### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decemb er 11, 2001 Session MARY HENRY, ET AL 

### . v. OBSTETRICS A ND GYNECOLOGY

CONSULTANTS, P.C., ET AL 

### . Appeal from the Circuit Court for Knox County No. 1-185-98 Dale C. Workman, Judge FILED FEBRUARY 8, 2002 No. E2001-01246-COA-R3-CV
Mary Henry and

Travis Henry sue Obste

trics and Gynecol ogy Consult

ants, P.C., and Jeff

rey R. De ll, M.D., for medical malpractice which they contend resulted in the death of their daughter. The Trial Court excluded the testimony of the expert witness presented by the Henr ys on the ground that he was not entitled to testify because he did not know the standard of care on the date of the alleged malprac tice in Kn oxville or a similar community. We aff

irm. Tenn.R.App. P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med; Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in whichW ILL IAM H. I NMAN , S R . J., joined. H ERSCHEL P. F RANKS , J., filed a concurring opinion. J. D. Lee and D an C. Stanley , Knoxville , Tennes see, for the Appellants, Ma

ry Henr y and Tra vis Henry James G. O' Kane, Knoxville, Tennessee, for the Appe llees, Obstetrics and Gynecolo gy Consulta nts, P.C., and Jeffrey R. Dell, M.D. OPINION Mary Henry a

nd TravisHenry, parents and next of kin of Elizabeth N. Henry, dec eased, sue Obstetrics and Gynecology Consultants, P.C., and Jeffrey R. Dell, M.D., who practices med icine in Knoxville, for damages they allege were incur red as a result of his medical malpractice on March 24, 1997. The Trial Court sustained th e Defendants’ renewed motion for summary judgment upon finding that the e

xpert wit ness prof fered b y the Hen

rys, Dr. Joel S. Eng el, who practices medicine in suburban

Atlanta, Georgia , was not c ompetent to testify as he did not meet the requirements set1 29- 2 6-15. Claimant’ s burden in malpr acti ce acti on – Expert t esti mony – Presumption of

negligence – Ju ry in struc tions . – (a) In a malpra cti ce act ion, the c lai mant shal l have the burden of proving by evidence as provided by subsection (b):

(1) Th e reco gniz ed stan dard of ac cep table p rofe ssion al pra ctice in the p rofe ssion and the sp ecialty there of, if any, that the defe nda nt pra ctices in the commun ity i n which the clai mant practic es or i n a simil ar co mmun i t y a t t he t i me the a ll eged i njury or

wrongful act ion occ urred. -2- outin T .C.A. 2 9-26-115, specifically sub-section (a)(1), 1 which is c ommonly kno wn as the “Locali ty Rule.” The Henrys appeal contending the Trial Court was in err or in this determination. The entire proof on the point in contention is contained in the affidavits and the depositions of Dr. En gel, which is as foll ows: Affidavit of Dr. Engel, Dated March 17, 1999 3. I am familiar with the recognized standard of acceptable professional practice pertaining to the practice of obstetrics and gynecology as it existed in Knoxville, Tennessee in 1997. 4. I am of

the opinion, within a reasonable degree of medical ce rtainty, that Jeffrey R. Dell, M.D. and Obstetrics and Gynecology Consultants, P .C., ac ted withless than or failed to act with ordinary and r easonable care in accordance withsuch stan dards in t

h eir treatment of Mary Henry and that such depar tures from the recognized standard of acc eptable professional practice cause d a different outcome a

nd were the proxi mate ca

use of inj uries sus tained by Elizabe th N. Henry. Discovery Deposition of Dr. Engel Taken February 23, 2000 Q

. Doctor, you state

in your af

fidavit th at you ar

e familia r with th e standardof careas practiced in Knoxville, Tenness ee, in 199 7. What is your basi s for that s tatement ? A. Well, my basis is my experience with reviewing records with my own medical practice, seeing that what I do and what

is done in my community is no different from what is done in other communities, but for me, personally, I have reviewed over the last 20 ye ars suff ic ient number of records in various communities in the state of Tennessee, and I have never f ound a community that practice d any differ ently than is practiced in my own city and state, so I see no differe nces.-3- Q. Do you thus, then, consider the practice, whethe r it is Atlanta or Knoxvi lle or Memphis or Little Rock, Arkansas, or Detroit, Michigan, t o b e basically the same, that is a national standard of care? A. There c ertainly

is a natio nal standard based upon the training and national organizations that establish standards; but more importantly, weare still dealing with the same woman whether she lives in De

troit or whether s he lives in Knoxville or Nashville or Atl anta, and medica l problems are ba sis. They don’t vary from community to community, because patients – it is the same

patients, so there is no difference. Whether there are

differences between medical care in the United States and Third World countries isanother issue, but in the United States the practice of medicine does not vary from community to community. Q. And that’s the basis for your statement

that you know that the standard of care in Knoxville is adequate in this case? A. That’ s corre ct.

Affidavit of Dr. Engel Dated April 25, 2001 2. This aff

idavit is a suppleme

nt to my aff

idavit in th

e Mary F./

E lizabeth N

. Henry case submitted by me in March of 1998. 3. Even though I ceased practicing obstetrics in 1993 an d have sin ce limite d my practice to infert

ility and ge

neral gyne cology, I have continued to be familiar withthe stand ard of c are of physician s practic ing obstet rics and gynecolo gy in Atlanta and the Knoxville, Tennessee area as it was pr ac ti ced in Knoxville, Tennessee in 1997. 4. I have been chosen by Tenn Car e of Ten nessee t o review cases for them and hav e reviewed cases in communities of Tennessee on be half of the Tenn C ar e organization. 5. The practice of obstetrics and gynecology is a boar d certi fication

and my knowledge of the standard of care in Knoxville, Tennessee and other Tennessee communities is one of the reasons that the judicial review system of Tenn Care of Tennessee has employed me as an independent medical evaluator for their cases, and part icularly in the spe cialty of

gynecolo gy and obs tetrics. Deposition for Proof of Dr. Engel Taken April 25, 2001

Direct Examination-4- Q. (By Mr. Lee) Now, have you an opinion within a reasonable degree of medical certainly whether or not you’re f amiliar w ith the practice of obstetrics a nd gynecology as pertains to a community such as Knoxville, Tenn essee, or a similar community back in 1996, 1997?

. . . . Q. (By Mr. Lee) Let me go fur ther, then, in lieu of that objection, and develop that some. Dr. Engel, in

the practice of obstetrics and gynecology, is that a board certification nationally? A. It is, si

r, yes. Q. And does that entail both written and oral examination? A. Yes, sir. Q. When were you first board cer tified? A. I took the written examinations during the last year of my residency, I think in May of 1972. And then you have to wai t two year s afte r leaving a residency before presenting oneself for oral e xaminations, and I did that in, I believe, Novembe

r of ‘74, passed th ose exam inations a nd was ce

rtified a t t h at time.

. . . . Q. Now, we were talking earlier about your familiarity with the practice of obs te trics and gynecology in Knoxville, Tennessee, or a similar community; are you familiar with Knoxville, Tennessee, as it relates to the community of Sandy Springs, Georgia?

. . . . THE WITNESS: Well, I believe I am – I am f amiliar with the practice being similar to my own community.

. . . . Q. All right. Following receipt of those records you have indicated you didan af fid avit. Tell us, though

before I get into t

hat, have you had oc casion to-5-

–tell me more about how that you’ re famil

iar with the practice of obstetrics and gynecology in Knoxville, Tennessee, in 1996, 1997?

. . . . Q. (By Mr. Lee) Have

you had occasion in your career, Dr. E ngel, to be contacted with the organization in Tennessee known as Te nnCare?

. . . . THE WITNESS: Yes, sir. Q. (By Mr. Lee) What is TennCare of Tenne ssee? A. Apparently TennCare is the agency that

regulat es medic al care

to those patients who appa

rently a re indige nt, appar ently some

thing akin

to Medica

id in Georgia. The states – e ach stat

e is responsible for

medical care, and TennCare is the Tenness ee agen cy that is involved in regulating, establishing those standardsof reimbursement

and what have you for physicians as well as hospitals and other health care workers within the State of Tennesse e. Q. And is ther

e such a t hing as a judicial review of the TennCare system in which doctors such as yourself are involved? A. I am only familiar with the two states, Georgia and Tennessee. There appa re ntly are provisions under the law in Tennessee that when pa tients or physician or hospitals are denied some aspect of medical ca re, whether it’s surgical care or

medicati on, there

is an appe al proce ss where by patien ts’ medical care t hat is requ ested is reviewed by multiple physicians within the State of Tennessee, but ultimat

ely a pat ient has a right to wh at is called som e sort of judicial review w

hereby t here is a judge that

has a hea ring. I be lieve most

of this is done via

confer ence ca lls. The state the n, in order to find an unbiased party as an expert, see ks physicians outside the State of Tennessee to review those cases. And I a ct as the expert representing TennCare. This is done over the phone. I am sent all of the records to evaluate. I then liste n while the

processgoes on, that is the attorney fo r the stat e TennCa re pres ents their

case, th at is, thei

r reason why a

patient is denied a specific service, the patient then hasthe right t o bring in his or her own experts and attorney.-6- And after listening to that, then I am – as in a court of law, I am asked to provide an opinion about the case. I have been doing this for somewhere between a yea r-and-a-half and two years. As I see m

y role, while I may in a

sense be employed

by TennCa

re to do this service, I not infrequently find that the structure of th e law is such that the TennCare system m ay not truly be sensitive to the needs of the patients in the state, and many times I may side with the patients’ side in terms of the denial of care because

while it ma

y not b e strictly w ritten n the guidelines for TennCare, there also is something called the right thing to do , and

so I find myse

lf on both sides of the issue. But I believe that’s the essence of the process, that is, TennCare wa nts an unbiased expert, one who has no conflict of interest either with the patient or any health care provider in the state. And so I have continued to be able to do that for the TennC ar e. The frequency withwhich tha t happens , I think, is probably about once a month there is such a hearing. I also – the recent organization that contracts under TennCare called the American Car e Foundation Incorporated, an organization o ut of Mobile, Alabama , that sen ds me eac h day by fax medical records and asks me to re view authorizations for hospital stays a s well as r equests for s urgical procedures and medical treatment for physicians in hospitals in the Southeast area. I hav e reviewed r ecords for – in cases in Tennessee and in Ala bama as well as Georgia for this American Care – Health Care Foundation, I think it’s called, I think they have the contract with TennCare for these judicial hearing s. And that’s how I am involved.

. . . . Q. (By Mr. Lee) Bef

ore the hearing that you mentioned is done by conference

callwith different ones participating, are you furnishe d the rec ords in the specialty of obstetrics and gynecology before the hea ring – on the patients before the hearing?

A. I am, sir. Q. Must you be familiar, or is it required you be familiar with the practice and the standard

of care of obstetrics and gynecology in those cases suc h as that-7-

that you’re talking about, or

that you’re asked to appear as independe ntmedical evaluator? A. Yes.

. . . . Q. (By Mr. Lee) Now, Dr. Engel, in addition to doing work for TennCare of Tennessee, have you been asked by myself a nd other attorneys to review records and appear as an e xpert witness in a case in your specialty? A. I have, sir. Q. How long a period of time have you performed that ser vice? A. I have been revie

wing rec ords sinc e the ea rly 1980 's for ca ses in Tennessee as well as other contiguous Southeastern states and on occasion states outside this region. Q. And have you had occasion to be qualified in state courts in Tenne ssee in your specialty of obstetrics and gynecology?

. . . . THE WITNESS: I believe I have sir. Q. (By Mr

. Lee) An d have you been qu alified i n feder al court s in Tennessee to do the same service?

. . . . THE WITNESS: I don’t know. I have never differe ntiated between whether the case s were st

ate cour t cases. Q. (By Mr. Lee) Okay. A. Or Fed

eral. But I would think proba

bly not in Fe deral c ourt. Q. Okay. Now, on the TennCare review that you’ve done for TennCare, Tennessee, has that ever involved patients from Knoxville, Tenne ssee?

. . . . THE WIT

NESS: I am s ure it ha s.-8- CROSS-EXAMINATION Q. As you have pre

viously told

us you hav e pract

iced exc lusively in

the Atlanta m etropolit an area since 197 2; is that c orrect ? A. Well, I would say suburban Atlanta area, yes, sir. Q. Wouldn’t you agree w e are in the Atlanta metropolitan area, Fulton County, as we are sitting here taking this deposition? A. No. North Fulton County is not considered metropolitan Atlanta. Q. Are we within a stone’s throw of Interstate 285, the interstate that encircles Atlanta, Georgia? A. Yes. The

city limits a

re some s everal

miles south

of 285 at t

his north point. Q. And we are in Fulton County, and Atlanta, Georgia, is in Fulton County? A. We are in north Fulton County. Q. All right. But Atlanta, Georgia, also is in Fulton County? A. In Fulto n County, ye s. Q. And the Atlan

ta metrop olitan ar

ea has a populatio n of appr

oximately four million; is that right, sir? A. It doe s.

. . . . Q. You don ’t know a

ny obstetr icians in Tennesse e; is that c orrect ? A. That’ s corre ct. Q. You’ve never practiced medicine in Tennessee? A. I have

not. Q. You have never been to Knoxville?-9- A. I have

not. Q. You have

n’t discu ssed this case wit h any medi cal prof

essional , that is, doctor or nurse; is t

hat corr ect? A. I have not. Q. And you haven’t reviewed any medic al litera

ture ass ociated

with this case; is t hat corr ect? A. That’ s corre ct. Q. When you were pra

cticing o bst etrics yo

u were w hat is know n as a genera l obstetri cian; is th at corr

ect? A. That’ s corre ct. Q. There are obstetricians who subspecialize in high risk obstetrics and they are what is kno wn as mate

rnal fe tal medic ine spec ialists; is t hat right? A. Yes, sir. Q. And you

are not t hat spec ialty; is tha

t corre ct? A. I am not. The maternal and fetal medicine specialty was organized after I finished my training. Q. Dr. Stevens, the physician who saw Mrs. Henry on March 24, 1997 at the Ft. Sand

ers per inatal ce nter, he ’s one of

those subs pecialis ts i n m aternal fetal me dicine; isthat right ? A. Yes, sir. Q. And thisprimaril

y take ca re of high risk obst

etrical patients? A. Well, it depends upon how they practice, they may func tion as consulta nts to gener

al obstetr icians, or they may actually be delivering normal as well as hi gh risk pa

tients. Q. But they are a category of obstetricians who subspecialize in the area of high ri sk obstetr

ics? A. Yes.-10- Q. Now, in your opinion and with r egard to obstetric s there isa

national standar d of car e; is that c orrect ? A. For tra

ining ther e is, yes. Q. Okay. And it also is your opinion that there is a difference between obstetrical care in the U.S. as compared to, say, third world countries, but in the United States the

practi ce of medicine

does not va

ry from c ommunity to community; is that cor

rect? A. There is probab ly some tru

th to that. Q. And that’ s the basi s for your testimony i n this cas e with re spect to the standard of care as practice d in Knoxville, Tennessee? A. Yes, sir. In additio n to wh at I previously sta ted today about my familiarity with the care that’s provided in Knoxville. Our stan d ard of review of a trial court’s dete rmination is restated in Staples v. CBL & Associates 15 S.W.3d 8 3, 89 (Te nn. 2000) , as follo ws: The standards governing the assessment of evidence in the summary judgment context are als o well est

ablished . Courts mus t view the evidenc e in the lig

ht most favora ble to the nonmoving party and must also draw all reasonable inferenc es in the nonmoving party’s favor. See Robinson v. Omer , 952 S.W.2d at 426; Byrd v. Hall , 847 S.W.2d at 210-11. Courts should grant a summary judgment only when boththe facts and the inferences to be drawn f rom the fa

cts permi t a reas onable person to reachonly one conclusion. See McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn.1 995); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). However, no twithstan ding the f oregoing authority , our cas e law hold s that even when dealin g witha motion for summary judgment the trial court retains the authority to e xclude a n expert’s testimony. The appe

llate standard of reviewing its determination is abuse of discretion. Mabon v. Jackson-Madison County General Hospital , 968 S.W.2d 826 (Tenn. Ct. App. 1997). Our case law also holds that as to the testimony of an expert doctor that there is a national standardfor any pa

rticular me dical discipline, and that he is familiar with the national standard without more does not meet the requirement of the statute. Mabon v. Jack son -Madison County General Hospital , supra; Robinson v. Lecorps , an unre ported op inion of th

is Court fil ed in Nas hville September 25, 2001 (2001 WL 1117067). The testimony of Dr. Engel re lati ve to his e xperience in eva

luating Te

nnCare c ases has a significant

deficiency because he did not begin making the TennCare reviews until almost two years after the alleged malpractice. This testimony does no t meet the language of the statute requiring-11-

knowled ge at the time of the alleged malpractice. In rea ching our determination we have not overlookedthe testimony of the expert that he had reviewed rec ords in Tennessee cases “since the early 1980's.” He does not, however, testify that any of those cases involved Knoxville or a similar community. We accordingly find that the Trial Court did not abuse its discretion in r ejecting th e testimony o f Dr. Eng el. For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded for collection of

costs bel ow. Costs of

appeal a re adjud ged aga inst Mary a

nd TravisHenry a

nd their surety.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE