The Locality Rule in Medical Malpractice

Publication Info: 
Tennessee Medicine, July 2008

By Phillip North, JD; Judith Regan, MD, MBA, JD; and William Regan, MD, JD


The role of the expert witness is an essential component in the determination of medical negligence in the Tennessee legal system. Expert witness testimony is required in establishing the standard of care relevant to a malpractice suit. In Tennessee there are specific guidelines regarding who may qualify as an expert. This paper looks at some of those qualifications under what is known as “the locality rule.”

Tennessee’s Medical Malpractice Act (T.C.A. § 29-26-115(a).) requires a plaintiff to prove by competent expert testimony “the recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant physician practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred.” In addition the Act describes expert physician witnesses as follows:

Expert Witnesses [115(b)] - No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a) unless he or she was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make his or her expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of those states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.

This portion of the Medical Malpractice Act imposes both experience and geographic-based limitations on the individuals offering opinion testimony in a medical malpractice case. They must have practiced within the preceding year of the action in a contiguous state. In Goodman v. Pythyon, 803 S.W.2d 697 (Tenn. Ct. App. 1990), the Court held that not only must the offered expert witness 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, but must also have practiced the
profession or specialty such that he or she is able to give relevant testimony on the issue in question.

There are some noted exceptions allowed in the contiguous state rule. There can be a waiver of the rule if the plaintiff is able to demonstrate that “the appropriate witnesses otherwise would not be available” as required by T.C.A. § 29-26-115(b). However, in Steele v. Berkman, 2006 WL
627185 (Tenn. Ct. .App.), it was held not sufficient to waive the rule when a plaintiff made no effort to find another witness after one expert witness had been ruled ineligible because he had not practiced in the contiguous state within one year. The “locality rule” also addresses the type of knowledge and experience an expert witness must have in order to be qualified as an expert witness. The Tennessee Court of Appeals in Eckler v. Allen, W2005-02501-COA-R3-CV (Tenn. Ct. App. 2006) specifically addressed the areas of knowledge an expert witness must have of the defendant physician’s community in order to satisfy the locality rule. “Knowledge of the applicable standard of care must be either firsthand knowledge of the standard of care by one who practices in the community in which the defendant practices, or firsthand knowledge by one who practices in a community demonstrated to be similar to that of the defendant.”

Tennessee courts have given guidance on what is impermissible regarding expert testimony. Familiarity with a “national standard” in order to meet the requirements for expert testimony established by T.C.A. § 29-26-115(a)(1) has not been permitted. In Sommer v. Davis, 317 F.3d 686, 695 (6th Cir.2003) (quoting Robinson v. LeCorps, 83 S.W.3d 718, 724), the Court held that “[W]hile a medical expert’s discussion of the applicability of a national standard of care does not require exclusion of the testimony, such evidence may not substitute for expert evidence that first establishes the requirements of T.C.A. § 29-26-115(a)(1).” The Court in Kenyon v Handal, 122 S.W.3d 743 (Tenn. Ct. App. 2003) stated that Tennessee courts have “likewise rejected expert testimony based on a statewide standard of professional practice, as well as testimony premised on a regional standard of professional practice.”

In addition, generalities to substantiate familiarity with a community have not beenpermitted. In Carpenter v. Klepper, 205 S.W.3d 474 (Tenn. Ct. App. 2006), the Tennessee Court of Appeals reversed a judgment in favor of a defendant physician and his employer based on the trial court’s
improper allowance of expert testimony from two experts who lacked the requisite familiarity with the standard of acceptable professional practice applicable to the defendant physician. The Court found that the expert physician’s testimony was “couched in generalities,” ultimately determining he had not the healthcare professional as well as the diabetic patient. Proper care of their teeth and gingiva can go a long way in preventing the onset of oral problems associated with diabetes..

References:
1. American Academy of Pediatrics Policy Statement: Guidelines for Expert Testimony in Medical Malpractice Litigation. Ped 5(109):974-979, May 2002.
2. Tennessee Medical Association: Online Law Guide topic: Malpractice/Expert Witnesses. Available at http://www.medwire.org/legal/index.cfm?method=ViewLawGuide&ID=70.

Dr. Judy Regan is an associate clinical professor of psychiatry at Vanderbilt University School of Medicine and an associate with North, Pursell & Ramos (NPR), PLC, in Nashville. Dr. William Regan is associate clinical professor of psychiatry at Vanderbilt University School of Medicine. Mr. North is an associate with NPR, and a licensed pilot. In addition to transporting fellow defense attorneys in their quest to meet the locality rule, Mr. North offers his pilot skills to needy transplant patients through the Air Charity Network, formerly “Angel Flights.” Learn more at www.aircharitynetwork.org.