Markina Westmoreland v. William L. Bacon, M.D. - Dissenting

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 15, 2010 Session

MARKINA WESTMORELAND ET AL. v. WILLIAM L. BACON, M.D. ET
AL.

Appeal from the Circuit Court for Davidson County
No. 05C-3729 Joe Binkley, Judge

No. M2009-02643-COA-R3-CV - Filed January 31, 2011

R ICHARD H. D INKINS, J., dissenting.

I respectfully dissent from the holding that Dr. Sobel was not competent to opine as
to whether one or more of the defendants deviated from the standard of care.

In granting summary judgment to defendants, the trial court held that “Plaintiffs failed
to make an adequate showing that Dr. Sobel is familiar with the recognized standard of
acceptable professional practice applicable to the defendants” and that, consequently, “the
Affidavit of Dr. Sobel does not comply with the requirements of Tenn. Code Ann. § 29-26-
115(a) and (b).” I believe that the trial court’s holding that Dr. Sobel was not competent to
testify is not supported by the record and that the resulting exclusion of his affidavits
constitutes an abuse of the court’s discretion.

I agree with the majority that the dispositive issue is whether Dr. Sobel’s training and
experience, as reflected in the affidavits, made his opinions relevant to the issues in the case
and, thereby, made him competent to testify as an expert. The standard for admissibility of
expert testimony set forth in Tenn. Code Ann. § 29-26-115 is that the expert “demonstrate[]
‘sufficient familiarity with the standard of care’ of the defendant’s profession or specialty
and [be] able to give relevant testimony on the issue in question.” McDaniel v. Rustom,
W2008-00674-COA-R3-CV, 2009 WL 1211335 at *7 (Tenn. Ct. App. May 5, 2009) (citing
Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn. 1987)). In our resolution of this appeal,
we apply the standard of review applicable to summary judgments, i.e., de novo with no
presumption of correctness and reviewing the evidence in the light most favorable to the non-
moving party. McDaniel, 2009 WL 1211335 at *6 (citing Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 83 (Tenn. 2008)). Our standard of review is no less in light of the fact that we
are reviewing a discretionary decision of the trial court, i.e., the exclusion of evidence.

The complaint in this case seeks to recover for the death of Ms. Dennis as a result of
a severe pulmonary and gastrointestinal hemorrhage several days following hip replacement
surgery. Between the time of her surgery and her death, Ms. Dennis was administered
medications under the supervision of the defendants to address other medical conditions
which put her at a high risk of internal bleeding. The complaint details the course of Ms.
Dennis’ treatment in the hospital as well as her vital statistics and attaches as exhibits
laboratory test results, the report on her operation, and notes from the hematology
consultation. Thus, I believe that the standard of care applicable in this case is one which
relates to the administration and management of the particular medication Ms. Dennis was
administered and the monitoring of a person who has received such medication under the
circumstances presented.

In support of their motions for summary judgment, each defendant submitted an
affidavit setting out the defendant’s education, training and experience; detailing the
treatment the defendant had rendered Ms. Dennis; stating that the treatment complied with
the standard of care1 ; and asserting that nothing that physician did caused or contributed to
any injury to Ms. Dennis or her death. This was sufficient to negate plaintiffs’ negligence
allegations and shift the burden to plaintiffs to demonstrate the existence of a genuine issue
of material fact. McDaniel v. Rustom, W2008-00674-COA-R3-CV, 2009 WL 1211335 at
*6 (Tenn. Ct. App. May 5, 2009) (citing Kenyon v. Handel, 122 S.W.3d 743, 754 (Tenn. Ct.
App. 2003)).

In response to the motions and affidavits, plaintiffs filed two affidavits of Dr. Sobel
in which he opined relative to the treatment afforded Ms. Dennis, specifically the
appropriateness and management of the medication that was administered to her. With
respect to his competence and familiarity with the standard of care, Dr. Sobel’s first affidavit
states the following:

3. Through education, training, experience, years of retrospective expert and
peer review and familiarity with community standards, I know of the
standard(s) of care to be provided by physicians in a community similar to
Nashville, Tennessee in treating patients with conditions similar to those
experienced by Doris Dennis as set forth in the medical records which I have
received.
* * *

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Dr. Ikpeazu stated that his treatment of Ms. Dennis “complied with the recognized standard of
acceptable professional practice required of a board-certified oncologist/hematologist in the Nashville,
Tennessee community and similar communities in the treatment of similar patients in similar circumstances.”
Dr. Bacon stated that “all of the medical care I provided to Ms. Dennis complied with the professional
standard of care applicable to me.” Dr. Chinratanalab stated: “It is my opinion that I complied with the
recognized standard of care for the acceptable professional practice of hematology/oncology in this
community during my evaluation and treatment of Doris Dennis in December of 2004 and at all other
relevant times.”

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 6. Based on information available to me, it is my opinion that NGH is similar
to hospitals where I personally practice. It is also my opinion that the Greater
Atlanta and Greater Nashville metropolitan areas are similar communities.

His supplemental affidavit goes into more detail relative to his qualifications and familiarity
with the standard of care in Nashville:

3. . . . I have participated as a Regional Medical Director for a Tennessee
Contract Management Corporation at an administrative meeting concentrating
of medical standards in Nashville. . . . I have cared for patients that have
received medical care in Nashville. I have personal knowledge of medical
standards in Nashville, Tn.
* * *
7. I have served as a Regional Medical Director for Team Health, a national
emergency department contract management company headquartered in
Knoxville, Tennessee. This company has been involved in the staffing and
administration of emergency physicians throughout Tennessee and specifically
in the Nashville area. The role of Regional Medical Director required
significant interaction with physicians practicing in the State of Tennessee and
specifically in Nashville. A Regional Medical Director provides input in
establishment of clinical and administrative policy. These policies must be
consistent with reasonable and prudent medical practice, i.e., the standards of
care. . . .
8. I have in the past visited the Nashville, Davidson County, Tennessee area
many times. I have had interactions with medical professionals practicing in
the Nashville, Davidson County, Tennessee area during 2004. I have attended
professional conferences in Nashville and elsewhere with other medical
providers who practice in the Nashville, Davidson County, Tennessee area
wherein discussions were held involving medical resources and standards of
care. I have reviewed several charts of patients who were treated in the
Nashville, Davidson County, Tennessee area in the past. I have received
patients that have been previously treated in the Nashville, Davidson County,
Tennessee area. I have previously reviewed medical charts of patients who
were treated in Nashville, Tennessee and testified as an expert witness for
several cases in Davidson County, Tennessee.
***
10. I am familiar with the recognized standard of medical care and the
recognized standard of acceptable professional practice which existed in
Atlanta, Georgia, and Nashville, Davidson County, Tennessee in 2004, and the
year prior and the year after, for the overall medical care and treatment,
including, but not limited to, the acceptable standard of care by physicians, as
well as, but is not limited to, making determinations as to when certain medical

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procedures, tests, care and prescriptions would be appropriate for the medical
care and management of the individual patients and that of Doris Dennis.
11. It is my opinion that the recognized standard of medical care and the
recognized standard of acceptable professional practice which existed in the
metropolitan Atlanta area, Georgia, and Nashville, Davidson County,
Tennessee in 2004, relating to the type and quality of care at issue in this
matter would be the same as these two medical communities are similar as it
relates to recognized standard of medical care and the recognized standard of
acceptable professional practice for the type and quality of care at issue in this
matter.
12. . . . It is also my opinion that with the expected knowledge and training of
medical providers like WILLIAM L. BACON, M.D., WICHAI
CHINRATANALAB, M.D., and CHUKWUEMEKA IKPEAZU, M.D., and
the resources available to them, the applicable standard of care in such
specialties in Nashville, Davidson County, Tennessee and Atlanta, Georgia
were similar in 2004. This is specifically true with respect to the standard of
care applicable to physicians prescribing Lovenox, after the procedures that
were performed or omitted as it relates to Doris Dennis. This would include
the continuance of Lovenox, with evidence of a dropping red blood cell count
and several clear and present risk factors for continued hemorrhage, e.g., low
platelets and a concomitant prescription of Bextra.
13. Based upon my education, training and experience, I am familiar with the
recognized standard of acceptable professional practice for physicians
prescribing Lovenox in Nashville, Tennessee, and similar communities in 2004
(and as it otherwise existed at all times relevant hereto). Specifically, I am
familiar with the recognized standard of care for treatment of adults who are
prescribed Lovenox with medical conditions identical or similar to those
exhibited by Doris Dennis in 2004. I have then personally and currently do
prescribe Lovenox routinely in my practice.

With respect to the practice of hematology, he states:

15. I began my training in internal medicine just as a hematologist would. A
hematologist is first an internist who is expected to be proficient in the general
care of medical problems. A hematologist could claim a higher level of
expertise related to blood disorders and their treatment than a general internist.
A hematologist, an internist and an emergency room physician are all expected
to understand the basic physiology of the blood components. In the case of
Doris Dennis, it is my opinion that the hematologist did not demonstrate the
level of competency that would be expected of any general medical physician
caring for such a patient. Further, I have provided instruction both in the
clinical setting and in the lecture hall to internists related to the medical issues

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and decision making relevant to this case. I do have the necessary training,
clinical and peer review experience to know what the standard of care was in
the case of Ms. Dennis and how it was breached by the defendant in the ways
I will testify. Furthermore, I have done additional research and have
publications relevant to medical matters in this case which I would expect to
testify to when called. Indeed, I have provided previous testimony in
Tennessee relevant to hemorrhage, hemorrhagic shock, anti-coagulation with
Lovenox and other medical standards related to illnesses or conditions
occurring during the hospitalization of Ms. Dennis. In Tennessee, I have been
previously qualified as an expert in many aspects of the care of the
hospitalized patient. . . .
16. . . . Treating Ms. Dennis with Lovenox required general medical
knowledge of the drug prescribed, its potential adverse effects and basic
physiology of blood components, such as the platelet and red blood cell. A
higher level of proficiency in hematology was not required. Lovenox is
prescribed by physicians of many specialties, internists, hematologists,
orthopedists, cardiologists and emergency physicians, to name a few.
Ironically, some breaches of the standard of care involved the area where
expertise could be expected by the hematologist, for example knowledge of
platelet function. Notwithstanding, the breaches which I am prepared to testify
to, occurred on a more basic level.

With respect to the practice of orthopedics, he states:

21. I have had considerable training, clinical and teaching experience in
orthopedics. As an emergency physician, I am called upon to evaluate,
diagnose and provide the initial management and stabilization of a wide
variety of orthopedic problems. Routinely, and for the last more than two
decades, I have provided this initial orthopedic care as a patient’s physician in
the emergency department. At my discretion and as I deem appropriate, I will
consult with or coordinate my care with orthopedic physicians either by
telephone or in person. I routinely discuss patients with orthopedic physicians.
Emergency physicians and orthopedists work collaboratively in the care of
patients with orthopedic problems. I have provided instruction both in the
clinical setting and in the lecture hall to orthopedic physicians in training and
internists related to the medical issues and decision making relevant to this
case to which I will testify concerning. I do have the necessary training,
clinical and peer review experience to know what certain standards of care
were in the case of Ms. Dennis and how it was breached by the defendant.
***
23. I have provided previous testimony in Tennessee relevant to hemorrhage,
hemorrhagic shock, anti-coagulation and other medical standards related to

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 illnesses or conditions occurring during the hospitalization of Ms. Dennis. In
Tennessee, I have previously been qualified as an expert in many aspects of the
care of the hospitalized patient.
***
26. I have testified in Tennessee as to the standards of care for physicians
prescribing Lovenox. I have instructed physicians in many specialties
including orthopedists in training regarding the effects, adverse effects and
indications for use of these drugs and their classes. I have routinely prescribed
Lovenox in my practice for years. I have previous[ly] submitted a research
proposal to the manufacturer of Lovenox regarding the design of an
aftermarket study of the drug in patients with atrial fibrillation (a heart
condition). I have coordinated the care of patients receiving anti-coagulants
(like Lovenox) and anti-inflammatory agents (like Bextra) with physicians of
many specialties, including orthopedists. I am aware of the level of knowledge
ordinarily possessed by orthopedic physicians with respect to these classes of
medication, that is, anti-inflammatory agents and anti-coagulants. Any
prescribing or attending physician is required to understand the use of these
medications and that their combined use increases the risk of potential adverse
effects, including internal and gastrointestinal bleeding.
***
29. Internists, family practice physicians, emergency physicians,
hematologists and orthopedics alike when they assume the role of a patient’s
attending must be able to formulate differentials diagnoses relevant to their
patient’s medical condition. Ms. Dennis was a patient on Lovenox, a non-
steroidal anti-inflammatory medicine with low platelets and hepatitis C. She
was at risk for internal and gastrointestinal bleeding. She was found to have
a falling red blood, that is, acute anemia. Her physicians including the
attending orthopedist allowed her Bextra to be continued. They continued her
Lovenox. They did not properly appropriately monitor the patient for
gastrointestinal bleeding. I have cared for many patients on these or similar
medications under the same or similar circumstances. I am aware that an
orthopedist is expected to understand the high risk of continuing these classes
of medication under these circumstances. I have discussed similar such
situations with orthopedists. I have not found their knowledge to be deficient
in this regard. I believe I am qualified to testify to this based on my medical
knowledge and training and experience and my routine interaction and
coordination of care of patients with orthopedic physicians.

Dr. Sobel goes on to opine as to the manner in which defendants’ management of Ms. Dennis
“deviated from the recognized standard of care which caused injuries to Doris Dennis.”

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 It is upon this record that the trial court determined that defendants were entitled to
summary judgment. Defendants introduced no countervailing affidavit or other proof to
rebut or counter Dr. Sobel’s affidavits; to create an issue that his training, experience or
qualifications disentitled him in any way to render such opinion or to otherwise cast doubt
on the opinion; to contend that his knowledge of the standards of care as articulated in his
affidavits was erroneous or deficient; or to otherwise establish a factual basis upon which the
court could hold that he was not competent to testify as an expert witness. Applying the
standards we are to apply when reviewing a discretionary decision of a trial court, see White
v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), I would find that the trial
court’s holding that “Plaintiffs failed to make an adequate showing that Dr. Sobel is familiar
with the recognized standard of acceptable professional practice applicable to [the
defendants]” is unsupported by the evidence.

I would also find that Dr. Sobel was competent to provide expert testimony. I do not
agree, as held by the majority, that Dr. Sobel was incompetent because he testified to a
general standard of care, as proscribed by Cardwell v. Bechtol, 724 S.W.2d 739 (Tenn. Ct.
App. 1987). Dr. Sobel articulated a standard of care applicable to the condition of Ms.
Dennis and the treatment given to her during the course of her hospital stay—medical care
which did not fall exclusively within the specialties of hematology or orthopedic surgery.
Again, defendants submitted nothing to rebut the standard of care defined by Dr. Sobel or
articulate one which they contended applied. Even if I agreed that Dr. Sobel must be familiar
with standards of care specific to hematology and orthopedics in order to testify regarding
any alleged malpractice, I believe his affidavits demonstrate familiarity with the applicable
standards of care in those specialties relative to the treatment provided Ms. Dennis sufficient
to provide expert testimony in this case.2

Moreover, there is no factual support for the reservations expressed by the majority
to Dr. Sobel’s training and experience and from which to conclude that he is unqualified to
opine on the applicable standard of care and the deviations therefrom by the defendants. The
specific concerns relative to his experience, which is perceived as limited, go to the weight
to be afforded Dr. Sobel’s opinions by the trier of fact rather than the admissibility of his
opinions or his competence to render them. His opinions were relevant to the case and he
otherwise satisfied the requirements of Tenn. Code Ann. § 29-26-115.

2
As noted by the court in McDaniel:

[I]n those cases where an expert has a sufficient basis upon which to establish familiarity
with the defendant’s field of practice, the expert’s testimony may be accepted as competent
proof even though he or she specializes or practices in another field.”

McDaniel v. Rushton, 2009 WL 1211335, at *8.

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 To be entitled to summary judgement, the movant must show the absence of a genuine
issue of material fact and the movant’s entitlement to judgment as a matter of law. After
striking Dr. Sobel’s affidavits based on the finding that he was incompetent to express an
opinion on the standard of care, the trial court held that plaintiffs could not comply with the
burden imposed upon them by Tenn. Code Ann. § 29-26-115(a) and, as a consequence,
defendants were entitled to judgment. Because I would find Dr. Sobel’s affidavits to be
competent evidence of the standard of care and breach thereof by the defendants, I would
hold that defendants have not established their entitlement to summary judgment.

_________________________________
RICHARD H. DINKINS, JUDGE

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