Totty v. Thompson

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 5, 2002 Session

LAURA C. TOTTY, ET AL. v. JOHN THOMPSON, M.D., ET AL.

Appeal from the Circuit Court for Williamson County

No. I-2K177 R.E. Lee Davies, Judge

No. M2001-02539-COA-R3-CV - Filed January 9, 2003

In this medical malpractice case, Plaintiff appeals summary judgment based upon the failure of

Plaintiff’s medical expert to establish the requisite familiarity with the standard of care in the

community in which Defendant practices or in a similar community. We affirm the action of the trial

court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J., and

ELLEN HOBBS LYLE , SP . J., joined.

E.Covington Johnston,Jr., Franklin, Tennessee, for the appellants, Laura C. and Alvin Mitchel Totty.

Michael A. Geracioti and Dale A. Tipps, Nashville, Tennessee, for the appellees, John Thompson,

M.D., and Nolensville Family Care Center.

OPINION

Plaintiffs, Alvin Mitchel Totty and Laura C. Totty, are husband and wife. On April 5, 1999,

Laura Totty, complaining of pain above her left scapula, sought treatment for this condition by

Defendant, Dr. John Thompson, at his office in Nolensville, Williamson County, Tennessee. While

injecting steroid and pain medication into the area of pain the left upper back of Plaintiff, Defendant

inadvertently pierced the lung of Plaintiff with a needle causing a pneumothorax (partially collapsed

lung). Defendant informed Plaintiffs immediately of the inadvertent lung puncture and x-rayed the

affected area to reveal the pneumothorax involving about ten percent of total lung volume. Ms.

Totty was anxious about the puncture and Defendant admitted her directly to Williamson County

Medical Center for observation and further x-rays. Hospital x-rays indicated a slight enlargement

of the left pneumothorax and Defendant, along with Dr. Doug York, a general surgeon, and Dr.

Elliot Himmelfarb, an interventional radiologist, determined that Dr. Himmelfarb should perform

a catheter re-expansion of the pneumothorax. Following the procedure, Ms. Totty was discharged

from the hospital on April 7, 1999, and two days later, in a follow-up visit to the office of Dr.

Thompson, it appeared that the pneumothorax had resolved. She was released to return to work on

April 12, 1999 and never returned to the office of Dr. Thompson for follow-up treatment.

Suit was filed against Dr. Thompson and his employer, Nolensville Family Care Center, on

April 4, 2000, alleging:

7. The Defendant, John Thompson, M.D., was negligent in the following way:

a. He failed to properly monitor the Plaintiff’s condition while

inserting the trigger point needle into the patient’s back.

b. He failed to properly calculate the depth to which he could

insert the trigger point needle into the Plaintiff’s back.

c. He carelessly inserted the trigger point needle into the

patient’s back to such a depth that he punctured the Plaintiff’s

lung.

d. Even after the Defendant discovered that he had punctured the

Plaintiff’s lung, he injected the steroid and pain medication

into the Plaintiff.

8. The Plaintiff believes that the Defendant, Nolensville Family Care Center, is

the employer of the Defendant, John Thompson, M.D., and at all times

material to this Complaint, believes that John Thompson was acting in the

course and scope of his employment with the Defendant, Nolensville Family

Care Center. The Plaintiff also believes that the Defendant, John Thompson,

M.D., is the owner of the Defendant Nolensville Family Care Center, and the

Defendant Nolensville Family Care Center is liable to the Plaintiff for the

actions of its employee and/or owner, John Thompson, M.D.

Defendants answered on May 30, 2000, denying any acts of negligence. On February 6,

2001, Defendants filed a Motion for Summary Judgment accompanied by the Affidavit of Dr.

Thompson asserting that he was familiar with the recognized standard for acceptable professional

practice of family medicine in Williamson County and that his treatment of Mrs. Totty complied

with such standard. He further asserted that the complication experienced by Mrs. Totty was an

accepted and recognized risk of the particular procedure.

Plaintiffs countered with the Affidavit of Dr. Joseph Bussey, Jr. of Georgia asserting an

opinion that the treatment by Dr. Thompson fell below the applicable standard of care in several

respects. The trial court, however, never reached the merits of the Bussey affidavit, finding that the

affidavit failed to establish familiarity with the standard of professional care in the community in

which Dr. Thompson practices or in a similar community as is required by the “Locality Rule”

mandated under Tennessee Code Annotated section 29-26-115(a)(1).

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In this respect, the Affidavit of Dr. Bussey stated:

1. I am Joseph G. Bussey, Jr., and I am citizen and resident of the State of

Georgia. I am over the age of 18 years.

2. I am a medical doctor. I limit my medical practice and speciality to general

family practice and surgery. Despite my speciality, based upon my medical

school of training, internship, and residency, I am familiar with general

medical practice which constitutes common knowledge of all medical

doctors. This common knowledge does not vary from state to state or from

medical speciality to medical specialty.

3. I practice my speciality in the State of Georgia. I am licensed to practice

medicine in the State of Georgia and was licensed to practice medicine

continually for more than two years prior to April 5, 1999. I was licensed to

practice medicine in the State of Georgia in my specialty in April, 1999,

which is the time of the events complained of in this action. In April, 1999,

as well as the date of the preparation of this Affidavit, the standard of care for

family general practice in the State of Tennessee, including Nolensville,

Tennessee, as it relates to the diagnosis and treatment of medical problems

such as those experienced by Laura Totty in April 1999, was the same

standard of care required by a physician in the State of Georgia. The standard

of care under which a general diagnosis and treatment of the condition

experienced by Laura Totty is identical in the State of Georgia as in the State

of Tennessee. The diagnostic tests available to a physician in the State of

Georgia and in the State of Tennessee to investigate the symptoms

experienced by Laura Totty are identical. The standard of care under which

a family general practitioner makes his or her decision as to the treatment

performed on Laura Totty is identical in the State of Georgia as in the State

of Tennessee. Therefore, I am familiar with the standard of care of a general

family practitioner treating Laura Totty in April, 1999 in Nolensville,

Tennessee. I am qualified to render the opinion set forth in my Affidavit.

The Affidavit does not meet the threshold requirements of Tennessee’s Locality Rule.

Tennessee Code Annotated section 29-26-115(a)(1) (Supp. 2000) requires the plaintiff to prove:

(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 defendant practices or in a similar community at the time

the alleged injury or wrongful action occurred;

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The State of Georgia hardly qualifies as a “community” within the meaning of the statutory

locality rule. Neither does the State of Tennessee.1 No factual basis is asserted in the Affidavit of

Dr. Bussey to establish his familiarity with the standard of care in Williamson County, Tennessee

nor, if indeed it be the involved “community” within the meaning of the statute, does the Affidavit

assert a factual basis relative to knowledge of the standard of practice in Nolensville, Tennessee.

In a similar context this Court has held:

He presented no other factual basis for his belief that he was familiar with the local

standard of care, and there is no proof whatsoever in the record that would explain

how the witness, a physician from Washington, D.C., would be familiar with the

standard of care in Knoxville. It is clear the Trial Court has broad discretion in

determining the qualifications for admissibility of testimony of expert witnesses. We

find no abuse of that discretion in this case. Mabon v. Jackson-Madison County

General Hosp., 968 S.W.2d 826 (Tenn.Ct.App. 1997). See also Osler v. Burnett,

1993 WL 90381 (Tenn.Ct.App. March 30, 1993); Bryant v. Bauguss, 1996 WL

465539 (Tenn.Ct.App. August 16, 1996); Swift v. Schoettle, 1996 WL 730286

(Tenn.Ct.App. December 20, 1996); Hopper v. Tabor, 1998 WL 498211

(Tenn.Ct.App. August 19, 1998).

Spangler v. East Tenn. Baptist Hosp. No. E1999-01501-COA-R3-CV, 2000 WL 22543, at *2 (Tenn.

Ct. App. Feb. 28, 2000).

Few areas of American Jurisprudence have been more challenging through the years than the

development of the standard of care applicable in medical malpractice cases. Historically, Tennessee

followed the “strict locality rule” until it was legislatively supplanted in 1975 by Tennessee’s version

of the “similar locality rule.” Sutphin v. Platt, 720 S.W.2d 455 (Tenn. 1986); Haskins v. Howard,

16 S.W.2d 20 (Tenn. 1929); Floyd v. Walls, 1941 Tenn. App. Lexis 142 (Tenn. Ct. App. Dec. 13,

1941); 1975 Tenn. Pub. Acts 229, § 14 (codified as Tenn. Code Ann. § 29-26-115(a)(1)).

In Shilkret v. Annapolis Emergency Hosital., Ass’n, the Supreme Court of Maryland traced

the history of these two locality rules in a manner worthy of notice.

The earliest traces of the strict locality rule appeared a century ago. Smothers

v. Hanks, 34 Iowa 286 (1872); Tefft v. Wilcox, 6 Kan. 46 (1870); Hathorn v.

Richmond, 48 Vt. 557, 559 (1876) (“such skill as doctors in the same general

neighborhood, in the same general lines of practice, ordinarily have and exercise in

like cases”). It is an exclusive product of the United States; possibly because of the

difference in the size of the two countries, the English courts have never developed

such a principle. Waltz, The Rise And Gradual Fall Of The Locality Rule In Medical

Malpractice Litigation, 18 DePaul L.Rev. 408 (1969). The rule was unquestionably

1

Apparently an entire state may be a “co mmunity” within the meaning o f the Co nnecticut locality rule. See

Fitzmaurice v. Flynn, 356 A.2d 88 7 (Conn. 197 5).

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developed to protect the rural and small town practitioner, who was presumed to be

less adequately informed and equipped than his big city brother. Id. The court

reasoned with what was then unassailable logic in Tefft v. Wilcox, supra, 6 Kan. at

63-64:

“ . . . In the smaller towns and country, those who practice medicine

and surgery, though often possessing a thorough theoretical

knowledge of the highest elements of the profession do not enjoy so

great opportunities of daily observation and practical operations,

where the elementary studies are brought into every day use, as those

have who reside in the metropolitan towns, and though just as well

informed in the elements and literature of their profession, they

should not be expected to exercise that high degree of skill and

practical knowledge possessed by those having greater facilities for

performing and witnessing operations, and who are, or may be

constantly observing the various accidents and forms of disease. . . .”

In short, the rationale underlying the development of the strict locality rule

a century ago was grounded in the manifest inequality existing in that day between

physicians practicing in large urban centers and those practicing in remote rural areas.

....

Whatever may have justified the strict locality rule fifty or a hundred years

ago, it cannot be reconciled with the realities of medical practice today. “New

techniques and discoveries are available to all doctors within a short period of time

through medical journals, closed circuit television presentations, special radio

networks for doctors, tape recorded digests of medical literature, and current

correspondence courses.” Note, An Evaluation Of Changes In The Medical Standard

Of Care, 23 Vand.L.Rev. 729, 732 (1970). More importantly, the quality of medical

school training itself has improved dramatically in the last century. Where early

medical education consisted of a course of lectures over a period of six months,

which was supplemented by apprenticeships with doctors who had even less formal

education, there now exists a national accrediting system which has contributed to

the standardization of medical schools throughout the country. Id. n. 16.

....

We have noted that one of the earliest applications of the similar locality rule

occurred in Small v. Howard, supra, 128 Mass. at 136, where, essentially for the

same reasons that have traditionally undergirded the strict locality rule, the court

enunciated as the standard: “ ‘that skill only which physicians and surgeons of

ordinary ability and skill, practi[c]ing in similar localities, with opportunities for no

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larger experience, ordinarily possess’ ”; thus the defendant “ ‘was not bound to

possess that high degree of art and skill possessed by eminent surgeons practi[c]ing

in large cities, and making a specialty of the practice of surgery.’ ”

....

The similar locality rule answers some of the criticism aimed at the strict

locality standard by enabling the plaintiff to obtain expert witnesses from different

communities, thus reducing the likelihood of their acquaintance with the defendant.

It does not, however, effectively alleviate the other potential problem, a low standard

of care in some of the smaller communities, because the standard in similar

communities is apt to be the same. Another criticism leveled at the similar locality

rule is the difficulty which arises in defining a “similar” locality. For these reasons,

the similar locality rule is regarded as no more than a slight improvement over the

stricter standard.

Shilkret v. Annapolis Emergency Hosp. Ass’n, 349 A.2d 245, 248-250, (Md. 1975).

The locality rule in Maryland was of common law origin, and Maryland was, thus, free to

follow the emerging trend in other jurisdictions to adopt what was essentially a national standard.

In Tennessee, the 1975 Act liberalized what was then the “strict locality rule” by legislatively

mandating a “similar locality rule.”2 Whatever may be the desirability - - or undesirability - - of

following the trend in sister jurisdictions toward a national standard, this avenue in Tennessee is

foreclosed to judicial action. The ink is barely dry on the decision of the Supreme Court of

Tennessee in Robinson v. Lecorps, 83 S.W.3d 718 (Tenn. 2002), issued September 5, 2002, wherein

the court addressed this very question. Said the court:

Despite the clear statutory language and evidence of legislative intent,

Robinson asserts that the locality rule in Tenn.Code Ann. § 29-26-115(a)(1) should

be enlarged or broadened by adopting a national standard of professional care for all

malpractice actions, malpractice actions involving physicians who are board-certified

in a particular area, or malpractice actions involving a specific treatment issue or area

of medicine. There is no statutory language or other evidence of legislative intent,

however, that would support such an interpretation.

The legislature, which is presumed to know of its enactments and the state of

the law, has not amended or supplemented the statutory language in any way that

would broaden the locality rule or support such a sweeping change in the standard of

2

If the historic underpinnings of the locality rules are accurately analyzed in Shilkret, it would seem somewhat

paradoxical that, in the treatment of a broken ankle the testimo ny of a Johnson C ity physician , presumab ly himself

subject to a less re strictive standard of care canno t opine as to minimum standa rds for Nashville more stringent be cause

of the size and so phistication of its medica l facilities. C/F Robinson v. Lecorps.

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care in malpractice actions. Moreover, in the absence of applicable statutory

language, we decline to adopt the plaintiff’s interpretation based either on policy

arguments or alleged evidence of the existence of a national standard of care in the

medical community that are better addressed to the legislature.

This Court is mindful, however, that in many instances the national standard

would indeed be representative of the local standard, especially for board certified

specialists. Although such issues are properly left to the discretion of the legislature,

we encourage the General Assembly to reconsider the current statutory framework

of the locality rule. However, until such legislative action, we believe that the

legislative intent and purpose of Tenn.Code Ann. § 29-26-115(a)(1), as presently

derived from the statutory language, continues to be that the conduct of doctors in

this State is assessed in accordance with the standard of professional care in the

community in which they practice or one similar to it.

Robinson, 83 S.W.3d at 723-24.

By order of May 11, 2001, the trial court, relying on Cardwell v. Bechtol, 724 S.W.2d 739

(Tenn. 1987), and Mabon v. Jackson-Madison County General Hospital, 968 S.W.2d 826 (Tenn. Ct.

App. 1997), granted summary judgment to Defendants under the Tennessee Locality Rule.

On June 7, Plaintiffs filed a Motion to Alter or Amend accompanied by a Supplemental

Affidavit of Dr. Bussey. This Motion to Alter or Amend was denied by the trial court by Order

entered September 25, 2001.

The trial court did not abuse its discretion in refusing to alter or amend the grant of summary

judgment. Moore v. Walwyn, No. 01A01-9507-CV-00295, 1996 WL 17143 (Tenn. Ct. App. Jan.

19, 1996). It is well to observe that, even if the trial court had considered the late filed Supplemental

Affidavit of Dr. Bussey, it could not have altered the grant of summary judgment. The Supplemental

Affidavit added nothing to the previous Affidavit except to assert “I am aware of the fact that

Nolensville, Tennessee is a small town with no hospital located within its city limits. I am also

aware that the closest hospital to Nolensville, Tennessee, is approximately ten or fifteen miles to the

north in Nashville, Tennessee, and approximately ten or fifteen miles to the southwest in Franklin,

Tennessee.” This assertion in no way cures the deficiencies relating to Dr. Bussey’s lack of

familiarity with the applicable standard of care.

The trial court had no alternative but to grant summary judgment to Defendants in this case,

and that action is in all respects affirmed.

The case is remanded to the trial court with costs assessed to Appellants.

___________________________________

WILLIAM B. CAIN, JUDGE

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