Markina Westmoreland v. William L. Bacon, M.D. ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 15, 2010 Session
MARKINA WESTMORELAND ET AL. v. WILLIAM L. BACON, M.D. ET
AL.
Appeal from the Circuit Court for Davidson County
No. 05C-3729 Joe Binkley, Judge
No. M2009-02643-COA-R3-CV - Filed January 31, 2011
Plaintiffs appeal the summary dismissal of their medical malpractice claims against three
physicians, an orthopedic surgeon, and two hematologists. In December 2004, Plaintiffs’
mother, who suffered from several medical conditions, underwent a total hip replacement and
remained in the hospital under the care of several doctors for ten days. Nine days after
surgery, her condition dramatically declined; she died the following day from a severe diffuse
pulmonary and gastrointestinal hemorrhage. Plaintiffs filed suit alleging the physicians
breached the standard of care for their respective specialties in the care of their mother. Each
defendant filed a motion for summary judgment and each motion was supported by the
affidavit of the defendant as an expert witness. Plaintiffs submitted an affidavit of their
expert witness in response. The trial court ruled that Plaintiffs’ only expert was not a
qualified witness under Tenn. Code Ann. § 29-26-115 and granted summary judgment to all
three defendants. On appeal, Plaintiffs claim the trial court abused its discretion in finding
that their expert witness was not qualified to testify. We affirm the trial court’s ruling that
Plaintiffs’ expert was not qualified to testify under Tenn. Code Ann. § 29-26-115 and the
summary dismissal of Plaintiffs’ claims.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT,
J., joined. R ICHARD H. D INKINS, J., filed a dissenting opinion.
Bill M. Wade, Memphis, Tennessee, for the appellants, Markina Westmoreland, Jacqueline
Westmoreland, and Robert Westmoreland, III.
Robert L. Trentham, Bryant C. Witt, and Sepideh C. Khansari, Nashville, Tennessee, for the
appellee, William L. Bacon, M.D.
Michael A. Geracioti and Kelly R. Thomas, Nashville, Tennessee, for the appellee, Wichai
Chinratanalab, M.D.
Thomas W. Lawrence, Jr., and Matthew A. Moushon, Nashville, Tennessee, for the appellee,
Chukwuemeka Ikpeazu, M.D.
OPINION
This action arises from the death of Dorris Dennis in December 2004. Ms. Dennis was
a fifty-two year old woman who suffered from a variety of medical conditions. In July 2003,
Ms. Dennis began seeing a hematologist, Dr. Wichai Chinratanalab, who diagnosed her with
pancytopenia,1 which is a blood disorder, hepatitis C, and alcohol abuse, each of which put
her at a higher risk of internal bleeding. In December 2004, after she complained of pain in
her right hip, Dr. Chinratanalab referred Ms. Dennis to Dr. William Bacon, an orthopedic
surgeon. Dr. Bacon saw Ms. Dennis on December 8, 2004, and observed evidence of
avascular necrosis and osteoarthritis in her right hip. Dr. Bacon recommended that she either
live with the pain or undergo hip replacement surgery. Ms. Dennis elected to have the
surgery, which was scheduled for December 13, 2004.
Ms. Dennis was admitted to Nashville General Hospital on December 12, and due to
her blood disorder, was given a transfusion of platelets. The surgery proceeded as scheduled
on December 13, 2004 performed by Dr. Bacon with no complications. Following the
surgery, Ms. Dennis remained in the hospital and her condition was monitored. The concern
was that while Ms. Dennis’s blood disorders made her prone to bleeding, in post-operative
patients there is a concern of a patient developing blood clots. To prevent complications from
blood clots, Dr. Bacon ordered Lovenox, an anti-coagulant; however, due to her blood
disorders and her propensity for bleeding, Dr. Bacon ordered a lesser dose than usually
prescribed during the post-operative period. She was also given Bextra for pain management.
Dr. Bacon continued to monitor Ms. Dennis over the next several days.2 Dr. Bacon
saw Ms. Dennis on December 14 and ordered additional red blood cells be given to Ms.
Dennis; he did not order additional platelets on that day because her platelet count was within
a normal range. Dr. Bacon saw Ms. Dennis again on December 15, and ordered an infusion
of platelets. On December 16, Dr. Bacon ordered additional units of red blood cells.
1
Pancytopenia is a condition characterized by a decrease in white, red, and other blood cells. See J.E.
Schmidt, Attorneys’ Dictionary of Medicine (Matthew Bender and Co. 2009).
2
Also assisting in Ms. Dennis’s care was Dr. Bacon’s partner, Dr. Limbin, who was consulted by the
nurses when he was the doctor on call from the office, and Dr. Bacon’s physician assistant, Anthony Bernui.
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Dr. Chinratanalab, who was not scheduled to treat Ms. Dennis post-surgery, was
consulted on December 16 because Ms. Dennis had low potassium. On the same day, Dr.
Chinratanalab examined Ms. Dennis, after which he ordered several tests and that she be
given intravenous potassium. Dr. Chinratanalab’s notes demonstrate that he wanted Ms.
Dennis’s platelet count to remain over 50,000 and her hematocrit level to remain over 50
percent. Dr. Chinratanalab was consulted again on December 17, at which time he ordered
that Ms. Dennis receive additional red blood cells and that her dosage of Lovenox be
lowered. On December 18, Dr. Chinratanalab ordered the discontinuation of Bextrat. Both
her platelet count and hematocrit level were within the acceptable range on that day. On
December 20, Dr. Chinratanalab suggested that a formal hematology consult be requested
and that Lovenox be discontinued. Dr. Chinratanalab’s last involvement with Ms. Dennis’s
care was on December 20, 2004.
Dr. Ikpeazu, a hematologist, performed the hematology consultation on December 20,
following which he recommended an additional infusion of platelets and an alternative to
Lovenox. This was Dr. Ikpeazu’s only interaction with Ms. Dennis. Following Dr. Ikpeazu’s
consult, Dr. Bacon ordered Ms. Dennis be given an additional unit of platelets and Epogen.3
On December 22, Dr. Bacon ordered two more units of platelets for Ms. Dennis.
In the late evening of December 22, Ms. Dennis’s condition began to decline
dramatically. She was placed in the intensive care unit. On the morning of December 23,
2004, Ms. Dennis died from internal bleeding, specifically from a severe diffuse pulmonary
and gastrointestinal hemorrhage.
On December 7, 2005, the children of Ms. Dennis (hereinafter “Plaintiffs”) filed this
action asserting medical malpractice claims against several defendants including Dr. Bacon,
Meharry Medical College, and Metro Hospital d/b/a Nashville General Hospital.4 Plaintiffs
voluntarily dismissed Nashville General Hospital from the action. On November 29, 2007,
Plaintiffs filed an amended complaint asserting claims against two additional physicians, Dr.
Chinratanalab and Dr. Ikpeazu.
In April 2009, Dr. Bacon, Dr. Chinratanalab, and Dr. Ikpeazu (“Defendants”), each
filed a motion for summary judgment asserting that he had not breached the applicable
standard of care. Each motion was supported by an affidavit of the defendant. For his part,
Dr. Bacon stated that he had been certified by the American Board of Orthopedic Surgery
since 1970, that he had practiced the specialty of orthopedic surgery in the Nashville area for
3
Epogen is an anticoagulant. Mosby’s Medical Drug Reference (Harcourt, Inc. 2002).
4
Dr. Bacon’s physician assistant was also sued but he was voluntarily dismissed before trial.
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over thirty years, and that all of the medical care he provided to Ms. Dennis fully complied
with the recognized standard of acceptable professional practice applicable to an orthopedic
surgeon practicing in Nashville, Tennessee in 2004.
Dr. Chinratanalab testified that he completed a three-year residency in internal
medicine,5 a four-year fellowship in hematology/oncology at Vanderbilt University Medical
Center, and that he is board certified in internal medicine, medical oncology, and
hematology. He also testified that he is licensed and practices medicine in Nashville and is
familiar with the recognized standard of care for the acceptable professional practice of
medicine, specifically hematology, in the Nashville medical community in 2004, that he
complied with the applicable standard at all relevant times, and no act of omission by him
caused injury or death to Ms. Dennis.
In support of his motion for summary judgment, Dr. Ikpeazu stated that he has been
licensed to practice medicine in the State of Tennessee since 1995, that he is board-certified
in internal medicine and medical oncology, that he was the Chief of Hematology/Oncology
at Nashville General Hospital at the time of Ms. Dennis’s hospitalization in 2004, and that
he is familiar with the recognized standard of acceptable professional practice for an
oncologist/hematologist in the Nashville medical community in 2004. He also stated that at
all times relevant to this action he complied with the recognized standard of acceptable
professional practice required of a board-certified oncologist/hematologist in the Nashville
community in the treatment of patients in Ms. Dennis’s condition and that no act or omission
on his part caused or contributed to her injuries or death.
In opposition to the three motions for summary judgment, Plaintiffs filed a response
relying on one expert witness, Dr. Richard M. Sobel, an emergency room physician from
Atlanta, Georgia, to demonstrate that each of the three defendants violated the applicable
standard of care.6 Defendants then filed responses asserting that Dr. Sobel’s affidavit was
inadmissible under Tenn. Code Ann. § 29-26-115(a)(1) because, inter alia, his specialty and
experience as an emergency room physician did not make his expert testimony relevant to
the issues in this case, and his affidavit failed to establish a threshold requirement of Tenn.
Code Ann. § 29-26-115(a)(1), that he was competent or qualified under the Tennessee
Medical Malpractice Act to testify concerning the specialties of orthopedic surgery and
hematology as they pertain to the complex medical issues in this case.
5
Dr. Chinratanalab completed two three-year residencies in internal medicine; one in Bangkok,
Thailand; and one in internal medicine at Texas Tech University, Health Sciences Center in Lubbock, Texas.
6
Specifics concerning Dr. Sobel’s affidavit are set forth later in this opinion.
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Following a hearing on the motions for summary judgment, the trial court entered an
order on July 15, 2009 granting summary judgment to all three Defendants.7 In its order, the
trial court found that Defendants’ affidavits were sufficient, pursuant to Tenn. R. Civ. P.
56.04 and 56.06, to shift the burden to Plaintiffs to demonstrate “competent responsive
evidence in the record establishing there was a genuine issue of material fact.” The trial court
then found that Dr. Sobel’s affidavit was insufficient to meet this burden because it did not
demonstrate that Dr. Sobel was familiar with the recognized standards of acceptable
professional practice applicable to Defendants’ specialties of hematology and orthopedics;
thus, he was not a qualified witness as required in Tenn. Code Ann. § 29-26-115(a)(1), (b).
Because Plaintiffs had no other expert proof, the trial court found that Defendants were
entitled to summary judgment.
Plaintiffs filed a Rule 59 motion to alter or amend supported by a supplemental
affidavit of Dr. Sobel. The trial court denied the Rule 59 motion stating that Dr. Sobel’s
supplemental affidavit did not demonstrate that he was qualified to testify “given the
complex nature of this particular medical treatment.” Plaintiffs filed a timely appeal.
A NALYSIS
The dispositive issue is whether the trial court erred in ruling that Plaintiffs failed to
demonstrate that Dr. Sobel was a competent witness, as required by Tenn. Code Ann. § 29-
26-115(a)(1), (b), to testify as a medical expert concerning the issues in the case.
A.
M EDICAL E XPERT T ESTIMONY
Pursuant to Tennessee’s Medical Malpractice Act, Tenn. Code Ann. § 29-26-115, and
the law of evidence generally, “the trial court exercises broad discretion to determine the
qualifications of experts.” Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987); see also
Kenyon v. Handal, 122 S.W.3d 743, 759 (Tenn. Ct. App. 2003) (citing McDaniel v. CSX
Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997)) (stating that “[d]ecisions regarding the
qualifications or competency of an expert are entrusted to the trial court’s discretion”).
Accordingly, the admission or exclusion of evidence is within the trial court’s discretion.
White v. Vanderbilt Univ., 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999) (citing Seffernick v.
Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn. 1998); Otis v. Cambridge Mut. Fire Ins.
Co., 850 S.W.2d 439, 442 (Tenn. 1992)).
7
The order also granted summary judgment to Meharry Medical College. The summary dismissal
of the claim against Meharry Medical College is not at issue in this appeal.
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On appeal, this court reviews the discretionary decisions of a trial court pursuant to
the abuse of discretion standard. Kenyon, 122 S.W.3d at 759 (citing Robinson v. LeCorps,
83 S.W.3d 718, 725 (Tenn. 2002); Seffernick, 969 S.W.2d at 393; Roberts v. Bicknell, 73
S.W.3d 106, 113 (Tenn. Ct. App. 2001)). A trial court abuses its discretion when it “applies
an incorrect legal standard, or reaches a decision which is against logic or reasoning or that
causes an injustice to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).
An appellate court will only set aside a discretionary decision when it appears “the
trial court has misconstrued or misapplied the controlling legal principles or has acted
inconsistently with the substantial weight of the evidence.” White, 21 S.W.3d at 222 (citing
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)). Therefore, we
review a trial court’s discretionary decision to determine:
(1) whether the factual basis for the decision is supported by the evidence, (2)
whether the trial court identified and applied the applicable legal principles,
and (3) whether the trial court’s decision is within the range of acceptable
alternatives.
Id. at 223 (citing BIF v. Service Constr. Co., 1988 WL 72409, at *3 (Tenn. Ct. App. 1988)).
If reasonable judicial minds can differ concerning its soundness, this court shall permit the
trial court’s discretionary decision to stand. Id. (citing Overstreet 4 S.W.3d at 709).
B.
T HE T ENNESSEE M EDICAL M ALPRACTICE A CT
The Tennessee Medical Malpractice Act, Tenn. Code Ann. § 29-26-115(a) requires
a plaintiff asserting a claim for medical malpractice to establish:
(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
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(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)(1)-(3).
In order to establish the elements listed above, a plaintiff must present competent
expert evidence. McDaniel v. Rustom, No. W2008-00674-COA-R3-CV, 2009 WL 1211335,
at *5 (Tenn. Ct. App. May 5, 2009) (citing Hessmer v. Miranda, 138 S.W.3d 241, 244 (Tenn.
Ct. App. 2003)). The statute sets forth the following criteria for whether a witness is qualified
to testify:
No person in a health care profession requiring licensure under the laws of this
state shall be competent to testify in any court of law to establish the facts
required to be established by subsection (a), unless the person was licensed to
practice in the state or a contiguous bordering state a profession or specialty
which would make the person’s expert testimony relevant to the issues in the
case and had practiced this profession or specialty in one (1) of these states
during the year preceding the date that the alleged injury or wrongful act
occurred.
Tenn. Code Ann. § 29-26-115(b).
It is undisputed that Dr. Sobel was licensed to practice medicine in Georgia during the
year preceding the alleged injury or wrongful acts at issue and that Georgia is a state that
borders Tennessee. Thus, to resolve the dispositive issue as to whether the trial court erred
in excluding Dr. Sobel’s affidavits, we must determine whether his medical training or his
experience as an emergency room specialist make his testimony “relevant to the issue in this
case” as required by Tenn. Code Ann. § 29-26-115(b).
Tenn. Code Ann. § 29-26-115(b) does not require that an expert witness practice the
same specialty as the defendant; nevertheless, the expert 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, 724 S.W.2d at 754. Therefore, “where an
expert has a sufficient basis on which to establish familiarity with the defendant’s field of
practice, the expert’s testimony may be accepted as competent proof even though he or she
specializes or practices in another field.” McDaniel, 2009 WL 1211335, at *8 (citing Coyle
v. Prieto, 822 S.W.2d 596, 600 (Tenn. Ct. App. 1991); Ledford v. Moskowitz, 742 S.W.2d
645, 647-48 (Tenn. Ct. App. 1987); Stokes v. Leung, 651 S.W.2d 704, 706 (Tenn. Ct. App.
1982)). This is generally referred to as the fungibility of experts, which is recognized and
permitted under Tennessee’s Medical Malpractice Act. Although fungibility of experts is
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allowed, “where an expert is unfamiliar with the practice of another field and with its
standard of care . . . ,” it would be inconsistent “with the terms or the policy of the Medical
Malpractice Act to permit . . . generalized evidence.” Id. *9 (citing Cardwell, 724 S.W.2d
at 754-55) (emphasis in original).
Our courts have repeatedly rejected efforts to adopt a general standard of care to
which medical doctors could testify, holding it is both contrary to the express provisions of
Tenn. Code Ann. § 29-26-115(b) and a significant departure from the case law of this State.
Cardwell, 724 S.W.2d at 754. As stated in Cardwell, Tenn. Code Ann. § 29-26-115(b) “was
enacted in part to prevent further erosion of the competency requirements for expert
witnesses in malpractice actions” and that it would be inconsistent with the Medical
Malpractice Act to permit “generalized” evidence to establish a standard of care in a locality.
Id. at 754-55.
Therefore, we must examine the affidavits of Dr. Sobel to determine if he is
sufficiently familiar with the respective standards of care for the practices of hematology and
orthopedic surgery in the locality of Nashville, Tennessee to be competent to opine as to
whether one or more of Defendants deviated from the applicable standard of care.
C.
P LAINTIFFS’ E XPERT W ITNESS – D R. S OBEL
Plaintiffs presented two affidavits of Dr. Sobel to establish that he was qualified and
competent to provide expert testimony concerning the issues in this case. The first affidavit
was in opposition to Defendants’ motions for summary judgment. The second affidavit was
filed in support of Plaintiffs’ Rule 59 motion to alter or amend the order summarily
dismissing Plaintiffs’ claims.
The First Affidavit of Dr. Sobel
In Plaintiffs’ first attempt to establish that Dr. Sobel was qualified or competent to
testify, as Tenn. Code Ann. § 29-26-115 requires, they presented the affidavit of Dr. Sobel
which reads in pertinent part:
2. I was licensed and practicing medicine in the State of Georgia in the field
of emergency medicine a year prior to the medical and nursing care and
treatment rendered to Doris Dennis by employees or agents of Nashville
General Hospital (“NGH”) in Nashville, Tennessee as set forth below. A
correct and current copy of my Curriculum Vitae is attached as Exhibit A and
incorporated by reference herein.
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3. Through training, education, experience, years of retrospective expert and
peer review and familiarity with community standards, I know the standard(s)
of care to be provided by physicians in a community similar to Nashville,
Tennessee in treating patients with conditions similar to those experienced by
Doris Dennis as set forth in the medical records which I have received.
Furthermore, I have extensive experience in the care of patients with the
diagnoses of hypotension (low blood pressure) and hemorrhage.
4. I am familiar with the medical community in Nashville, Tennessee, and the
surrounding communities. From my personal knowledge and review of
statistical information, I am aware that Nashville is a large metropolitan area
with a total population of over 1,500,000. Both Vanderbilt University School
of Medicine and Meharry Medical College are located in Nashville,
Tennessee. There are approximately sixteen (16) hospitals in the area,
including at least three (3) large hospital chains – HCA, Baptist and St.
Thomas.
In paragraph 5 of his first affidavit, Dr. Sobel stated that Nashville General Hospital
is a licensed hospital facility, which is accredited by the Joint Commission on Accreditation
of Healthcare Organizations, it is located near downtown Nashville, it offers inpatient and
outpatient care, it has approximately 125 beds, 24-hour emergency room care, and it provides
many other services including specialized surgical services, such as orthopedic surgery, in
addition to post-surgical and other services.
In paragraph 6 he stated that Nashville General Hospital “is similar to hospitals where
he practices medicine” and that “the Greater Atlanta and Greater Nashville metropolitan
areas are similar communities.”
In paragraphs 7, 8, and 9, he stated that he had reviewed substantial records and based
his opinions on the records identified in his affidavit, and he stated that in his opinion the
three defendants, Drs. Chinratanalab, Bacon and Ikpeazu, “acted below the applicable
standard of care and medical practice when treating Ms. Dennis in December 2004, including
but not limited to their collective failure to adequately monitor, evaluate and/or treat her
health conditions during the recovery from hip replacement surgery.” In the following
paragraphs, Dr. Sobel stated:
10. The records of the above referenced admission indicate that Ms. Dennis
had evidence of abnormally low blood pressure and/or hypotension consistent
with shock on December 22, 2004. Additionally, she was found to have
evidence of a deteriorating medical condition on that date.
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11. I do not find evidence of acceptable evaluation and management of Ms.
Dennis’ condition on December 22, 2004 by her treating physician(s).
12. Prior to her final deterioration on the 22 nd , the medical records document
a significant and substantial drop in hemoglobin and hematocrit of Ms. Dennis
several occasions during this hospitalization.
13. Ms. Dennis was at increased risk of hemorrhage (bleeding) due to her
medical conditions and medication she received during this hospitalization.
14. A reasonable and prudent physician would appreciate, that when a patient
such as Ms. Dennis has an unexpected drop hemoglobin/hematocrit the
possibility of hemorrhage (bleeding) must be duly considered and medically
worked up. Thus, the occurrence of acute and then recurring anemia (drop in
hemoglobin/hematocrit) in a patient the same or similar to Ms. Dennis must
trigger a diligent search for the presence of hemorrhage and the detection of
a source of bleeding by the responsible physician(s) and/or their consultants.
This was not provided to Ms. Dennis. Furthermore, I do not find evidence of
simple and expected routine monitoring for gastrointestinal hemorrhage that
would be customary for Ms. Dennis. Thus, although hemorrhage was the
medically likely cause of the recurrent anemia experienced by Ms. Dennis,
efforts to monitor, evaluate, diagnose, prevent or adequately treat it by her
physician(s) did not occur.
15. This inadequate monitoring, evaluation, prevention, diagnosis and
treatment of blood loss anemia in a patient the same or similar to Ms. Dennis
during her post-surgical hospitalization in December 2004 was a breach of the
applicable standards of reasonable medical practice.
16. Ms. Dennis was a patient with known Hepatitis C, a history of alcohol
abuse, evidence of a coagulopathy (disorder of clotting) and
thrombocytopenia. She had a hip replacement. She was placed on Lovenox
(an anti-coagulant). These are all factors that would predictably increase Ms.
Dennis’ risk of bleeding. Therefore, a reasonable and prudent physician(s)
would not prescribe Bextra (valdecoxib) nor continue it if it had been
prescribed. Bextra belongs to a class of medicines known to carry the risk of
gastrointestinal bleeding and impair platelet function. It was known to all of
Ms. Dennis’ physicians that she had severe thrombocytopenia (low platelets)
and further risks for bleeding. The prescription of Bextra to Ms. Dennis was
negligent and below the applicable standards of care; it was clearly
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contraindicated. Bextra was not timely discontinued. This, in my opinion, was
a substantial contributory cause of her demise.
17. The autopsy confirms the presence of hemorrhage as the cause of Ms.
Dennis’ death.
18. Ms. Dennis’ hip replacement was a high risk elective procedure. Informed
consent specifically explaining the increased risks of the procedure and the
post operative period should have been thoroughly explained to her. I do not
know if this occurred, even though a consent form was signed. Further
discovery would be required to complete an opinion.
19. Ms. Dennis’ post operative period required intensive monitoring and
diligent medical management with respect to the risk of bleeding. Non-
essential medications that would increase her risk of bleeding were
contraindicated. Adequate maintenance and close monitoring of her platelet
counts were required. Evidence for the occurrence of hemorrhage should have
been actively pursued. Optimum prophylactic medication for prevention of
gastrointestinal bleeding (proton inhibitor medication) should have been
administered. Recurrent drops in hemoglobin and hematocrit should have
been adequately evaluated and treated. Continued anti-coagulation on
December 20, 2004 should not have been recommended. These and the above
detailed actions or inactions of the responsible physician(s) represent breaches
of the acceptable standards of medical practice.
20. Had the treating physicians complied with the applicable standards of
acceptable medical practice, more likely than not, and to a reasonable degree
of medical certainty, Ms. Dennis would not have died as a consequence of
hemorrhage and shock December 23, 2004.
In the final paragraph, he stated that he reserved the right to “modify his opinions on
the basis of further records and/or testimony I receive.”
After the first affidavit was filed in opposition to Defendants’ motions for summary
judgment, Defendants challenged Dr. Sobel’s qualifications and competency to testify
concerning the standards of care at issue. Following a hearing, the trial court concluded that
Dr. Sobel’s affidavit was insufficient to establish his competency to testify as an expert
witness concerning the issues at bar because he failed to demonstrate that he was familiar
with the standards of acceptable professional practice applicable to hematology and
orthopedics in the Nashville medical community. Therefore, the court ruled that Dr. Sobel
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was not a qualified witness as required in Tenn. Code Ann. § 29-26-115(a)(1), (b). With the
exclusion of Plaintiffs’ only expert witness, the facts asserted in Defendants’ motions for
summary judgment were uncontroverted and, accordingly, the trial court summarily
dismissed Plaintiffs’ claims against all three defendants.
Plaintiffs then filed a Tenn. R. Civ. P. 59 motion to alter or amend the court’s rulings,
which motion was supported by the supplemental affidavit of Dr. Sobel. Thus, we now turn
our attention to that affidavit.
The Supplemental Affidavit of Dr. Sobel
In his supplemental affidavit, which is also lengthy, Dr. Sobel states, inter alia, that
he is familiar with “the standard of care applicable to physicians prescribing Lovenox after
the procedures that were performed or omitted” in this action. He states that he is “familiar
with the recognized standard of acceptable professional practice for physicians prescribing
Lovenox in Nashville, Tennessee.” He further states that he is an emergency room physician,
that he had not received any training in hematology, but he began his training in internal
medicine just as a hematologist would and that “[a] hematologist, an internist and an
emergency physician are all expected to understand the basic physiology of the blood
components.” As for the field of orthopedic medicine, Dr. Sobel states that he has
“considerable training, clinical and teaching experience in orthopedics.” As an emergency
physician, he explains, he is “called upon to evaluate, diagnose and provide the initial
management and stabilization of a wide variety of orthopedic problems” and that he consults
with orthopedic physicians to discuss his patients with orthopedic problems. Further, he
states that he was “aware of the level of knowledge ordinarily possessed by orthopedic
physicians with respect to these classes of medications, that is, anti-inflammatory agents and
anti-coagulants.”
The trial court found that the supplemental affidavit of Dr. Sobel was insufficient to
establish that Dr. Sobel was qualified to testify regarding “the recognized standard of
acceptable professional practice of the orthopedic surgeon, Dr. Bacon, and the two
hematologists, Drs. Chinratanalab and Ikpeazu.” The trial court further found that the
supplemental affidavit of Dr. Sobel was insufficient because it provides “no new or
additional information showing him to be sufficiently familiar with the specialities of
Orthopaedic Surgery and/or Hematology in order to comply with the requirements of T.C.A.
§ 29-26-115(a) and (b).”
Having reviewed Dr. Sobel’s affidavits several times, and acknowledging that his
affidavits are thorough in many respects, we are unable to conclude that the trial court abused
its discretion in finding that the affidavits were insufficient to satisfy the threshold
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requirement that Dr. Sobel was sufficiently familiar with the standard of care relevant to the
issues in this case. The affidavits establish that he is familiar with a general standard of care
concerning the benefits, risks and general uses for Lovenox; however, familiarity with a
general standard of care is not sufficient.
Throughout Dr. Sobel’s supplemental affidavit in the section titled “The Standard of
Care for Hematologists,” Dr. Sobel refers to what can only be described as a general standard
of care. For example, he states the following:
Any hematologist, general internist, family practice physician, general medical
physician or emergency physician is expected to have certain requisite
knowledge to care for patients that they assume the general conditions that
they choose to treat. Treating Ms. Dennis with Lovenox required general
medical knowledge of the drug prescribed, its potential adverse effects and
basic physiology of blood components, such as the platelet and red blood cell.
A higher level of proficiency in hematology was not required.
As we stated above, a physician’s understanding of a “general standard of care” is
insufficient for purposes of the Medical Malpractice Act. See Cardwell, 724 S.W.2d at 754.
Dr. Sobel’s limited experience and knowledge of the standard of care applicable to
orthopedic surgery or hematology as it pertains to Ms. Dennis’s complex medical condition,
as distinguished from a general standard of care relative to the administration of Lovenox,
becomes more apparent when we focus on what Dr. Sobel does not state in his affidavits. A
close examination of Dr. Sobel’s affidavits reveals the absence of fellowship training or
experience in hematology and orthopedic surgery; his training in these areas is limited to the
basic education afforded to all medical students. It reveals that he has not performed hip
replacement surgery. Moreover, it reveals that he has not been responsible for the continuing
care of a post-surgical hospital patient with complex blood disorders such as pancytopenia
or thrombocytopenia, liver disease due to Hepatitis C, and avascular necrosis, all of which
Ms. Dennis had.
The above facts, specifically the lack of training or professional experience pertinent
to the patient’s circumstance at issue in a medical malpractice action, are similar to those in
the case of McDaniel v. Rustom, 2009 WL 1211335. In that matter, the plaintiffs proffered
the testimony of a doctor who was board certified in internal medicine to rebut the affidavit
of a pediatrician practicing in the field of pediatric emergency medicine. When the defendant
challenged the qualifications of plaintiffs’ expert witness as they pertained to the medical
issues in that case, the trial court found the plaintiffs’ expert was not competent to testify in
that case because the expert did not state that he was “familiar with the acceptable standard
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of professional practice of physicians practicing in the emergency department . . . for patients
with allergic reactions to antibiotics and symptoms such as those presented by [the
decedent].” Id. at *12. On appeal this court agreed, holding that the plaintiffs’ expert witness
was not competent to testify because he failed to establish that he was familiar with the
standard of care of emergency room physicians and stating:
[W]e find no basis for his claimed familiarity with the applicable standard of
care for physicians practicing in an emergency room. Although Dr. Marks
claimed that the standard of care for treating [the decedent’s] “nonemergent”
symptoms was “universal” for “all specialists,” including emergency room
physicians, he failed to demonstrate any basis for knowing the standard of care
of emergency room physicians. As the Court explained in Carmichael, 2000
WL 124843, at *3-4, the fact that an expert witness states that he or she is
familiar with the applicable standard of care does not, ipso facto, render the
testimony admissible. Dr. Marks’ testimony was similar to that offered and
excluded in Goodman, 803 S.W.2d at 698, and Brown, 1998 WL 34190563,
at *5, regarding “the standard of care for medical practice in general.” In
Cardwell, 724 S.W.2d at 754-55, the Court rejected the notion that an expert
from any medical profession can testify “regarding matters of common
observation and experience” and concluded that “where an expert is unfamiliar
with the practice of another field and with its standard of care,” it would be
inconsistent with the terms and policy of the Medical Malpractice Act to
permit such generalized evidence.
Id. at *12 (emphasis added).
As we noted previously, although the Medical Malpractice Act, specifically Tenn.
Code Ann. § 29-26-115(b), “contains no requirement that the witness practice the same
specialty as the defendant,” a medical expert witness “must be sufficiently familiar with the
standard of care of the profession or specialty and be competent or qualified under the Act
to give relevant testimony on the standards of care in question.” Cardwell, 724 S.W.2d at 754
(citing Searle, 713 S.W.2d at 65). Therefore, if a proffered expert witness, such as Dr. Sobel,
cannot satisfy this threshold requirement, then the proffered expert may not opine as to
whether any of the defendant physicians deviated from the applicable standards of care at
issue. See Id.
Furthermore, this court reviews a trial court’s evidentiary decisions under the abuse
of discretion standard, which requires us to determine if the court applied an incorrect legal
standard or reached a decision that is against logic or reasoning. Eldridge, 42 S.W.3d at 85;
Cardwell, 724 S.W.2d at 754. Pursuant to the abuse of discretion standard, we are not to
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substitute our judgment for that of the trial court and a trial court’s ruling “will be upheld so
long as reasonable minds can disagree as to the propriety of the decision made.” Eldridge,
42 S.W.3d at 85.
Having considered the facts stated in Dr. Sobel’s first affidavit and his supplemental
affidavit, it is apparent that Dr. Sobel is an accomplished and respected emergency room
physician who has a general understanding of the standard of care of several specialties,
including hematology and orthopedic medicine. This is due to the wide variety of cases –
injuries, conditions and illnesses – presented in an emergency room setting. However, it is
also apparent that Dr. Sobel has failed to establish that he has the requisite education, training
or experience to be sufficiently familiar with the standards of care for the professions or
specialties of hematology and orthopedic surgery to give relevant testimony concerning Ms.
Dennis’ hip replacement surgery and the appropriate post-surgical care for a patient like Ms.
Dennis with complex medical conditions including pancytopenia, thrombocytopenia, liver
disease, avascular necrosis, and related bleeding problems.
Accordingly, we find the trial court did not abuse its discretion in finding that
Plaintiffs failed to establish that Dr. Sobel was a qualified witness as required in Tenn. Code
Ann. § 29-26-115(a)(1), (b).
C.
S UMMARY J UDGMENT
We have determined the trial court did not err in finding that Dr. Sobel was not
competent to testify under Tenn. Code Ann. § 29-26-115. As Plaintiffs failed to submit any
other evidence to demonstrate a genuine issue of material fact, summary judgment was
appropriate. Tenn. R. Civ. P. 56.04; Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003)
(stating summary judgment is appropriate when a party establishes that there is no genuine
issue as to any material fact). Accordingly, the trial court appropriately granted summary
judgment.
I N C ONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against Appellants.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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