                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE

       SHERRIE GRAHAM FARVER v. DR. KENNETH CARPENTER

                  Direct Appeal from the Circuit Court for Anderson County
                   No. 98LA0168 Hon. James B. Scott, Jr., Circuit Judge



                    No. E1999-01840-COA-R3-CV - Decided June 23, 2000




JUDGE SWINEY , Dissenting




                I respectfully dissent from the majority opinion. From the record before us on appeal,
I believe it was reversible error for the Trial Court to permit Plaintiff’s expert to testify that the
Defendant breached the recognized standard of acceptable professional practice. I believe the
testimony presented by Plaintiff’s expert, Dr. Patterson, was insufficient to satisfy the requirements
of T.C.A. §29-26-115(a)(1) and related case law on that section. In short, Dr. Patterson’s testimony
in no way showed that he was familiar with the recognized standard of acceptable professional
practice for psychiatrists in Knoxville, Tennessee or a similar community.

                I respectfully disagree with the majority’s finding that Dr. Patterson stated that he was
familiar with the local standard of care. Dr. Patterson testified only that he was familiar with the
standard of care for psychiatrists in East Tennessee. Dr. Patterson never testified that he was familiar
with the standard of care in Knoxville or a similar community. While Knoxville is certainly a part
of East Tennessee, it is only one of many separate communities in East Tennessee. T.C.A. § 29-26-
115(a)(1) requires proof of the recognized standard of acceptable professional practice in the
community in which Defendant practices or a similar community. In this case, Knoxville is the
community in which Defendant practiced. East Tennessee is not the community in which
Defendant practiced anymore than the State of Tennessee is the community. Plaintiff presented no
testimony from Dr. Patterson which supports the Trial Court’s and the majority’s conclusion that Dr.
Patterson was familiar with the acceptable standard of professional practice in Knoxville.
Additionally, there was no evidence presented that Dr. Patterson was familiar with the recognized
acceptable standard of professional practice in a community similar to Knoxville. He may have been
familiar with the recognized acceptable standard of professional practice in Knoxville or a similar
community, but there is no evidence in this record to support that conclusion.

                Likewise, I disagree with the majority’s finding that Defendant never properly
objected to Dr. Patterson’s qualifications to testify as to the standard of care in Knoxville. I believe
the record shows that Defendant did object to the admissibility of Dr. Patterson’s opinion testimony
and that the objections went to the lack of proof of Dr. Patterson’s familiarity or knowledge of the
acceptable standard of professional practice of a psychiatrist in Knoxville, Tennessee or a similar
community. Defendant’s counsel made these objections at the time Dr. Patterson was asked to state
his opinion concerning the standard of care and deviations from that standard of care. These
objections specifically went to a lack of foundation and qualifications of Dr. Patterson as an expert
witness on the standard of care and deviation from that standard of care.

                There is nothing in the record before us showing us Dr. Patterson’s familiarity with
the practice of psychiatry in Knoxville, Tennessee or a similar community. The record does show
Dr. Patterson’s lack of knowledge of Knoxville’s medical resources and community. While it is not
necessary for an expert such as Dr. Patterson to know all the medical statistics of a particular
community,

                . . . a complete lack of knowledge concerning a community’s medical
                resources would be contrary to knowledge of the required standard of
                care. The plaintiff’s tendered expert must be familiar with the
                standard of care in the community in which the defendant practices
                or in a similar community. Without this requisite threshold evidence
                of the standard of care in the locality, a plaintiff cannot demonstrate
                a breach of duty.

Mabon v. Jackson-Madison Co. General Hosp., 968 S.W. 2d 826, 831 (Tenn. Ct. App. 1997), perm.
app. denied (Tenn. 1998).

                 Dr. Patterson’s answer that he is familiar with the standard of care in East Tennessee,
even ignoring the fact that East Tennessee is not the community in question, is insufficient to make
his testimony relevant and admissible. As this Court recently held, “. . . we find no support for the
proposition that a witness’ statement that he or she is familiar with the standard of care, ipso facto,
renders that testimony relevant and admissible.” Carmichael v. Bridgeman, 03A01-9904-CV-00124,
2000 WL 124843, at*4 (Tenn. Ct. App., Jan. 26, 2000). We declined to accept plaintiff’s argument
in Carmichael that because her expert witness affirmatively professed a familiarity with the
applicable standard of care, and because his testimony did not clearly indicated otherwise, the Trial
Court should have allowed his testimony. As in Carmichael, Dr. Patterson’s affirmative statement
that he is familiar with the standard of care in East Tennessee does not make his testimony relevant
and admissible.

                 While the continuing necessity for the locality rule may be open to argument, what
is not open to argument is the current state of the law in Tennessee. For better or worse, the
Tennessee Legislature has determined the locality rule is appropriate in medical malpractice cases.
I believe this threshold requirement of familiarity by Dr. Patterson with the acceptable standard of
care in Knoxville or a similar community was not met, and that Defendant made proper objection
to Dr. Patterson’s testimony being submitted to the jury. I would hold that it was error by the Trial

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Court to permit Dr. Patterson’s opinion testimony to be presented to and considered by the jury.
Without Dr. Patterson’s testimony, there is no material evidence in the record to support the verdict.
However, had the Trial Court excluded Dr. Patterson’s testimony, Plaintiff would have had the
option of taking a voluntary dismissal and refiling her lawsuit or perhaps presenting additional expert
testimony. Because of this, I believe the appropriate remedy in this Court would be to vacate the
judgment and remand this matter for a new trial.




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