HLD, v. 30, n. 4
Tennessee Appeals Court Upholds Exclusion Of Expert's Testimony
Under Locality Rule In Medical Malpractice Action
Mary Henry and Travis Henry brought a medical malpractice action
in state trial court against Jeffrey R. Dell, M.D., an obstetrician in Knoxville,
and Obstetrics and Gynecology Consultants, P.C. (collectively defendants), alleging
Dell's negligence caused their infant daughter's death. The trial court granted
defendants' summary judgment motion after finding that the Henry's expert witness,
Dr. Joel S. Engel, was not competent to testify. According to the court, Engel,
a general obstetrician in Atlanta, Georgia, did not meet the requirements of
Tenn. Code Ann. � 29-26-115,
the so-called "Locality Rule." The Henrys appealed.
The Tennessee Court of Appeals affirmed, holding the trial court
did not abuse its discretion in excluding the expert's testimony. Engel's testimony
that a national standard of care existed for obstetrics and that he was familiar
with that standard was insufficient to establish his competency under �
29-26-115, the appeals court said. Similarly, the appeals court found insufficient
Engel's experience as an independent medical examiner for Tenn Care of Tennessee,
the state agency regulating medical care to the indigent, to meet � 29-26-115
requirements. The appeals court explained that, because Engle did not begin
making Tenn Care reviews until almost two years after the alleged malpractice,
his testimony did "not meet the language of the statute requiring knowledge
at the time of the alleged malpractice." Accordingly, the appeals court affirmed
the lower court's judgment.
A concurring opinion commented that "the General Assembly should
revise Tenn. Code Ann. �
29-26-115 and bring it in compliance with how physicians are being trained and
how health care is being administered to patients in this State."
Henry v. Obstetrics and Gynecology Consultants, P.C., No.
E2001-01246-COA-R2-CV, 2002 WL 199723 (Tenn. Ct. App. Feb. 8, 2002) (10 pages).