Shipley v. Williams

• Decision Date: 11 August 2011
• Docket Number: No. M2007–01217–SC–R11–CV.,M2007–01217–SC–R11–CV.
• Citation: 350 S.W.3d 527
• Parties: Donna Faye SHIPLEY et al.v.Robin WILLIAMS.
• Court: Tennessee Supreme Court

350 S.W.3d 527

Donna Faye SHIPLEY et al.

v.Robin WILLIAMS.

No. M2007–01217–SC–R11–CV.

Supreme Court of Tennessee, at Nashville.

Oct. 6, 2010 Session.Aug. 11, 2011.

Wendy Lynne Longmire and Julie Bhattacharya Peak, Nashville, Tennessee, for the appellant, Robin Williams, M.D.Joe Bednarz, Sr., Nashville, Tennessee, and Steven R. Walker, Memphis, Tennessee, for the appellee, Donna Faye Shipley, individually and as next friend and surviving wife of Frank Shipley, deceased.

OPINION

SHARON G. LEE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, and GARY R. WADE, JJ., joined. WILLIAM C. KOCH, JR., J., filed a separate opinion concurring in part and dissenting in part. JANICE M. HOLDER, J., filed a separate concurring opinion.SHARON G. LEE, J.

In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn.Code Ann. § 29–26–115 (2000 & Supp.2010). Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define “similar community,” nor does it provide guidance as to how a community is determined to be “similar” to the defendant's community. In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court's exclusion of the claimant's two proffered medical experts under the locality rule was error. The trial court's grant of summary judgment is affirmed in part and vacated in part.

Factual and Procedural History

Dr. Robin Williams, a general surgeon, performed abdominal surgery on Donna Faye Shipley in January of 2001. Dr. Williams removed Mrs. Shipley's colon and a portion of her small intestine.¹ On Saturday, November 17, 2001, Mrs. Shipley called Dr. Williams complaining of abdominal pain and a sore throat. Dr. Williams told her to call and make an appointment for the following Tuesday and to call her back sooner if the pain worsened or Mrs. Shipley developed a fever. Mrs. Shipley called the next day, November 18, 2001, complaining of continued abdominal pain and a fever of 102 degrees. Dr. Williams told her to go to the emergency room, called the hospital to inform the emergency room staff that Mrs. Shipley was coming in, and requested that she be seen by an emergency room physician.

Dr. Leonard Walker saw Mrs. Shipley in the emergency room of Summit Medical Center in Nashville on Sunday, November 18, 2001. Dr. Walker took Mrs. Shipley's medical history, examined her, and ordered tests including a complete blood count, urinalysis, chest x-ray, serum amylase, blood alcohol test, and computed tomography (“CT”) scan to check for intra-abdominal abscess or gallstones. The tests revealed an elevated white blood cell count of approximately 21,000, low blood pressure, and a high pulse rate. Dr. Walker believed Mrs. Shipley was dehydrated and ordered an intravenous (“I.V.”) bag of fluid. Dr. Walker diagnosed her with abdominal pain of unclear origin and dehydration.

While Mrs. Shipley was still being treated at the emergency room, Dr. Walker called Dr. Williams and provided her with information about Mrs. Shipley's medical condition and test results. In his deposition, Dr. Walker testified as follows about that conversation:

I told her [Dr. Williams] I had a patient of hers here that I thought needed to be reexamined because she had abdominal pain that I couldn't explain. And I gave her all the patient's lab results, most importantly, her CT results, asked if she could be rechecked the next day. Based on her lab results and elevated white count, Dr. Williams thought she might have been significantly dehydrated and asked for [a] second bag of I.V. fluid and said she'd be glad to see her in the office.

Dr. Walker also stated that Mrs. Shipley “needed at least to be reexamined” and that it was his “understanding that she [Mrs. Shipley] would be seen by Dr. Williams the next day.” Dr. Walker reaffirmed in his affidavit that “it was agreed that Ms. Shipley would not be admitted to the hospital, but would seek follow-up care from Dr. Williams” and that “[i]t is my understanding that Ms. Shipley was going to see Dr. Williams the next day.”

Dr. Williams agreed in her deposition that “it was decided to hydrate her up and she would follow up in my office.” Dr. Williams noted that the discharge instructions given to Mrs. Shipley told her to “call Dr. Williams in the AM to arrange recheck and further care.” Dr. Williams said that it was her understanding that she would see Mrs. Shipley in her office on Tuesday, November 20, because Dr. Williams was not ordinarily in her office on Mondays. Later in her deposition, however, Dr. Williams testified that she understood that her medical assistant had arranged for Mrs. Shipley to be seen by her primary care physician, Dr. Lisa Long, on Wednesday, November 21.² Dr. Williams admitted that a white blood cell count of 21,000 in a patient with Mrs. Shipley's medical history was “a major concern to the physician caring for her.”

Mrs. Shipley alleges in her complaint that she called Dr. Williams' office several times to try to get follow-up care, but she was informed that Dr. Williams would not see her because it was a non-surgical matter. On the evening of November 21, 2001, Mrs. Shipley returned to the emergency room and was admitted in critical condition with a diagnosis of acute sepsis, pneumonia, hypotension, acute renal failure, and abdominal pain. In the course of her subsequent treatment, Mrs. Shipley suffered a debilitating stroke and other alleged permanent damage.

Mrs. Shipley filed this action against Drs. Walker and Williams and the hospital, alleging medical negligence in failure to admit her to the hospital on November 18, failure to properly assess and diagnose her condition, and failure to provide necessary medical treatment, including adequate follow-up care. The hospital and Dr. Walker filed motions for summary judgment that were unopposed by Mrs. Shipley. The trial court granted the hospital and Dr. Walker summary judgment and those rulings have not been appealed.

The remaining defendant, Dr. Williams, moved for partial summary judgment on the claim of negligent failure to admit to the hospital. In support of her motion, Dr. Williams relied upon the testimony of Mrs. Shipley's two medical experts—Dr. Stephen K. Rerych, a board-certified general surgeon who practices in Asheville, North Carolina, and Dr. Ronald A. Shaw, a physician board-certified in emergency medicine who practices in the Montgomery, Alabama, area. Drs. Rerych and Shaw testified to the effect that the treatment provided by Dr. Walker at the emergency room did not necessarily fall below the standard of care and that the appropriate standard of care, given Mrs. Shipley's medical condition, required either admission to the hospital on November 18 or a follow-up appointment and recheck the next day after her release on November 18. The trial court granted partial summary judgment to Dr. Williams on the failure to admit claim based on the testimony of Drs. Rerych and Shaw that the failure to admit did not necessarily result in a breach of the standard of care under the circumstances presented.

Dr. Shaw further testified that it is the responsibility of the consulting physician, in this case Dr. Williams, to make the decision whether to admit a patient and how to provide follow-up rechecking and medical care after consulting with the emergency room physician. Dr. Shaw stated that emergency room physicians generally suggest and assume that patients with abdominal pain are rechecked within 24 hours of discharge because of the possibility of the patient's condition rapidly worsening. Dr. Shaw testified that under Mrs. Shipley's circumstances, “it was incumbent on Dr. Williams to either examine the patient or—in her office or make some arrangements to be seen somewhere.”

Dr. Rerych testified that under the circumstances presented here, “the general surgeon's follow-up is absolutely imperative, and the follow-up in this case should have been done within 24 hours, no question about that.” Dr. Rerych stated that regarding the “general surgeon, who is now consulted and who has recommended that this patient come to the emergency room, then it's the general surgeon's responsibility to either admit the patient that day or see the patient the following day.” Dr. Rerych testified that given Mrs. Shipley's history of inflammatory bowel disease and surgery, “we must make sure that it isn't a problem with the bowel” and that there was a “need to have extreme vigilance, and you need to follow up on a patient like this.” Dr. Rerych concluded that “the bottom line was this patient should have been seen 24 hours after the discharge from the emergency room,” and that “clearly, in this case, there is a deviation from the standard of care.”

On December 1, 2006, Dr. Williams moved for disqualification of Drs. Rerych and Shaw and for full summary judgment. These motions were filed just over a month before trial and after the expiration of the expert disclosure deadline. ³ The trial court held that Drs. Rerych and Shaw “do not meet the requirements of Tenn.Code Ann. § 29–26–115 and will not substantially assist the trier of fact pursuant to Tenn. R. Evid. 702 and 703.” Specifically, the trial court ruled that Dr. Rerych “did not demonstrate familiarity with the standard of care for general surgeons in Nashville ... Nor did he demonstrate that Asheville, North Carolina is a similar community to Nashville, Tennessee.” As to Dr. Shaw, the trial court held that he ...