### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 18, 2002 Session CAROLYN STOVALL, ET AL 

### . v. LOIS E. CLARKE, M.D., ET AL 

### .

Appeal from the Circuit Court for Williamson County

No. 97652 Russ Heldman, Judge

No. M2001-00810-COA-R3-CV - Filed June 20, 2002

This is a medic al malpra ctice c ase aga

inst tw o physici ans which was dismissed on motions for summary judgment upon a finding there w ere no disputed issues of fact and the defendants were entitled to judgment as a matter of law because the pl aintiff’s ex perts were disqualified under the locality rule.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part and Remanded

W ILLI AM H

. I N MAN , S R

. J., delivered the opinion of the court, in which P ATRICI A J. C OTTRELL , J., joined. W ILL IAM C. K OCH , J R ., J., filed a concurring opinion.
Joseph P. Bednarz, Sr. and JosephP. Bednar z, Jr., N ashville, Tenness ee, atto rneys fo r the app ellant, Carolyn Stovall, individually and as wife and personal representative of Gerald Stovall, deceased.
Rose P. Cantrell, Nashville, Tennessee, attorney for appellee, L ois E. Clarke, M.D.
Phillip L. North, Michael

F. Jameson

and Thoma s W. Shumat

e IV, Nashville, Tennessee, attorneys for appellee, Robert W. McCain, M.D.

OPINION

I.

The plaintiff

, Carolyn Stovall, a

lleged th at she is th

e survivi ng widow o f Geral d D. Stovall who died o f corona

ry hear t disease which the

defenda nt physici ans failed to diagno se and tr eat.

His primary physician was Dr. Clarke whohad treated him for several years. The decede nt
was a smoker

witha history of

high cholesterol and a family history of heart disease, of which D r. Clarke was aware. In 1992 an EKG ordered by Dr. Clarke r eveale d a possibl e infer

ior wall myocardial infarction.-2-

In 1996 the decedent consulted Dr. Clarke to discuss a n abnorma

l EKG res ult

when applying for life insurance. She admitted that the decedent informed her that the insurance examiners found ‘something different’ on their EKG.

In 1997 the plaintiff alleged that the decedent again consulted Dr . Clarke comp laining of shortnes s of brea

th and wheezing. Dr. Clarke diagnosed ref lux disease. About two weeks later, he again consulted Dr. Clarke for a chest cold and wheez i ng. An upper respiratory infection was diagnosed. He returned again in two we eks with the same complaints, and he was referre d to Dr. Robert McCain f or consulta

tio n regar ding bronc

hitic sympt

oms, and to

Dr. Doug las York f

or consul t of gastric symptoms. The plaintiff alleged that appropriate d iagnosticte sts would ha

ve read ily revealed that her decedent suff ered from treatable coronar y heart disease.

The decedent was examined on February 28, 1997 by Dr . McCain, a pulmon ologist, with complain ts of persistent cough and shortness of breath. The plaintiff allege d that Dr. McCain failed to take an adequate history and failed to order appropriate diagnostic tests. The decede nt died March 11, 1997 from coronary heart disease.

II.

The defendant Dr. Clarke denied all al l egations of negligence and filed a Motion for Summary Judgment alleging the absence of any genuine issue of materi al fact, supported by her affida vi t, the aff

idavit of D

r. Summer s Chaffin , a state ment of ma

terial f acts, an d other ma

terials. Dr. Clarke’s affidavit recites the history of her trea tment of an d advice to t he decedent which she avows conformed to the local standard of car e.

Dr. Chaffin t

estified that he ha

d studied t

he mass of

ma teri als in the case, including the pleading s, all medic al reco rds, depo sitio ns and labo ratory r eports. H e has pra

cticed medicine in Tennessee sinc e 1976, and testified that in his opinion the care and treatment rendered to the decedent by Dr. Clarke complied with the recognized standard of a cceptable medical pra

c tices in Williamson County, Tenn essee, and t hat no act or omission on the part of Dr. Clarke caused or contribu ted to the death of Mr. Stovall.

III.

T he defendant Dr. McCain denied all allegations of negligence and filed a Motion fo r Summ ary Judgment alleging the absence of any genuine issue of materia l fact, supported by hi s affida vit, the affidavit of Dr. Michae l T. M cCormac k, the dep osition tes timony of D r. Jack U hrig and Dr. Ronal d Krone, and other materia ls. Dr. Mc Caintestified that he examined the decedent on
one occasion, February 26, 1997, upon a referr al by Dr. Clarke. He testified that Mr. Stovall related that he had be en in good

health un til rece ntly when he developed rattling in his chest and a cough. He did not

complain of chest pain or relate any history of chest pain. Car diac and lung evaluation was normal. Dr. McCain’s diagnosis was bronchitis aggravated by a history of smoking.-3- IV.

The plaintiff responded t o th e Motions for Summary Judgment by relying upon the depositional testimony of Drs. Clarke and McCain, Dr. Ronald Krone, Dr. Jack Uhr ig and the affida vits of Drs. Uhrig and Krone. Dr. Uhri g was off ered asa standa

rd of ca re expe rt again st both defendants, and Dr. Krone was offe red as an expert on the causation issues against Dr. Clarke

.
Dr. Uhrig, by deposit

ion, testified that he was a reviewer for the Missouri Patient Care Review Foundation , involved in peer review; that he is experience d in the specialty of coronary heart disease; that

he is familiar with the standard of care in Franklin, Tennessee, although he practiced in Marshall, Missouri, which has one hospital staffed by twenty-f ive physic ians; that

his speci alty is interna l medicine ; that he r

eviewe d the medi cal rec ords and h ealth history of Mr. Stovall; and that in his opinion the standard of care in Frankli n, Tenne ssee is the same as in

Marshal l, Missouri; that he knows n othing abo

ut Frankli n, Tenne ssee, and has nev er been there. H is depositi on in part :

. . . Based on my re view of the medical r ecords a nd deposit

ions, it is my opinion that Dr. Lois E. Clarke and Robert W. McCain, M.D. both deviated from t he standard of care/standard of ac ceptable professional practice required of physicians in Franklin, Tennessee or i n a similar c ommunity in the years 1996 and/or 1997. I have set forth those specific o pini ons in the Rule 26 disclosures which are being attached as an e xhibit to the s e disc losur es. Those opinions that are set forth in the attached Rule 26 disclosures which pertain to Dr. McCain a nd Dr. Cl arke ar

e in fac t my opinions and are

incorpor ated into this affi davit by r

efere nce. The se opinions have been further exp lained and clarified during my deposition of May 26, 2000. They are still my opinions to a reasonable degree of medical certainty.

That I am familiar with the standard of care a nd/or the standar d of acc eptable professional practic e requir ed of phy sicians tr

eating pa tients lik e G erald Dwayne Stoval l, that have underlying coronary disease, in Franklin, Tennessee or in similar communities, as it existed in 1996 and 1997.

I have never been to Franklin, Tennessee but I am familiar with the standard of care that is applicable there and in similar communities for the following
reasons : For the past 18 years I have been seeing patients like Gerald Dwayne Stovall in a small community. A major ity of the patients I see have underlying cardiology problems, and other physicians in this community freque ntly refe r patien ts to me that have cardiology pro bl ems. Many of these patients a

lso have conco mitant pulm onary dis ease. I

am intric ately familiar with the standardof care as it applies to thework-up-4- of patients with coronary artery disease. I consider Franklin, Tennessee to be a similar commu nity to Marshall, Missouri as it pertains to the facts and circumstances of this case.

Over t he pa st 18 year s, I have worked v ery clos ely with pulmonolog ists and car diologis ts in the diagnosis and treatment of coronary artery disease. I am very f amiliar w ith the standard of

care issues that pertain to family practitioners refer ring to co nsulting c ardiolog ists and pulmonologist s.

I am involved in the Missouri Patient Care Review Foundation as a physici an revie wer. For the past 10 years, I h ave been reviewing medical records of physicia ns throughoutthe state of Missouri and have been ren der ing opinions on appropriate care by physicians thro u ghout the state.

D r. Krone, b y depositi on, testif ied that he was boa

rd cert ified in c ardiolog y and inte rna l medicine, and is a professor of medicine at Washington University School of Medicine in St. Louis. He did not tes tify as to a

ny standa rd of ca re, but c onfined h

is opinion to

causati on. The th

rust of his testimony was direct: that by-pass surgery would have prolonged Mr. Stovall’s life.

V.

The Mo tions fo r Summary Judgment were granted without elaboration; the plaintiff thereafter filed a Rule 59 Motion to Alter or Amend, supported by three (3) aff idavits, including one from Dr. Krone who testified as to the standard of car e. The Rule 59 Motion was denied and the plaintiff appeals . The issue

is cente red on the

disqualif ication o f plaintif

f’s e xperts because they
were not familiar with the standard of care in Williamson County, Tennessee. A sec ond ary is sue is whether affidavits submitted in support of the Rule 59 Motion were properly considered.

VI.

In determining whether or not a genuine issue of mater ial fact exists for purposes of summary judgment, the issue should be considered in the same manner as a motion for directed verdict made at the close of the plaintiff’s proof, i.e., the trial court mus t take the

stronges tlegitimate view of the evidence in favor of the nonmoving party, allow all reasona ble infe rencesin favor of that party, and discardall countervailing evidence. Downen v. Al lst ate Ins. Co., 811 S.W.2d 523, 524 (Tenn. 1991); Taylor v. Nashville Banner Publishing Co. , 5 73 S.W.2d 476, 480 (Tenn. Ct. App. 1978). If there is a dispute

as to any material fact or any doubt as to the conclusions to be drawn f rom that fact, the motion must be denied. Poore v. Magnavox Co. of Tennessee , 666 S.W.2d 48, 49 (Tenn. 1984); (“[I]f the court entertains any doubt whe ther or not a genuine issue exists as to any material fact it is its duty t

o overrule the moti on.”); Dooley v . Everett , 805 S.W.2d 380, 383 (Tenn. Ct. App.-5-

1990). The cour

t is not to “weigh” the evidenc e when evaluatin g a motion f or summar

y judgment , Byrd v. Hall , 847 S.W.2d 208, 210-11 (Tenn. 1993), because a summary judgment cannot be used
as a substitut

e for a m erit trial of disputed factual issues. Evco Corp. v. Ross , 528 S.W.2d 20 (Tenn. 1975).

Tenness ee Code A nnotated § 29-26-1 15 provide s: (a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b): (1) The recogni zed stan dard of a ccepta ble professional practice in the pr of ession and the specialty thereof, if any, that the defenda nt pra ctices in the community in which he practices or in a s imilar community

at the time the alleged injury or wrongful action occurred; (2) That the d

efenda nt acted with less th an or fa

iled to ac t wi th 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.

VII.

The Localit

y Rule
Many Tennessee c ases have addressed the requireme nt that an expert in a medical malpractice case demonstrate knowledge of the standard of care in the same or similar community. This requirement is commonly referred to as the “loca lity rule.”

There is no requirement

that the exp ert witness be in the same specialty of the medical profession as the defendant. Ledford v. Moskowi

tz , 742 S.W.2d 645, 647 (Tenn. Ct. App. 1987). However, the e xpert mus t be sufficiently familiar with the standard of care of the profession or specialty and be able to give relevant testimony on the issue in question.

In Mab on v. Jackson-Madison County General Hosp. , 968 S.W.2d 826 (Tenn. Ct. App. 1997) the issu e of an expert’s disqualification under the locality rule was squar ely posed. The expert, Dr. Shane, who practiced in Missouri, knewnothing about Jackson, Tennessee, the venue of the alleged tort. Writing for the court, Judge Crawford opine d:

To qualify a s an expe

rt, a physician is not required to be familiar with all of the medical statistics of a particular community. Ledford v. Moskowi

tz , 742 S.W.2d 645, 648 (Tenn. App. 1987). However, a complete lack of

knowledge concerning a community’s medical r

esource s would be

contrar y to knowle dge of the required standardof care. The plaintiff’s tendered e xpert must be familiar with the standard of care in the community in which the defendant practices or in a similar community. Withoutthis requisite threshold evide nce of the standard of care in the locality, a plaintiff cannot demonstrate a breach of duty. See, Cardwell , 742 S.W.2d at 754.-6- Mabon contendsthat he ha s met that t hreshold and that t

his c ase i s distinguish able

from Ayers and Osler because there was evidence in those cases that the standards of care were diff erent and that there is no proof in this case that the standardof care in Jackson, Tennessee is diffe ren t from that propounded by Dr. Shane. He argues that once Dr. Shane set forth his opinion that the national standard of care is the same

as the sta ndard of care in Jackson, the burden then shifted to Dr. Thomas to set forth a different standard of car e for Jackson. We respec tfully disa

gree wit h this cont

ention. I t is the plaint iff who is charged with the b urden of pr oof as to t he standa rd of ca re in the community in which the defendant practices or in a similar community. T.C.A. § 29-26-115(a)(1). A plaintiff who chooses to prove the standard of c are in a simila r communit

y necessa rily must prove that

community i s similar to

the one in which the defendant practic es. To shift th

is burden to the def

endant di rectly c ontradic ts the plain language of the statute and would render the statute a nullity. Under the principles of summary judgment, once Dr. Thomas moved for summary judgment and submitted an affidavit stating that he complied withthe standard of care in Jackson, the burden then shifted

to Mabon to set forth specific facts that Dr. Thoma s failed t

o meet the standard of care in Jackson or a similar community. In this case, Dr. Shane’s deposition testimony leads us to conclude that he is notfamiliar with the standard of care in Jackson, Tennessee. Moreover, we c annot accept Dr. Shane’s bare assertion that the standar d of car e in Jack son is the s ame nationwide and that the level of care with which Dr. Shane is fa miliar should

have been available in Jackson. This does not comply with the nonmoving party’s burden
on a motion of summary judgment to set forth specific fa

cts. From our review of the record, Dr. Shane simply failed to establish that he had knowledge of the requisite standard of care in Jackson, Tennessee or in a similar community. Withoutevidence as to the standard of care in Jackson or in a similar community, Mabon cannot de monst rate any breach of duty to Mrs. Mabon. See, Cardwell , 724 S.W.2d at 754. Mabon therefore failed to carry the burdens placed on him by T.C.A. § 29-26-11 5. As such , there w as no gen uine issue of mater ial fact , and Dr. Thomas was entitled to judgment as a matte

r of law. The tria

l court c orrect

ly granted summary judgment to Dr. Thomas.

The Rule 59 Motion

As we have seen, after the Motion for Summary Judgment was grante d, the plaintiff filed a M otio n to Alter or Amend the Judgment, supported by three additional affidavits, one ea ch from Drs. Tute ur, Krone, and Go lusinski.

Dr. Tuteur is a

pulmonologist who practices in Missouri. He testifiedthat he had reviewed the geographical data, statistical data, and literature concerning Franklin, Tennessee and Williamson County, an d its envir

ons, part icularly its proximity to Nashville; that he considered Franklin to be similarto a community where he practiced his specialty, and that

he was familiar with the standard-7-

of care that is applicable in this case. He further testified that he was familiar with the standard of
care required

of pulmono logists’ pr

actice s in Frankl

in which isthe same

as it is in similar counties where he practiced. He opined that Dr. McCain deviate d from the standard of care required of pulmonolog ists prac ticing in Fr anklin be cause:

H e failed to take an appropriately detailed and mea ningf ully , complete and p erti nent history from Gerald Dewayne Stovall. The history that is docume

nted in his medical r

ecords i s substant

ively ina dequate and is
a violation o f th e standa rd of ca re beca use Dr. M cCain did not obtain sufficient historica l informa tion in order to develop a

differe ntial diag nosis and to derive a proper evaluation and manage ment care plan. He failed thoroughly a

nd prope rly to eva luate the potential causes for Gerald Dewayne Stovall’s shortness of breat h and cough. By his own testimony, Dr. M cC ain’s history and physical examination probably took only 4 or 5 minutes of face to face time. This short encounte r time is clear ly inadequa te in trying to diagnose the causes of shortness of breath and cough for the first time pulmonary consultation visit and thus violates the standard of care. He failed to document conside ration that Mr. Stovall’s symptoms may have been caused by cardiac disease . The standa rd of care required Dr. McCain to consider cardiac, among the other caus es, for the shortness of breath. Dr. McCain has testified that he had a c onve rsation w ith the fa mily practition er, L ois Clarke, M.D., and he also had the benefit of Dr. Clarke’ s medic al rec ords, which showed an EKG in 1992 that was equivocal, and certain ly had sufficient knowledge available to require hi m to act ively consider that Mr. Sto vall’s pr

oblems may i ndeed have been caused by an underlying cardiac problem a nd to collect data

sufficie nt to furth er eval uate and manage t

his problem. He clearly violated the standard of care regarding his overall consultation. It is my opini on that if Dr. McCain had performed a proper differential diagnosis and prop erly inve stigated t he possi ble cau ses for Mr. Stovall’s shortness of bre ath, he would have discovered the simple facts of the history related by Mr. Stovall’s wife in her deposition leading t o the fact that Mr. Stovall had a cardiac problem It is also my opinion that th e violations of the standard of care referred to ab ove, a re causally connected to the death of Ge rald Dewayne Stovall, and that it is my opinion to a reasonable degree of medica l certainty, that if Robert W. McC ain had complied with the standard of care required of him in Febr

uary of 1 997 during

his pulmonary consultation, Mr. Stovall’s underlying heart con ditio n would ha ve been diagnose d, and he

would probably have undergonesuccessful medical and or surgical management of-8- his heart problem and it is my further opinion, to a reasonab le degree of medical certainty, he would be alive today.

Dr. Golusinski

testifie d that he i s license d in Geor gia and North Carolina. Like Dr. Teteur, he said that he had reviewed the statistical factors, and that he considered

Franklin to b a community similarto several communities where he had practice d medicine, and that he was familiar with the required standard of care in Williamson County. He opined that Dr. Clarke violated the standard of care in regard to the ca re and tr eatment o f Mr. Stova

ll in these particu lars:
Specific ally, Dr. Clarke vi olated the standa rd of ca re as fo llows: She faile d to properl

y investig ate a pr

ogressiv ely abnor

mal EKG in a patien t with a his tory of smo

king and e

levated lipids. She failedto aggressively treat markedly elevated lipids ove

r at leas t a five year time period, and Failed to appropriately investigate, and/or refer to a cardiologist for investigation, sympt oms which were highly suggestive of congestive heart failure or left ventricular dysfunction. She had a duty to act upon the information that was contained in her medical chart, a

nd either appropr iately inv estigate

or refe r to a ca rdiologist for appropriate investigation. She faile d to comply with the standard of care required of physic ians trea

ting patie nts like Ge

rald Dew ayne Stov all unde r the same or similar

circumst ances. It is also my opinion, that the vi olations of the standard of care referred to above, are causally connec ted to the death of Gerald Dewayne Stovall, in that it is my opinion, to a reasonable degree of medica l certainty, that if Lois E. C larke, M .D. had c omplied with the standard of care required of her in 1996 and 1997 in regard to treating Gerald Dew ayne Stovall, he would have been dia

gnosed a s having c oronary artery disease and he wo

uld have probably undergone coronary bypass surgery, a nd it is my further opinion that to a r

easonab le degree of me di cal certainty, he would be alive today. My definiti on of reasonable degree of medica l certainty is more probable than not.

Dr. Kron e offered an additional affidavit in rega rd to the issue of the standard of ca r e required of Dr. Cla

rke. He testif i ed that he

was fami liar with t

he standa rd of ca re of fa mily practitioners treati ng patien ts like Mr. Stovall in Franklin and similar communities, and that Dr. Clarke de viated f rom acc eptable

standar ds in these

particulars:
Specifically, Dr. Cl arke knew that Gerald Dewayne Stovall had an equivocal EK G in 1992. S he also knew that Mr. Stovall had a history of smoking and elevated lipids over at least a five year pe riod of time, and she-9- also know that

Gerald D ewayne

Stovall had abnormal findings on two EKGs in 1996. Based on the information that was available to Dr. Clarke, she had a duty to appropriately investigate the signs and symptoms, which were highly
su ggestive of congestive heart failure or left ventric ular dysfunction, o r ischemia. In the al

ternativ e, she co

uld have f ulfilled h er duty to investiga te by appropriately referring Mr. Stovall to a cardiologist for

investigation and evaluation. To summariz e my opinions, Dr. Clarke was clearly on notice that Mr. Stovall may have underlying cardiac problems. She had a duty to inve stigate and/or refer to a cardiologist. She failed to do so, and therefore, she violated t he standar

d of car e that wa s requir

ed of her and all ph

ysicians tr eatin g patients like Ger

ald Dewa yne Stova

ll in Franklin, Tennessee or similar communitie s. It is also my opinion that the violations of the standard of care refe rred to above are causally connected to the de ath of Gerald D ewayn e Stovall, in thatit is my opinion to a reasonable degreeof medical certainty, that if Lois E. Clarke, M.D. had complied with the standard of care required of her in 199 6 and 1997 , Mr. St oval l’s coronary artery disease would have been diagnos ed an d he would have pro bably und

ergone c oronary

bypass surgery, and it is my further opinion to a reasonable degree of medic al certainty, he would b e alive to day. I ha ve alsoset forth additional opinions
on causation i n my previ ous affi davit and depositio n, and I st

and by tho se opinions today.

The Rule 59 Motion was filed on February 26, 2001, to alter or amend the summary judgmententered in favor of Dr. Clarke on Janua ry 26, 2001. The essential ground alleged for relief
was the assertion that the trial court stated, during argument on the Motion for

Summary Ju dgment, that if summary judgment was granted, the plaintiff would hav e thirty

(30) day s to “brin g in these
new expert o

pinions an d the cour

t would consider them.” So far as the record reveals this assertion is not denied.

A similar motion, with a like result, was filed on t he same date to alter or amend the summary judgment entered in favor of Dr. McCain.

The defenda

nts’ obje ction to the

late-fi led aff

idavits was recognized by the trial court who neverth eless considered them

and concluded

that nothing asserted therein changed his opinion that summary judgment was proper.

The resolution of a Rule 59.04 Motion is governed by the criteria anno unced in H arris v. Chern , 33 S.W.3d 741 (Tenn. 2000). Altho ugh the Harris case specifically deals with a motion under Rule 54.02 (reconsideration of an interlocutory order granting summary judgment), and not
a Rule 59.04 motion to alter or amend, the Court note d that many of the same considerations-10-

discussed in Harris would be applicable when a litigant submits additional evidence as part of a Rule 59.04 motio n to alter

or amend a summary

judgment.

The Harris court ar

ticulate d five fa

ctors fo r conside ration by the trial court, a s follows: A. The mova nt’s efforts to obtain evidence to respond to the motion f o r summary ju dgment; B. The importance of the newly submitted evidence to the movant’s ca se; C. The explana

tion offe red by the

movant for it s failure

to offer the newly submitted evidence in its initial response to the motion f or summary judgment; D. The likelihood that the non-moving party will suffer unfair prejudice, and E. Any other

releva nt fact. 33S.W.3d at 745

It will be seen that the factor relied upon by the p laintiff i s not articulated in Harris : the undisputed agreement by the trial judge to consider new aff idavits if filed within thi rty days a fter judgmentwas entered. The trial judge adher ed to his agreement and considered the late-f iled affida vits, an action with which we are not disposed to take issue in l ight of th e particular circumst ances.
The affidavit of Dr. Krone reiterates his opinion that coronary by-pass surgery would have prolonged the life of Mr. Stovall. Dr. Krone declares that he ha s been furnished statistical data about Franklin, Tennessee and the medical facilities available the re. He testified that “I ha ve sufficient information about Franklin, Tennessee, to know that cardiologists and cardiac surge ons were availab le inthe immediate area, and it is my opinion that the standard of care issues and c ausation issues that apply to the facts and circumstances of this case are the same in the St. Louis area

as they
are in the Nashville area . . .” Dr. Krone went on to testify that when the standard of care requires
a cardiac work-up and/or

a refe rral to a cardiol ogist and s ubseque nt by-pas s surger

y, it is the same throughoutthe community, and “there is nothing about Franklin, Tennessee that would make it an exception, to the general rule.”

Dr. Uhrig reiterated that although he had never been to Fr anklin, he was familiar with the standardof care

practic ed there

because “I consi der Fran

klin, Tenn

essee, t o be a simil ar community to Mar shall, Missouri as it pertains to the facts and circumstances of this case . . . the re al ity o f modern medical p

ractice is that there is a national standard of care that a pplies in many circumstances . . . the standard of care f or trea ting a pat ient like G

erald Sto vall . . . in

fers the same or similar c ircumsta

nces tha t existed in 1996 and 1997 would be exactly the same throughout all 50 states with the exception of some very primitive areas such as the Appalachian Mountain Regions and similar localities . . .”

He further testified that “I am also familiar with the locality standard by virtue of the fact that I have received over twenty cha rts from the State of Tennessee in order to render an opinion

as to-11-

whether or not malpractice occurred,” a nd that he had testified at trial in three medical malpractice cases in the middle Tennessee area.

Mabon is clear on these crucial points: (1) an expert is not requ ir ed to be f

amiliar w ith all of the medic al stati stics of Williamson County; (2) the tendered expert must be familiar with the standardof care in Williamson County, or failing that, in a similar community; (3) the plaintiff has the burden o f proving

that the st

andard o f care

in Marsha

ll, Missour

i, or its en

virons, is similar to the standard of care in Franklin, Tennessee or a similar community; (4) if the motion for summary judgmentis sup porte d by evide nce that the defe ndants ex ercise d the req

uisite sta ndard of care in Franklin, the burden shifts to the plaintiff to ‘set forth’ specific facts tha t the defe ndants fa

iled to exercise the requisite standard of car e in Franklin or in a similar community.

We agree that more is required of an expe rt that the mere sta tement “I am familia

r with the standardof care in Franklin, Tennessee or in a similar community.” Such a statement is conclusory. The plaintiff’s experts, a

ppa rently reacting to their lack of geographical infor mation and medical statistics about Fra

nklin, unde

rtook to a

ppris e thems elves of these deficiencies and to acquire knowledge of Franklin and communities similar to their locale.

As to the summary judgment for Dr. Clarke, we think that the tes timony of the plaintiff’s expert, Dr. Uhrig, sufficiently demonstrated knowledge of the standar d of care applicabl e t o a community

similar to Franklin. See, Ledford v. Moskowi

tz , 742 S.W.2d 645 (Tenn. Ct. App. 1987). The purpose of the locality rule is to ensure that physicians are accorde d a fair assessment of their conduct in relation to appropriate community standards. While the evidence of Dr. Uhrig’s familiar ity withthe appropriate standard of care in Franklin is not overpowering it does no violence to the locality rule. We therefore ho ld t hat the court erred in granting the Motion for Summary Judgment to Dr. Clarke.
The Motion for Summary Judgment filed by Dr. McCain was properly granted. We deem it unnecessary to address the locality rule as to his motion because adequa te grounds independent of the rule exist to maintain the action of the tri al court . The pla intiff fa iled to demonstrate that she
w ill be able to prove that any act or failure to act by Dr. McCain caused her decedent to suffe r injuries that otherwise would not have occurred. Tenn. Code Ann. § 29-26-115(a)(3). The aff idavit of Dr. Teteur does not

explain how Dr. McCain’s failure to take a more complete history from the decedent caused him to suffer injuries that would not otherwise have occurred. We conclude that the claim against Dr. McCain fails for lack of causa tion evidence.

The judgment as to Dr. Clarke is reversed and the case is re manded for trial. The judgment
as to Dr. McCain is affirmed. One half of th e costs a re asse ssed to the plaintiff, and one half to Dr. Clarke.

___________________________________ WILLIAM H. INMAN, SENIOR JUDGE