                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  October 24, 2006 Session

                  JERRY D. ECKLER v. DR. LEE ALLEN, ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                        No. CT-003361-04     Karen Williams, Judge



                  No. W2005-02501-COA-R3-CV - Filed November 29, 2006


This is a medical malpractice action in which Plaintiff alleges Defendant physician failed to obtain
informed consent. The trial court awarded Defendants summary judgment upon finding that
Plaintiff’s amended expert affidavit failed to comply with Tennessee Code Annotated § 29-26-
115(a)(1) and that Plaintiff had failed to file the amended affidavit by the deadline imposed by the
court. We affirm summary judgment for Defendant under § 29-26-115(a)(1).

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY
M. KIRBY , J., joined.

Scottie Wilkes, Memphis, Tennessee, for the appellant, Jerry D. Eckler.

J. Kimbrough Johnson and Elizabeth T. Collins, Memphis, Tennessee, for the appellees, Dr. Lee
Allen and Memphis Dermatology Clinic.

                                            OPINION

        This is a medical malpractice action in which Plaintiff Jerry D. Eckler (Mr. Eckler) alleged
Defendants Lee Allen, M.D. (Dr. Allen) and Memphis Dermatology Clinic (“Memphis
Dermatology”; collectively, Defendants) failed to obtain his informed consent before performing
Mohs Micrographic surgery to biopsy cells on Mr. Eckler’s nose for basal cell carcinoma. The trial
court determined Mr. Eckler’s expert’s affidavit failed to comply with the requirements of the
“locality rule” applicable to medical malpractice actions under Tennessee Code Annotated § 29-26-
115(a)(1), and that Mr. Eckler failed to comply with the court’s imposed deadline to submit an
amended expert affidavit. The trial court accordingly granted Defendants’ motion for summary
judgment. We affirm.
        This dispute arises from a Mohs micrographic surgical procedure performed by Dr. Allen on
Mr. Eckler’s nose. On June 13, 2003, Mr. Eckler, then sixty-four years of age, consulted with Dr.
Allen regarding possible basal cell carcinoma on Mr. Eckler’s nose. Mr. Eckler was referred to Dr.
Allen by Dr. Janet Knight. Dr. Allen performed Mohs Micrographics surgery on Mr. Eckler’s nose.
The procedure resulted in a wound of three centimeters.

        On June 11, 2004, Mr. Eckler filed a complaint against Dr. Allen and the Memphis
Dermatology Clinic, alleging that Dr. Allen had not discussed Mr. Eckler’s condition, alternative
treatment options, risks, or potentially necessary additional procedures. He alleged that, after taking
Mr. Eckler’s medical history, “Dr. Allen immediately deaden[ed] Plaintiff’s nose and began [M]ohs
micrographics surgery.” Mr. Eckler also asserted that he would not have consented to the surgery
if he had been advised of alternative procedures. He prayed for compensatory damages in the
amount of $300,000 for pain and suffering, future medical services related to plastic surgery, and
future medial expenses.

        Defendants answered on July 15, denying all allegations of negligence and asserting Mr.
Eckler’s damages were caused by an independent and intervening cause. On November 22, 2004,
Defendants moved for summary judgment. Defendants supported their motion with a statement of
undisputed facts and Dr. Allen’s expert affidavit. In their statement of undisputed facts and
memorandum of law, and in Dr. Allen’s affidavit, Defendants asserted that Mr. Eckler was advised
that the lesion on his nose would be biopsied in order to identify the type of cancer; that Mr. Eckler
was given a brochure explaining Mohs micrographic surgery, which involves removing layers of
tissue until the cancerous tissue has been removed; that Mr. Eckler and his wife were given
instructions on how to care for and clean the wound; and that Dr. Allen complied with the
recognized standard of care for dermatologists in the community in the rendering of care and
treatment, including obtaining informed consent. Defendants further asserted Mr. Eckler sustained
no damages or injuries which would not otherwise have occurred. It is undisputed that informed
consent was not obtained in writing.

         The trial court granted Mr. Eckler an extension of time to file his response to Defendants’
motion until January 7, 2005. Mr. Eckler filed his response and statement of facts on January 5,
attaching Dr. Conway Huang’s (Dr. Huang’s) expert affidavit. The trial court heard the motion on
June 10, 2005, and determined that Dr. Huang’s affidavit did not meet the requirements of an expert
witness under Tennessee Code Annotated § 29-26-115(a)(1) or this Court’s opinion in Johnson v.
Pratt, No. W2003-02110-COA-R3-CV, 2005 WL 1364636 (Tenn. Ct. App. June 9, 2005) (no perm.
app. filed). Counsel for Mr. Eckler conceded that the affidavit was not sufficient under Johnson, and
the trial court granted Mr. Eckler an extension until July 12, 2005, to file a supplemental affidavit.
Mr. Eckler submitted Dr. Huang’s amended affidavit to the trial court on July 12, 2005. It was
stamped received and initialed by the court’s law clerk, but was not filed in the clerk’s office until
after July 12.

       The trial court again heard Defendants’ motion for summary judgment on July 29. The court
determined that the amended affidavit also failed to meet the statutory requirements of an expert


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witness under Tennessee Code Annotated § 29-26-115(a)(1). The trial court additionally determined
that the amended affidavit had not been timely filed where it was stamped “received” and initialed
by the court’s law clerk on July 12, but not stamped “filed” with the court clerk’s office until after
the July 12 deadline. On September 21, 2005, the trial court granted Defendants’ motion for
summary judgment, and Mr. Eckler filed a timely notice of appeal to this Court.

                                          Issues Presented
         Mr. Eckler raises the following issues for our review

         (1)      Whether the [trial] court erred in its ruling that [Plaintiff’s] expert does not
                  qualify as a medical expert under Tennessee law.

         (2)      Whether the [trial] court abused [its] discretion when it held that Dr. Huang’s
                  amended affidavit was not filed within time allowed.

                                              Standard of Review

        Summary judgment is appropriate only when the moving party can demonstrate that there
are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn.
R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). We review an award of summary
judgment de novo, with no presumption of correctness afforded to the trial court. Guy v. Mut. of
Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002).

                                                     Analysis

         We turn first to the trial court’s determination that Mr. Eckler failed to file Dr. Huang’s
amended affidavit in the time allocated by the trial court. Clearly, trial judges have the right to set
and enforce deadlines. Kenyon v. Handal, 122 S.W.3d 743, 751 (Tenn. Ct. App. 2003). And this
case illustrates the perils of waiting until the last possible day to comply with a court’s order.
However, Defendants do not allege that Mr. Eckler failed to deliver Dr. Huang’s amended affidavit
to the trial court on July 12, or that the affidavit was not mailed to counsel for Dr. Allen on the same
day. Further, that the affidavit was received by the court but not stamped “filed” on July 12 resulted
in no prejudice to Defendants. Accordingly, we have concluded that the trial court erred in
determining Mr. Eckler failed to comply with the trial court’s order.1

        We next turn to whether the trial court erred in determining that Dr. Huang’s amended
affidavit failed to comply with the requirements of Tennessee Code Annotated § 29-26-115(a). The
subsection provides:



         1
          W e observe that, interestingly, many of the documents in the technical record now before this Court are not
stamped “filed” and dated by the court clerk. These documents include Defendants’ motion for summary judgment,
statement of undisputed facts, and Dr. Allen’s expert affidavit.

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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 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.

Tenn. Code Ann. § 29-26-115(a) (2000). The trial court ruled that Dr. Huang failed to comply with
§ 29-26-115(a) where his affidavit failed to demonstrate that he was “knowledgeable of the standard
of care in Memphis, Shelby County, Tennessee or a similar medical community at the time of the
alleged malpractice.”2

         Our disposition of this issue requires inquiry into the fundamental question of what elements
or language must be included in the expert’s affidavit at the summary judgment stage of litigation
in order to comply with the section’s requirement that the expert has knowledge of the standard of
care in the locality where the defendant physician practiced when the alleged malpractice occurred.
Rigid adherence to the statutory language is not required, although this Court historically has urged
legal counsel to “couch their medical experts’ affidavits in the language of [Tennessee Code
Annotated] 29-26-115.” Kenyon, 122 S.W.3d at 759. Rather, the court must examine the substance
of the statements made in the affidavit to determine whether the affidavit complies with the statutory
requisites. Id. Generally, decisions regarding an expert’s qualifications or competency are within
the trial court’s sound discretion. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn.
1997). Accordingly, we review these determinations under the abuse of discretion standard.
Robinson v. LeCorps, 83 S.W.3d 718, 725 (Tenn. 2002). When our review arises from a trial court’s
award of summary judgment, however, we must view statements made in the expert’s affidavit in
the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s
favor. Kenyon, 122 S.W.3d at 759.

         In his affidavit, Dr. Huang stated:

                1.   I, Conway C. Huang, am an Assistant Professor at the University of
         Alabama at Birmingham. I am the Director of Dermatologic Surgery and Cutaneous
         Laser Surgery. My curriculum vitae is attached.




         2
          At oral argument, counsel for Dr. Allen asserted Dr. Huang’s affidavit must fail under the statute for reasons
additional to the locality rule. W e decline to address these arguments, however, as the trial court clearly awarded
Defendants summary judgment under only the locality rule provision of the statute.

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             2. I am familiar with the standard of care for Mohs micrographic Surgeons
       in communities similar to Memphis, TN.

            3.     I have become familiar with the standards of care in the Memphis
       community and throughout the State of Tennessee.

                4. I have discussed the standard of care for obtaining informed consent with
       all the fellowship trained Mohs surgeons in Tennessee. “Fellowship trained” refers
       to Mohs surgeons who have specialized training in Mohs micrographic surgery for
       1-2 years after completing a dermatology or related residency.

              5. These fellowships are accredited by the American College of Mohs
       Micrographic Surgery and Cutaneous Oncology. In the past two years, many of these
       fellowships have also become accredited by the American Board of Medical
       Specialties under the newly recognized specialty of Procedural Dermatology.

              6.     There are sixteen (16) Mohs surgeons in Tennessee including the
       Defendant. Seven of the Mohs surgeons are partners with the Defendant. Therefore
       they were not consulted.

              7. Besides Dr. Allen and his partners, I consulted with Dr. Malika Tuli of
       Memphis, Tennessee and was advised that written and oral informed consent are
       obtained in the Memphis, Tennessee community.

             8. I also consulted with the remaining six Mohs surgeons in Tennessee and
       was advised that the written and oral informed consent are obtained in their
       community. See attached spreadsheet of my investigation.

               9. As I previously stated in my original affidavit, I reviewed the medical
       records of Jerry Eckler from June 13, 2003, June 20, 2003 and June 30, 2003. These
       records included clinical notes and photos. There is no written evidence that an
       informed consent was obtained from Mr. Eckler. Informed consent may have been
       verbally obtained, but there is no written documentation that would substantiate that
       is was obtained (see attached affidavit).

               10. Based on my investigation Dr. Allen failed to obtain proper informed
       consent according to the standard of care for Memphis, TN. There is no evidence
       that Mr. Eckler understood the procedure, disease, treatment options, risks and
       benefits of those treatment options.

The spreadsheet illustrating the results of Dr. Huang’s survey of Tennessee Mohs micrograhic
surgeons attached to his affidavit indicated that the surgeons questioned obtained written and oral



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consent. Dr. Huang’s attached curriculum vitae indicated specialized knowledge of dermatology,
dermatologic surgery, and cutaneous laser surgery.

        Tennessee Code Annotated § 29-26-115(a)(1) places the burden on the plaintiff in a medical
malpractice action to demonstrate by expert evidence the standard of acceptable professional care
in the community where the defendant physician practices or in a similar community. Robinson, 83
S.W.3d at 724. Thus, the medical expert must demonstrate that he has knowledge of the standard
of care applicable in the defendant’s community or in a community which the expert demonstrates
is similar to that of the defendant. Id. Additionally, as we reiterated in Johnson, merely asserting
familiarity with the local standard of care is not sufficient to meet the statutory requirements.
Johnson v. Pratt, No. W2003-02110-COA-R3-CV, 2005 WL 1364636, at *7 (Tenn. Ct. App. June
9, 2005) (no perm. app. filed) (citing Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d
826, 831 (Tenn. Ct. App.1997). Rather, the expert also must present facts demonstrating how he or
she has obtained knowledge of the standard of professional care in either the community in which
the defendant physician practices or in a similar community. Id. (citing Spangler v. East Tenn.
Baptist Hosp., No. E1999-01501-COA-R3-CV, 2000 WL 222543, at *1-2 (Tenn. Ct. App. Feb. 28,
2000), perm. app. denied (Tenn. Sept. 11, 2000))).

        Dr. Huang’s affidavit and curriculum vitae demonstrate that he has expert knowledge of the
specialized field of dermatological surgery. They also contain sufficient evidence to suggest
knowledge of the standard of care in the community of Birmingham, Alabama. However, there is
nothing in Dr. Huang’s affidavit or supporting documents to demonstrate or suggest that
Birmingham, Alabama, is a community similar to Memphis, Tennessee.

        We turn next, therefore, to whether Dr. Huang demonstrated knowledge of the standard of
care in the Memphis community for the purposes of § 29-26-115(a)(1). In his affidavit, Dr. Huang
clearly stated that he was familiar with the standard of care in the Memphis community. Dr. Huang’s
affidavit and attached spreadsheet also demonstrate that Dr. Huang obtained knowledge of the
applicable standard of care by surveying physicians in Tennessee who practice within the specialized
field of Mohs micrographic surgery, including the one Mohs micrographics surgeon in Memphis
who is not a partner of Dr. Allen.

         As we noted in Johnson, however, evidence of knowledge of a national, regional, or even
state-wide standard of professional practices does not suffice under the locality rule set-out in § 29-
26-115(a). Id. at *8 (citations omitted). Our inquiry becomes, therefore, whether knowledge
obtained by surveying physicians who practice in the specialized field in the defendant’s community
is sufficient under the statute, or whether the statute demands personal, firsthand knowledge.

        In Johnson, a case also arising from the alleged failure of the defendant, an orthopedic
surgeon, to obtain the plaintiff patient’s informed consent, we affirmed summary judgment awarded
in favor of defendant where plaintiff’s expert, a radiologist, failed to demonstrate knowledge of the
standard of care applicable to orthopedic surgeons in the Memphis community. Id. at *8-9. The
expert’s affidavit in Johnson failed to comply with § 29-26-115 because it demonstrated neither


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knowledge of the standard of care applicable to orthopedic surgeons nor personal knowledge of the
standard of care applicable to orthopedic surgeons practicing in Memphis. Id. The affidavit also
failed to demonstrate that the expert had personal knowledge of the standard of care applicable to
orthopedic surgeons in a community similar to Memphis. Id. Similarly, in Travis v. Ferraraccio,
we upheld the exclusion of an expert who failed to demonstrate either “firsthand knowledge” of the
standard of professional practice in the defendant’s community, or that the communities which the
expert asserted were similar were, in fact, similar to that of the defendant. Travis v. Ferraraccio,
No M2003-00916-COA-R3-CV, 2005 WL 2277589, at * 7-8 (Tenn. Ct. App. Sept. 19, 2005) (no
perm. app. filed).

        In the case at bar, although Dr. Huang’s affidavit and supporting attached documents
demonstrated that he has personal knowledge of the standard of care applicable to the specialized
field in Birmingham and, arguably, on a national level, there is nothing to indicate personal
knowledge of the standard of care applicable in Memphis. Personal is “done in person without the
intervention of another.” Webster’s Ninth New Collegiate Dictionary, 877 (1986). Personal
knowledge is “first-hand” knowledge. See State v. Howard, 926 S.W.2d 579, 585 (Tenn. Crim. App.
1996). Dr. Huang’s familiarity with the standard of care in Memphis was garnered only through
interviewing other physicians in the community; it was not based on any firsthand experience.

         Defendants assert that knowledge gained by surveying other physicians and not by personal
or firsthand experience is not sufficient under § 29-26-115(a)(1). They submit that a non-expert
could survey physicians in a community if the mere collection of data could constitute knowledge.
Defendants assert the statute requires personal, firsthand, or direct knowledge of the applicable
standard by an expert who practices in the community or in a similar community. We agree.

        Knowledge of or familiarity with the standard of care, particularly with respect to informed
consent, does not require that the plaintiff’s expert practice in the same specialized field as the
defendant. Johnson, 2005 WL 136436, at *9. It does, however, require that the expert be
sufficiently familiar with the standard of care in the specialty to provide relevant testimony. Id.
Under Tennessee Code Annotated § 29-26-115(a)(1), knowledge of the applicable standard of care
must be either firsthand knowledge of the standard of care by one who practices in the community
in which the defendant practices, or firsthand knowledge by one who practices in a community
demonstrated to be similar to that of the defendant.

                                              Holding

        In light of the foregoing, we reverse the trial court’s determination that Mr. Eckler failed to
submit Dr. Huang’s amended affidavit to the trial court within the time ordered by the court.
However, we must affirm the trial court’s judgment that Dr. Huang’s amended affidavit failed to
meet the requirements of the “locality rule” provided by Tennessee Code Annotated §
29-26-115(a)(1). Despite the specialized nature of Mohs surgery and the relatively static status of
the informed consent doctrine, Dr. Huang’s affidavit simply failed to demonstrate that Dr. Huang
had personal or firsthand knowledge of the standard of care in the Memphis/Shelby County


                                                 -7-
community. He also failed to demonstrate that Birmingham, Alabama, a community of which Dr.
Huang has firsthand knowledge, is a community similar to Memphis. Accordingly, Dr. Huang’s
amended affidavit did not cure the deficiencies of his first affidavit.

        As the Tennessee Supreme Court recently observed while encouraging the General Assembly
to reconsider the locality rule, in many cases and particularly in cases that involve a board-certified
specialty, such as the case now before us, the national standard is representative of the local standard.
Robinson v. LeCorps, 83 S.W.3d 718, 723-24 (Tenn. 2002). In such cases, there is no reasonable
basis to suggest that the standard of care in Tennessee would not be at least as stringent as the
national standard. However, despite this Court’s suggestion that the locality rule should be relegated
to “the ash heap of history,” particularly in cases where it results in “hairsplitting” determinations,
e.g., Carpenter v. Klepper, No. M2004-02951-COA-R3-CV, 2006 WL 684589, at *5 (Tenn. Ct.
App. March 16, 2006) perm. app. denied (Tenn. Oct. 2, 1006), this Court is constrained by the
statutory requirements provided by the General Assembly at § 29-26-115(a)(1).

        Judgment awarding summary judgment to Defendants is affirmed. Costs of this appeal are
taxed to the Appellant, Jerry D. Eckler, and his surety, for which execution may issue if necessary.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




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