                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   May 9, 2013 Session

WILLIAM MICHAEL RAY ET AL. v. SOUTHERN TENNESSEE MEDICAL
                  CENTER, LLC ET AL.

                  Appeal from the Circuit Court for Franklin County
                     No. 17462cv     Thomas W. Graham, Judge


                  No. M2012-01227-COA-R3-CV - Filed June 25, 2013


In this medical malpractice action, the jury entered a verdict in favor of the defendant doctor.
On appeal, the plaintiff argues that the trial court erred in allowing a medical expert witness
to testify. We find no error in the trial court’s decision.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
M.S., P.J., and R ICHARD H. D INKINS, J., joined.

Richard D. Piliponis, Nashville, Tennessee, for the appellant, William Michael Ray.

Darrell G. Townsend, Nashville, Tennessee, for the appellee, Asher A. Turney.

                                          OPINION

                         F ACTUAL AND P ROCEDURAL B ACKGROUND

        Dr. Asher A. Turney treated William Michael Ray in the emergency room of Emerald
Hodgson Hospital in Sewanee, Tennessee on March 27, 2008. Mr. Ray was eventually
transferred to Vanderbilt University Medical Center, where he was treated for a myocardial
infarction. Mr. Ray and his wife, Sandra Ray, filed this medical malpractice action against
Dr. Turney, the hospital, and several corporate entities on June 17, 2009. An amended
complaint filed on September 8, 2011 named only Dr. Turney and Southern Tennessee
Medical Center, LLC as defendants. (Southern Tennessee Medical Center, LLC operates
Emerald Hodgson Hospital.) In their complaint, the plaintiffs alleged that Dr. Turney failed
to timely diagnose and treat Mr. Ray; they asserted that a reasonable physician would not
have failed to diagnose Mr. Ray’s acute myocardial infarction or failed to transfer him to “a
qualified heart institute in a timely manner.”

        All claims against Southern Tennessee Medical Center, LLC were dismissed with
prejudice on February 21, 2012. After the hospital’s dismissal, the plaintiffs filed a motion
in limine to prohibit Dr. Turney from calling expert witnesses not disclosed by him prior to
the disclosure deadline. The plaintiffs wanted to prevent Dr. Andy Walker, an expert witness
disclosed by the hospital and deposed by the plaintiffs, from testifying on behalf of Dr.
Turney. The trial court overruled this motion.

       The case went to trial before a jury in February and March 2012. The jury returned
a verdict finding that Dr. Turney was not negligent in his treatment and diagnosis of Mr. Ray.
On March 6, 2012, the trial court entered judgment on the jury verdict and dismissed the
case. The trial court denied the plaintiffs’ motion for a new trial or to set aside the verdict,
and this appeal followed.

        On appeal, Mr. Ray argues that (1) the trial court erred in allowing Dr. Walker to
testify because Dr. Turney did not timely disclose him as an expert, (2) the trial court erred
in failing to exclude Dr. Walker’s testimony under the locality rule, and (3) the trial court
failed to adequately perform its function as thirteenth juror.

                                          A NALYSIS

                                              (1)

        Mr. Ray’s argument is that the trial court erred in allowing Dr. Walker to testify as an
expert witness because Dr. Turney did not disclose him as a witness prior to the deadline, the
plaintiffs “materially relied” on the disclosures in settling their claims against the hospital,
and Dr. Walker’s testimony concerning the standard of care was “materially different” from
the testimony of Dr. Thomas Nelson, an expert witness disclosed by Dr. Turney.

        A trial court is vested with broad discretion in determining the “admissibility,
qualifications, relevancy and competency of expert testimony.” McDaniel v. CSX Transp.,
Inc., 955 S.W.2d 257, 263 (Tenn.1997); see also Robinson v. LeCorps, 83 S.W.3d 718, 725
(Tenn. 2002). Thus, we review a trial court’s decision regarding expert witness competency
and qualifications under an abuse of discretion standard. Robinson, 83 S.W.3d at 725; Taylor
v. Jackson-Madison Cnty. Gen. Hosp. Dist., 231 S.W.3d 361, 371 (Tenn. Ct. App. 2006).
There has been an abuse of discretion “when the trial court reaches a decision against logic
that causes a harm to the complaining party or when the trial court applies an incorrect legal
standard.” Riley v. Whybrew, 185 S.W.3d 393, 399 (Tenn. Ct. App. 2005). The trial court’s
decision will be upheld “‘as long as reasonable minds can disagree as to the propriety of the


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[trial court’s] decision.”’ Id. at 399 (quoting State v. Scott, 33 S.W.3d 746, 751 (Tenn.
2000)).

       In Lyle v. Exxon Corp., 746 S.W.2d 694 (Tenn. 1988), our Supreme Court addressed
factors to be considered in ruling on discovery violations regarding expert testimony:

       Excluding the testimony of an expert witness may be an appropriate sanction
       for failure to name the witness. However, other sanctions may be appropriate
       where the failure to name an expert witness is not knowing and deliberate. In
       determining the appropriate sanction the trial judge should consider:
               1. The explanation given for the failure to name the witness.
               2. The importance of the testimony of the witness;
               3. The need for time to prepare to meet the testimony; and
               4. The possibility of a continuance.
       [Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn. Ct. App. 1981)]. The
       trial court’s determination of the appropriate sanction to be imposed will not
       be disturbed on appeal unless the court commits an abuse of discretion.

Lyle, 746 S.W.2d at 699. In Lyle, a workers compensation case, plaintiff’s counsel disclosed
a vocational expert four days prior to trial. Id. at 698. The defendant declined the court’s
offer of a continuance. Id. at 698-99. On appeal, the Supreme Court ruled that there was no
abuse of discretion. Id. at 699.

        In the present case, Dr. Walker had been disclosed as an expert witness by the hospital
and was deposed by the plaintiffs; the plaintiffs were not surprised by the content of Dr.
Walker’s testimony. The plaintiffs settled with the hospital and, on February 8, 2012, Dr.
Turney disclosed to the plaintiffs that he intended to use the hospital’s expert witnesses. The
trial began on February 21, 2012. We do not consider the plaintiffs’ tactical decision to settle
with the hospital to “avoid” Dr. Walker’s testimony evidence of prejudice here. The
plaintiffs did not request a continuance to prepare for Dr. Walker’s testimony. We cannot
say that the trial court abused its discretion in allowing Dr. Walker to testify.

                                              (2)

       Mr. Ray’s next argument is that the trial court erred in failing to exclude Dr. Walker
on the basis of the locality rule.

      The proof requirements for a medical malpractice action are found in Tenn. Code
Ann. § 29-26-115(a):



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       [T]he 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 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.

The plaintiff must put on expert proof to establish the relevant standard of care, its breach,
and causation. Norris v. E. Tenn. Children’s Hosp., 195 S.W.3d 78, 86 (Tenn. Ct. App.
2005).

       With respect to the standard of care, subsection (a)(1) of Tenn. Code Ann. § 29-26-
115 requires the plaintiff to prove either the standard of care in the community in which the
defendant practiced at the time of the alleged injury or the standard of care in a community
similar to the one in which the defendant practiced at the time of the alleged injury. As our
Supreme Court has said, under Tenn. Code Ann. § 29-26-115(a)(1), “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 724. This is
known as the locality rule.1

       In Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), our Supreme Court clarified the
standards to be used by courts to determine whether a medical expert is qualified to testify
in a medical malpractice case. Shipley, 350 S.W.3d at 532. After providing an extensive
history of the locality rule and caselaw interpreting it, the Supreme Court set forth its


       1
           Tennessee Code Annotated § 29-26-115(b) further provides:

       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 specialty which would make the person’s expert testimony
       relevant to the issues in the case and had practiced this profession or specialty in one (1) of
       these states during the year preceding the date that the alleged injury or wrongful act
       occurred.

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conclusions. Id. at 536-50. The Court emphasized that Tenn. Code Ann. § 29-26-115(b)
provides the only three requirements for an expert witness to be competent to testify in a
medical malpractice case. Id. at 550. Subsection (a) of Tenn. Code Ann. § 29-26-115 states
the three elements a patient must establish for a medical malpractice claim: (1) the
“recognized standard of acceptable professional practice in the profession and the specialty
thereof . . . in the community in which the defendant practices or in a similar community .
. . ,” (2) that the defendant breached this standard, and (3) that the defendant’s negligent act
or omission proximately caused the plaintiff’s injuries. Id.

       Citing principles of stare decisis, the Court in Shipley acknowledged the continuing
applicability of the locality rule, “the requirement that a medical expert must demonstrate a
modicum of familiarity with the medical community in which the defendant practices or a
similar community.” Id. at 552 (emphasis added). The Court gave the following guidance
regarding the level of proof required to satisfy the locality rule:

       Generally, an expert’s testimony that he or she has reviewed and is familiar
       with pertinent statistical information such as community size, hospital size, the
       number and type of medical facilities in the community, and medical services
       or specialized practices available in the area; has discussed with other medical
       providers in the pertinent community or a neighboring one regarding the
       applicable standard of care relevant to the issues presented; or has visited the
       community or hospital where the defendant practices, will be sufficient to
       establish the expert’s testimony as relevant and probative to “substantially
       assist the trier of fact to understand the evidence or to determine a fact in
       issue” under Tennessee Rule of Evidence 702 in a medical malpractice case
       and to demonstrate that the facts on which the proffered expert relies are
       trustworthy pursuant to Tennessee Rule of Evidence 703.

Id. (emphasis added). The Court also rejected the requirement, adopted in some previous
opinions of this court, that a medical expert have “personal, firsthand, direct knowledge” of
the standard of care in the same community or a similar community as the defendant. Id.
(quoting Eckler v. Allen, 231 S.W.3d 379, 386 (Tenn. Ct. App. 2006)).

      The Court’s summary of its key conclusions includes the following relevant
statements:

       A claimant is required to prove . . . “[t]he recognized standard of acceptable
       professional practice . . . in the community in which the defendant practices or
       in a similar community.” Tenn. Code Ann. § 29-26-115(a)(1). The medical
       expert or experts used by the claimant to satisfy this requirement must


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       demonstrate some familiarity with the medical community in which the
       defendant practices, or a similar community, in order for the expert’s testimony
       to be admissible under Rules 702 and 703. Generally, a competent expert’s
       testimony that he or she has reviewed and is familiar with pertinent statistical
       information such as community size, hospital size, the number and type of
       medical facilities in the community, and medical services or specialized
       practices available in the area; has had discussions with other medical
       providers in the pertinent community or a neighboring one regarding the
       applicable standard of care relevant to the issues presented; or has visited the
       community or hospital where the defendant practices, will be sufficient to
       establish the expert’s testimony as admissible. . . . A medical expert is not
       required to demonstrate “firsthand” and “direct” knowledge of a medical
       community and the appropriate standard of medical care there in order to
       qualify as competent to testify in a medical malpractice case.

Id. at 554 (emphasis added).

        Having set out the applicable standards, the Supreme Court proceeded to apply these
principles to the expert testimony at issue in the case before the Court. Id. Dr. Rerych, a
board-certified general surgeon who practiced in Asheville, North Carolina, had travelled to
Nashville to testify as a medical expert on one or two previous occasions and had toured one
of the community hospitals in Nashville. Id. He testified that he had reviewed demographic
information about Nashville and the hospital where Dr. Williams practiced; he opined that
Asheville was a similar community to Nashville “as it applies to the facts and circumstances
of this case.” Id. Dr. Rerych admitted that he was not familiar with the characteristics of the
hospital where Dr. Williams practiced. Id. In seeking to have Dr. Rerych’s testimony
excluded, defense counsel emphasized his testimony in response to questions regarding a
national standard of care. Id. at 555. The Supreme Court concluded that “Dr. Rerych
sufficiently established his familiarity with the recognized standard of acceptable
professional practice in the community in which the defendant practices or in a similar
community.” Id. at 556. Thus, the Court found that the trial court erred in disqualifying Dr.
Rerych.

       In the present case, Mr. Ray argues that the trial court erred in allowing Dr. Walker
to testify because he did not demonstrate the necessary level of familiarity with the
community in which Dr. Turney practiced or a similar community. We disagree. This case
required an expert witness to be familiar with the standard of care for a doctor practicing in
a small rural hospital regarding the diagnosis and transfer of a patient who presents with
chest pain. Dr. Walker described his background of working in the emergency rooms of
hospitals of various sizes. He practiced at Vanderbilt Medical Center from 1992 to 1999 and


                                              -6-
testified that Vanderbilt is a world class medical center. Since 1999, Dr. Walker had worked
at Summit Medical Center in Hermitage, Tennessee, a smaller hospital without the capability
to do open heart surgery.

     Dr. Walker testified that he was familiar with the emergency department of Emerald
Hodgson Hospital:

       A. It’s probably the smallest ER I’ve ever seen. It’s a four-bed ER.
       Q. Okay. And the hospital itself has limited capabilities?
       A. Yes.
       Q. What does it not have, for example?
       A. Well, they now have a CT scanner. At the time of this case they didn’t
       even have that. And, of course, they still don’t have a cath lab.
       Q. All right. Now, when you were at Vanderbilt, working in that emergency
       department, was part of your responsibility to take transfers from other
       emergency rooms in the mid-south?
       A. Yes.
       Q. Did that include tiny, tiny emergency rooms?
       A. Much of the time, yes.
       Q. All right. Did some of those hospitals, those emergency rooms include
       transfers from emergency rooms in McMinnville, Tennessee?
       A. Yes.
       Q. Carthage, Tennessee?
       A. Yes.
       ...
       Q. You’ve been at Summit since 2000, correct?
       A. Yes.
       Q. Do you still receive referrals from doctors in small emergency rooms in
       small towns?
       A. Yes.
       Q. How often do you do that?
       A. Unlike at Vanderbilt, where I did that probably once an hour, in my current
       job I may do it once a day, once every other day.
       Q. And will those referrals from those hospitals—and we’ll get to the
       particulars on those and their communities in a minute. But will they include
       chest pain transfers?
       A. Yes.
       Q. All right. Now, when you get a patient—not just a chest pain patient, but
       any transfer from an outlying community, do you talk to the doctor and learn
       what he’s done with that patient?


                                            -7-
A. Always.
Q. You learn what the patient’s presentation was?
A. Yes.
Q. Do you learn what the capabilities of that emergency room are?
A. Yes.
Q. And do you therefore believe you understand the standard of acceptable
professional practices in those smaller emergency rooms?
A. I am confident I do.
Q. All right. Now, let’s—
THE COURT: Let me ask you this. Is it a general rule in this kind of hospital
we’re talking about, if you have a serious suspect of a heart attack you get the
patient transferred immediately? Is that just common sense?
A. No, Your Honor.
THE COURT: Okay. I’ll let you explain.
BY MR. TOWNSEND:
Q. Now, at Summit, for the past twelve years, have you accepted transfers
from patients from Carthage, Tennessee?
A. Yes.
Q. Do you know what the population of Carthage, Tennessee is?
A. Roughly two thousand.
Q. All right. Do you know what the characteristics of the emergency room are
they have there in their little hospital?
A. Yes.
Q. What is it?
A. They have part day double coverage, with big chunks of single coverage.
Q. How many beds do they have there?
A. I can’t tell you exactly, but it’s less than ten.
Q. Okay. Now, have you accepted transfers from doctors in Jamestown?
A. Yes.
Q. Do you know what the population, approximately, is at Jamestown?
A. Again, I think it’s roughly two thousand.
Q. And in these cases, again, you’ve talked to the doctor, and you’ve learned
what the presentation was, and what the capabilities of the ER is, correct?
A. Yes.
Q. Are these ERs similar to the emergency room at Emerald Hodgson
Hospital?
A. Substantially.
Q. All right.
...
Q. All right. Now, based on what we’ve been through to this point, do you


                                      -8-
believe that you are familiar with standards of care for small rural emergency
rooms in the communities of Carthage and Jamestown, when it comes to
treating chest pain patients?
A. I do.
...
Q. Now, do you believe that Carthage and Jamestown are communities which
are similar to Sewanee?
A. Substantially.
Q. All right. How so?
A. They may be a little bit bigger. But I understand small rural communities
and small town hospitals. I grew up in a small town in East Tennessee,
worked in that hospital before I went to medical school. And have worked in
tiny ERs where I was the only doctor in the building, much less the ER.
Q. Now, do you also interact with doctors who work at emergency rooms in
small towns through your professional associations?
A. Yes. I’m on the board of directors of the American Academy of
Emergency Medicine. So I talk to doctors in all kinds of practice settings
regularly.
Q. And including doctors in small emergency rooms in small communities?
A. Yes.
Q. Similar to Sewanee, Tennessee?
A. Yes.
Q. And similar to Emerald Hodgson Hospital.
A. Some even smaller and more isolated.
...
Q. Now, what is the population of Sewanee?
A. Oh, gosh, probably—it’s so tiny, it depends—well, actually, I was thinking
of Monteagle. I was gonna say, it depends on whether or not school’s in
session. I don’t know, five thousand.
Q. All right. Do you believe that Sewanee’s in a similar community as
Carthage and Jamestown from which you accept referrals?
A. Yes.
Q. Okay. Now, Emerald Hodgson itself—well, we’ve mentioned, you know,
that it has four beds in its ER. It doesn’t have any cardiologist on call, does it?
A. No.
Q. Single coverage all the time, correct?
A. Yes.
Q. And the nearest tertiary care center is an hour or so away, correct?
A. It would be either Huntsville or Chattanooga.
Q. Is that characteristic of a tertiary care center an hour or so away, also


                                        -9-
       similar to what the—Carthage and Jamestown have to deal with?
       A. Carthage is a little bit closer, but, yes.
       Q. All right. Now based on all of this information that you have gathered and
       have related today, are you confident that you know that standard of care for
       treating chest care patients in an emergency room—a small emergency room,
       in a small city such as Sewanee, or a similar community?
       A. I have no doubt.

Dr. Walker later testified that he visited Emerald Hodgson Hospital on the morning of the
day when he gave his testimony in court.

       In arguing against Dr. Walker’s familiarity with the standard of care at Emerald
Hodgson Hospital, Mr. Ray emphasizes Dr. Walker’s failure to testify to statistical
information about the community of Sewanee “beyond a general guess at population” and
failure to demonstrate similarities between the communities he asserted to be similar to
Sewanee (Jamestown, Carthage). In Shipley, however, the Court held that an expert witness
must demonstrate only “some familiarity” or “a modicum of familiarity” with the medical
community. Shipley, 350 S.W.3d at 552, 554. Moreover, the required level of familiarity
can be established by familiarity with pertinent statistical information, discussions with
knowledgeable medical care providers, or visiting the community or hospital. Id. We find
no abuse of discretion in the trial court’s decision to allow Dr. Walker to testify regarding
the standard of care in this case.

                                              (3)

      The plaintiffs filed a motion for new trial, which was denied by the trial court. Mr.
Ray argues that the trial court failed to adequately perform its function as thirteenth juror by
“allowing the jury to hear, consider, and weigh improper expert testimony [from Dr.
Walker]” and failing to correct that error.

        In ruling on a motion for new trial, the trial court acts as thirteenth juror; therefore,
it “must independently weigh the evidence, determine the issues presented, and decide
whether the jury’s verdict is supported by the evidence.” Dickey v. McCord, 63 S.W.3d 714,
718 (Tenn. Ct. App. 2001). A reviewing court must presume that the trial court properly
performed its role as thirteenth juror when the trial court approves the verdict without
comment. Id. The judgment should be reversed and a new trial ordered only if the record
includes “statements that the trial court was dissatisfied with or disapproved of the jury’s
verdict or when the trial court absolved itself of or misconstrued its function as the thirteenth
juror.” Id. at 719.



                                              -10-
         Because we have already concluded that the trial court’s decision to allow Dr. Walker
to testify was not erroneous, there is no merit to Mr. Ray’s thirteenth juror argument.

                                         C ONCLUSION

       The judgment of the trial court is affirmed in all respects. Costs of appeal are assessed
against the appellants, and execution may issue if necessary.




                                                        ______________________________

                                                              ANDY D. BENNETT, JUDGE




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