Ilse Bock v. UT Medical Group, Inc. ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a1002n.06
No. 13-5340
FILED
UNITED STATES COURT OF APPEALS Nov 25, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ILSE BOCK, Individually and as next of kin, )
surviving spouse, next friend and personal )
representative of Hans Bock, deceased, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
UT MEDICAL GROUP, INC., ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
Before: SILER, COLE, and COOK, Circuit Judges
PER CURIAM. This medical malpractice action returns for consideration of the district
court’s exclusion of plaintiff’s medical expert, Dr. James Shull, under Tennessee Code Annotated
§ 29-26-115(b). We revisit the relevant facts, thoroughly detailed in our prior opinion, Bock v.
University of Tennessee Medical Group, Inc., 471 F. App’x 459 (6th Cir. 2012) (“Bock I”), only as
necessary for the purposes of this appeal.
Bock I examined this expert-witness competency issue in light of new law from the
Tennessee Supreme Court decision in Shipley v. Williams, 350 S.W.3d 527, 550–54 (Tenn. 2011),
that broadened the range of competent experts under the state’s locality rule. Because the district
court relied on a standard overruled by Shipley, we remanded with instructions for the district court
No. 13-5340
Bock v. UT Med. Grp., Inc.
to determine the same witness’s competency under § 29-26-115 to testify as to the standard of care
regarding: (1) whether to perform chemo-embolization and radiofrequency ablation on plaintiff’s
husband, Hans Bock; (2) the performance of those procedures; and (3) post-operation care. Bock I,
471 F. App’x at 463–64. The district court complied, disqualifying Dr. Shull from testifying on any
of these issues because he did not “practice a profession or specialty within the year preceding the
alleged wrongful acts leading to Mr. Bock’s death” that would make his testimony relevant under
§ 29-26-115(b). Because of the exclusion, plaintiff defaulted an essential element of her malpractice
claim, resulting in summary judgment for the defendant, UT Medical Group, Inc. Ilse Bock appeals,
renewing the arguments she presented on summary judgment. We AFFIRM.
This appeal focuses on an aspect of Tennessee’s competency statute left undisturbed by
Shipley: subsection (b)’s requirement that the licensed medical expert “practice[] [a relevant]
profession or specialty in [Tennessee or a bordering state] during the year preceding the date that
the alleged injury or wrongful act occurred.” Tenn. Code Ann. § 29-26-115(b); see Shipley, 350
S.W.3d at 550 (acknowledging subsection (b)’s preceding-year relevant-practice rule). To clear this
hurdle, the expert need not practice the same specialty as the defendant, Searle v. Bryant, 713
S.W.2d 62, 65 (Tenn. 1986), but still must “practice in a profession or specialty ‘which would make
the person’s expert testimony relevant to the issues in the case’ during the year preceding the
occurrence,” Bravo v. Sumner Reg’l Health Sys., Inc., 148 S.W.3d 357, 365 (Tenn. Ct. App. 2003)
(quoting Tenn. Code Ann. § 29-26-115(b)); accord Shipley, 350 S.W.3d at 550. Such “practice”
may include experiences other than the treatment of patients. See Bravo, 148 S.W.3d at 367–68
-2-
No. 13-5340
Bock v. UT Med. Grp., Inc.
(deeming competent for an obstetrics issue a board-certified obstetrician-gynecologist who, among
other things, taught and attended obstetrics classes during the relevant time period). A witness may
not, however, “simply testify[] as to a general standard of care expected of all physicians.”
McDaniel v. Rustom, No. W2008-00674-COA-R3-CV, 2009 WL 1211335, at *8 (Tenn. Ct. App.
2009) (collecting authority). Rather, “the witness must be sufficiently familiar with the standard of
care of the profession or specialty and be able to give relevant testimony on the issue in question.”
Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987).
As the district court explained, Dr. Shull failed to show that he practiced a specialty relevant
to the three medical issues involved in this case during the year preceding the alleged malpractice.
With regard to the liver-cancer treatments—chemo-embolization and radiofrequency ablation—the
court found:
Dr. Shull is a general practitioner who has not performed surgery in a hospital setting
for any condition, much less liver cancer, since 1998 or 1999. Although Dr. Shull
states he has remained current with his continuing education requirements and
subscribes to two national journals, that he was a Consulting Staff Physician at St.
Francis, and that he has regularly reviewed the records of patients receiving hospital
care in 2002 and 2003, he gives no indication as to why these assertions qualify him
under [§ 29-26-115(b)] as someone who has practiced a relevant profession or
specialty in 2002 or 2003. . . .
In contrast, Dr. Shull admits he has only treated a patient with liver cancer once in
his career and that was before 1999. Dr. Shull further admits he has never performed
a chemo-embolization or radiofrequency ablation. Dr. Shull has neither referred
anyone to have these procedures performed by another physician nor recommended
these procedures. It seems clear to the Court that Dr. Shull, in 2002 and 2003, was
not practicing a profession or specialty that would make his testimony as to the
-3-
No. 13-5340
Bock v. UT Med. Grp., Inc.
applicable standard of care in recommending or performing a chemo-embolization
or a radiofrequency ablation relevant.
(R. 158, Order at 10.)
Mrs. Bock does not dispute these facts, and Dr. Shull ostensibly concedes a lack of expertise
on these two medical procedures. (See R. 134-4, Shull Dep. at 57–58, (qualifying his expertise as
“the standard of care of intra-abdominal bleeding and the complications of . . . interventional
radiology and the failure to diagnose intra-abdominal bleeding”).) We therefore affirm the district
court’s judgment excluding Dr. Shull’s testimony about these procedures.
As for the “closer question” of Dr. Shull’s expertise on post-operative care, the court found:
Again, Dr. Shull’s practice in 2002 and 2003 was a general practice, not a surgical
practice. Although Dr. Shull had privileges at St. Francis Hospital, he had not
treated a patient in a hospital setting since 1998. Dr. Shull’s own words indicate he
was engaged in a substantially different type of practice in 2002-2003 than what is
at issue here:
The type of medical care and/or post operative medical care and
treatment rendered to Hans Bock, deceased, is no different than the
type of medical care that I have provided to patients in Memphis,
Shelby County, Tennessee since 1986 up to 1998 and/or 1999 as a
private physician, emergency room physician, surgeon, admitting
and/or consulting physician.
The Court finds enough of a distinction between the practice of post-operative care
in a hospital setting and a general practice to hold that Dr. Shull was not engaged in
the practice of a profession or specialty that would allow him to give testimony
relevant to the issue before the Court.
-4-
No. 13-5340
Bock v. UT Med. Grp., Inc.
(Id. at 11–12 (citations omitted).) Addressing Dr. Shull’s asserted expertise in the treatment of intra-
abdominal bleeding, the court rejected his “generalized” evidence “of continuing medical education,
subscriptions to medical journals, his privileges as [a hospital’s] Consulting Staff Physician . . . , and
his review of medical charts of hospitalized patients.” (Id. at 12–13.)
Mrs. Bock counters with lengthy excerpts from Dr. Shull’s affidavit, detailing his pre-1999
surgical practice and post-1999 general practice. Conspicuously absent from the description of his
post-1999 practice are specific experiences—e.g., diagnosis or treatment of patients, teaching,
professional consultation—involving the post-operative care of patients undergoing surgical
procedures similar to Mr. Bock. As explained above, Dr. Shull lacks sufficient familiarity with the
two procedures performed on Mr. Bock.
The district court appropriately performed the screening function codified in
§ 29-26-115(b). We therefore affirm the grant of summary judgment.
-5-