                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a1002n.06

                                             No. 13-5340
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                             Nov 25, 2013
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


ILSE BOCK, Individually and as next of kin,       )
surviving spouse, next friend and personal        )
representative of Hans Bock, deceased,            )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
UT MEDICAL GROUP, INC.,                           )   WESTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellee.                        )




       Before: SILER, COLE, and COOK, Circuit Judges


       PER CURIAM. This medical malpractice action returns for consideration of the district

court’s exclusion of plaintiff’s medical expert, Dr. James Shull, under Tennessee Code Annotated

§ 29-26-115(b). We revisit the relevant facts, thoroughly detailed in our prior opinion, Bock v.

University of Tennessee Medical Group, Inc., 471 F. App’x 459 (6th Cir. 2012) (“Bock I”), only as

necessary for the purposes of this appeal.


       Bock I examined this expert-witness competency issue in light of new law from the

Tennessee Supreme Court decision in Shipley v. Williams, 350 S.W.3d 527, 550–54 (Tenn. 2011),

that broadened the range of competent experts under the state’s locality rule. Because the district

court relied on a standard overruled by Shipley, we remanded with instructions for the district court
No. 13-5340
Bock v. UT Med. Grp., Inc.


to determine the same witness’s competency under § 29-26-115 to testify as to the standard of care

regarding: (1) whether to perform chemo-embolization and radiofrequency ablation on plaintiff’s

husband, Hans Bock; (2) the performance of those procedures; and (3) post-operation care. Bock I,

471 F. App’x at 463–64. The district court complied, disqualifying Dr. Shull from testifying on any

of these issues because he did not “practice a profession or specialty within the year preceding the

alleged wrongful acts leading to Mr. Bock’s death” that would make his testimony relevant under

§ 29-26-115(b). Because of the exclusion, plaintiff defaulted an essential element of her malpractice

claim, resulting in summary judgment for the defendant, UT Medical Group, Inc. Ilse Bock appeals,

renewing the arguments she presented on summary judgment. We AFFIRM.


       This appeal focuses on an aspect of Tennessee’s competency statute left undisturbed by

Shipley: subsection (b)’s requirement that the licensed medical expert “practice[] [a relevant]

profession or specialty in [Tennessee or a bordering state] during the year preceding the date that

the alleged injury or wrongful act occurred.” Tenn. Code Ann. § 29-26-115(b); see Shipley, 350

S.W.3d at 550 (acknowledging subsection (b)’s preceding-year relevant-practice rule). To clear this

hurdle, the expert need not practice the same specialty as the defendant, Searle v. Bryant, 713

S.W.2d 62, 65 (Tenn. 1986), but still must “practice in a profession or specialty ‘which would make

the person’s expert testimony relevant to the issues in the case’ during the year preceding the

occurrence,” Bravo v. Sumner Reg’l Health Sys., Inc., 148 S.W.3d 357, 365 (Tenn. Ct. App. 2003)

(quoting Tenn. Code Ann. § 29-26-115(b)); accord Shipley, 350 S.W.3d at 550. Such “practice”

may include experiences other than the treatment of patients. See Bravo, 148 S.W.3d at 367–68

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(deeming competent for an obstetrics issue a board-certified obstetrician-gynecologist who, among

other things, taught and attended obstetrics classes during the relevant time period). A witness may

not, however, “simply testify[] as to a general standard of care expected of all physicians.”

McDaniel v. Rustom, No. W2008-00674-COA-R3-CV, 2009 WL 1211335, at *8 (Tenn. Ct. App.

2009) (collecting authority). Rather, “the witness must 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.”

Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987).


       As the district court explained, Dr. Shull failed to show that he practiced a specialty relevant

to the three medical issues involved in this case during the year preceding the alleged malpractice.

With regard to the liver-cancer treatments—chemo-embolization and radiofrequency ablation—the

court found:


       Dr. Shull is a general practitioner who has not performed surgery in a hospital setting
       for any condition, much less liver cancer, since 1998 or 1999. Although Dr. Shull
       states he has remained current with his continuing education requirements and
       subscribes to two national journals, that he was a Consulting Staff Physician at St.
       Francis, and that he has regularly reviewed the records of patients receiving hospital
       care in 2002 and 2003, he gives no indication as to why these assertions qualify him
       under [§ 29-26-115(b)] as someone who has practiced a relevant profession or
       specialty in 2002 or 2003. . . .


       In contrast, Dr. Shull admits he has only treated a patient with liver cancer once in
       his career and that was before 1999. Dr. Shull further admits he has never performed
       a chemo-embolization or radiofrequency ablation. Dr. Shull has neither referred
       anyone to have these procedures performed by another physician nor recommended
       these procedures. It seems clear to the Court that Dr. Shull, in 2002 and 2003, was
       not practicing a profession or specialty that would make his testimony as to the

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       applicable standard of care in recommending or performing a chemo-embolization
       or a radiofrequency ablation relevant.


(R. 158, Order at 10.)


       Mrs. Bock does not dispute these facts, and Dr. Shull ostensibly concedes a lack of expertise

on these two medical procedures. (See R. 134-4, Shull Dep. at 57–58, (qualifying his expertise as

“the standard of care of intra-abdominal bleeding and the complications of . . . interventional

radiology and the failure to diagnose intra-abdominal bleeding”).) We therefore affirm the district

court’s judgment excluding Dr. Shull’s testimony about these procedures.


       As for the “closer question” of Dr. Shull’s expertise on post-operative care, the court found:


       Again, Dr. Shull’s practice in 2002 and 2003 was a general practice, not a surgical
       practice. Although Dr. Shull had privileges at St. Francis Hospital, he had not
       treated a patient in a hospital setting since 1998. Dr. Shull’s own words indicate he
       was engaged in a substantially different type of practice in 2002-2003 than what is
       at issue here:


               The type of medical care and/or post operative medical care and
               treatment rendered to Hans Bock, deceased, is no different than the
               type of medical care that I have provided to patients in Memphis,
               Shelby County, Tennessee since 1986 up to 1998 and/or 1999 as a
               private physician, emergency room physician, surgeon, admitting
               and/or consulting physician.


       The Court finds enough of a distinction between the practice of post-operative care
       in a hospital setting and a general practice to hold that Dr. Shull was not engaged in
       the practice of a profession or specialty that would allow him to give testimony
       relevant to the issue before the Court.

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(Id. at 11–12 (citations omitted).) Addressing Dr. Shull’s asserted expertise in the treatment of intra-

abdominal bleeding, the court rejected his “generalized” evidence “of continuing medical education,

subscriptions to medical journals, his privileges as [a hospital’s] Consulting Staff Physician . . . , and

his review of medical charts of hospitalized patients.” (Id. at 12–13.)


        Mrs. Bock counters with lengthy excerpts from Dr. Shull’s affidavit, detailing his pre-1999

surgical practice and post-1999 general practice. Conspicuously absent from the description of his

post-1999 practice are specific experiences—e.g., diagnosis or treatment of patients, teaching,

professional consultation—involving the post-operative care of patients undergoing surgical

procedures similar to Mr. Bock. As explained above, Dr. Shull lacks sufficient familiarity with the

two procedures performed on Mr. Bock.


        The district court appropriately performed the screening function codified                     in

§ 29-26-115(b). We therefore affirm the grant of summary judgment.




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