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Travis v. Ferraraccio9/19/2005
rams's affidavit showed at best that St. Joseph and Clarksville were similar in 2000, rather than in 1996 when Drs. Ely and Ferraraccio treated Mr. Travis.
Ms. Travis filed another affidavit by Dr. Abrams in support of her motion to alter or amend the summary judgment. This second affidavit reiterated Dr. Abrams's earlier claim that he was familiar with the professional standard of care in neurology in St. Joseph in 1996 because of referrals he had received from physicians there and because of his attendance at medical seminars and meetings where he discussed the standard of care in St. Joseph with physicians who practiced there. He also attempted to bolster his claim that Clarksville and St. Joseph were similar communities in 1996 by attaching several exhibits to his affidavit, including population statistics for St. Joseph between 1990 and 2000.
In their opposition to Ms. Travis's motion to alter or amend the summary judgment, Drs. Ely and Ferraraccio asserted that Dr. Abrams's second affidavit was as unreliable as his first one. Following a hearing, the trial court found that Dr. Abrams's second affidavit only increased its concern that Dr. Abrams's testimony regarding the similarities between St. Joseph and Clarksville was "inherently unreliable." The court also found that, at most, Dr. Abrams's second affidavit established that St. Joseph and Clarksville were similar in 2000, rather than in 1996 when Mr. Travis was treated. Accordingly, the trial court denied the motion to alter or amend the judgment.
B.
While we have already concluded that the trial court did not err by excluding Dr. Krendel's testimony, Dr. Abrams's testimony is another matter entirely. The court excluded Dr. Abrams's testimony for two reasons. First, the court determined that Dr. Abrams's conclusion that St. Joseph and Clarksville were similar communities was "inherently unreliable" because of his earlier concession that he was unaware of the actual standard of acceptable professional practice in neurology in Clarksville. Second, the court determined that the demographic and statistical information upon which Dr. Abrams relied failed to establish that St. Joseph and Clarksville were similar in 1996.
The trial court's analysis with regard to its first reason is flawed. Tenn. Code Ann. § 29-26-115 does not require a plaintiff's expert to be familiar with the standard of acceptable professional practice in the defendant's own community in order to be able to testify as to the applicable standard of care. Instead, Tenn. Code Ann. § 29- 26-115(a)(1) provides that in order to prevail on a claim for medical malpractice, the plaintiff must prove, by expert evidence, the recognized standard of acceptable professional practice "in the community in which the defendant practices or in a similar community." (emphasis added). By requiring the plaintiff's expert to establish familiarity with the standard of care in the defendant's actual community as a prerequisite to allowing the expert to testify that he was familiar with the standard of care in a community similar to that of the defendants, the trial court essentially deleted from the statute the five words italicized in the preceding quote.
To be sure, a plaintiff who chooses to meet his or her burden of proof by establishing the standard of acceptable professional practice in a similar community "necessarily must prove that community is similar to the one in which the defendant practices." Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d at 831; Roberts v. Bicknell, 73 S.W.3d 106, 113 (Tenn. Ct. App. 2001). This court has stated on several occasions that a plaintiff's expert can establish that a community with which he or
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