IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

March 20, 2007 Session

PATRICE ALLEN, ET AL. v. METHODIST HEALTHCARE MEMPHIS

HOSPITALS, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-006444-02 D’Army Bailey, Judge

No. W2006-01558-COA-R3-CV - Filed April 2, 2007

This is a medical malpractice action in which the jury found in favor of Defendant hospital. Plaintiff

asserts Defendant’s expert was not qualified under Tennessee Code Annotated § 29-26-115(a)(1),

and that the matter accordingly should be remanded for a new trial. We reverse the trial court’s order

denying Plaintiff’s motion for new trial, vacate the judgment on jury verdict, and remand for a new

trial. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part;

Reversed in part; Vacated in part and Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and HOLLY M. KIRBY, J., joined.

Carroll C. Johnson, III, and Timothy R. Holton, Memphis, Tennessee, for the appellant, Patrice

Allen.

John E. Hall, Jr. and Robert L. Shannon, Jr., Atlanta, Georgia, for the appellee, Methodist Healthcare

Memphis Hospitals.

OPINION

This is a medical malpractice/wrongful death action filed by the mother of a child born with

severe brain damage. On November 12, 2001, Plaintiff Patrice Allen (Ms. Allen) then pregnant, was

admitted to a hospital operated by Defendant Methodist Healthcare Memphis Hospitals (“the

Hospital”) in Memphis at approximately 12:00 noon. Pitocin, a labor-inducing drug, was

administered to Ms. Allen and monitors were attached to track the fetal heart rate and Ms. Allen’s

contractions. Pitocin was discontinued at approximately 6:45 PM, and Ms. Allen received cervidil,

a cervical ripening agent. At approximately 12:33 AM on November 13, the fetal monitor indicated

a fetal bradycardia, or a decline in the fetal heart rate. Ms. Allen experienced a placental abruption

(separation of placenta from uterus) and her child, Kenton, was delivered by cesarian section shortly
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after 1:00 A.M. Kenton was born with severe brain damage and subsequently died in December

2003. 

On November 12, 2002, Ms. Allen filed this lawsuit against the Hospital and the physicians

and nurses who attended her during labor and delivery. In her complaint, Ms. Allen alleged the

negligence of the physicians and the Hospital’s nursing staff caused Kenton to suffer a period of

hypoxia prior to delivery, which resulted in brain damage. She asserted that the medications

administered to her between admission to the hospital and delivery caused her uterus to become

hyper-stimulated, resulting in contractions that were too frequent and too prolonged. She also

asserted that monitoring established that Kenton experienced in utero tachycardia and bradycardia,

and that a cesarian section should have been performed earlier. She contends that had a cesarian

section been performed sooner, the injury to Kenton would have been averted. Ms. Allen alleged

Defendant physicians and nurses negligently failed to recognize the gravity of her condition and to

act promptly to prevent hyperstimulation of the uterus, which caused the placental abruption. Ms.

Allen prayed for compensatory damages for herself and Kenton in the amount of $30,000,000. She

additionally prayed for punitive damages in the amount of $30,000,000. Following Kenton’s death,

Ms. Allen filed a suggestion of death and amended her complaint to assert damages arising from

wrongful death. Ms. Allen also voluntarily non-suited her claims against the individual Defendants.

Ms. Allen’s action against the Hospital was tried before a jury from January 30 to February

23, 2006. At trial, Ms. Allen offered the expert testimony of Carl Reddix, M.D., and the Hospital

offered the expert testimony ofJohn Edward VanHooydonk, M.D.(Dr. VanHooydonk), to establish

the standard of professional care applicable in Memphis. The jury returned a verdict in favor of the

Hospital and the trial court entered judgment on the jury verdict. Ms. Allen moved the court for a

new trial asserting, inter alia, that the trial court erred in admitting the testimony of Dr.

VanHooydonk over her objection because Dr. VanHooydonk was not qualified as an expert under

the locality rule. The trial court denied Ms. Allen’s motion for a new trial on June 19, 2006. The

trial court also denied the Hospital’s motion for discretionary costs. The matter was timely appealed

to this Court. We reverse the trial court’s denial of Ms. Allen’s motion for new trial, vacate

judgment on the jury verdict in favor of the Hospital, and remand this matter for a new trial. We

affirm the trial court’s order denying the Hospital’s motion for discretionary costs.

Issue Presented

Ms. Allen raises several issues for our review pertaining to the trial court’s admission of

evidence, limitation of testimony, limitation of cross-examination, and limitation of opening and

closing statements. The dispositive issue, however, is whether the Hospital’s expert, Dr.

VanHooydonk, was properly qualified to testify under Tennessee Code Annotated § 29-26-115(a)(1).

Analysis

This appeal requires us once again to consider the requirements and constraints of Tennessee

Code Annotated § 29-26-115(a). The statutory section provides:
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(a) In a malpractice action, the claimant shall have the burden of proving by evidence

as provided by subsection (b):

(1) The recognized standard of acceptable professional practice in the

profession and the specialty thereof, if any, that the defendant practices in the

community in which the claimant practices or in a similar community at the time the

alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and

reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant’s negligent act or omission, the

plaintiff suffered injuries which would not otherwise have occurred.

Tenn. Code Ann. § 29-26-115(a)(2000).

Under subsection (a)(1), known as the “locality rule,” a party proffering expert testimony

regarding the applicable standard of care must demonstrate that the expert has knowledge of the

standard of care applicable in the defendant’s community or in a community that the party

demonstrates is similar to that of the defendant. E.g., Robinson v. LeCorps, 83 S.W.3d 718, 724

(Tenn. 2002). This Court repeatedlyhas held that merelyasserting familiaritywith the local standard

of care is not sufficient to demonstrate knowledge under the statutory standard. E.g., Eckler v. Allen,

No. W2005-02501-COA-R3-CV, 2006 WL 3422105, at *4 (Tenn. Ct. App. Nov. 29, 2006)(perm.

app. pending)(citing Johnson v. Pratt, No. W2003-02110-COA-R3-CV, 2005 WL 1364636, at *7

(Tenn. Ct. App. June 9, 2005)(perm. app. denied)(citing Mabon v. Jackson-Madison County Gen.

Hosp. 968 S.w.2d 826, 831 (Tenn. Ct. App. 1997))). Rather, the expert must present facts

demonstrating how he orshe has obtained knowledge of the standard of care in either the community

in which the defendant practices or in a similar community. Id. The burden of demonstrating that

the expert witness is qualified under the section is on the party proffering the witness, and is the

same whetherthe witness is offered by the plaintiff or defendant. Carpenter v. Klepper, 205 S.W.3d

474, 483 (Tenn. Ct. App. 2006). 

In this case, Ms. Allen asserts the Hospital failed to carry its burden to demonstrate that Dr.

VanHooydonk is qualified to offer expert testimony under § 29-26-115(a)(1), particularly in light

of this Court’s recent holding in Eckler v. Allen, No. W2005-02501-COA-R3-CV, 2006 WL

3422105 (Tenn. Ct. App. Nov. 29, 2006). In her demand for relief, she asks this Court to reverse

the trial court’s judgment and to remand this matter for a new trial.

It is undisputed that Dr. VanHooydonk practices in Nashville and not in Memphis. Dr.

VanHooydonk completed his medical residency at Vanderbilt Hospital in Nashville, is a member of

the faculty at Vanderbilt, and all the hospitals at which he holds privileges are located in Nashville.

However, the Hospital offered no evidence that Nashville is a community similar to Memphis. 

We accordingly turn to whether Dr. VanHooydonk demonstrated knowledge of the standard

of care applicable to nurses in Memphis hospital practice for the purposes of § 29-26-115(a)(1). The

Hospital asserts Dr. VanHooydonk demonstrated familiarity with the applicable standard of care
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where he testified that he has interacted with Memphis physicians and nurses at a number of medical

lectures and where he taught a continuing medical education in Memphis on timely intervention in

obstetrics. The Hospital asserts that Dr. VanHooydonk’s teaching experience regarding intervention

in obstetrics makes him particularly qualified to testify in this matter. Although the Hospital

arguably has shown that Dr. VanHooydonk’s credentials demonstrate knowledge of an optimum or

national standard of care, we agree with Ms. Allen that the Hospital has failed to demonstrate

knowledge of the standard of care in Memphis, or in a similar community, for the purposes of the

statute.

This Court recently addressed a similar circumstance in Eckler v. Allen. In Eckler, the expert

medical witness offered by plaintiff demonstrated expert knowledge of his specialized field of Mohs

micrographic surgery. The witness asserted that he had become familiar with the standard of care

applicable to surgeons performing Mohs micrographic surgery in Memphis through discussing the

applicable standard with Memphis physicians and by surveying the Memphis surgeons who perform

this specialized procedure. Id. In Eckler, we noted that evidence of knowledge of a national,

regional, or even state-wide standard of care is not sufficient to demonstrate familiarity with the

applicable standard of care under the locality rule. Id. at *5 (citations omitted). We noted that the

knowledge required by the statute is personal knowledge, or knowledge gained “in person without

the intervention of another.” Id. (citing Webster’s Ninth New Collegiate Dictionary, 877 (1986)).

It is, in short, first-hand knowledge. Id. (citing State v. Howard, 926 S.W.2d 579, 585 (Tenn. Crim.

App. 1996)). In Eckler, we agreed with defendant/appellee physician that discussing the applicable

standard of care with physicians who practice in the locality does not satisfy the requirement of

knowledge for the purposes of § 29-26-115(a)(1). Id. at *6. 

We likewise hold here that Dr. VanHooydonk’s discussions with Memphis physicians and

nurses at medical lectures does not constitute personal knowledge of the standard of care applicable

in Memphis under the section. We also hold that, although Dr. VanHooydonk’s teaching of

continuing education classes in obstetric intervention implies knowledge of a national standard of

care, it does not demonstrate knowledge of the standard of care in the Memphis community. The

Hospital does not assert that the applicable standard of care is otherwise demonstrated by qualified

expert testimony in either the 1540 page technical record, 44 volume transcript, or numerous exhibits

in this case. 

Holding

In light of the foregoing and pursuant to the constraints of the locality rule codified at

Tennessee Code Annotated § 29-26-115(a)(1), we reverse the trial court’s order denying Ms. Allen’s

motion for new trial. If, as this Court has suggested, the locality rule has become outdated in light

of advanced contemporary medical training and practice, it is within the purview of the General

Assembly to amend it. The trial court’s entry of judgment in favor of the Hospital is vacated, and

this matter is remanded for a new trial. Because our determination of this issue is dispositive of this

appeal, additional issues raised by Ms. Allen are pretermitted. We affirm the trial court’s order
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denying the Hospital’s motion for discretionary costs. Costs of this appeal are taxed to the Appellee,

Methodist Healthcare Memphis Hospitals.

___________________________________ 

DAVID R. FARMER, JUDGE