§47.13 Discovering the Standard of Care from the Defendant Doctor

The Case: Waterman v. Damp , 2006 WL 2872432 (Tenn. Ct. App. Oct. 9, 2006).

The Facts: Plaintiff's medical malpractice claim against defendant doctor and others was dismissed on summary judgment. One issue on appeal was whether the deposition testimony of the defendant doctor was sufficient to demonstrate a genuine issue of material fact on the standard of care.

The Bottom Line:

• "In the instances where the plaintiff demonstrates a genuine issue of material fact by pointing to countervailing evidence in the record, summary judgment is not appropriate. See Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). Where competent expert testimony is conflicting, such a genuine issue exists. See Moon v. St. Thomas Hosp., 983 S.W.2d 225, 230 (Tenn. 1998). Ordinarily, proof of malpractice requires the use of expert testimony concerning the applicable standard of care and the defendant's breach. See Pullum v. Robinette, 174 S.W.3d 124, 129 (Tenn. Ct. App.2004) quoting Robinson v. LeCorps, 83 S.W.3d 718 (Tenn.2002). See also Stokes v. Leung, 651 S.W.2d 704, 705 (Tenn. Ct. App. 1982); see also German v. Nichopoulos, 577 S.W.2d 197 (Tenn. Ct. App.1978) (overruled on other grounds by Seavers v. Methodist Med. Ctr. Of Oak Ridge, 9 S.W.3d 86 (Tenn. 1999).) Such expert testimony is deemed necessary due to the tendency of such claims to involve 'complicated and technical information which is beyond the general knowledge of a lay jury.'Seavers v. Methodist Med. Ctr. Of Oak Ridge, 9 S.W.3d at 92. (Citing Baldwin v. Knight, 569 S.W.2d 450, 456 (Tenn. 1978).) See also Stokes v. Leung, 651 S.W.2d at 706. Occasionally, however, such proof comes by way of the defendant himself. See Abbey v. Jackson, 483 A.2d 330, 334 (D.C. 1984). The need for expert proof is crucial at the summary judgment stage in a lawsuit. Kenyon v. Handal, 122 S.W.3d at 758." 2006 WL 2872432 at *9.
• "The deposition testimony of Dr. Easterling makes clear her inability to assist in the determination of the appropriate standard of care for an emergency room doctor operating in a similar community. She shows no real basis for her statements about the appropriate standard in any emergency room due to her remote emergency room experience. As a result, we find no abuse of discretion in the trial court's refusal to consider that testimony as probative. Likewise, the affidavit of Dr. Childs shows only his familiarity with the standard applicable to an orthopedist operating in a similar community. Relative to the applicable standard of care for an emergency room physician in Nashville, Tennessee, it is Dr. Damp's own deposition testimony that is critical to the survival of Plaintiff's case on summary judgment. Such use by Plaintiff of a defendant doctor's own testimony is appropriate for reasons explained by the Court of Appeals of New York.

  While recognizing the right of a plaintiff in a malpractice action to call as a witness the defendant doctor, the courts of several states have sought to limit the type of questions which the plaintiff may put to him. Specifically, it has been held that a defendant physician may be required to testify to 'facts within his knowledge' that is, 'what (he) actually saw and did' but not as to whether his actions deviated from the accepted standard of medical practice in the community, a matter deemed to call for 'expert opinion'. (Hull v. Plume, 131 N.J.L. 511, 516-517, 37 A.2d 53;see, also, Osborn v. Carey, 24 Idaho 158, 168, 132 P. 967; Hunder v. Rindlaub, 61 N.D. 389, 406-410, 237 N.W. 915; Forthofer v. Arnold, 60 Ohio App. 436, 441-442, 21 N.E.2d 869; cf. Ericksen v. Wilson, 266 Minn. 401, 123 N.W.2d 687.) Other courts, however, permit the plaintiff to examine his doctor-opponent as freely and fully as he could any other qualified witness. ( See Lawless v. Calaway, 24 Cal.2d 81, 90-91, 147 P.2d 604; State for Use of Miles v. Brainin, 224 Md. 156, 167 A.2d 117, 88 A.L.R.2d 1178; cf. Snyder v. Pantaleo, 143 Conn. 290, 122 A.2d 21.)]
  
  The latter decisions strike us as the more enlightened. That the defendant is an 'expert' and that the particular questions asked of him are those which only an expert can answer, seem beside the point. It is at least arguable that the doctor's knowledge of the proper medical practice and his possible awareness of his deviation from that standard in the particular case are, in a real sense, as much matters of 'fact' as are the diagnosis and examination he made or the treatment upon which he settled. More importantly, however, by allowing the plaintiff to examine the defendant doctor with regard to the standard of skill and care ordinarily exercised by physicians in the community under like circumstances and with regard to whether his conduct conformed thereto, even though such questions call for the expression of an expert opinion, the courts do no more than conform to the obvious purpose underlying the adverse-party-witness rule. That purpose, of course, 'is to permit the production in each case of all pertinent and relevant evidence that is available from the parties to the action.' (State for Use of Miles v. Brainin, 224 Md. 156, 161, 167 A.2d 117, 119, supra; see, also, Lawless v. Calaway, 24 Cal.2d 81, 90, 147 P.2d 604, supra.) The issue whether the defendant doctor deviated from the proper and approved practice customarily adopted by physicians practicing in the community is assuredly 'pertinent and relevant' to a malpractice action. Indeed, absent such proof, the plaintiff's case would have to be dismissed. Moreover, evidence on this issue is, in most instances, 'available' from the defendant doctor.
  
  The importance of enabling the plaintiff to take the testimony of the defendant doctor as to both 'fact' and 'opinion' is accentuated by recognition of the difficulty inherent in securing 'independent' expert witnesses. It is not always a simple matter to have one expert, a doctor in this case, condemn in open court the practice of another, particularly if the latter is a leader in his field. In consequence, the plaintiff's only recourse in many cases may be to question the defendant doctor as an expert in the hope that he will thereby be able to establish his malpractice claim.
  
  McDermott v. Manhattan Eye, Ear & Throat Hospital et al., 203 N.E.2d 469, 473-4 (NY 1964).

  Id. at *9-*10.

Other Sources of Note: Lewis ex rel. Lewis v. Brooks, S.W.3d 883, 887-88 (Tenn. Ct. App. 2001) (Defendants could not be compelled to answer questions concerning the standard of care. The author disagrees with this decision, especially considered that the defendants apparently gave affidavits in support of a motion for summary judgment on the standard of care. Even if you accept the notion that a defendant may refuse to answer questions on the standard of care applicable to defendant, he or she should not later be permitted to testify (via affidavit) on the standard of care and not be subject to cross-examination on it. Likewise, the refusal to answer such questions at a deposition should preclude the defendants from offering standard of care testimony at trial.

---