Scott v. Miller

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0849n.06
Filed: November 20, 2006
Case No. 05-6671/6754
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEVEN SCOTT, Surviving Husband of )
Elizabeth Suzanne Scott, Deceased, )
)
Plaintiff-Appellant (05-6671) ) ON APPEAL FROM THE
Plaintiff-Appellee (05-6754), ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
v. )
)
GEORGE M. MILLER, JR., M.D., )
GEORGE M. MILLER, JR., M.D., P.C., )
F/k/a BARIATRIC SURGERY CLINIC, )
P.C., and CENTENNIAL MEDICAL )
CENTER,
Defendants-Appellees (05-6671)
Defendants-Appellants (05-6754).
_______________________________________
BEFORE: BATCHELDER and MOORE, Circuit Judges; COHN,* District Judge.
AVERN COHN, District Judge. This is a medical malpractice case. Plaintiff, Steven
Scott, as surviving husband of Elizabeth Suzanne Scott, appeals from the district court’s
grant of summary judgment to defendants George M. Miller, Jr., M.D., and George M.
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation .
Miller, Jr., M.D., P.C. f/k/a Bariatric Surgery Clinic, P.C.1 Defendants appeal the denial
of their motion to permit discovery depositions of expert witnesses. The appeal raises
two issues: (1) whether plaintiff’s medical expert met the qualifications under the
Tennessee Medical Malpractice Act, Tenn. Code Ann. § 29-26-115(a)(1), with respect to
knowledge of the professional standard of care; and (2) whether the district court erred in
denying defendants’ motion to permit discovery. For the reasons that follow, we
REVERSE the district court’s summary judgment ruling and REMAND the case for
further proceedings, including a determination of whether depositions of the proposed
medical experts should be taken.
I.
A.
Suzanne Scott was a thirty-year-old woman who, on October 17, 2001, sought
consultation for gastric bypass surgery2 with Dr. George Miller.3 On November 15, 2001,
Dr. Miller performed laparoscopic Roux-en-Y gastric bypass weight loss surgery on Mrs.
Scott at Centennial Medical Center in Nashville, Tennessee. Plaintiff alleges, inter alia,
1
Initially, plaintiff also sued Centennial Medical Center. Plaintiff later dismissed it
as a defendant.
2
Gastric bypass is a procedure in which the majority of the stomach is cut off to create
a small pouch to permit only a small amount of food to be consumed and thereby induce
weight loss.
3
Plaintiff spent a good deal of time discussing Dr. Miller’s qualifications. As
defendants point out, Dr. Miller’s qualifications are not at issue.
2
that Dr. Miller failed to properly close Mrs. Scott’s bowels, leaving two leaks and causing
toxins to spread into her abdominal cavity. Defendants, however, maintain that a failure
to follow discharge instructions may have lead to the failure of the surgical bowel
connection and the development of leaks. In any event, Mrs. Scott remained in the
hospital for three days after the surgery during which time she complained of not feeling
well. Mrs. Scott was eventually discharged on a Sunday. By Monday night, Mrs. Scott
was quite ill, and was taken to the hospital and admitted for emergency surgery to repair
two large leaks. By that time, she had a massive infection. Mrs. Scott died eight days
later from sepsis.
B.
On November 5, 2004, plaintiff filed a medical malpractice complaint against
defendants 4 in federal court.
On January 21, 2005, the district court entered a Case Management Order which
stated in part:
In order to reduce the needless expenditure of time and expense,
there shall not be any discovery depositions taken of expert witnesses.
Local Rule 12(c)(6)(c) (effective March 1, 1994) relating to expert
witnesses shall apply in this action, and strict compliance is required.
On January 24, 2005, the district court entered Case Management Order No. 2
which said the following regarding expert witnesses:
4
Plaintiff previously filed a medical malpractice complaint in state court on November
13, 2002. Plaintiff voluntarily dismissed the case prior to expert witness disclosure.
3
Expert witness disclosures shall be made in accordance with Fed. R. Civ. P.
26(a)(2) or as has been otherwise ordered by the Court. No expert witness
shall testify beyond the scope of his or her expert witness disclosure. The
Court may exclude or strike testimony of an expert witness, or order other
sanctions provided by law, for violation of the expert witness disclosure
requirements.
On March 3, 2005, defendants filed a motion for summary judgment on the
grounds that plaintiff failed to make out a medical malpractice case under Tennessee law.
In response, plaintiff filed the affidavit of Jeffrey W. Allen, M.D., plaintiff’s medical
expert, who stated that he was familiar with the standard of care in Nashville, Tennessee
and that Dr. Miller failed to comply with that standard. Plaintiff, with permission from
the district court, filed a supplemental affidavit from Dr. Allen. Defendants then filed a
reply brief challenging Dr. Allen’s qualifications under Tennessee’s Medical Malpractice
statute based on the supplemental affidavit.
On October 7, 2005, defendants filed a motion to permit the parties to conduct
discovery depositions of experts. On October 11, 2005, the district court denied the
motion, prior to receiving a response from plaintiff, essentially on the grounds that there
was no showing of need to deviate from the case management orders.
On October 18, 2005, the district court granted defendants’ motion for summary
judgment, holding that Dr. Allen failed to satisfy the “locality rule” under Tennessee’s
Medical Malpractice Act. Without this evidence, the district court held that plaintiff
failed to make out a case for medical malpractice and, as such, granted summary
judgment to defendants.
4
Plaintiff appeals the district court’s summary judgment decision. Defendants cross
appeal the denial of their motion for discovery depositions.
II.
A.
1.
The first issue on appeal is the district court’s summary judgment ruling which we
review de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000). Summary
judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
Defendants, however, argue that the standard of review is an abuse of discretion.
Defendants say that because the district court’s summary judgment ruling was based on a
factual finding that Dr. Allen was not qualified as an expert under Tennessee law it was
essentially an evidentiary ruling. We disagree. The district court’s summary judgment
decision rested on the finding that Dr. Allen’s affidavit was insufficient as a matter of
law, i.e. there was no genuine issue as to a material fact regarding whether Dr. Allen
satisfied the requirements of Tennessee law. Although the issue has evidentiary
overtones, the appropriate standard of review of the district court’s decision is de novo
because the issue was resolved in the context of summary judgment.
5
2.
a.
Tenn. Code Ann. § 29-26-115(a) sets forth a plaintiff’s burden in a medical
malpractice action, providing:
(a) In a malpractice action, the claimant shall have the burden of proving by
evidence as provided by subsection (b):
(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 he 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
(3) As a proximate result of the defendant's negligent act or omission, the
plaintiff suffered injuries which would not otherwise have occurred.
Subsection (a)(1) is commonly referred to as the “locality rule,” which requires that a
“medical expert relied upon by the plaintiff must have knowledge of the standard of
professional care in the defendant's applicable community or knowledge of the standard
of professional care in a community that is shown to be similar to the defendant's
community.” Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002) (emphasis added).
Case law has further shaped the contours of the locality rule.5 In Kenyon v.
Handal, 122 S.W.3d 743, 761-62 (Tenn. Ct. App. 2003), the Tennessee Court of Appeals
explained:
5
It is worth noting that the majority of the cases cited by the parties concern the
exclusion of a plaintiff’s medical expert’s testimony, either at deposition or at trial, not the
dismissal of a medical malpractice action on summary judgment for failure of the expert to
satisfy the locality rule.
6
The expert is not required to be familiar with all the medical
statistics of the community where the physician practices. Ledford v.
Moskowitz, 742 S.W.2d 645, 648 (Tenn. Ct. App. 1987). However, the
expert must go further than simply asserting that he or she is familiar with
the applicable standard of care. Mabon v. Jackson-Madison County Gen.
Hosp., 968 S.W.2d at 831. The expert must present facts demonstrating
how he or she has knowledge of the applicable standard of professional care
either in the community in which the defendant physician practices or in a
similar community. Spangler v. East Tenn. Baptist Hosp., No.
E1999-01501-COA-R3-CV, 2000 WL 222543, at *1-2 (Tenn. Ct. App. Feb.
28, 2000) perm. app. denied (Tenn. Sept. 11, 2000).
For the purpose of Tenn. Code Ann. § 29-26-115(a), the only
relevant “community” is the community in which the defendant physician
actually practices or in a similar community. Tilley v. Bindra, No.
W2001-01157-COA-R3-CV, 2002 WL 1000196, at *4-5 (Tenn. Ct. App.
May 13, 2002) perm. app. denied (Tenn. Nov. 4, 2002). Accordingly, the
courts have held that medical experts testifying for a patient in a medical
malpractice case may not base their testimony solely on their familiarity
with a national standard of professional practice. Robinson v. LeCorps, 83
S.W.3d at 724; Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d
at 831. We have likewise rejected expert testimony based on a state-wide
standard of professional practice, Totty v. Thompson, 121 S.W.3d at 678-79;
Tilley v. Bindra, 2002 WL 1000196, at *4 (holding that the relevant
standard of professional practice is not a nationwide or even a statewide
standard of care), as well as testimony premised on a regional standard of
professional practice. Howell v. Baptist Hosp., 2003 WL 112762, at *8
(holding that an affiant's assertion of familiarity with the applicable
standard of professional practice in “Middle Tennessee” did not provide a
basis for testifying regarding the standard of professional practice in
Nashville).
In Kenyon, the court of appeals found that the plaintiff’s medical expert’s affidavit failed
to satisfy the locality rule because
it does not contain sufficient facts to demonstrate that Dr. Kumar's opinion
regarding the applicable standard of professional practice is based either on
his familiarity with the applicable standard of professional practice in
Gallatin or Sumner County or on his knowledge of the applicable standard
of professional practice in a community similar to Gallatin or Sumner
7
County. Nothing in Dr. Kumar's affidavit indicates that he has any personal
knowledge of the practice of obstetrics and gynecology in Gallatin or
Sumner County. Accordingly, he can comply with Tenn.Code Ann. §
29-26-115(a)(1) only by demonstrating that he knows the applicable
standard of professional practice in a community that is similar to Gallatin
or Sumner County.
Dr. Kumar does not assert that Douglasville, Georgia where he
practices is similar to Gallatin or Sumner County. He bases his familiarity
with the applicable standard of care of an obstetrician in January 1998 at the
Sumner Regional Medical Center in Gallatin on his conclusion that the
standards of professional practice in the State of Georgia are the same as
those in the State of Tennessee. Generalizations regarding the similarity of
the standards of professional care in two contiguous states are not specific
enough information to demonstrate that a medical practitioner is qualified
under the locality rule to render an opinion in a medical malpractice case.
Id. at 762.
Defendants rely heavily on Mabon v. Jackson-Madison County Gen. Hosp., 968
S.W.2d 826 (Tenn. Ct. App. 1997), implying that the Tennessee Court of Appeals created
a sort of “checklist” for demonstrating familiarity with the standard of care. Defendants
listed several “facts” taken from Mabon which they say an expert must provide in order to
satisfy the locality rule, which include: (1) visiting the defendant’s city; (2) knowing
where the city is located; (3) knowing the population of the city; (4) knowing an
individual in that city; (5) knowing physicians in the city; (6) knowing the number of
physicians in the city; (7) knowing the number of hospitals in the city; (8) knowing the
size of the hospital of where the care at issue was provided; (9) knowing the number of
beds in the hospital; (10) knowing the medical specialities available in the hospital; (11)
treating a patient from the city; (12) reviewing medical records from the city; (13)
8
knowing information about medical schools in the city; (14) knowing whether teaching
hospitals are in the city; and (15) knowing information about colleges and universities in
the city.
Defendants’ reading of Mabon is misplaced. The court in Mabon did not suggest
that the above items are required to establish familiarity with the standard of care.
Indeed, defendants’ list is taken from the court’s discussion of the plaintiff’s proposed
expert’s deposition testimony where he was cross-examined as to each of these items of
his knowledge and he eventually admitted to not having knowledge of the relevant
medical community. Furthermore, in Mabon, the plaintiff’s expert testified that his
opinion was based on a national standard of care, which was the crux of the court of
appeals’ decision affirming the district court’s exclusion of his testimony. The case did
not turn on the expert’s failure to confirm his knowledge to a predetermined set of facts.
Plaintiff cites Hunter v. Ura, 163 S.W.3d 686 (Tenn. 2005), in which the
Tennessee Supreme Court considered whether a plaintiff’s expert physician satisfied the
locality rule and was properly allowed to testify at trial. The court held that the expert
was qualified, explaining:
Dr. Witt was a board-certified anesthesiologist who had practiced in Lexington,
Kentucky since 1980. Dr. Witt testified that he was involved with the Academic
Association of Anesthesia Program Directors, which was an organization “with
people from Vanderbilt, from Lexington, and the surrounding area.” Dr. Witt had
attended a meeting of the Southern University Department of Anesthesia Chairs at
Vanderbilt in Nashville, Tennessee. Dr. Witt stated that he had been to Nashville
six or seven times, that he knew the Chair at Vanderbilt's anesthesia department
very well, and that he was “familiar, in a regional setting, [with] the general kinds
9
of care offered [ ] in Lexington as well as in Nashville.” Dr. Witt discussed several
hospitals in Nashville and stated that the standard of professional care in this case
“would be approximately the same as what we would see at some of the hospitals
where I have been in Nashville.”
Id. at 708.
Finally, in Sommer v. Davis, 317 F.3d 686 (6th Cir. 2003), a panel of this Court
considered Tennessee’s locality rule and held that the district court did not abuse its
discretion in striking a plaintiff’s proposed expert’s testimony following a hearing and
sua sponte granting summary judgment to defendant. In Sommer, the panel noted that the
physician’s acknowledgment that he did not “know any of the characteristics of the
Nashville medical community” at the time of plaintiff’s surgery pointed in favor of not
finding an abuse of discretion. Id. at 695.
b.
Turning to this case, plaintiff submitted an affidavit and supplemental affidavit of
Dr. Allen. Plaintiff also submitted Dr. Allen’s credentials and his curriculum vitae.
Attached to the supplemental affidavit was Dr. Allen’s Rule 26 report. As to his
familiarity with the standard of care, Dr. Allen stated that he was familiar both with the
standard of care in Nashville, Tennessee and in Louisville, Kentucky, which he stated was
a similar community to Nashville. His Rule 26 report states in part:
My practice is in Louisville, Kentucky. Louisville has a medical
community that is very similar to the medical community in Nashville,
Tennessee. While Louisville is smaller than Nashville, both cities have
multiple hospitals, both have respected medical schools, and doctors in the
both communities have equal access to medical educational opportunities,
10
state of the art medical equipment, consulting and proctoring physicians for
advice and training, and medical information in general. Additionally, there
are many surgeons in Nashville, Tennessee who perform laparoscopic
Roux-en-Y gastric bypass procedures and these surgeons follow up as I do
in Louisville, Kentucky. In short, the doctors in Nashville, Tennessee who
comply with the standard of care, perform laparoscopic Roux-en-Y gastric
bypass surgery the same way I do in Louisville, Kentucky. Centennial
Medical Center, at which Dr. Miller was working at the time he operated on
Mrs. Scott, has access to the same quality medical equipment that I have at
Norton Hospital, the hospital where I do the majority of my work. In
addition to my Kentucky licensure, I am licensed in a number of other states
- including Tennessee. I have lectured about gastric bypass surgery in
Nashville to physicians practicing there; and I have proctored numerous
surgeries in communities similar to Nashville. I am familiar with the
standard of care in Nashville, Tennessee and similar communities that
governs the conduct of doctors like Dr. Miller and me when we perform
Roux-en-Y gastric bypass procedures and provide medical care following
these procedures.
The district court granted summary judgment to defendants upon finding that Dr.
Allen’s affidavit failed to comply with the locality rule. The district court stated:
Dr. Allen’s affidavit lacks a sufficient factual showing of his
knowledge of the recognized standard of acceptable professional practice in
Nashville or a medical community similar to Nashville. Dr. Allens’s [sic]
affidavit is also too conclusory to establish his familiarity with this
particular speciality. Dr. Allen makes the conclusory statement that
“doctors in both communities have equal access to ... state of the art
equipment, consulting and proctoring physicians for advice and training and
medical information in general.” Dr. Allen, however, does not provide any
knowledge of “state of the art equipment” for this practice in Nashville. Dr.
Allen does not state that he has performed surgeries or supervised surgeries
in Nashville, nor does Dr. Allen identify these “similar communities” where
he has proctored surgeries.
To comply with Tennessee law, Plaintiff’s expert must offer more
specific facts of his knowledge [sic] the identity of the relevant physicians
in the Nashville area and their methods and practices of surgeons in
Nashville during the relevant time period. Without such facts or data, the
Court cannot conclude whether there is a sufficient predicate to establish
11
the relevant community standard under Tennessee law. Dr. Allen’s
affidavit describes a regional or international standard of care and such a
standard does not meet the requirements of Tenn. Code Ann. § 29-26-
115(a)(1).
For these reasons, the Court concludes that Dr. Allen is not a
qualified expert under Tennessee law and without a qualified expert, the
Plaintiff’s proof fails to support a judgment on his claims. Thus, the
Defendants’ motion for summary judgment should be granted.
JA at p. 164-65.
We disagree with the district court’s interpretation of Dr. Allen’s knowledge of the
standard of care. Dr. Allen states he is a board certified surgeon with extensive
experience in performing, proctoring, and lecturing about gastric bypass procedures. He
travels in the Southeastern United States where he comes into contact with physicians
from Nashville. He states he is familiar with the standard of care in Nashville and notes
the similarities between Nashville and Louisville in terms of having multiple hospitals,
respected medical schools, access to medical information, state of the art equipment, and
consulting physicians. In our view, this evidence is sufficient to satisfy the locality rule
under Tennessee law. Contrary to the district court’s interpretation, we do not find that
Tennessee law, as set forth above, imposes specific requirements such as identifying what
“state of the art equipment” exists in Nashville. While in order to satisfy the locality rule,
a medical expert must offer “facts” to support his or her knowledge of the standard of
care, Dr. Allen’s supplemental affidavit did set forth such facts. This is not a case where
the expert is wholly unfamiliar with the locality where the defendant-physician practices
or fails to explain a similar community. In other words, it is a case like Hunter, not
12
Kenyon, Mabon, or Sommers. Dr. Allen expressed knowledge of the Nashville standard
of care and the standard of care in a similar community (Louisville) in sufficient detail in
his affidavits and Rule 26 Report. We find that Dr. Allen’s supplemental affidavit
satisfies the requirements of the locality rule under Tenn. Code Ann. § 29-26-115(a)(1).
As such, plaintiff provided evidence sufficient to survive summary judgment. See Wilson
v. Patterson, 73 S.W.3d 95, 105 (Tenn. Ct. App. 2001) (holding that the expert’s
statement that “the Lexington, Kentucky area is a similar area to Memphis, Tennessee
with regard to the standard of care of acceptable professional medical practice in the field
of obstetrics and gynecology and in regard to the medical services provided in this area.
Both Lexington, Kentucky and Memphis, Tennessee are regional medical centers and are
the locations of their state medical schools” although meager, was sufficient to withstand
summary judgment).
B.
The next issue on appeal is the district court’s denial of defendants’ motion to
permit discovery depositions which is reviewed for an abuse of discretion. See Coleman
v. American Red Cross, 23 F.3d 1091 (6th Cir. 1994). In light of finding that the district
court erred in granting summary judgment to defendants, we believe the better course is
to remand the matter to the district court to consider whether, notwithstanding the local
rule to the contrary, expert depositions are appropriate under the circumstances.
13
III.
For the reasons stated above, the decision of the district court is REVERSED and
the case is REMANDED for further proceedings consistent with this opinion.
14
ALICE M. BATCHELDER, Circuit Judge, concurring. I agree with the lead
opinion that we must reverse the district court’s grant of summary judgment and
remand the case for further proceedings; however, I disagree with its reasoning in
reaching this result. Specifically, I object to the opinion’s finding that the evidence
provided in Dr. Allen’s affidavit satisfied Tennessee’s locality rule for medical experts.
See Tenn. Code Ann. § 29-26-115(a)(1).
Tennessee’s locality rule requires a medical expert witness to show either that
(1) she practices in the same community as the defendant or (2) she practices in a
community similar to that in which the defendant practices. Id. Dr. Allen’s affidavit is
insufficient to show that he is familiar with the standard of care in Nashville, Tennessee,
where Dr. Miller practiced. While he states that he has lectured in Nashville and has
read articles written by Nashville physicians, he does not provide any detail of these
educational endeavors or indicate how these experiences demonstrate his knowledge
of the standard of care in Nashville. Moreover, Dr. Allen’s statements do not establish
that Louisville, Kentucky -- the community in which he practices -- is similar to Nashville,
Tennessee. While he states that both cities have multiple hospitals, respected medical
schools, and equal access to medical information and equipment, he fails to support
these generalized statements with statistics, and such bald assertions are insufficient to
satisfy the locality rule. See, e.g., Bravo v. Sumner Reg’l Health Sys., Inc., 148 S.W.3d
357, 368-69 (Tenn. Ct. App. 2003) (finding that the locality rule was satisfied where the
medical expert produced statistical evidence establishing the similarity between two
cities). As interpreted by Tennessee courts, the locality rule sets a more exacting
15
evidentiary standard than was satisfied by Dr. Allen’s affidavit in this case. See Roberts
v. Bicknell, 73 S.W.3d 106, 113 (Tenn. Ct. App. 2001) (noting that an expert must do
more than recite the language of the statute to show familiarity with a similar
community). Consequently, I cannot agree with my colleagues that the locality rule was
satisfied in this case.
While I would not find that Dr. Allen’s affidavit standing alone was sufficient to
satisfy the locality rule, I would certainly conclude that it contained enough evidence to
create a genuine issue of material fact on the issues of whether he was familiar with the
standard of care in Nashville and whether Louisville was a community similar to
Nashville. See, e.g., Wilson v. Patterson, 73 S.W.3d 95, 105 (Tenn. Ct. App. 2001)
(finding that “meager” evidence which demonstrated the similarity between two cities
was “sufficient to withstand attack at the summary judgment stage of the proceeding”).
The affidavit was thus sufficient to survive a motion for summary judgment, and the
district court erred in granting the defendants’ motion. The generalized statements in
Dr. Allen’s affidavit could have been further developed during his deposition or trial
testimony, and the parties should have been afforded this opportunity.
I also disagree with the lead opinion’s implicit conclusion that Local Rule 12 of
the United States District Court for the Middle District of Tennessee permits the district
court to preclude the taking of depositions of medical experts. Under that rule, the
judge “may require that the direct testimony of an expert witness, other than a medical
expert, be reduced to writing” and “read . . . to the trier of facts.” M.D. TENN . LOC . R.
12(c)(6)(C). The express language of this rule exempts medical experts from its
16
requirements. I therefore would hold that the district court erred in applying Local Rule
12(c)(6)(C) to prohibit the defendants’ deposition of Dr. Allen.
Despite disagreeing with the analysis of the lead opinion, I concur in the
opinion’s conclusion that the district court’s grant of summary judgment should be
reversed and the case remanded for further proceedings.
17