### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 5, 2002

Session
LAURA C. TOTTY, ET AL 

### . v. JOHN THOMPSON, M.D., ET AL 

### .

Appeal from the Circuit Court for Williamson County No. I-2K177 R.E. Lee Davies, Judge

No. M2001-02539-COA-R3-CV - Filed January 9, 2003

In t his medical malpractice case, Plaintiff appea ls summary judgment based upon the failure of Plaintiff’s medical expert to establish the requisite familiarity with the stand ard of care in the community

in which Defendant practices or in a similar commu nity . Weaffirm the action of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d
W IL LI AM B. C AIN , J., delivered the opinion of th e court, in which P ATRIC IA J. C OTT RELL , J., and E LLEN H OBBS L YLE , S P . J., joined. E.Covington Johnston,Jr., Franklin, Tennessee, for the appellants, Laur a C

. and Alvi n M it ch el To tt y. Michael A. Gera

cioti and Dale A. Tipps, Nashville, Tennessee, for the appellees, John Thompson, M.D., and Nolensville Family Car e Center.

OPINION
Plaintiff s, Alvin Mitchel Totty and L aura C. Totty, ar

e husband and

wife. On April 5, 1999, Laura Totty, complaining of pa in above her left scapula, sought treatment f or this condition by Defend ant, Dr. John Thompson, at his office in Nolensville, Williamson County, Tennessee. While injecting steroid and pain medication into the area of pain the left upper back of Plaintiff, Defendant inadver tently pierced the lu ng of Pl ainti ff wit h a need le caus ing a pneumothorax (partially collapsed lung). Defendant

informedPlaintiffs immediately of the inadverte nt lung puncture and x-rayed the affected area to reveal the pneumothorax invol ving abo ut ten per cent of t otal lung volume. Ms

. Totty was anx ious about

t he punctu

re and D efenda

nt admitte d her dir

ectly to Williamson

County Medical Center for observation and further x-rays. Hospital

x-rays indicated a slig

ht enlargement of the left pneumothorax and Defendant, along with Dr. Doug York, a gene ral surgeon, and Dr.-2-

Elliot Himmelfarb, aninterve ntional ra diologis t, determined that Dr. Himmelfarb should perform a cathete r re-e xpansion of

the pneum

othorax. F

ollowing the proc edure, M s. Totty was discharged from the hospital on April 7, 1999, and two days later , in a follow-up visit to the office of Dr. Thompson, it appeared that the pneumothorax had resolved. She was released to return to work on April 12, 1 999 and ne

ver ret urned to t he offic e of Dr. Thompson f or follow -up trea

tment.
Suit was filed against Dr. Thompson and his employer, Nolensville Fa mily Care Center, on April 4, 200 0, all eging:
7. The Defendant, John Thompson, M.D., was negligent in th e fol lo wi ng wa y: a. He failed to properly monitor the Plaintiff’s condition while inserting the trigger point nee dle into the patient’s back. b. He fa iled to properly ca lculate the depth to which he c oul d insert the trigger point needle into the Plaintiff’s bac k. c. He carelessly

inserted the trigger point needle into the patient’s back to such a

depth that he punctured

the Plaintiff’s lung. d. Even after the Defendant discovered tha t he had punctured the Plaintiff’s lung, he injected the steroid and pa in medication into the Plaintiff. 8. The Plaintiff believes that the Defend ant, Nole

nsville F amily

Care Cen ter, is the employer of the Defenda nt, John Thompson, M.D., and at all times material to this Compla

int, belie ves t hat John Thompson was acting in the course and scope of his employme nt with the Defend ant, Nolensville Family Care Center. The Plaintiff also believes that the Defendant, John Thompson, M.D., is the owner of

the Defe ndant Nol ensville Family

Care Center, and the Defendant

No lensv ille Family Care Cente r is liable to the Plaintiff for the actions of its employee a

nd/or owner, John Thompson, M.D.
Defend ants a n swered on May 30, 2000, denying

any acts of negligence. On Fe bruary 6, 2001, Defend ants file d a Motion f or Summar

y Judg ment acc ompanied

by t he Affid avit of Dr. Thompson asserting that he was familiar with the recog nized standard for acceptable profe ssional practice of family medicine in Williamson County and that his treatment of Mrs. Totty c o mplie d withsuch standard. He further asserted that the c omplica tion experi enced by Mrs. Totty was an accepted and recognized risk of the particular procedure.
Plaintiffs countered with the Affidavit of Dr. Joseph Bussey , Jr. of Georgia asserting an opinion that the treatment by Dr . Thompson fell below the applicable standard of care in several respec ts. The trial cou

rt, however, nev er rea

ched the merits of the Buss ey

affida vit, finding that the af fidavit failed to establish familiar ity with the sta

ndard of profess ional ca

re in the communit

y i n which Dr. Thomp son prac tices or in a simi lar community as is required by the “L ocality Rule” mandated under Tennessee Code Annotated section 29-26-115(a)(1).-3-

In this respect, the Affida vit of Dr. Bussey

stated:
1. I am Joseph G. B ussey , Jr., and I am citizen

and resi dent of the State o f Georgia. I

am over the age of 18 y

ears. 2. I am a medical doctor. I limit my medical practice and speciality to general family practice and

surgery . Despite my specia lity, based upon

my medical school of training, internship, and residency , I am f ami liar with general medical practi ce which constitutes common knowledge of all medical docto rs. Th is com mon k nowle dge does not vary fr om state to state or from me di ca l s pe ci al it y to me di ca l s pe ci al ty. 3. I practice my

speciality in the State of Ge orgia. I a m licensed to practice medicine in the State

of Geor gia and was l icense d to practice medicine continua lly for more than two y ears prior to April 5, 1999. I wa s license d to practice medicine in the State of Georgia in my specialty in April, 19 99 , which is the time of the events complained of in this action. In April, 1999, as well as the date

of the preparation of this Affidavit, the standard of ca re for family gener al prac tice in the

State of Tennesse e, includ in g Nolen sville, Tennes see, as it rela

tes to the d

iagnosi s and tre atment of medical p

roblems such as those e

xperienc ed by

Laur a Totty in April 19 99, was the same standardof care required by a physician

in the State of Georgia. The standard of care under which a general dia gnosis a nd treat ment of the condition experienced

by L aura To tty i s identica

l in the Stat

e of Geo rgia a s in the Sta

te of Ten nessee. The diagnostic tests available to a phy sician in the State of G eorgia and in the State of Tennessee to investigate the s ymptom s experienced

by L aura Totty a

re identical. The standard of care under which a family ge

neral practitioner makes his or h er decision as to the treatment perfor med on Laura To tty i s identica l in the State

of Geor gia as in the State of Tennessee. Therefore, I

am familiar

with the standard of care of a general family practiti oner t reating La ura Totty in April, 1999 in Nolensville, Tenness ee. I

am qualif

ied to re nder the opinion se

t forth in m

y A ffidavit

. The Af fi da vi t d oe s n ot me et th e t hr es ho ld re qu ir em en ts of Te nn es se e’ s Lo ca li ty R ule

. Tennessee Code Annotated section 29-26-115(a)( 1) (Supp. 2000) requires the plaintiff to prove:

(1) The rec ognized s tandard of acce ptable pr ofessio nal prac tice in the profession and the specialty the reof, if any , that the defendan t practices in the co mmunity

in which the

defenda nt pract ices or in a similar community

at the time the alleged injury

or wrongful action occurred;1 Ap pare ntl y an entire state may b e a “co mm unity” within the me aning o f the Co nnec ticut loca lity rule. See

Fitz maurice v. Fl

ynn , 356 A.2d 88 7 (Conn. 197 5). -4- The State of Georgia hardly qualifies as a “commu

nity ” within

the meaning of the statutory locality rule. Neither does the State of Tennessee. 1 No factual basis is asserted in the Affidavit of Dr. Buss ey

to establi sh his familiar

ity with the sta

ndard of care in Williamson County, Tennessee nor, if indeed it be the involved “community”within the meaning of the statute, does the Affidav it assert a factu al basis r

elative t o knowled

ge of th e standa rd of pra ctice in Nolensv ille, T ennessee. In a similar context this Court has held:
He present

ed no othe

r factu al basis for his belief that he was familiar with the local standard of care, and there is no proof

whatsoever in the

record that would

explain how the witne ss, a physician from Washing ton, D.C., would be familiar with the standardof care

in Knoxville . It is cl ear the Trial Cour

t has broa

d discre tion in determining the quali fication s for adm issibility of testimo ny o f expert w itnesses. We find no abuseof that discretion in this case. Mabon v. Jackson -Madison County General Hosp

. , 968 S.W.2d 826 (Tenn.Ct.App. 1997). See also O sler v. Bu rnett , 1993 WL 9038 1 (Tenn. Ct.App. Ma rch 30, 1 993); Bryant

v. Bauguss , 1996

WL 465539 (Tenn.Ct .App. Aug ust 16, 199 6); Swift v. Sc hoettle , 1996 WL 730286 (Tenn.Ct.App. Decemb er 20, 19 96); Hop per v. Tabor , 1998 WL 498211 (Tenn.Ct.App. August 19, 1998). Spangler v. East Tenn. Baptist Hosp. No. E1999-01501-COA-R3-CV, 2000 WL 22543, at *2 (Tenn. Ct. App. Feb. 28, 2000).
Few areas of American

Jurisprudence have been more challenging through the y ears than the development

of the standard of care applicable in medic al malpractice cases. Historica lly, Tennessee followedthe “stri ct locali

ty r ule” unti l it

was legislativel

y su pplanted in 1975 by Tennessee ’s version of the “similar locality rule .” Sutphin v. Platt , 720 S.W.2d 4 55 (Tenn . 1986); Haskins v. Howard, 16 S.W.2d 20 (Tenn. 1 929); Floyd v. Walls , 1941 Tenn. App. Lexis 142 (Tenn. Ct. App. Dec. 13, 1941); 1975 Tenn. Pub. Acts 229, § 14 (codified as Tenn. Code Ann. § 29-26-115(a) (1)).
In Shilkret v. Annapolis Emergency Hosital., Ass’n , the Supreme Court of Mary land traced the history of these two loca lity rules in a manner wor thy of notice.
The earliest traces of the strict locality rule appe ared a century ago. Smothers
v. Hanks , 34 Iowa 286 (18 72); Tefft v. Wilcox , 6 Kan. 46 (1870); Hathorn v. Richmond , 48 Vt. 557, 559 (1876 ) (“such skill as do ctors i n the same general neighborhood, in the same general lines of p ractice , ordinar

ily h ave and

exercise in like cases”). It is an e

xclusive productof the Un ited State s; possibly

because of the difference

in the size of the two countries, the English courts have never deve loped such a principle. Waltz, The Rise And Gradual Fall Of The Locality Rule In Medical Malpractice Litigation , 18 DePaul L.Rev. 408 (1969). The rule wa s unquestio nably-5-

developed

to protect the rural and small town practitioner, who was presumed to be less adequately

informed and equ ipped than his big city brother

. Id. The court reasoned with what was then unassailable logic in Tefft v. Wilcox, supra , 6 Kan. at 63-64:

“ . . . In the

smaller towns and country, those w ho practice medicine and su rgery , though often possessing a thorough theore tical knowl edge of the hig

hest elements of the profession do not enjoy so great opportuni

ties of da

ily o bservat ion and pr

actica l operat ions, where the elementary

studies are brought into every day use, as those have who resid

e in the me

tropolita n to wns, and though ju st as well informe d i n the elements and literature of their profession, they should not be expected to exercise that high d egree of skill and practical knowledg e possess e d by those having greater f acilities for performing and witnessing operations, and who are, or may be constant ly observing the various accidents and forms of dise ase. . . .”
In short, the rationale un derly ing the d evelopme nt of the s trict loc ality

rule a centu ry ago was grounded in the manifest inequality existing in that day between physicians practicing in large urba n centers and tho se pract

icing in remote r ural ar eas.

. . . . What ever may ha ve justified the strict locality rule f ifty or a hundred years ago, it cannot

be reco ncil e d with the realities of medical practice today . “New techniques and discoveries are available to all doctorswithin a short pe

riod of tim

e throu gh medical journa ls , closed circuit television p resenta tions, spe cial rad

io networks for doctors, tape rec orded digests of medical literature, and c urrent correspondence

cou rses .” Note, An Evalua tion Of Chan ges In The Medical Standard Of Care , 23 Vand.L.Rev. 729, 732 (1970). More importantly , the quality of medical school tr ai ni ng it se lf

ha s i mp ro ve d d ra ma ti ca ll y i n the last century . Where e arly medical educati on consist ed of a c ourse of

lecture s over a period

of six months, which was supplemented

by apprentice ships with doctors who had even less formal edu cation, there now exists a national accrediting sy stem which has contribu ted t o the standardization of medical schools throughout the country

. Id. n. 16.

. . . . We have noted that one of theearlies tapplica tions of the

similar loc ality

rule occurred in Small v. H

oward, supr

a , 128 Mass. at 136, where, essentially for the samereasonst ha t have traditionally under girded the strict locality

rule, the court enunciated

as the standard: “ ‘ that skill only which phy sicians and surgeons of ordinary ability and skill, practi[c ]ing in

similar loc alities, with opportunities for no2 If the histor ic underpinn ing s of the locali ty rul es are accurately analyzed in Shilkr et , it would seem s omewhat paradoxica l that, in the tre atme nt of a b roke n ankle the testimo ny of a J ohns on C ity physician , presu mab ly himself subject to a less re strictive stan dard of care canno t opine as to m inimum standa rds for Na shville more stringent be cause of the size and so phistica tion of its m edica l facilities. C/F Robins on v. Le corps
. -6- larger experience, ordinarily

possess’ ”; thus the defendant “ ‘was not bo un d to possess that

high degree of ar

t and skill possessed by eminent surg eons practi[c]ing in large cities, and making a spec ialty of the practice of surgery .’ ”

. . . . The similar loc ality

rule ans wers some

of the cr itic ism ai med at the strict locality standard by e

nabling the plaintiff to obtain expert witnesses from different communitie s, thus reducing the likelihood of their acquaintance withthe defe

ndant. It does not, however , effectively alleviate the other potential problem, a low standard of care in some of the smaller

communitie s, becau se the sta ndard in s imila

r communities is apt to be

the same . Another

criticis m leveled

at the simi lar loca

lity ruleis the diffi culty

which ar ises in defining a

“similar ” localit y. F or these reasons , the similar locality rule is reg arded as no more than a s light improv ement over the stricter standard. Shilkret v. Annapolis Emergency Hosp. Ass’n , 349 A.2d 245, 248-250, (Md. 1975).
The locality rule in Mary land was of common la

w origin , and Mar

yla nd was, th

us, free to follow the emerging trend in other jurisdictions to adopt what wa s essentially a national standa rd. In Ten nessee, the 1975 Act libera lized what

was then

the “stri ct locali

ty r ule” by legisla tively mandating a “similar locality rule.” 2 Wh at ev er ma y be th e d es ir ab il it y - - or undesirability - - of following the trend in sister j urisdicti ons towar

d a nation al standa

rd, this a venue in Tennesse e is forecl ose d to j udicial action. The ink is barely dry on the dec ision of the Supreme Court of Tennessee in Robinson v. Lecorps , 83 S.W.3d 718 (Tenn. 2002), issued Septembe r 5, 2002, wherein the cour t addres sed this ve

ry question. Said the c ourt: Despite the clea r statut ory

langua ge and evidenc e of legislative intent, Robinson asserts that the locality rulein Tenn.Co de Ann. § 2 9-26-115 (a)(1) should be enlarged or broadened by adopting a national standard of professional care for all malpractice actions, malpractice a ctions involving physicians who are board-certified in a parti cular a rea, or malpr actic e acti ons i nvol ving a specific treatment issue or area of medicine. There is no statutory lang uage or other evidence

of legi slative in

tent, however, that would support such an interpretation.
The legislature, which is presumed to know of its enactments and the state of the la w, ha s n ot am en de d o r s up pl em en te d t he st at ut or y la ng ua ge in an y wa y t hat would broaden the locality

rule or support such a sweeping change in the standard of-7-

care in malpractice actions. More over, in the absence of applicable statutory language, we decline to adopt the plaintiff’s interp retati on based either on policy arguments or alleged evide nce of the existence of a national standard of care in the medical community that are better addressed to the legislature.
This Courtis mindful, however, that in many instances the national standard would indeed be representative of t he local standard, especially for board certified specialists. Alth ough such issues are properly left to the discretion of the legislature, we encoura g e the General Assembly to reconsider the current statutory framework of the locality rule. Howe ver, until such l egislative action, we believe that the legislative intent and purpose of Tenn.Code Ann. § 29- 26-115(a )(1), a s presen tly derivedfrom the s tatutory langua ge, co ntinues to

be that the conduct of doc tors in this State is assessed in accordance with the standard of profess io nal care in the community in which they practice or one similar to it.
Robinson , 83 S.W.3d at 723-24. By orde r of May 11, 2001, the trial court, rely ing on Cardwell v. Bechtol , 724 S.W.2d 739 (Tenn. 1987), and Mabon v. Jackson-Madison County General Hospital , 968 S.W.2d 826 (Tenn. Ct. App. 1997), granted summary judgment to Defendants under the Tennessee Locality Rule.
On June 7, Plaintiffs filed a Motion to Alter or Amend accompanied by a Supp lemen tal Affidav it of Dr. B ussey . This Motio n t o Alter or Amend was denied by the trial court by Or

der entered September 25, 2001.
The trial court did not abuse its discretion in refusing to alter or amendthe grant of summary judgmen t. M oore v. Walwyn , No. 01A01-9507-CV-00295, 1996 WL 17143 (Tenn. Ct. App. Jan. 19, 1996). It is well to observe that, even if the trial court

had considered

the late filed Supplemental Affidav it of Dr. Bussey , it could nothave altered the grant of summary judgment. The Supplemental Affidav it added nothing to the previous Affidavit except to a s sert “I am awa re of the fact that Nolensville, Tennessee is a smal l town with no hospita l located within its c ity l

imits. I am also awarethat the closest hospital to Nolensville, Tennessee, is approximately ten or fifteen miles to the north in Nashville, Tennessee, and approximately ten or fifteen miles to the southwest in Franklin, Tennessee.” This assertion in no way cur es the deficiencies relating to D r. Bussey ’s lack of familiarity with the applicable standard of care.
The trial cou

rt had no a

lternati ve but togrant summary judgment to Defendants in this case, and that action is in all respects affirmed. The case is remanded to the trial court with costs assessed to Appe llants.

___________________________________ WILL IAM B. CAI

N, JUDGE