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Travis v. Ferraraccio9/19/2005
Tenn. Code Ann. § 29- 26-115(a)(1) (Supp. 2004), that they were familiar with the recognized standard of professional practice applicable to Drs. Ely's and Ferraraccio's practices in Clarksville or in similar communities when they treated Mr. Travis in 1996.
Ms. Travis argued in response to the summary judgment motion that Drs. Krendel and Abrams were applying the standards of care in Dalton, Georgia and St. Joseph, Missouri which were similar to Clarksville and that neither Dr. Krendel nor Dr. Abrams was applying a national standard of care. The trial court determined that the deposition testimony of Drs. Krendel and Abrams, as well as the affidavit by Dr. Abrams, did not satisfy the requirements of Tenn. Code Ann. § 29-26- 115(a)(1) and that Ms. Travis would be unable to prove that Drs. Ely and Ferraraccio violated the applicable standard of professional conduct without this evidence. Accordingly, the court granted the summary judgment.
Ms. Travis filed a timely Tenn. R. Civ. P. 59.04 motion to alter or amend. She attached to her motion an affidavit from Dr. Krendel and a new affidavit from Dr. Abrams. In its memorandum opinion and subsequent order denying the motion, the trial court first observed that it would be justified in declining to consider these affidavits because Ms. Travis had failed to meet the requirements for the presentation of new evidence. Nevertheless, the trial court considered the affidavits. The court concluded that Dr. Krendel had still failed to demonstrate that Dalton and Clarksville were similar or that he had applied the standard of care in Dalton in assessing the conduct of Drs. Ely and Ferraraccio. The court also concluded that Dr. Abrams's second affidavit still failed to establish the similarity of St. Joseph and Clarksville in 1996 and noted that Dr. Abrams's second affidavit only reinforced the court's concern that Dr. Abrams's testimony was "inherently unreliable."
The trial court designated its order granting the motion for summary judgment as final under Tenn. R. Civ. P. 54.02. Ms. Travis perfected an appeal from the order dismissing her claims against Drs. Ely and Ferraraccio and their employer and raises two arguments. First, she asserts that the trial court erred by declining to consider the supplemental affidavits submitted by Drs. Krendel and Abrams. Second, she insists that the trial court erred by excluding the testimony of Drs. Krendel and Abrams regarding the acceptable standard of professional practice applicable to Drs. Ely and Ferraraccio. We have determined that Ms. Travis's first argument is without merit because the trial court's order denying her Tenn. R. App. P. 59.04 motion clearly reflects that the trial court actually considered the supplemental affidavits submitted by Drs. Krendel and Abrams. We have also determined that the trial court correctly excluded Dr. Krendel's testimony but erred by excluding Dr. Abrams's testimony.
II. Evidentiary Standards for Medical Malpractice Claims
Medical malpractice claims must meet strict substantive and procedural requirements. Hessmer v. Miranda, 138 S.W.3d 241, 244 (Tenn. Ct. App. 2003). Subject to the "common knowledge" exception that is inapplicable here, a plaintiff filing a medical malpractice action cannot recover unless he or she presents competent expert evidence establishing each of the three statutory elements of a medical malpractice claim. Tenn. Code Ann. § 29-26-115; Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn. 1999). Specifically, the plaintiff must present expert evidence: (1) establishing the applicable standard of care; (2) demonstrating that the defendant's conduct fell below that standard of care; and (3) showing that th
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