No Standard of Care Expert? No Case.

Where a plaintiff in an Tennessee HCLA (medical malpractice) case “failed to obtain a competent expert witness to testify on the applicable standard of care,” summary judgment as to all of her claims was affirmed.

In Akers v. Heritage Medical Associates, P.C., No. M2017-02470-COA-R3-CV (Tenn. Ct. App. Jan. 4, 2019), plaintiff was treated by a physician assistant at defendant medical center and was given a punch biopsy on her wrist. Two days later, plaintiff went to the emergency room with complications in the same area, which were diagnosed as cellulitis and staph infection.

Plaintiff subsequently filed this complaint pro se against the treating physician assistant and the medical practice, alleging that the practitioner “was not qualified to perform the punch biopsy and did not wash her hands, wear gloves, or use sterile medical equipment when performing the procedure,” and that the complications she experienced resulted from this negligence. In response to interrogatories asking plaintiff to disclose her expert witness, she identified the emergency room doctor she had seen, but failed to give additional information including his publications, other cases in which he had testified, and the compensation to be paid. Defense counsel made several attempts to get plaintiff to supplement her responses, which eventually led to plaintiff disclosing a second doctor, but providing the same very basic information about him. For both of these doctors, plaintiff stated that they would testify that her injuries “could not likely have been the result of any factors other than negligence on the part of…Defendants,” but she did not mention standard of care testimony in the description of either named expert.

At some point after making these disclosures, plaintiff admitted to defendant’s attorney that she had not actually retained the experts. Defendant’s previously filed motion for summary judgment was heard (after several delays by plaintiff), and the trial court granted the motion, finding that “(1) Plaintiff conceded that she did not have expert proof; (2) Plaintiff admitted in her deposition testimony that she consented to the biopsy; and (3) there was no proof that [the physician assistant] was not properly qualified and licensed…”

Following summary judgment, defendant filed a motion to compel plaintiff to produce the expert statement she relied upon when filing her Certificate of Good Faith. Plaintiff responded by filing her emergency room medical records, which the trial court found to not comply with Tenn. Code Ann. § 29-26-122. Sanctions in the amount of $15,000 were accordingly awarded to defendant against plaintiff, and all rulings were affirmed on appeal.

First, the Court of Appeals affirmed summary judgment on plaintiff’s professional negligence claim. The Court noted that an HCLA plaintiff must produce expert testimony as to the applicable standard of care in order to prove her claim. Here, plaintiff needed to “present expert testimony from a competent witness establishing (1) the standard of care [the physician assistant] had to meet; (2) the manner in which her conduct failed to meet the standard of care; and (3) how [her] failure to meet the standard of care proximately caused Plaintiff to suffer injuries she would not have suffered otherwise.” (internal citation and quotation omitted). Plaintiff’s expert disclosures stated that she had experts to testify as to the “probable causation” of her injuries, but the disclosures “did not indicate that either witness had familiarity with [the physician assistant’s]…field of practice and the standard of care required in dealing with punch biopsies.” The Court ruled that plaintiff could therefore not establish an essential element of her claim. In affirming summary judgment, the Court specifically noted all the delays and additional amounts of time given to plaintiff in this case, pointing out that “plaintiff had nearly three years to gather the necessary evidence…and she was afforded numerous opportunities to supplement her responses and to obtain discovery.”

The Court next analyzed and affirmed the award of sanctions against plaintiff. Plaintiff filed a certificate of good faith in this case without first obtaining a signed, written statement from an expert. Instead, plaintiff sought to rely upon her emergency room treatment records. While these records had a doctor’s signature, the only opinion contained therein was the “diagnosis of Plaintiff’s condition.” The “notes [did] not include the information required by section 122(a),” as they contained no assertion that the doctor was competent to testify and no statement that he believed there was a good faith basis for filing the claim. When a plaintiff violates the certificate of good faith statute, “the court shall award appropriate sanctions…” Tenn. Code Ann. § 29-26-122(d)(3). Defendant requested their attorneys’ fees in the amount of nearly $40,000, but the trial court awarded $15,000, noting that it was “required to choose the least severe sanction sufficient to deter future conduct.” The Court of Appeals affirmed this approach, noting that “this well-reasoned principle is applicable when imposing monetary sanctions under Tenn. R. Civ. P. 11 and we agree with the trial court that it is applicable here.”

While the plaintiff here was pro se, the take-away that HCLA plaintiffs must be careful to retain and disclose the correct experts applies in all health care cases. In addition, this case is a reminder of the importance of following the correct procedure when filing a certificate of good faith and is one of the few Tennessee appellate decisions applying the sanctions portion of the statute.

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