Day on Torts
As far as I can remember, Evans v. Williams, No. W2013-02051-COA-R3-CV (Tenn. Ct. App. June 30, 2014),is the first and only case dealing with whether a health care liability expert must be familiar with demographic information about the defendant’s community from the time the alleged malpractice occurred. To be sure, the injury in this case occurred in 1991, twenty-two years before it was finally tried in 2013. Even with that much time, though, the Court of Appeals held that present day statistics are sufficient to establish an expert’s familiarity with a defendant’s community or a similar community.
At the trial of Evans, the trial judge granted Defendants’ motion to exclude one of Plaintiffs’ standard of care experts. The trial judge ruled that the expert was not familiar with the standard of care in Defendants’ county or a similar community when the treatment was rendered in the early 1990s. The trial judge denied Plaintiffs’ motion to exclude one of Defendants’ standard of care experts. The jury returned a verdict of no liability.
The Court of Appeals looked to Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), for competency requirements under Tenn. Code Ann. sec. 29-26-115.
Generally, an expert’s testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has discussed with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the defendant practices, will be sufficient to establish the expert’s testimony as relevant and probative to “substantially assist the trier of fact to understand the evidence or to determine a fact in issue” under Tennessee Rule of Evidence 702 in a medical malpractice case and to demonstrate that the facts on which the proffered expert relies are trustworthy pursuant to Tennessee Rule of Evidence 703.
Shipley, 350 S.W.3d at 552.
In this case, Plaintiffs’ excluded standard of care expert testified about the current population and hospital size in Defendants’ community, that the expert had been by the hospital in Defendants’ community, and described the medical services that were available for obstetrics in Defendants’ community in 1991. Defendants contended this was not sufficient, and that experts should be required to show similarity between the two communities in 1991, not at the time of trial. The trial court agreed and excluded the expert.
The Court of Appeals disagreed, stating Plaintiffs’ expert’s familiarity with “the medical services and practices available in the area at that time” was sufficient. However, because Plaintiffs were still able to present standard of care testimony from Plaintiffs’ other experts at trial, the Court of Appeals concluded that the trial court had committed harmless error.