                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                December 11, 2001 Session

        MARY HENRY, ET AL. v. OBSTETRICS AND GYNECOLOGY
                    CONSULTANTS, P.C., ET AL.

                       Appeal from the Circuit Court for Knox County
                         No. 1-185-98    Dale C. Workman, Judge

                                  FILED FEBRUARY 8, 2002

                                No. E2001-01246-COA-R3-CV


Mary Henry and Travis Henry sue Obstetrics and Gynecology Consultants, P.C., and Jeffrey R. Dell,
M.D., for medical malpractice which they contend resulted in the death of their daughter. The Trial
Court excluded the testimony of the expert witness presented by the Henrys on the ground that he
was not entitled to testify because he did not know the standard of care on the date of the alleged
malpractice in Knoxville or a similar community. We affirm.

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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in whichWILLIAM H. INMAN , SR.
J., joined. HERSCHEL P. FRANKS, J., filed a concurring opinion.

J. D. Lee and Dan C. Stanley, Knoxville, Tennessee, for the Appellants, Mary Henry and Travis
Henry

James G. O' Kane, Knoxville, Tennessee, for the Appellees, Obstetrics and Gynecology Consultants,
P.C., and Jeffrey R. Dell, M.D.

                                           OPINION

       Mary Henry and Travis Henry, parents and next of kin of Elizabeth N. Henry, deceased, sue
Obstetrics and Gynecology Consultants, P.C., and Jeffrey R. Dell, M.D., who practices medicine in
Knoxville, for damages they allege were incurred as a result of his medical malpractice on March
24, 1997.

       The Trial Court sustained the Defendants’ renewed motion for summary judgment upon
finding that the expert witness proffered by the Henrys, Dr. Joel S. Engel, who practices medicine
in suburban Atlanta, Georgia, was not competent to testify as he did not meet the requirements set
out in T.C.A. 29-26-115, specifically sub-section (a)(1),1 which is commonly known as the “Locality
Rule.”

         The Henrys appeal contending the Trial Court was in error in this determination.

        The entire proof on the point in contention is contained in the affidavits and the depositions
of Dr. Engel, which is as follows:

                                Affidavit of Dr. Engel, Dated March 17, 1999

             3. I am familiar with the recognized standard of acceptable professional practice
             pertaining to the practice of obstetrics and gynecology as it existed in Knoxville,
             Tennessee in 1997.

             4. I am of the opinion, within a reasonable degree of medical certainty, that
             Jeffrey R. Dell, M.D. and Obstetrics and Gynecology Consultants, P.C., acted
             with less than or failed to act with ordinary and reasonable care in accordance
             with such standards in their treatment of Mary Henry and that such departures
             from the recognized standard of acceptable professional practice caused a
             different outcome and were the proximate cause of injuries sustained by Elizabeth
             N. Henry.

                       Discovery Deposition of Dr. Engel Taken February 23, 2000

                     Q. Doctor, you state in your affidavit that you are familiar with the
             standard of care as practiced in Knoxville, Tennessee, in 1997. What is your basis
             for that statement?

                     A. Well, my basis is my experience with reviewing records with my own
             medical practice, seeing that what I do and what is done in my community is no
             different from what is done in other communities, but for me, personally, I have
             reviewed over the last 20 years sufficient number of records in various
             communities in the state of Tennessee, and I have never found a community that
             practiced any differently than is practiced in my own city and state, so I see no
             differences.



         1
                  29-26-15. Claimant’s burden in malpractice action – Expert testimony – Presumption of
negligence – Ju ry instruc tions. – (a) In a malpractice action, the claimant shall have the burden of proving by evidence
as provided by subsection (b):

          (1) The reco gnized stan dard of acceptable p rofessional practice in the profession and the specialty thereof, if
any, that the defenda nt pra ctices in the commun ity in which the claimant practices or in a similar community at the time
the alleged injury or wrongful action occurred.

                                                            -2-
        Q. Do you thus, then, consider the practice, whether it is Atlanta or
Knoxville or Memphis or Little Rock, Arkansas, or Detroit, Michigan, to be
basically the same, that is a national standard of care?

        A. There certainly is a national standard based upon the training and
national organizations that establish standards; but more importantly, we are still
dealing with the same woman whether she lives in Detroit or whether she lives in
Knoxville or Nashville or Atlanta, and medical problems are basis. They don’t
vary from community to community, because patients – it is the same patients, so
there is no difference.

       Whether there are differences between medical care in the United States
and Third World countries is another issue, but in the United States the practice
of medicine does not vary from community to community.

        Q. And that’s the basis for your statement that you know that the standard
of care in Knoxville is adequate in this case?

       A. That’s correct.

                  Affidavit of Dr. Engel Dated April 25, 2001

2. This affidavit is a supplement to my affidavit in the Mary F./Elizabeth N.
Henry case submitted by me in March of 1998.

3. Even though I ceased practicing obstetrics in 1993 and have since limited my
practice to infertility and general gynecology, I have continued to be familiar
with the standard of care of physicians practicing obstetrics and gynecology in
Atlanta and the Knoxville, Tennessee area as it was practiced in Knoxville,
Tennessee in 1997.

4. I have been chosen by Tenn Care of Tennessee to review cases for them and
have reviewed cases in communities of Tennessee on behalf of the Tenn Care
organization.

5. The practice of obstetrics and gynecology is a board certification and my
knowledge of the standard of care in Knoxville, Tennessee and other Tennessee
communities is one of the reasons that the judicial review system of Tenn Care of
Tennessee has employed me as an independent medical evaluator for their cases,
and particularly in the specialty of gynecology and obstetrics.

            Deposition for Proof of Dr. Engel Taken April 25, 2001
                              Direct Examination


                                       -3-
        Q. (By Mr. Lee) Now, have you an opinion within a reasonable degree
of medical certainly whether or not you’re familiar with the practice of obstetrics
and gynecology as pertains to a community such as Knoxville, Tennessee, or a
similar community back in 1996, 1997?

       ....

       Q. (By Mr. Lee) Let me go further, then, in lieu of that objection, and
develop that some.

           Dr. Engel, in the practice of obstetrics and gynecology, is that a board
certification nationally?

       A. It is, sir, yes.

       Q. And does that entail both written and oral examination?

       A. Yes, sir.

       Q. When were you first board certified?

        A. I took the written examinations during the last year of my residency,
I think in May of 1972. And then you have to wait two years after leaving a
residency before presenting oneself for oral examinations, and I did that in, I
believe, November of ‘74, passed those examinations and was certified at that
time.

       ....

       Q. Now, we were talking earlier about your familiarity with the practice
of obstetrics and gynecology in Knoxville, Tennessee, or a similar community;
are you familiar with Knoxville, Tennessee, as it relates to the community of
Sandy Springs, Georgia?

       ....

       THE WITNESS: Well, I believe I am – I am familiar with the practice
being similar to my own community.

       ....

        Q. All right. Following receipt of those records you have indicated you
did an affidavit. Tell us, though before I get into that, have you had occasion to


                                       -4-
– tell me more about how that you’re familiar with the practice of obstetrics and
gynecology in Knoxville, Tennessee, in 1996, 1997?

       ....

       Q. (By Mr. Lee) Have you had occasion in your career, Dr. Engel, to be
contacted with the organization in Tennessee known as TennCare?

       ....

       THE WITNESS: Yes, sir.

       Q. (By Mr. Lee) What is TennCare of Tennessee?

        A. Apparently TennCare is the agency that regulates medical care to those
patients who apparently are indigent, apparently something akin to Medicaid in
Georgia.

        The states – each state is responsible for medical care, and TennCare is the
Tennessee agency that is involved in regulating, establishing those standardsof
reimbursement and what have you for physicians as well as hospitals and other
health care workers within the State of Tennessee.

       Q. And is there such a thing as a judicial review of the TennCare system
in which doctors such as yourself are involved?

        A. I am only familiar with the two states, Georgia and Tennessee. There
apparently are provisions under the law in Tennessee that when patients or
physician or hospitals are denied some aspect of medical care, whether it’s
surgical care or medication, there is an appeal process whereby patients’ medical
care that is requested is reviewed by multiple physicians within the State of
Tennessee, but ultimately a patient has a right to what is called some sort of
judicial review whereby there is a judge that has a hearing. I believe most of this
is done via conference calls.

        The state then, in order to find an unbiased party as an expert, seeks
physicians outside the State of Tennessee to review those cases. And I act as the
expert representing TennCare. This is done over the phone.

        I am sent all of the records to evaluate. I then listen while the process goes
on, that is the attorney for the state TennCare presents their case, that is, their
reason why a patient is denied a specific service, the patient then has the right to
bring in his or her own experts and attorney.


                                         -5-
       And after listening to that, then I am – as in a court of law, I am asked to
provide an opinion about the case.

        I have been doing this for somewhere between a year-and-a-half and two
years. As I see my role, while I may in a sense be employed by TennCare to do
this service, I not infrequently find that the structure of the law is such that the
TennCare system may not truly be sensitive to the needs of the patients in the
state, and many times I may side with the patients’ side in terms of the denial of
care because while it may not be strictly written n the guidelines for TennCare,
there also is something called the right thing to do , and so I find myself on both
sides of the issue.

        But I believe that’s the essence of the process, that is, TennCare wants an
unbiased expert, one who has no conflict of interest either with the patient or any
health care provider in the state.

        And so I have continued to be able to do that for the TennCare. The
frequency with which that happens, I think, is probably about once a month there
is such a hearing.

       I also – the recent organization that contracts under TennCare called the
American Care Foundation Incorporated, an organization out of Mobile, Alabama,
that sends me each day by fax medical records and asks me to review
authorizations for hospital stays as well as requests for surgical procedures and
medical treatment for physicians in hospitals in the Southeast area.

        I have reviewed records for – in cases in Tennessee and in Alabama as
well as Georgia for this American Care – Health Care Foundation, I think it’s
called, I think they have the contract with TennCare for these judicial hearings.
And that’s how I am involved.

       ....

        Q. (By Mr. Lee) Before the hearing that you mentioned is done by
conference call with different ones participating, are you furnished the records in
the specialty of obstetrics and gynecology before the hearing – on the patients
before the hearing?


       A.     I am, sir.

       Q. Must you be familiar, or is it required you be familiar with the practice
and the standard of care of obstetrics and gynecology in those cases such as that


                                        -6-
that you’re talking about, or that you’re asked to appear as independent medical
evaluator?

       A. Yes.

       ....

       Q. (By Mr. Lee) Now, Dr. Engel, in addition to doing work for TennCare
of Tennessee, have you been asked by myself and other attorneys to review
records and appear as an expert witness in a case in your specialty?

       A. I have, sir.

       Q. How long a period of time have you performed that service?

       A. I have been reviewing records since the early 1980's for cases in
Tennessee as well as other contiguous Southeastern states and on occasion states
outside this region.

        Q. And have you had occasion to be qualified in state courts in Tennessee
in your specialty of obstetrics and gynecology?

       ....

       THE WITNESS: I believe I have sir.

      Q. (By Mr. Lee) And have you been qualified in federal courts in
Tennessee to do the same service?

       ....

      THE WITNESS: I don’t know. I have never differentiated between
whether the cases were state court cases.

       Q. (By Mr. Lee) Okay.

       A. Or Federal. But I would think probably not in Federal court.

      Q. Okay. Now, on the TennCare review that you’ve done for TennCare,
Tennessee, has that ever involved patients from Knoxville, Tennessee?

       ....

       THE WITNESS: I am sure it has.

                                      -7-
                              CROSS-EXAMINATION

       Q. As you have previously told us you have practiced exclusively in the
Atlanta metropolitan area since 1972; is that correct?

         A. Well, I would say suburban Atlanta area, yes, sir.

      Q. Wouldn’t you agree we are in the Atlanta metropolitan area, Fulton
County, as we are sitting here taking this deposition?

         A.     No. North Fulton County is not considered metropolitan Atlanta.

        Q. Are we within a stone’s throw of Interstate 285, the interstate that
encircles Atlanta, Georgia?

         A. Yes. The city limits are some several miles south of 285 at this north
point.

      Q.        And we are in Fulton County, and Atlanta, Georgia, is in Fulton
County?

         A.     We are in north Fulton County.

         Q.     All right. But Atlanta, Georgia, also is in Fulton County?

         A.     In Fulton County, yes.

       Q. And the Atlanta metropolitan area has a population of approximately
four million; is that right, sir?

         A.     It does.

         ....

         Q.     You don’t know any obstetricians in Tennessee; is that correct?

         A.     That’s correct.

         Q.     You’ve never practiced medicine in Tennessee?

         A.     I have not.

         Q. You have never been to Knoxville?


                                         -8-
       A. I have not.

       Q. You haven’t discussed this case with any medical professional, that is,
doctor or nurse; is that correct?

       A. I have not.

        Q. And you haven’t reviewed any medical literature associated with this
case; is that correct?

       A. That’s correct.

       Q. When you were practicing obstetrics you were what is known as a
general obstetrician; is that correct?

       A.   That’s correct.

       Q. There are obstetricians who subspecialize in high risk obstetrics and
they are what is known as maternal fetal medicine specialists; is that right?

       A. Yes, sir.

       Q.   And you are not that specialty; is that correct?

         A. I am not. The maternal and fetal medicine specialty was organized
after I finished my training.

        Q. Dr. Stevens, the physician who saw Mrs. Henry on March 24, 1997
at the Ft. Sanders perinatal center, he’s one of those subspecialists in maternal
fetal medicine; is that right?

       A. Yes, sir.

       Q.   And this primarily take care of high risk obstetrical patients?

        A.    Well, it depends upon how they practice, they may function as
consultants to general obstetricians, or they may actually be delivering normal as
well as high risk patients.

       Q. But they are a category of obstetricians who subspecialize in the area
of high risk obstetrics?

       A. Yes.


                                       -9-
                Q. Now, in your opinion and with regard to obstetrics there is a national
         standard of care; is that correct?

                A. For training there is, yes.

                 Q. Okay. And it also is your opinion that there is a difference between
         obstetrical care in the U.S. as compared to, say, third world countries, but in the
         United States the practice of medicine does not vary from community to
         community; is that correct?

                A. There is probably some truth to that.

                Q. And that’s the basis for your testimony in this case with respect to the
         standard of care as practiced in Knoxville, Tennessee?

                A. Yes, sir. In addition to what I previously stated today about my
         familiarity with the care that’s provided in Knoxville.

       Our standard of review of a trial court’s determination is restated in Staples v. CBL &
Associates 15 S.W.3d 83, 89 (Tenn. 2000), as follows:

         The standards governing the assessment of evidence in the summary judgment
         context are also well established. Courts must view the evidence in the light most
         favorable to the nonmoving party and must also draw all reasonable inferences in
         the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
         Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when
         both the facts and the inferences to be drawn from the facts permit a reasonable
         person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153
         (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

       However, notwithstanding the foregoing authority, our case law holds that even when dealing
with a motion for summary judgment the trial court retains the authority to exclude an expert’s
testimony. The appellate standard of reviewing its determination is abuse of discretion. Mabon v.
Jackson-Madison County General Hospital, 968 S.W.2d 826 (Tenn. Ct. App. 1997).

       Our case law also holds that as to the testimony of an expert doctor that there is a national
standard for any particular medical discipline, and that he is familiar with the national standard
without more does not meet the requirement of the statute. Mabon v. Jackson-Madison County
General Hospital, supra; Robinson v. Lecorps, an unreported opinion of this Court filed in Nashville
September 25, 2001 (2001 WL 1117067).

        The testimony of Dr. Engel relative to his experience in evaluating TennCare cases has a
significant deficiency because he did not begin making the TennCare reviews until almost two years
after the alleged malpractice. This testimony does not meet the language of the statute requiring

                                                 -10-
knowledge at the time of the alleged malpractice. In reaching our determination we have not
overlooked the testimony of the expert that he had reviewed records in Tennessee cases “since the
early 1980's.” He does not, however, testify that any of those cases involved Knoxville or a similar
community.

       We accordingly find that the Trial Court did not abuse its discretion in rejecting the
testimony of Dr. Engel.

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against Mary and Travis Henry and their
surety.



                                              _________________________________________
                                              HOUSTON M. GODDARD, PRESIDING JUDGE




                                               -11-
