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Lack of Parachute Results in Fatal Fall
The opinion in Cox v. M.A. Primary and Urgent Care Clinic does more than tell us who can testify on the standard of care of a physician's assistant in a medical malpractice case. It also reminds us of the risk of attempting to push the envelope without a parachute.
Cox alleged she was injured by the negligence of a physician's assistant (PA). The alleged negligence resulted in a delay in diagnosis of cardiac problems. She sued the PA and the PA's employer, a primary care clinic. The PA denied negligence and filed the ubiquitous motion for summary judgment. The patient did not submit the affidavit of a PA to testify that the PA's conduct fell below the standard of care. Rather, she relied on the testimony of a cardiologist, who testified that had the PA acted within the standard of care the cardiac issues would have been diagnosed earlier. Defendants argued that the plaintiff's expert was not qualified to testify against the PA. The trial court agreed, and dismissed the case.
The Tennessee Supreme Court affirmed the dismissal. After setting out an exhaustive history of PAs in Tennessee and, indeed, across the country, the court unanimously (and unsurprisingly) declared that:
Tennessee's medical malpractice statute, Tenn. Code. Ann. § 29-26-115(a), contemplates that the "recognized standard of acceptable professional practice" for physician assistants is that of physician assistants, not physicians. Accordingly, we agree with those authorities who differentiate between the standard of care which must be met by physicians and the standard of care which must be met by physician assistants.
The court then addressed the issue of whether a doctor could testify to the standard of care of a PA. The court held that the trial judge did not abuse his discretion in failing to consider the testimony of the physician against the PA because the physician was not competent to testify to the standard of care of a PA. Why? Because the expert admitted that "he was not familiar with the standard of care applicable to physician assistants or with the standard of care which a supervising physician must meet when supervising a physician assistant." Indeed, the expert admitted that he had never worked with a physician's assistant.
So, one take-away from this opinion is that one must have a PA testify on the standard of care of a defendant PA in a medical malpractice case, right? No. One must have a competent expert, i.e., one who knows the standard of care of a PA. The expert can be a physician and perhaps even a nurse practitioner, assuming that the expert has the requisite base of knowledge of the standard of care of a PA.
How can I take that position? Because I read footnote 24, which says as follows:
We emphasize that an expert witness qualified to testify about a physician assistant's standard of care may be someone other than a physician assistant. For instance, a medical doctor who is sufficiently familiar with the physician assistant practice at issue may be qualified to testify about the physician assistant's standard of care.
This holding just makes good sense. Tennessee law has never required that an expert witness on the standard of care in a medical malpractice case serve in the exact specialty as the defendant. Rather, Tennessee law only requires that the expert witness know the standard of care for the defendant. To be sure, the most conservative approach is to utilize an expert in the same specialty as the defendant, but if that is not possible for whatever reason, then the expert must be one who can demonstrate knowledge of the defendant's standard of care.
The plaintiff in this case erroneously assumed that Tennessee would follow the minority rule and hold that the standard of care for a PA was the same as the standard of care for the physician that supervised the PA. Then, rather than having a PA in place to testify in the event that courts disagreed with the attempt to make new law, plaintiff chose to use an expert who admitted having no knowledge of the standard of care of a PA. What was the result of these decisions? The lack of a parachute resulted in a very hard landing.
- No. M2007-01840-SC-R11-CV (Tenn. September 21, 2010).
- The Court of Appeals had reversed the trial court, saying that the plaintiff's expert was qualified to testify against the PA. The Court of Appeals also said that "the standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices." Cox v. M.A. Primary and Urgent Care Clinic, No. M2007-01840-COA-R3-CV, 2009 WL 230242, at *4 (Tenn. Ct. App. Jan. 30, 2009).
- Cox, supra fn 1, p. 20 (footnote omitted).
- Id. at 23.
- Id. at 6.
- Id. at 22 (footnote 24).
JOHN A. DAY is a trial lawyer in Brentwood. The latest edition of his book Day on Torts: Leading Cases in Tennessee Tort Law is available for purchase at www.dayontortsbook.com