV (Tenn. Ct. App. May 18, 2023), plaintiff had surgery on her fractured ankle at defendant hospital and was inpatient for eight days. When she was discharged, she had stage three pressure wounds, and she ended up being readmitted to defendant hospital four days later for treatment of the pressure wounds.
Plaintiff filed this HCLA suit based on defendant’s failure to prevent, detect, and treat her pressure wounds. She disclosed a registered nurse from Virginia as her standard of care expert. Defendant moved for summary judgment, arguing that plaintiff’s expert was “not qualified to testify under Tennessee Code Annotated § 29-26-115(b)” because she was “not familiar with the standard of care for hospital employees in caring for post surgical orthopedic repair patients during the statutorily relevant period.” The trial court agreed with defendant and granted the motion for summary judgment, but that ruling was vacated on appeal.
Before analyzing whether the expert was qualified under the HCLA, the Court of Appeals first noted that the trial court granted summary judgment on two grounds—1) that the expert was not competent under Tenn. Code Ann. § 29-26-115(b), and 2) that the expert should not be allowed pursuant to the admissibility standards in Tennessee Rules of Evidence 702 and 703. Defendant hospital, however, did not present arguments regarding Rules 702 and 703 in its motion, and “the court essentially acted sua sponte.” Because plaintiff “had no notice and no opportunity to respond to an admissibility challenge to [the expert’s] testimony,” the trial court erred by granting summary judgment on grounds not raised by defendant.
Turning to the issue of whether the expert was competent to testify under the HCLA, the court noted that Tenn. Code Ann. § 29-26-115(b) contains three requirements for expert testimony. The expert must be licensed to practice in Tennessee or a contiguous state, a requirement that was not at issue here. In addition, the expert “must be licensed in a profession or specialty which would make the person’s expert testimony relevant to the issues in the case, and have practiced this profession or specialty in Tennessee or a contiguous bordering state during the year preceding the date that the alleged injury or wrongful act occurred.” (internal citation omitted).
In this case, defendant argued that plaintiff’s expert “did not practice a relevant profession or specialty during the year preceding [plaintiff’s] injury because she did not work in a hospital.” In order to be competent as an expert under the HCLA, the expert’s “practice must provide her with sufficient experience to make her knowledgeable about the issues which are the subject of her testimony.” (internal citation omitted). The issue here was whether the nursing staff at defendant hospital breached the standard of care by failing to properly reposition plaintiff after her ankle surgery to avoid pressure wounds. Plaintiff’s expert had “cared for more than 50 patients recovering from an orthopedic surgical repair.” While she had never cared for a patient in the hospital, some of her patients were just 24 hours out from surgery. The expert had “extensive experience in wound care” and “often encountered pressure wound issues in her practice.” She was also responsible for implementing preventive measures against pressure wounds for her patients.
Based on this background, the Court of Appeals ruled that the trial court should not have disqualified plaintiff’s expert. The Court wrote that she met the competency standard under the HCLA, and that the fact that she “never practiced her profession in a hospital goes to the weight of her testimony, not to whether she is competent.” (internal citation omitted). Accordingly, the trial court’s summary judgment order was vacated.
The Court of Appeals was correct in ruling that plaintiff’s expert was competent to testify in this case. Her experience with pressure would care and prevention, though not in an identical setting as the one at issue in this case, made her testimony relevant to the issues here.
This opinion was released eight months after oral arguments in this case.
Note: Chapter 56, Section 10 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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