Medical Experts: Is There a National Standard of Care?

In a medical malpractice action the plaintiff must have a doctor from Tennessee or a border state testify to “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.”[1]

The quoted locality rule holds the defendant doctor to the standard of care in his or her local community. In contrast, we lawyers are held to a statewide standard of care.[2]

In Shipley v. Williams,[3] a lady sued Nashville Dr. Robin Williams for not following up after colon and small intestine surgery caused complications. The plaintiff relied on experts from Asheville, North Carolina, and Montgomery, Ala. The defendant moved for summary judgment. Justice Sharon Lee wrote for a majority of the Supreme Court that the plaintiff’s experts’ depositions were competent under the locality rule.

The court had this to say about a national standard of care:

[I]n this case we do not adopt a national standard of care in medical malpractice cases. Any change in the locality rule must come from the legislature, not the judiciary. However, we recognize that in many instances the national standard is representative of the local standard. * * * A number of medical experts have testified in Tennessee cases that there is either a uniform national standard of care or a standard pertinent to a broad geographic area applicable to medical care providers. * * * Therefore, expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.

It is interesting that both of the plaintiff’s two doctors were board certified. Dr. Rerych from Asheville was certified in general surgery. Dr. Shaw from Montgomery was certified in emergency medicine. Because board exams are national exams, perhaps it makes sense to apply a national standard of care.

Is defendant Dr. Robin Williams board certified? Yes, she is certified in general surgery. (The opinion doesn’t say so, but counsel supplied me with this information.) A national standard of care for her makes even more sense.

Let us hope the General Assembly considers the issue. It is important.

Notes

  1. Tenn. Code Ann. §29-26-115(a)(1).
  2. Chapman v. Bearfield, 207 S.W.3d 736 (Tenn. 2006).
  3. 350 S.W.3d 527 (Tenn. 2011).

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.