                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      May 20, 2009 Session

         SAMANTHA NABORS v. WILLIAM M. ADAMS, M.D., ET AL.

                    Direct Appeal from the Circuit Court for Shelby County
                     No. CT-000369-07      John R. McCarroll, Jr., Judge



                      No. W2008-02418-COA-R3-CV - Filed July 23, 2009



        This appeal involves a medical malpractice action. In a motion for summary judgment,
defendant physician asserted that plaintiff’s expert witness failed to satisfy the requirements of the
locality rule. The trial court granted the motion finding that plaintiff’s expert failed to demonstrate
a familiarity with the standard of care in defendant’s community or a similar community. In a
motion to alter or amend the judgment, plaintiff attached a supplemental affidavit of the same expert
in order to cure the deficiency. The trial court considered the expert’s supplemental affidavit and
denied the motion because the new affidavit still failed to satisfy the locality rule. Plaintiff appeals.
Reviewing the record, we find that the expert’s supplemental affidavit cured the initial deficiency
by relating facts which showed the similarity of the two communities. Accordingly, we reverse the
judgment of the trial court.


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

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Daniel M. Czamanske, Jr., Clarksdale, Mississippi, for the Appellant, Samantha Nabors.

Teresa J. Sigmon, Katherine M. Anderson, Jonathan W. McCrary, Memphis, TN, for the Appellees,
William M. Adams, M.D. and The Clinic for Plastic and Reconstructive Surgery, P.A.


                                              OPINION


                                             Background
        Appellant Samantha Nabors was a patient of Dr. William Adams, a plastic surgeon practicing
in Memphis, Tennessee. On February 13, 2006, Dr. Adams performed labiaplasty surgery on Ms.
Nabors. A labiaplasty is elective surgery for the reduction and aesthetic improvement of the labia.
After the surgery, Ms. Nabors was dissatisfied with the results.

        To remedy the damage, Ms. Nabors visited Dr. John Miklos, a doctor practicing in Atlanta,
Georgia with a specialty in urological gynecology. Dr. Miklos subsequently performed two surgeries
to reconstruct the labia. The surgeries, however, could not repair the damage completely because,
as Dr. Miklos noted, Dr. Adams essentially removed the entire labia minor.

        On January 23, 2007, Ms. Nabors (“Plaintiff”) filed a complaint against Dr. Nabors and his
employer, The Clinic of Plastic and Reconstructive Surgery, P.A. (“Defendants”), in Shelby County
Circuit Court. The complaint alleged that Dr. Adams’s malpractice during the labiaplasty surgery
caused significant physical and mental harm to Plaintiff. Defendants answered and filed a motion
for summary judgment. The motion asserted that summary judgment was appropriate because
Plaintiff could not establish her cause of action with competent expert proof. A ruling on the motion
was postponed until Plaintiff could prepare her expert witness, Dr. Miklos.

        Plaintiff then filed the affidavit of Dr. Miklos. In the affidavit, Dr. Miklos stated that he was
familiar with the standard of medical care for this procedure in both Atlanta, Georgia and Memphis,
Tennessee. He concluded that the labia reduction procedure performed by Dr. Adams was in
violation of that standard of care. After taking Dr. Miklos’s deposition, Defendants renewed their
motion for summary judgment asserting that Dr. Miklos was not a competent expert. In support,
Defendants pointed to the following passage in his deposition:

        Q: Is there a national standard of care for the performance of labiaplasty?
        A: I just never heard it put that way, national standard of care. I didn’t know there
        was a big discrepancy.
        Q: Well, would you testify differently about the standard of care in Florida for the
        performance of a labiaplasty than in Memphis, Tennessee?
        A: I can’t imagine I would, but, you know, I’m just trying to make sure that I don’t–I
        just understand what you’re saying.
        Q: Do you know–tell me what you know about the Memphis medical community?
        A: Nothing.
        Q: Have you ever been to any hospitals in Memphis?
        A: No.
        Q: Do you know any plastic surgeons in Memphis?
        A: No.
        Q: Do you know how many ob-gyns or urogynecologists there are in Memphis?


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       A: No.
       Q: Do you know any urogynecologists in Memphis?
       A: Yes.
       Q: Who do you know?
       A: I believe Val Vogt is there
                                      *    *       *
       Q: Do you know, Doctor, any plastic and reconstructive surgeons in Memphis,
       Tennessee?
       A: Not that I’m aware of.
       Q: Do you know how many colleges there are in Memphis, Tennessee?
       A: No.
       Q: How many hospitals there are?
       A: No.
       Q: How many hospitals are there in Atlanta?
       A: I don’t know.
       Q: How many colleges are there in Atlanta?
       A: I don’t know.
       Q: How many urogynecologists are there in the Atlanta area?
       A: Anybody who wants to call themselves one.
       Q: Do you know anything at all, Doctor, about the services or specialities that are
       available in Memphis, Tennessee?
       A: No.

Plaintiff did not file a written response to Defendants’ motion.

         On June 24, 2008, the trial court entered an order striking Dr. Miklos as an expert witness
and granting summary judgment to the Defendants. In this order, the trial court articulated the basis
for its conclusion as follows:

       It appears to the court that Dr. Miklos practices only in the Atlanta, Georgia area and
       is not licensed and has never practiced in Tennessee or in the Memphis area. Dr.
       Miklos has never been to any of the hospitals in Memphis and is wholly unfamiliar
       with the Memphis medical community and the services and resources available here.
       He was unable to articulate any factual basis whatsoever indicating that the Atlanta
       area in which he practices and the Memphis medical communities are similar medical
       communities. In fact, he admitted that he knows nothing about the Memphis medical
       community or the resources and services available here. Dr. Miklos, therefore, is not
       qualified as an expert under the Tennessee medical malpractice “locality” rule in
       Tennessee Code Annotated 29-26-115 and he is, therefore, stricken as an expert for
       plaintiff.

Within thirty days of the filing of this order, Plaintiff filed a motion to alter or amend the summary
judgment pursuant to Tenn. R. Civ. P. 59.04.


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        The motion to alter or amend included the supplemental affidavit of Dr. Miklos. In this
affidavit, Dr. Miklos recited facts about the medical communities (e.g., number of hospitals,
estimated population) of Atlanta, Georgia and Memphis, Tennessee. With this new information, Dr.
Miklos concluded that Memphis and Atlanta were similar communities with regard to the standard
of care for a labiaplasty. The trial court considered the information provided in the supplemental
affidavit but found that Dr. Miklos still did not qualify as an expert under the locality rule. Plaintiff
then filed a timely notice of appeal.


                                          Law and Analysis

         Summary judgment is appropriate when the moving party can show that there is no genuine
issue of material fact and that it is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04;
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd v. Hall, 847 S.W.2d 208, 214
(Tenn. 1993). When considering a summary judgment motion, the court must review the evidence
in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). Because summary judgment only
involves questions of law, our review of the trial court’s ruling is de novo with no presumption of
correctness. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).

        We review a trial court’s ruling on a motion to alter or amend a judgment under Tenn. R. Civ.
P. 59.04 only for an abuse of discretion. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003);
Linkous v. Lane, 276 S.W.3d 917, 924 (Tenn. Ct. App. 2008). A trial court abuses its discretion
only when it has “applied an incorrect legal standard, or reached a decision which is against logic
or reasoning that caused an injustice to the party complaining.” Henry v. Goins, 104 S.W.3d 475,
479 (Tenn. 2003).

A. Summary Judgment

         In an action for medical malpractice, the claimant has the burden of proving “[t]he
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.” Tenn. Code Ann. § 29-26-
115(a)(1). This element of the plaintiff’s cause of action is known as the “locality rule.” Stovall,
113 S.W.3d at 722. Like the other elements of medical malpractice, a plaintiff must demonstrate the
recognized standard of care in the community with expert proof. Norris v. East Tennessee
Children’s Hosp., 195 S.W.3d 78, 86 (Tenn. Ct. App. 2005). The plaintiff’s expert must therefore
“have knowledge of the standard of professional care in the defendant’s applicable community or
knowledge of the standard of professional care in a community that is shown to be similar to the
defendant’s community.” Stovall, 113 S.W.3d at 722 (quoting Robinson v. LeCorps, 83 S.W.3d
718, 724 (Tenn. 2002).




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        In order to satisfy the locality rule, an expert may discuss a national standard of care but
“such evidence may not substitute for evidence that first establishes the requirements of Tenn. Code
Ann. § 29-26-115(a)(1).” Stovall, 113 S.W.3d at 722. In Robinson, the Court found that the expert
witness failed to “relate the basis for his knowledge of the standard of care in Nashville or indicate
why the Nashville medical community was similar to, and thus had the same standard of professional
care as the community with which [the expert] was familiar.” Robinson, 83 S.W.3d at 725. In
Stovall, on the other hand, the expert witness “expressed understanding of the locality rule and
explained that he had applied the locality standard of care-and not a national standard-to the facts
and circumstances in this case.” Stovall, 113 S.W.3d at 723.

        In the present case, Dr. Miklos indicated in his deposition that he was completely unaware
of the standard of care for this procedure in Memphis, Tennessee. Instead, he applied a national
standard of care based on his experience in Georgia. On appeal, Plaintiff first asserts that the expert
testimony is sufficient because Dr. Miklos is familiar with the procedure used by Dr. Adams.
Because Dr. Miklos has performed the same procedure, Plaintiff argues that he can testify as to
whether Dr. Adams performed it properly. This argument, however, ignores the first requirement
of Tenn. Code Ann. § 29-26-115(a)(1), which demands familiarity with either defendant’s
community or a similar community. Mere familiarity with the relevant procedure is insufficient.
Accordingly, we find that the trial court properly excluded Dr. Miklos as Plaintiff’s expert witness
at the summary judgment stage.

B. Rule 59.04 Motion to Alter or Amend

        Plaintiff also contends that the trial court erred when it denied her motion to alter or amend
the judgment. Plaintiff supported her Rule 59.04 motion with additional evidence; specifically, she
attached the supplemental affidavit of Dr. Miklos. In this affidavit, Dr. Miklos cited reference
materials to demonstrate that the Memphis and Atlanta medical communities were similar. Based
on this new information, Dr. Miklos concluded that the two communities had the same standard of
care for this particular surgery. Plaintiff argues that this affidavit satisfies the requirements of Tenn.
Code Ann. § 29-26-115.

        The Tennessee Supreme Court, in Stovall, stated that “[w]hen additional evidence is
presented in support of a [Rule 59.04]motion, the trial court should consider the factors applicable
to a motion to revise a partial summary judgment pursuant to Rule 54.02 of the Tennessee Rules of
Civil Procedure[.]” Stovall, 113 S.W.3d at 721. In considering such a motion, trial courts should
therefore apply the following “non-exclusive balancing test”:

        1) the movant's efforts to obtain evidence to respond to the motion for summary
        judgment; 2) the importance of the newly submitted evidence to the movant's case;
        3) the explanation offered by the movant for its failure to offer the newly submitted
        evidence in its initial response to the motion for summary judgment; 4) the likelihood
        that the nonmoving party will suffer unfair prejudice; and 5) any other relevant
        factor.


                                                   -5-
Harris v. Chern, 33 S.W.3d 741, 745 (Tenn. 2000). When applying this test, trial courts “should
make adequate findings of fact and conclusions of law on the record to support their rulings.” Id.
As noted above, we review the trial court’s ruling on a Rule 59.04 motion only for an abuse of
discretion. Id. at 746; see also, Stovall, 113 S.W.3d at 721; Kenyon v. Handal, 122 S.W.3d 743,
766 (Tenn. Ct. App. 2003) (reviewing a trial court’s application of the Harris factors to a Rule 59.04
motion for an abuse of discretion).

         In Kenyon, the court explained that “relief under Tenn. R. Civ. P. 59.04 is available only
when the supplemental affidavit effectively remedies the defects or shortcomings in the earlier
affidavit opposing the physician's summary judgment motion.” Kenyon, 122 S.W.3d at 765. The
trial court may consider “[w]hether a new or supplemental affidavit effectively rebuts the defendant's
affidavit” under the fifth Harris factor which allows consideration of “any other relevant factor.”
Kenyon, 122 S.W.3d at 765 n. 23 (citing Harris, 33 S.W.3d at 745). The court then concluded that
“if a patient files a motion for Tenn. R. Civ. P. 59.04 relief relying on a new affidavit that itself does
not satisfy the requirements of...Tenn. Code Ann.§ 29-26-115, the trial court may decline to set aside
its previous summary judgment order.” Kenyon, 122 S.W.3d at 765.

         Here, the trial court decided to consider the information included in Dr. Miklos’s
supplemental affidavit. The record does not include any findings of fact or conclusions of law with
regard to the four specific Harris factors. In its final order, the court only found that “Dr. Miklos
still does not qualify under the locality rule and that his supplemental affidavit does not cure that.”
It therefore appears that the trial court’s ruling was based solely on its conclusion that the
supplemental affidavit did not satisfy the locality rule.

        When the trial court granted summary judgment in favor of Dr. Adams, it found that Dr.
Miklos failed to demonstrate that the Atlanta community was similar to the Memphis community.
The trial court did not find, and Dr. Adams has not argued, that Dr. Miklos is unfamiliar with the
standard of care for this medical procedure in Atlanta. The question, then, is whether Dr. Miklos’s
supplemental affidavit sufficiently demonstrates that the two communities are similar. See
Robinson, 83 S.W.3d at 724.

        Plaintiff’s burden was to show why the Memphis medical community was similar to, and
thus had the same standard of professional care as the community (here, Atlanta) with which Dr.
Miklos was familiar. See Stovall, 113 S.W.3d at 723. To meet this burden, “a plaintiff's expert can
establish that a community with which he or she is familiar is similar to that of the one in which the
defendant practices based on a comparison of information such as the size, location, and presence
of teaching hospitals in the two communities.”                    Travis v. Ferraraccio, No.
M2003-00916-COA-R3-CV, 2005 WL 2277589, at *11 (Tenn. Ct. App. Sept. 19, 2005). However,
“[g]eneralizations regarding the similarity of the standards of professional care in two contiguous
states are not specific enough information to demonstrate that a medical practitioner is qualified
under the locality rule to render an opinion in a medical malpractice case.” Johnson v. Pratt, No.
W2003-02110-COA-R3-CV, 2005 WL 1364636, at *8 (Tenn. Ct. App. June 9, 2005).


                                                   -6-
        Here, Dr. Miklos’s supplemental affidavit recites specific information showing the
similarities between the Atlanta and Memphis communities. In this affidavit, he lists the size of each
city’s population, the number of institutions of higher learning, and the number of hospitals in each
city. He also notes that there is a level one trauma center and an accredited medical center in both
Memphis and Atlanta. In short, he relies on the information recommended in Travis for his
comparison; he does not rely on the generalizations rejected in Pratt. We find that the trial court
erred when it determined that the supplemental affidavit failed to satisfy the locality rule.
Consequently, the trial court erred in denying Plaintiff’s motion to alter or amend the summary
judgment granted to Defendants.

        The judgment of the trial court is reversed and this case is remanded to the trial court for
further proceedings. Costs of appeal are assessed to Appellees Dr. William Adams and The Clinic
for Plastic and Reconstructive Surgery, P.A., for which execution shall issue if necessary.




                                               ___________________________________
                                                    J. STEVEN STAFFORD, J.




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