                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    March 20, 2007 Session

   PATRICE ALLEN, ET AL. v. METHODIST HEALTHCARE MEMPHIS
                       HOSPITALS, ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                         No. CT-006444-02     D’Army Bailey, Judge



                     No. W2006-01558-COA-R3-CV - Filed April 2, 2007


This is a medical malpractice action in which the jury found in favor of Defendant hospital. Plaintiff
asserts Defendant’s expert was not qualified under Tennessee Code Annotated § 29-26-115(a)(1),
and that the matter accordingly should be remanded for a new trial. We reverse the trial court’s order
denying Plaintiff’s motion for new trial, vacate the judgment on jury verdict, and remand for a new
trial.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part;
                     Reversed in part; Vacated in part and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Carroll C. Johnson, III, and Timothy R. Holton, Memphis, Tennessee, for the appellant, Patrice
Allen.

John E. Hall, Jr. and Robert L. Shannon, Jr., Atlanta, Georgia, for the appellee, Methodist Healthcare
Memphis Hospitals.

                                             OPINION

         This is a medical malpractice/wrongful death action filed by the mother of a child born with
severe brain damage. On November 12, 2001, Plaintiff Patrice Allen (Ms. Allen) then pregnant, was
admitted to a hospital operated by Defendant Methodist Healthcare Memphis Hospitals (“the
Hospital”) in Memphis at approximately 12:00 noon. Pitocin, a labor-inducing drug, was
administered to Ms. Allen and monitors were attached to track the fetal heart rate and Ms. Allen’s
contractions. Pitocin was discontinued at approximately 6:45 PM, and Ms. Allen received cervidil,
a cervical ripening agent. At approximately 12:33 AM on November 13, the fetal monitor indicated
a fetal bradycardia, or a decline in the fetal heart rate. Ms. Allen experienced a placental abruption
(separation of placenta from uterus) and her child, Kenton, was delivered by cesarian section shortly
after 1:00 A.M. Kenton was born with severe brain damage and subsequently died in December
2003.

        On November 12, 2002, Ms. Allen filed this lawsuit against the Hospital and the physicians
and nurses who attended her during labor and delivery. In her complaint, Ms. Allen alleged the
negligence of the physicians and the Hospital’s nursing staff caused Kenton to suffer a period of
hypoxia prior to delivery, which resulted in brain damage. She asserted that the medications
administered to her between admission to the hospital and delivery caused her uterus to become
hyper-stimulated, resulting in contractions that were too frequent and too prolonged. She also
asserted that monitoring established that Kenton experienced in utero tachycardia and bradycardia,
and that a cesarian section should have been performed earlier. She contends that had a cesarian
section been performed sooner, the injury to Kenton would have been averted. Ms. Allen alleged
Defendant physicians and nurses negligently failed to recognize the gravity of her condition and to
act promptly to prevent hyperstimulation of the uterus, which caused the placental abruption. Ms.
Allen prayed for compensatory damages for herself and Kenton in the amount of $30,000,000. She
additionally prayed for punitive damages in the amount of $30,000,000. Following Kenton’s death,
Ms. Allen filed a suggestion of death and amended her complaint to assert damages arising from
wrongful death. Ms. Allen also voluntarily non-suited her claims against the individual Defendants.

         Ms. Allen’s action against the Hospital was tried before a jury from January 30 to February
23, 2006. At trial, Ms. Allen offered the expert testimony of Carl Reddix, M.D., and the Hospital
offered the expert testimony of John Edward VanHooydonk, M.D. (Dr. VanHooydonk), to establish
the standard of professional care applicable in Memphis. The jury returned a verdict in favor of the
Hospital and the trial court entered judgment on the jury verdict. Ms. Allen moved the court for a
new trial asserting, inter alia, that the trial court erred in admitting the testimony of Dr.
VanHooydonk over her objection because Dr. VanHooydonk was not qualified as an expert under
the locality rule. The trial court denied Ms. Allen’s motion for a new trial on June 19, 2006. The
trial court also denied the Hospital’s motion for discretionary costs. The matter was timely appealed
to this Court. We reverse the trial court’s denial of Ms. Allen’s motion for new trial, vacate
judgment on the jury verdict in favor of the Hospital, and remand this matter for a new trial. We
affirm the trial court’s order denying the Hospital’s motion for discretionary costs.

                                          Issue Presented

       Ms. Allen raises several issues for our review pertaining to the trial court’s admission of
evidence, limitation of testimony, limitation of cross-examination, and limitation of opening and
closing statements. The dispositive issue, however, is whether the Hospital’s expert, Dr.
VanHooydonk, was properly qualified to testify under Tennessee Code Annotated § 29-26-115(a)(1).

                                             Analysis

      This appeal requires us once again to consider the requirements and constraints of Tennessee
Code Annotated § 29-26-115(a). The statutory section provides:


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       (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 specialty thereof, if any, that the defendant practices in the
       community in which the claimant 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.

Tenn. Code Ann. § 29-26-115(a)(2000).

         Under subsection (a)(1), known as the “locality rule,” a party proffering expert testimony
regarding the applicable standard of care must demonstrate that the expert has knowledge of the
standard of care applicable in the defendant’s community or in a community that the party
demonstrates is similar to that of the defendant. E.g., Robinson v. LeCorps, 83 S.W.3d 718, 724
(Tenn. 2002). This Court repeatedly has held that merely asserting familiarity with the local standard
of care is not sufficient to demonstrate knowledge under the statutory standard. E.g., Eckler v. Allen,
No. W2005-02501-COA-R3-CV, 2006 WL 3422105, at *4 (Tenn. Ct. App. Nov. 29, 2006)(perm.
app. pending)(citing Johnson v. Pratt, No. W2003-02110-COA-R3-CV, 2005 WL 1364636, at *7
(Tenn. Ct. App. June 9, 2005)(perm. app. denied)(citing Mabon v. Jackson-Madison County Gen.
Hosp. 968 S.w.2d 826, 831 (Tenn. Ct. App. 1997))). Rather, the expert must present facts
demonstrating how he or she has obtained knowledge of the standard of care in either the community
in which the defendant practices or in a similar community. Id. The burden of demonstrating that
the expert witness is qualified under the section is on the party proffering the witness, and is the
same whether the witness is offered by the plaintiff or defendant. Carpenter v. Klepper, 205 S.W.3d
474, 483 (Tenn. Ct. App. 2006).

         In this case, Ms. Allen asserts the Hospital failed to carry its burden to demonstrate that Dr.
VanHooydonk is qualified to offer expert testimony under § 29-26-115(a)(1), particularly in light
of this Court’s recent holding in Eckler v. Allen, No. W2005-02501-COA-R3-CV, 2006 WL
3422105 (Tenn. Ct. App. Nov. 29, 2006). In her demand for relief, she asks this Court to reverse
the trial court’s judgment and to remand this matter for a new trial.

        It is undisputed that Dr. VanHooydonk practices in Nashville and not in Memphis. Dr.
VanHooydonk completed his medical residency at Vanderbilt Hospital in Nashville, is a member of
the faculty at Vanderbilt, and all the hospitals at which he holds privileges are located in Nashville.
However, the Hospital offered no evidence that Nashville is a community similar to Memphis.

        We accordingly turn to whether Dr. VanHooydonk demonstrated knowledge of the standard
of care applicable to nurses in Memphis hospital practice for the purposes of § 29-26-115(a)(1). The
Hospital asserts Dr. VanHooydonk demonstrated familiarity with the applicable standard of care


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where he testified that he has interacted with Memphis physicians and nurses at a number of medical
lectures and where he taught a continuing medical education in Memphis on timely intervention in
obstetrics. The Hospital asserts that Dr. VanHooydonk’s teaching experience regarding intervention
in obstetrics makes him particularly qualified to testify in this matter. Although the Hospital
arguably has shown that Dr. VanHooydonk’s credentials demonstrate knowledge of an optimum or
national standard of care, we agree with Ms. Allen that the Hospital has failed to demonstrate
knowledge of the standard of care in Memphis, or in a similar community, for the purposes of the
statute.

          This Court recently addressed a similar circumstance in Eckler v. Allen. In Eckler, the expert
medical witness offered by plaintiff demonstrated expert knowledge of his specialized field of Mohs
micrographic surgery. The witness asserted that he had become familiar with the standard of care
applicable to surgeons performing Mohs micrographic surgery in Memphis through discussing the
applicable standard with Memphis physicians and by surveying the Memphis surgeons who perform
this specialized procedure. Id. In Eckler, we noted that evidence of knowledge of a national,
regional, or even state-wide standard of care is not sufficient to demonstrate familiarity with the
applicable standard of care under the locality rule. Id. at *5 (citations omitted). We noted that the
knowledge required by the statute is personal knowledge, or knowledge gained “in person without
the intervention of another.” Id. (citing Webster’s Ninth New Collegiate Dictionary, 877 (1986)).
It is, in short, first-hand knowledge. Id. (citing State v. Howard, 926 S.W.2d 579, 585 (Tenn. Crim.
App. 1996)). In Eckler, we agreed with defendant/appellee physician that discussing the applicable
standard of care with physicians who practice in the locality does not satisfy the requirement of
knowledge for the purposes of § 29-26-115(a)(1). Id. at *6.

         We likewise hold here that Dr. VanHooydonk’s discussions with Memphis physicians and
nurses at medical lectures does not constitute personal knowledge of the standard of care applicable
in Memphis under the section. We also hold that, although Dr. VanHooydonk’s teaching of
continuing education classes in obstetric intervention implies knowledge of a national standard of
care, it does not demonstrate knowledge of the standard of care in the Memphis community. The
Hospital does not assert that the applicable standard of care is otherwise demonstrated by qualified
expert testimony in either the 1540 page technical record, 44 volume transcript, or numerous exhibits
in this case.

                                               Holding

       In light of the foregoing and pursuant to the constraints of the locality rule codified at
Tennessee Code Annotated § 29-26-115(a)(1), we reverse the trial court’s order denying Ms. Allen’s
motion for new trial. If, as this Court has suggested, the locality rule has become outdated in light
of advanced contemporary medical training and practice, it is within the purview of the General
Assembly to amend it. The trial court’s entry of judgment in favor of the Hospital is vacated, and
this matter is remanded for a new trial. Because our determination of this issue is dispositive of this
appeal, additional issues raised by Ms. Allen are pretermitted. We affirm the trial court’s order



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denying the Hospital’s motion for discretionary costs. Costs of this appeal are taxed to the Appellee,
Methodist Healthcare Memphis Hospitals.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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