               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs May 5, 2011

            BRANDE KIRK, ET AL. v. MICHAEL A. CHAVIN, M.D.

                 Appeal from the Circuit Court for Hamblen County
                      No. 05CV256      John K. Wilson, Judge


                No. E2010-02139-COA-R3-CV-FILED-JUNE 3, 2011


Brande Kirk and Amanda Jordan, as children of Barbara Jordan, (“Plaintiffs”) sued Michael
A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr.
Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its
order on August 30, 2010 finding and holding that Plaintiffs’ expert was not qualified to
testify in accordance with Tenn. Code Ann. § 29-26-115, and granting Defendant’s motion
for summary judgment. Plaintiffs appeal to this Court. We affirm.


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


D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.


Michael S. Shipwash, Knoxville, Tennessee, for the appellants, Brande Kirk, and Amanda
Jordan, as Children of their Mother, Barbara Jordan.

James G. O’Kane, Knoxville, Tennessee, for the appellee, Michael A. Chavin, M.D.
                                                OPINION

                                              Background

               Barbara Jordan died in September of 2004. An autopsy determined that the
cause of Ms. Jordan’s death was morphine intoxication with bronchopneumonia considered
a significant contributing condition. In September of 2005, Plaintiffs, as children of Ms.
Jordan, sued Dr. Chavin for medical malpractice with regard to care and treatment Dr.
Chavin had rendered to Ms. Jordan. The specific details of the alleged malpractice are not
necessary to our resolution of the issue before us.

              Dr. Chavin filed a motion for summary judgment in May of 2007, which the
Trial Court denied by order entered February 23, 2009. The Trial Court’s February 23, 2009
order found and held: “Based upon the appearance of counsel for both sides, the pleadings
and the record as a whole, the Court was of the opinion that the Plaintiff’s Expert, Gerald M.
Aronoff, M.D. is competent to testify in this cause and therefore, Michael A. Chavin’s
Motion for Summary Judgment was denied.”

              The videotaped deposition for proof of Plaintiffs’ expert, Gerald M. Aronoff,
M.D., was taken in September of 2009.1 Dr. Aronoff holds medical licenses in North
Carolina and Massachusetts. He never has held a Tennessee medical license, never has
practiced medicine in Tennessee, never has had privileges at any Tennessee hospital, and
never has given trial testimony in a Tennessee courtroom. When asked, Dr. Aronoff
admitted that he knows no pain management doctors in Morristown, Tennessee, and in fact,
personally knows no physicians practicing in Morristown, Tennessee.

              Dr. Aronoff stated that the hospital at which he has privileges in Charlotte,
North Carolina, Presbyterian Orthopedic Hospital, is similar to Lakeway Regional Hospital
in Morristown, Tennessee in terms of size and surgical capabilities. He admitted when
questioned further, however, that Presbyterian Orthopedic Hospital is a speciality hospital
that deals only with diseases and injuries that are orthopedic in nature while Lakeway
Regional Hospital is a general acute care hospital. Dr. Aronoff was asked whether he was
claiming that Charlotte, North Carolina is a community similar to Morristown, Tennessee,
and he admitted that he is not making that claim. He also admitted that he is not claiming
that Boston, Massachusetts, where he practiced previously, is similar to Morristown,
Tennessee.

                  Dr. Chavin filed a renewed motion for summary judgment on May 13, 2010

       1
           Dr. Aronoff’s discovery deposition had been taken earlier.

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supported, in part, by Dr. Chavin’s affidavit in which he stated that he is familiar with the
standard of care for anesthesiologists practicing the speciality of pain management in
Morristown, Tennessee, in part due to his practice of this speciality in Morristown for years.
In his affidavit, Dr. Chavin also opined within a reasonable degree of medical certainty that
his care and treatment of Barbara Jordan did not fall below the acceptable standard of care.

              After a hearing on Dr. Chavin’s renewed motion for summary judgment, the
Trial Court entered its order on August 30, 2010 granting summary judgment after finding
and holding that the testimony of Dr. Aronoff was insufficient to qualify him to offer expert
testimony in accordance with Tenn. Code Ann. § 29-26-115. Plaintiffs appeal to this Court.

                                          Discussion

              Although not stated exactly as such, Plaintiffs raise one issue on appeal:
whether the Trial Court erred in finding and holding that Plaintiffs’ expert was not qualified
to testify pursuant to Tenn. Code Ann. § 29-26-115, and granting Defendant summary
judgment.

              Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:

              The scope of review of a grant of summary judgment is well
       established. Because our inquiry involves a question of law, no presumption
       of correctness attaches to the judgment, and our task is to review the record to
       determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
       Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
       1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

               A summary judgment may be granted only when there is no genuine
       issue of material fact and the moving party is entitled to judgment as a matter
       of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
       1993). The party seeking the summary judgment has the ultimate burden of
       persuasion “that there are no disputed, material facts creating a genuine issue
       for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
       If that motion is properly supported, the burden to establish a genuine issue of
       material fact shifts to the non-moving party. In order to shift the burden, the
       movant must either affirmatively negate an essential element of the
       nonmovant’s claim or demonstrate that the nonmoving party cannot establish
       an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
       270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient

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      to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
      Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
      apply the federal standard for summary judgment. The standard established
      in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
      sets out, in the words of one authority, “a reasonable, predictable summary
      judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
      v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
      175, 220 (2001).

              Courts must view the evidence and all reasonable inferences therefrom
      in the light most favorable to the non-moving party. Robinson v. Omer, 952
      S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
      only when the facts and the reasonable inferences from those facts would
      permit a reasonable person to reach only one conclusion. Staples v. CBL &
      Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
      Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
      Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

             As pertinent to this appeal, Tenn. Code Ann. § 29-26-115 provides:

      29-26-115. Claimant’s burden in malpractice action – Expert testimony
      – Presumption of negligence – Jury instructions. – (a) In a malpractice
      action, the claimant shall have the burden of proving by evidence as provided
      by subsection (b):

             (1) The recognized standard of acceptable professional practice in the
      profession and the speciality 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;
             (2) That the defendant acted with less than or failed to act with 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.

             (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 the person was
      licensed to practice in the state or a contiguous bordering state a profession or

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       speciality which would make the person’s expert testimony relevant to the
       issues in the case and had practiced this profession or speciality in one (1) of
       these 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 (b)
       when it determines that the appropriate witnesses otherwise would not be
       available.…

Tenn. Code Ann. § 29-26-115 (Supp. 2010). As our Supreme Court has explained:

       This statute embraces the so-called “locality rule,” which requires that the
       standard of professional care in a medical malpractice action be based upon
       “the community in which the defendant practices or in a similar community.”
       As this Court recently explained:

              A medical expert relied upon by a plaintiff must have
              knowledge of the standard of professional care in the
              defendant’s applicable community or knowledge of the standard
              of professional care in a community that is shown to be similar
              to the defendant’s community.

Stovall v. Clarke, 113 S.W.3d 715, 722 (Tenn. 2003) (quoting Robinson v. LeCorps, 83
S.W.3d 718, 724 (Tenn. 2002)) (emphasis in original).

               In Taylor v. Jackson-Madison County Gen. Hosp. Dist., a medical malpractice
case also dealing with an issue regarding the competency of an expert witness to testify, this
Court explained:

       Trial courts in Tennessee are vested with broad discretion in determining the
       admissibility, qualifications, and competency of expert testimony. Roberts v.
       Bicknell, 73 S.W.3d 106, 113 (Tenn. Ct. App. 2001) (citing McDaniel v. CSX
       Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997)). However, “[a]lthough the
       trial court has broad discretion in determining the qualifications of expert
       witnesses and the admissibility of their testimony … [,] reversal of the trial
       court’s discretion is appropriate where the trial court’s action is clearly
       erroneous or where there has been an abuse of discretion.” Wilson v.
       Patterson, 73 S.W.3d 95, 102 (Tenn. Ct. App. 2001) (citations omitted).

                                            ***



                                             -5-
              Proof regarding the “failure of a physician to adhere to an acceptable
      standard of care in treating a patient must be by expert medical testimony.”
      Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 553 (Tenn. 2006); Roberts,
      73 S.W.3d at 113. “In order to qualify as an expert in a medical malpractice
      action, a physician is not required to be familiar with all the medical statistics
      of a particular community.” Wilson, 73 S.W.3d at 102. [sic] (citing Ledford
      v. Moskowitz, 742 S.W.2d 645 (Tenn. Ct. App. 1987)). However, in order to
      satisfy the requirements set forth under Section 29-26-115(a),

             a medical expert relied upon by the plaintiff “must have
             knowledge of the standard of professional care in the
             defendant’s applicable community or knowledge of the standard
             of professional care in a community that is shown to be similar
             to the defendant’s community.” Robinson v. LeCorps, 83
             S.W.3d 718, 724 (Tenn. 2002). Expert witnesses may not
             simply assert their familiarity with the standard of professional
             care in the defendant’s community without indicating the basis
             for their familiarity. Id.; see also Stovall v. Clarke, 113 S.W.3d
             715, 723 (Tenn. 2003); [Kenyon v. Handal, 122 S.W.3d 743,
             760, 762 (Tenn. Ct. App. 2003)].

      Williams, 193 S.W.3d at 553. “[W]hile an expert’s discussion of a national
      standard of care does not require exclusion of the testimony, ‘such evidence
      may not substitute for evidence that first establishes the requirements of
      [Section] 29-26-115(a)(1).’” Stovall, 113 S.W.3d at 722 (quoting Robinson, 83
      S.W.3d at 724). Thus, if a plaintiff’s expert fails to demonstrate adequate
      knowledge concerning the medical resources and standards of care of the
      community in which the defendant practices, or a similar community, then
      such plaintiff will be unable to demonstrate a breach of duty. Mabon v.
      Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn. Ct. App.
      1997) (citing Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987)).

Taylor v. Jackson-Madison County Gen. Hosp. Dist., 231 S.W.3d 361, 365-66 (Tenn. Ct.
App. 2006) (emphasis in original). “When our review arises from a trial court’s award of
summary judgment, however, we must view statements made in the expert’s affidavit in the
light most favorable to the non-moving party, drawing all reasonable inferences in that
party’s favor.” Eckler v. Allen, 231 S.W.3d 379, 384 (Tenn. Ct. App. 2006).

           Dr. Aronoff admitted during his deposition for proof that he never has held a
Tennessee medical license, never has practiced medicine in Tennessee, never has had

                                             -6-
privileges at any Tennessee hospital, and never has given trial testimony in a Tennessee
courtroom. When asked if he sees patients from other states in connection with his practice
in Charlotte, Dr. Aronoff stated:

        Well, the states range from West Virginia, Tennessee, Kentucky. I’ve had a
        number of patients from Georgia. We have seen patients from Florida. We
        have one patient who came down from Boston. And I have - - I now have I
        believe two patients from New York and one patient who actually relocated to
        get pain care here from California.

Plaintiffs, however, never showed any connection between Dr. Aronoff’s vague assertion that
he sees patients from Tennessee with the acceptable standard of care in Morristown,
Tennessee.

                Plaintiffs failed to show that Dr. Aronoff was familiar with the acceptable
standard of care in Morristown, Tennessee. As such, in order for Dr. Aronoff to be qualified
to testify as an expert, Plaintiffs were required to show that Dr. Aronoff was familiar with
the standard of care in a community shown to be similar to Morristown, Tennessee. Dr.
Aronoff’s own testimony, however, shows that Morristown, Tennessee is not similar to the
two communities in which Dr. Aronoff practiced, i.e., Charlotte, North Carolina, and Boston,
Massachusetts. Furthermore, although Dr. Aronoff testified that the hospital in Charlotte at
which he has privileges is similar to Lakeway Regional Hospital in Morristown, Tennessee
in terms of size and surgical capabilities, he admitted upon further questioning that
Presbyterian Orthopedic Hospital in Charlotte, where he has privileges, is a speciality
hospital that deals only with diseases and injuries that are orthopedic in nature while
Lakeway Regional Hospital in Morristown is a general acute care hospital. Dr. Aronoff
candidly admitted that he is not claiming that either Boston or Charlotte is a community
similar to Morristown. Not surprisingly, Plaintiffs never showed that either Boston or
Charlotte is a community similar to Morristown. Plaintiffs failed to satisfy their burden
under the statute to show that Dr. Aronoff knew the acceptable standard of care in either
Morristown or any community similar to Morristown. The Trial Court did not err in its
decision that Dr. Aronoff is not qualified under Tenn. Code Ann. § 29-26-115 to testify as
an expert in this lawsuit.2

                In his motion for summary judgment, Defendant negated essential elements of
Plaintiffs’ claim. The burden then shifted to Plaintiffs to establish a genuine issue of material
fact. Plaintiffs failed to establish a genuine issue of material fact when they failed to show


        2
         While the continued necessity of the ‘locality rule’ may well be debatable, such a decision is a
policy decision to be made by our General Assembly.

                                                  -7-
that their only expert, Dr. Aronoff, was familiar with the acceptable standard of care either
in Morristown, Tennessee or in a community shown to be similar to Morristown, Tennessee,
and, thus, was not qualified to testify as an expert pursuant to Tenn. Code Ann. § 29-26-115.
The Trial Court did not err in finding and holding that Dr. Aronoff was not qualified to
testify pursuant to Tenn. Code Ann. § 29-26-115, and further, did not err in granting
Defendant summary judgment.

                                        Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Brande Kirk and Amanda Jordan, and their surety.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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