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Travis v. Ferraraccio9/19/2005
Dr. Krendel conceded during his deposition that he did not know the nearest facility where Mr. Travis could have obtained an MRI scan in 1996. While he claimed to have seen information regarding the number of hospitals and physicians in Clarksville, he admitted that he could not remember it. He was aware of Clarksville's population, but only because the Travises' lawyer had reminded him of it immediately before the deposition. Most significantly, Dr. Krendel testified that none of the information he had seen regarding Clarksville was material to him in forming his opinion regarding the standard of care applicable to Dr. Ferraraccio.
When asked to state more specifically the basis for his testimony regarding the applicable standard of care, Dr. Krnedel said that he had taught at Emory University Medical School in Atlanta for fifteen years and that during that time he had done consultations for neurologists all over the region, including Tennessee and small towns in Georgia. He stated that he had reviewed medical records and notes from neurologists in those places and that he was "very familiar with the standard of care in small towns in the region." He claimed that the standard of acceptable neurological practice in Clarksville at the time Mr. Travis was treated was the same as it would have been at Emory and that the minimum standard of acceptable neurological practice was the same nationwide.
Based on Dr. Krendel's testimony, Drs. Ely and Ferraraccio claimed that Dr. Krendel had failed to demonstrate that he was familiar with the minimum standard of acceptable professional practice in Clarksville or in similar communities and that he was instead relying on an impermissible national standard of care. Ms. Travis responded that Dr. Krendel had not based his opinions on a national standard of care but rather on the standard of care in Dalton, a community that is similar to Clarksville. She also provided the court with unsworn demographic information about Dalton that she believed substantiated her claim that Dalton and Clarksville were similar communities.
Based on this evidence, the trial court concluded that Dr. Krendel had failed to demonstrate that Dalton and Clarksville were similar communities and, even if he had, that there is nothing in the record to indicate that Dr. Krendel had applied the standard of care for Dalton in assessing the conduct of Drs. Ely and Ferraraccio. The trial court therefore held that Dr. Krendel's testimony was inadmissible and proceeded to grant a summary judgment to Drs. Ely and Ferraraccio.
Ms. Travis thereafter filed a Tenn. R. Civ. P. 59.04 motion to alter or amend this judgment. In support of her motion, Ms. Travis submitted an affidavit by Dr. Krendel. In this affidavit, Dr. Krendel stated that the demographic information regarding Dalton that had already been submitted to the court by Ms. Travis in her opposition to the summary judgment motion was accurate and that, based on this information, he had concluded that Dalton was substantially similar to Clarksville. The affidavit did not state that the conduct of Drs. Ely and Ferraraccio fell below the minimum standard of acceptable professional practice in Dalton. In their response to Ms. Travis's 59.04 motion, Drs. Ely and Ferraraccio argued that even if Dr. Krendel was familiar with the standard of care in Dalton, there was no indication that he applied it in evaluating the treatment they provided to Mr. Travis.
When the trial court considered Ms. Travis's Tenn. R. Civ. P. 59.04 motion, it noted that it would have been justified in refusing to consider Dr. Krendel's affidavit because Ms. Travis had failed to meet the requirements for the consideration of new evidence. Ho
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