FRANK G. CLEMENT, JR., J., delivered the opinion of the Court, in which PATRICIA J. COTTRELL, P.J., M.S., and RICHARD H. DINKINS, J., joined.
In this medical malpractice and wrongful death action, the plaintiff alleges the defendant physician, a urologist, failed to timely diagnose and treat the decedent's bladder cancer which caused his death. At the close of the plaintiff's case in chief, the defendant moved for a directed verdict. The trial court held that the plaintiff's only medical expert witness erroneously defined the standard of care and, upon that basis, excluded his testimony concerning the standard of care and breach thereof. With the exclusion of the plaintiff's only expert testimony, the trial court held that the plaintiff failed to establish a prima facie case for medical malpractice and granted the motion for a directed verdict. We have determined the plaintiff's medical expert did not erroneously identify the standard of care, he is competent to testify and, thus, the trial court erred in excluding his testimony and directing a verdict in favor of the defendant. We, therefore, reverse and remand for a new trial.
Bob Griffith was diagnosed with a "low grade transitional cell bladder tumor" in late 2002, at the age of 56. In April 2004, Mr. Griffith came under the care of Dr. Stephen Goryl ("Dr. Goryl" or "Defendant"), a board-certified urological surgeon practicing in Cookeville, Tennessee, at Upper Cumberland Urology Associates, P.C. ("UCUA"). Mr. Griffith's health severely deteriorated under Dr. Goryl's care, and in September 2006, Dr. Goryl referred Mr. Griffith to Vanderbilt University Medical Center. Doctors at Vanderbilt diagnosed Mr. Griffith with "invasive high grade urthelial carcinoma" with metastasis to the lymph nodes, which Dr. Goryl had not detected.
Mr. Griffith and his wife, Brenda Griffith, commenced this action against Dr. Goryl on October 18, 2007, in the Putnam County Circuit Court.
Three years later, on November 14, 2011, the case against Dr. Goryl went to trial. The only medical expert witness identified by Plaintiff in pre-trial discovery was Dr. James Gilbert Foster, Jr. ("Dr. Foster"), a board-certified urologist and surgical oncologist who practiced in Atlanta. Prior to testifying before the jury, Dr. Foster was questioned by defense counsel regarding his competency. After answering numerous questions regarding his competency to testify as an expert witness concerning the matters at issue, Dr. Foster testified as follows with regard to Dr. Goryl's treatment of Mr. Griffith:
Following voir dire of Dr. Foster, defense counsel moved to exclude Dr. Foster from testifying on the ground he was not familiar with the standard of care applicable to urologists practicing in Cookeville, Tennessee, from 2004-2006. The trial court denied Defendant's motion, and Plaintiff proceeded with her case-in-chief by calling Dr. Foster to the witness stand.
Upon direct examination, Dr. Foster first reiterated his medical qualifications, including that he was a board-certified urologist and had over thirty years of experience. He was licensed and certified in the same specialty as Dr. Goryl, and practiced in Atlanta, Georgia from 2004 to 2006. Dr. Foster earned his medical degree at Emory University School of Medicine in 1973. He was a general surgery resident at Vanderbilt University affiliated hospitals from 1973-1975 in preparation for his urology specialization, which he completed at Emory University in 1978. He testified that he had been an actively practicing, board-certified urologist since 1980. He is a member of several national and regional medical associations, and has been on the clinical teaching staff of Emory University for over fifteen years. He testified that he has treated between three and four hundred bladder cancer patients during his career.
Dr. Foster testified that he was familiar with the standard of care in Cookeville, Tennessee, during the time period between
Dr. Foster testified at length about how bladder cancer, if detected while superficial, is a highly treatable form of cancer with a 98% five-year survival rate. He further testified that after a tumor is removed, the patient must be under active surveillance for recurrences, and he explained the various tests and tools available for such surveillance. Specifically, he testified that once a tumor is removed from the bladder, the patient must be "cystoscoped" every three months for the first year, then once every six months for the second year, then once a year for the rest of the patient's life.
If any cancerous growth is detected during the cystoscope, Dr. Foster explained, "you need to note where it is, how big it is and you got to plan how you are going to get rid of it." Removal is most commonly done by "resecting" the tumor, a procedure performed while the patient is under general anesthesia wherein a resectoscope, a C-shaped electrical wire, is inserted through the urethra, and is used to "lift up the surface of the bladder and remove the tumor." Dr. Foster testified that it is important to remove the tumor as well as some healthy tissue beneath the tumor for a biopsy, "because the pathologist needs to see what the grade is and what the stage is and whether its invasive." Specifically, he stated, "you want to get some lining of the bladder around the cancer" and that, particularly in patients who have had multiple recurrences, it is important to get some muscle tissue for the biopsy to "prove that it's not penetrated ... deeper than you think it has." He explained that if cancer "gets into the muscle, it's a much more dangerous problem, because if it gets to the muscle, it tends to be more aggressive and it grows faster and it can get outside the lining of the bladder — outside the bladder and be a very lethal cancer."
Dr. Foster specifically testified that Dr. Goryl did not cystoscope Mr. Griffith's bladder between August 2005 and February 2006, a period of more than six months and a critical time period in Mr. Griffith's case. Dr. Foster testified that the standard of care required Dr. Goryl to perform a cystoscopy at least one more time in 2005, particularly given the fact that Mr. Griffith had several recurrences prior to August 2005 as well as several rounds of Mytomycin and BCG (Bacillus Calmette-Guerin), which are both forms of chemotherapy applied directly to the bladder after a resection to kill off any loose cancer cells to help prevent recurrences.
Dr. Foster testified that, according to Dr. Goryl's notes, during the February 2006 cystoscope, Dr. Goryl observed several "necrotic tumors," or tumors that have some dead tissue, on Mr. Griffith's bladder.
Three months later, Mr. Griffith began "voiding," or urinating, pure blood. Dr. Goryl checked him back into the hospital to observe the bladder while Mr. Griffith was under anaesthesia. Dr. Goryl observed bleeding in the dome of Mr. Griffith's bladder, the area where Mr. Griffith had repeated recurrences. He did remove some tissue for a biopsy, but Dr. Foster reviewed the pathology report, and testified that the tissue removal was not "deep enough ... to even see cancer," and that "knowing what you know about this patient, this pathology report doesn't tell you anything."
Dr. Goryl examined Mr. Griffith once more, in September 2006, before referring him to Vanderbilt Medical Center. Dr. Goryl's notes from that procedure state that Mr. Griffith's bladder looked "red and angry" and there were large areas "sloughing of tissue" but the notes contain no mention of cancer. In October 2006, Dr. Cookson at Vanderbilt performed another cystoscopy on Mr. Griffith as well as a CAT scan, which revealed a 4.9 by 3.9 centimeter mass projecting from the dome of the bladder, and which also revealed that cancer had spread to multiple lymph nodes. Dr. Cookson diagnosed the cancer as Stage 4, which is not curable.
Dr. Foster concluded that Dr. Goryl breached the standard of care by not ruling out the possibility that Mr. Griffith's repeated recurrences, in the same location, were in fact due to an aggressive and dangerous cancer. He testified that there were several ways Dr. Goryl could have
During cross examination, Defendant questioned Dr. Foster regarding his opinions on the standard of care and whether it had been breached by Dr. Goryl. In particular, Dr. Foster was asked his opinion on the requirement for CT scans or other types of "imaging studies":
Plaintiff called several other witnesses to testify; however, Dr. Foster provided the only expert medical proof. Dr. Goryl's deposition was not introduced into evidence and he was not called as an expert witness. At the close of Plaintiff's proof, Defendant moved the court for peremptory instructions and a directed verdict pursuant to Rule 50 of the Tennessee Rules of Civil Procedure. Defendant argued Dr. Foster was not competent to opine as to the applicable standard of care and whether Dr. Goryl breached that standard in diagnosing and treating Mr. Griffith. Moreover, because expert testimony is required to establish the elements of a medical malpractice claim pursuant to Tennessee Code Annotated § 29-26-115 and Dr. Foster was Plaintiff's only proffered medical expert, Plaintiff failed to provide sufficient proof to establish a prima facie case of medical malpractice.
The trial court granted Defendant's motion on November 17, 2011. In the final order, the trial court held:
Although the legal nuances at issue are anything but simple, the dispositive factor, or phrase, at issue here is whether the inclusion of three words — "the majority of" — in response to one question that pertained to the failure of Dr. Goryl to get imaging studies renders all of Dr. Foster's testimony inadmissible.
Tennessee Code Annotated § 29-26-115 provides the essential elements of a medical malpractice claim
Part (1)(a), known as the "locality rule," requires the plaintiff to "show that the defendant failed to act with ordinary and reasonable care when compared to the customs or practices of physicians from a particular geographic region," namely, "`the community in which [the defendant] practices or in a similar community.'" Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn.
In Shipley v. Williams, 350 S.W.3d 527 (Tenn.2011), the Tennessee Supreme Court discusses in detail the relationship between the two subsections of this statute and how courts should handle challenges to the competency of a plaintiff's proffered expert witness. The court stated:
Shipley, 350 S.W.3d at 550-51 (other internal citations omitted) (emphasis in original).
As further discussed at length in Shipley, a frequently litigated issue in medical malpractice claims is whether a medical expert who is qualified under subsection (b) can overcome the evidentiary hurdles in Rules 702 and 703. See id. at 538. The Shipley court took great pains to clarify the evidentiary standards:
Id. at 552.
This court reviews a trial court's decision regarding expert witness competency
Turning to the case at bar, it is undisputed that Dr. Foster meets the requirements for competency set forth in Tennessee Code Annotated § 29-26-115(b), in that he was licensed and certified in the same specialty as Dr. Goryl, and practicing in Atlanta, Georgia from 2004 to 2006. Dr. Foster's expertise in the field of urology is also unquestioned. He earned his medical degree at Emory University School of Medicine in 1973. He was a general surgery resident at Vanderbilt University affiliated hospitals from 1973-1975 in preparation for his urology specialization, which he completed at Emory University in 1978. He testified that he had been an actively practicing, board-certified urologist since 1980. He is a member of several national and regional medical associations, and has been on the clinical teaching staff of Emory University for over fifteen years. He testified that he has treated between three and four hundred bladder cancer patients during his career.
Moreover, Dr. Foster specifically testified that he was familiar with the standard of care in Cookeville, Tennessee, during the time period between 2004 and 2006. Thus, to resolve the question of whether the jury should have been permitted to consider Dr. Foster's testimony, we must determine whether "the facts or data" underlying Dr. Foster's testimony "indicate [a] lack of trustworthiness." Tenn. R. Evid. 703; see also Shipley, 350 S.W.3d at 551.
In his affidavit dated November 16, 2011, Dr. Foster stated:
During an April 9, 2010 deposition, Dr. Foster testified that he had reviewed a document providing statistical information about Cookeville, Tennessee, and Putnam County, including information about its population, labor force, and employment and unemployment rates. During Defendant's voir dire of Dr. Foster at the November 14, 2011 hearing, Dr. Foster testified to the following:
Dr. Foster also testified that, due to his residency at Vanderbilt University, he knew "a good bit" about Tennessee, and had trained several doctors who went on to practice in Tennessee.
During his direct examination, Dr. Foster further testified:
Dr. Foster also explained that the hospital he was affiliated with in Georgia had the same type of "cancer committee," and that he had previously served on that committee for years. He went on to state that he read Dr. Goryl's deposition for this case, and that he had reviewed information about Dr. Goryl's practice by viewing UCUA's website and learned that, "they have board certified urologists, I think three there. They have a pretty specialized nurse who's got a master's and does various specialties and I think she actually got her master's at Emory."
Furthermore, Dr. Foster testified that he had reviewed Mr. Griffith's medical records, and was familiar with the types of instruments, medicines, and procedures Dr. Goryl used in treating Mr. Griffith. He had also reviewed the information in Dr. Goryl's records about Dr. Spivey's treatment of Mr. Griffith, as well as Mr. Griffith's medical records from Vanderbilt.
Although Dr. Foster testified at length concerning the facts and data upon which he identified the standard of care Dr. Goryl should have employed in his care of the decedent, the trial court concluded that his testimony was wholly negated by Dr. Foster's use of the phrase "majority of well-trained physicians, urologists" in response to one question:
Certainly, as the trial court provided in its final order, our courts have rejected the idea that "what a majority of physicians would do" in a given case is equivalent to the standard of care. For example, in Hopper v. Tabor, No. 03A01-9801-CV-00049, 1998 WL 498211, at *1 (Tenn.Ct. App. Aug. 19, 1998), this court affirmed the trial court's decision to exclude the plaintiff's proffered medical expert from testifying where the proffered expert testified that he "can't be precise about" the applicable standard of care, but that, "to me, standard of care means doing those things which a majority of physicians in a community would consider to be reasonable medical care in that community." Id. at *3. The doctor in Hopper went on to testify:
Id. (emphasis added). The Hopper court found that, "what `a majority of physicians in a community would consider to be reasonable medical care in that community' is not the meaning of standard of care," and that, "[i]f this were the case, it would require a poll of physicians in a community to determine the standard of care." Id. The court concluded that the proffered expert's deposition testimony "does not satisfy the statutory requisite that the deponent be familiar with the standard of care in Johnson City, Tennessee, or similar communities." Id. We are in agreement with that determination but find it distinguishable from the facts of this case.
In Land v. Barnes, No. M2008-00191-COA-R3-CV, 2008 WL 4254155, at *5-6 (Tenn.Ct.App. Sept. 10, 2008), we affirmed the trial court's decision to exclude the opinion testimony of the plaintiff's proffered expert, a doctor practicing in Murray County, Georgia, regarding the standard of care for a nurse practitioner in Lincoln County, Tennessee. The court found that the plaintiff established Murray County, Georgia and Lincoln County, Tennessee, were "similar communities," under the locality rule, but that the expert was not qualified under Section -115(b), because the plaintiff failed to show that the expert's licensure (as a doctor) was relevant to the issues in the case (alleged malpractice by a nurse practitioner). Id. at *4. Specifically, the court noted that the doctor never testified that she was familiar with the standard of care for nurse practitioners, and furthermore, the "scope of ... permissible practice" for nurse practitioners differed greatly from Georgia to Tennessee, and the proffered expert repeatedly admitted she was not aware of the scope of practice for nurse practitioners in Tennessee. Id. at *5-6.
After discussing these striking deficiencies, the Land court went on to note that the plaintiff's expert could not base her expert opinion on the Tennessee hospital's internal protocol manual, and that "the reliability of her testimony" was further called into question by the following testimony:
Id. at *5-6. Based upon the foregoing, we are also in agreement with that determination but, again, find it distinguishable from the facts of this case.
Finally, in Godbee v. Dimick, 213 S.W.3d 865, 895 (Tenn.Ct.App.2006), the trial court excluded a portion of the plaintiff's proffered expert testimony in which the expert testified, "I am not certain if doing the approach that was taken would fall in the category of being a violation of the standard of care, but it would be a unique approach or a different approach than taken by the majority of people facing this type of clinical problem," and "I believe in my practice and in the practice of most spinal surgeons in Middle Tennessee that if ... one feels that a good surgery can be performed from one side that the generally accepted approach would be to approach it from the symptomatic side and not from the asymptomatic side." This court affirmed these exclusions on the grounds that "it is settled that the practice of the majority of physicians in a community is not analogous to the standard of care in a community." Id. at 896. Once again, we are in agreement with the court's conclusion but find the underlying facts distinguishable.
In each of these cases, the proffered expert admitted to not knowing the applicable standard of care, but then testified that he or she nonetheless believed the defendant breached the standard of care by failing to conform to the practices of the majority of doctors or, in Land, nurse practitioners. See Land, 2008 WL 4254155, at *4 (proffered expert admitted not knowing scope of practice of nurse practitioners in Tennessee); Godbee, 213 S.W.3d at 895 ("I am not certain if doing the approach that was taken would fall in the category of being a violation of the standard of care."); Hopper, 1998 WL 498211, at *3 ("I'm not specifically aware of the standard of care in Johnson City precisely.").
Dr. Foster, by contrast, repeatedly testified that he was aware of the standard of care for urologists practicing in Cookeville, Tennessee, from 2004-2006. Dr. Foster testified to what "the majority of well-trained physicians, urologists, in a case like this would do." (Emphasis added). The use of the phrase, "well-trained physicians, urologists" narrows the field considerably. More importantly, as discussed above, Dr. Foster provided a detailed explanation of the facts he relied upon in forming his opinion as to that standard. Dr. Foster's "somewhat inartful" response to a single question related specifically to imaging studies does not undermine the basis for his testimony or render his expert opinion untrustworthy. Cf. Wynn v. Hames, No. W2001-00269-COA-R3-CV, 2002 WL 1000268, at *6 (Tenn.Ct.App. May 13, 2002) (stating expert testimony, although "somewhat inartful," is not inadmissible where the expert defined the standard of care as "what I and the majority of my ER physicians in this area would do in a specific case," but also testified he was familiar with the standard of care and described his "extensive knowledge throughout the region concerning the practice of emergency room physicians").
We fully recognize that the practice of a majority of physicians in a community is not determinative of the standard of care, for a certain medical practice can be used by a majority of physicians in a certain case and fall below the standard
To once again quote our Supreme Court in Shipley, "[a] trial court should admit the testimony of a competent expert unless the party opposing the expert's testimony shows that it will not substantially assist the trier of fact or if the facts or data on which the opinion is based are not trustworthy pursuant to Rules 702 and 703," and "[o]nce the minimum requirements are met, any questions the trial court may have about the extent of the witness's knowledge, skill, experience, training or education pertain only to the weight of the testimony, not to its admissibility." Shipley, 350 S.W.3d at 550-51.
For the foregoing reasons, applying the Shipley standard, we have concluded that Dr. Foster was competent to testify as to the standard of care Dr. Goryl should have employed when treating the decedent for bladder cancer and whether Dr. Goryl deviated from the applicable standard of care in his treatment of the decedent.
A trial court abuses its discretion "when it disqualifies a witness who meets the competency requirements of section 29-26-115(b) and excludes testimony that meets the requirements of Rule 702 and 703." Shipley, 350 S.W.3d at 552. Accordingly, we reverse the decision of the trial court to exclude the opinion testimony of Dr. Foster.
When deciding a motion for a directed verdict, both the trial court and the reviewing court on appeal must look to all the evidence, take the strongest legitimate view of the evidence in favor of the opponent of the motion, and allow all reasonable inferences in favor of that party, while discarding all evidence to the contrary. Conatser v. Clarksville Coco-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Dobson v. Shortt, 929 S.W.2d 347, 349-50 (Tenn.Ct.App.1996). The directed verdict cannot be sustained if there is material evidence in the record which would support a verdict for Plaintiff. Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn.Ct.App.1995); Souter v. Cracker Barrel Old Country Store, Inc., 895 S.W.2d 681, 683 (Tenn.Ct.App. 1994).
We have determined the trial court erred in refusing to consider Dr. Foster's
The judgment of the trial court is reversed and this matter is remanded for a new trial. Costs of appeal assessed against the defendant, Dr. Stephen Goryl.
