Taylor Ex Rel. Gneiwek v. Jackson-Madison County General Hospital District

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 22, 2006 Session

JERRY ALAN TAYLOR, by and through his next friend, KAY TAYLOR
GNEIWEK v. JACKSON-MADISON COUNTY GENERAL HOSPITAL
DISTRICT, ET AL.

Direct Appeal from the Circuit Court for Madison County
No. C98-268 Donald H. Allen, Judge

No. W2005-02471-COA-R3-CV - Filed August 23, 2006

Defendant Jackson-Madison County General Hospital District (“Defendant”) appeals a judgment
awarding damage for malpractice to Plaintiff Kay Gneiwek (“Plaintiff”) as administrator of the estate
of Jerry Alan Taylor. Defendant raises issues pertaining to the competency of Plaintiff’s expert
witness, Dr. Douglas Harkrider, M.D., to provide testimony in this case, and further argues that Dr.
Harkrider’s testimony failed to establish proximate causation as required under Section 29-26-115
of the Tennessee Code. We affirm in part and reverse in part.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part;
Reversed in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Jerry D. Kizer, Jr. And Patrick W. Rogers, Jackson, Tennessee, for the appellant, Jackson-Madison
County General Hospital District.

David Wayne Camp, Jackson, Tennessee, for the appellee, Kay Taylor Gneiwek

OPINION

Factual Background and Procedural History

On September 6, 1997, Jerry Taylor (“Mr. Taylor”) went to the Jackson-Madison County
General Hospital (“Defendant”) Emergency Room with a fever of unknown origin. Mr. Taylor
was subsequently admitted to the hospital and received various medical treatments and
diagnostic procedures. The next day, Mr. Taylor was administered the drug Unasyn through his
intravenous catheter. Mr. Taylor’s medical chart did not list any known allergies and, when
asked about known allergies by Karen Forrest (“Nurse Forrest”), the nurse on duty, Mr. Taylor
responded that he had none. Shortly after receiving the Unasyn, Mr. Taylor began having an
allergic reaction and notified nurses employed by Defendant. Upon reaching Mr. Taylor’s room,
Nurse Forrest noted that Mr. Taylor appeared flushed and was having difficulty breathing. Nurse
Forrest stopped the Unasyn drip, believing that Mr. Taylor might be having an allergic reaction.
Medical personnel were summoned, and Mr. Taylor was administered epinephrin, CPR, and was
intubated. Mr. Taylor was revived, but suffered irreparable brain damage. Mr. Taylor
subsequently transferred to and remained a resident of a long-term care facility until his death on
September 17, 2005.

Kay Taylor Gniewick (“Plaintiff”)1 filed suit on Mr. Taylor’s behalf on August 27, 1998,
against Defendant as well as Dr. Michael Houchin, the University of Tennessee Family Practice
Center, University of Tennessee Memphis Health Science Center, and Dr. Kevin Gray. On
September 1, 1998, Plaintiff filed an Amendment of Complaint, amending the original
Complaint by adding West Tennessee Healthcare, Inc., as an additional defendant. On June 25,
2001, a consent order was entered dismissing the University of Tennessee Family Practice
Center, the University of Tennessee Health Science Center, and Dr. Michael B. Houchin. On
October 4, 2001, the trial court entered a consent order granting summary judgment in favor of
Dr. Kevin Gray. On July 18, 2003, the trial court entered an Order Granting Defendant West
Tennessee Healthcare, Inc.’s Motion for Summary Judgment. Plaintiff subsequently filed a
Second Amended Complaint asserting liability against Defendant via respondeat superior for the
actions of Dr. Michael Houchin.

Trial was held on November 16, 2004. At trial, Plaintiff presented the deposition
testimony of Dr. Douglas Harkrider, an emergency room physician practicing in Atlanta and
Gainesville, Georgia.2 In his deposition, Dr. Harkrider testified that the nurses and respiratory
therapists employed by Defendant were negligent and that Mr. Taylor suffered hypoxic
encephalopathy as the result of too little oxygen in his system for a significant period of time
during the CPR. Defendant objected to Dr. Harkrider’s testimony on the grounds that he was not
competent to testify because he did not establish that he knew the applicable recognized standard
of acceptable professional practice in Jackson, Tennessee, or of a similar community, and that his
opinions were based on a “national standard of care.” Defendant also objected to Dr. Harkrider’s
deposition testimony because Defendant argued that Dr. Harkrider could not testify to a
reasonable degree of medical certainty that any negligent actions of the Defendant caused Mr.
Taylor’s injuries. Since Defendant asserted that Dr. Harkrider was incompetent to testify and
further argued that Dr. Harkrider’s testimony failed to establish causation, it moved to dismiss
Plaintiff’s case. The trial court took Defendant’s objection and motion under advisement, but
admitted the deposition testimony.

1
Suit in this matter was initially instigated by Ms. Gneiwek as “Kay Gneiwek as next friend of Jerry Alan
Taylor.” However, after Mr. Taylor’s death, this Court entered an order substituting “Kay Gneiwek as the administrator
of the estate of Jerry Alan Taylor” for “Kay Gneiwek as next friend of Jerry Alan Taylor.”

2
At trial, Plaintiff presented no live witness testimony. Rather, Plaintiff submitted proof in the form of
deposition testimony and other exhibits.

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 On August 3, 2005, the trial court issued a letter ruling in Plaintiff’s favor and specifically
finding that Dr. Harkrider’s testimony satisfied the requirements of Tenn. Code Ann. § 29-26-
115(a), thus making him competent to give expert testimony. The trial court also found
Defendant liable for the injuries suffered by Mr. Taylor and awarded damages in the amount of
$1,400,000.00 plus all court costs. Judgment was entered on the trial court’s findings on
September 15, 2003, and Plaintiff’s award was reduced to $130,000.3 The trial court also entered
a final order denying Defendant’s motion to dismiss which was raised at the November 16, 2004
hearing. Defendant appeals.

Issues Presented

Defendant presents the following issues for review: (1) whether the trial court erred in
holding that Plaintiff’s only expert, Dr. Douglas Harkrider, was competent to testify; and
(2) whether the trial court erred in holding that Plaintiff proved by a preponderance of the
evidence through her only expert, Dr. Douglas Harkrider, that Defendant caused harm to Jerry
Taylor that would not otherwise have occurred but for the alleged negligence.

Analysis

Expert Competency

The Defendant asserts that the trial court erred in finding that Plaintiff’s expert, Dr.
Harkrider, was competent to testify in this matter. Specifically, Defendant asserts that Dr.
Harkrider lacked sufficient knowledge of the standards of acceptable professional medical
practice Jackson, Tennessee, to satisfy Tennessee’s locality rule. Defendant also asserts that Dr.
Harkrider erroneously based his opinions upon a national standard of care rather than a local
standard of care. For the reasons set forth below, we affirm the trial court’s determination that
Dr. Harkrider was competent to give expert testimony in this matter.

Before addressing Defendant’s issues, we first note the applicable standard of review.
Trial courts in Tennessee are vested with broad discretion in determining the admissibility,
qualifications, and competency of expert testimony. Roberts v. Bicknell, 73 S.W.3d 106, 113
(Tenn. Ct. App. 2001) (citing McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn.
1997)). However, “[a]lthough the trial court has broad discretion in determining the
qualifications of expert witnesses and the admissibility of their testimony . . . [,] reversal of the
trial court’s discretion is appropriate where the trial court’s action is clearly erroneous or where
there has been an abuse of discretion.” Wilson v. Patterson, 73 S.W.3d 95, 102 (Tenn. Ct. App.
2001) (citations omitted).

3
Recovery was limited under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101
et seq.

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 Section 29-26-115 of the Tennessee Code sets forth a plaintiff’s burden in a medical
malpractice case, and provides as follows:

(a) In a malpractice action, the claimant shall have the burden of proving by evidence
as provided by subsection (b):
(1) The recognized standard of acceptable professional practice in the
profession and the specialty thereof, if any, that the defendant practices in the
community in which the defendant practices or in a similar community at the time
the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and
reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the
plaintiff suffered injuries which would not otherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws
of this state shall be competent to testify in any court of law to establish the facts
required to be established by subsection (a), unless the person was licensed to
practice in the state or a contiguous bordering state a profession or specialty which
would make the person’s expert testimony relevant to the issues in the case and had
practiced this profession or specialty in one (1) of these states during the year
preceding the date that the alleged injury or wrongful act occurred. . . .
....

Tenn. Code Ann. § 29-26-115 (Supp. 2005).

Proof regarding the “failure of a physician to adhere to an acceptable standard of care in
treating a patient must be by expert medical testimony.” Williams v. Baptist Mem’l Hosp., 193
S.W.3d 545, 553 (Tenn. 2006); Roberts, 73 S.W.3d at 113. “In order to qualify as an expert in a
medical malpractice action, a physician is not required to be familiar with all the medical
statistics of a particular community.” Wilson, 73 S.W.3d at 102. (citing Ledford v. Moskowitz,
742 S.W.2d 645 (Tenn. Ct. App. 1987)). However, in order to satisfy the requirements set forth
under Section 29-26-115(a),

a medical expert relied upon by the plaintiff “must have knowledge of the standard
of professional care in the defendant’s applicable community or knowledge of the
standard of professional care in a community that is shown to be similar to the
defendant’s community.” Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002).
Expert witnesses may not simply assert their familiarity with the standard of
professional care in the defendant’s community without indicating the basis for their
familiarity. Id.; see also Stovall v. Clarke, 113 S.W.3d 715, 723 (Tenn. 2003);
[Kenyon v. Handal, 122 S.W.3d 743, 760, 762 (Tenn. Ct. App. 2003)].

Williams, 193 S.W.3d at 553. “[W]hile an expert’s discussion of a national standard of care
does not require exclusion of the testimony, ‘such evidence may not substitute for evidence that

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first establishes the requirements of [Section] 29-26-115(a)(1).’” Stovall, 113 S.W.3d at 722
(quoting Robinson, 83 S.W.3d at 724). Thus, if a plaintiff’s expert fails to demonstrate adequate
knowledge concerning the medical resources and standards of care of the community in which
the defendant practices, or a similar community, then such plaintiff will be unable to demonstrate
a breach of duty. Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn.
Ct. App. 1997) (citing Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987)).

In arguing that Dr. Harkrider’s testimony failed to satisfy Tennessee’s locality rule,
Defendant argues that Dr. Harkrider failed to provide a sufficient basis for comparing the
medical community of Jackson, Tennessee, to that of Gainesville, Georgia, where Dr. Harkrider
practiced. Specifically, Defendant asserts that Dr. Harkrider made mere conclusory statements
regarding the similarity of the two communities while, at the same time, demonstrating a
complete lack of knowledge with the Jackson, Tennessee, community. In essence, Defendant
argues that Dr. Harkrider’s testimony is analogous to medical expert testimony previously
addressed by this Court in Mabon v. Jackson-Madison County General Hospital, 968 S.W.2d
826 (Tenn. Ct. App. 1997).

In Mabon, this Court excluded medical expert testimony offered by the plaintiff because
the proffered expert could not establish that he had any familiarity with the medical community
in Jackson, Tennessee, or a similar community. Id. at 831. In so holding, this Court specifically
noted the following portion of the proffered expert’s deposition testimony:

Q: What’s the population, Dr. Shane, of Jackson, Tennessee?

A: I don’t know exactly.

Q: How many hospitals are there in Jackson?

A: I don’t know.

Q: Do you know if there are any colleges or universities there?

A: No, I don’t.

Q: Do you know if there are any medical schools there?

A: Not for sure.

Q: Do you know how many doctors there are in Jackson?

A: No.

Q: Do you know what medical specialties are represented in Jackson?

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 A: No, I don’t.

Q: Have you ever been to Jackson?

A: No.

Q: Do you know any doctors that practice in Jackson?

A: No.

Q: Have you ever treated any patients from Jackson?

A: Not that I’m aware of.

Q: Do accepted standards, that is the standard of care, do they change over
time?

A: Yes, they can.

Q: Is the practice of medicine an exact science?

A: No.

Q: You can’t completely practice medicine by what’s called the cookbook
method, can you?

A: No, you can’t.

Q: You’ve not reviewed any medical records from Jackson except in this
case, right?

A: I don’t think so that I can recall.

Id. at 830-31. In support of its argument that Dr. Harkrider’s testimony is analogous to that in
Mabon and should thus be excluded, Defendant, in its brief, quoted the following portion of Dr.
Harkrider’s deposition testimony:

Q. Now, at the time that we took your deposition back [in] March of 2002, you
told me you knew nothing about Jackson, Tennessee; is that correct?

A. I don’t think I’ve driven through it. I’ve not visited.

Q. Well, did you tell me that you knew nothing about Jackson, Tennessee?

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A. At the time?

Q. Yes

A. That I can recall, no.

Q. That is correct, that you–that’s what you told me?

A. That’s correct.

Q. Have you ever been to Jackson?

A. I think I just said I’m not sure that I have.

Q. Okay. Do you know where it’s located?

A. 60, 70 miles outside of Memphis, I believe.

Q. Which direction?

A. I don’t know, to the west? Don’t know.

Q. Okay. What’s the population?

A. Don’t know.

Q. Okay. How many hospitals in Jackson?

A. Don’t know specifically.

Q. Do you know anybody that lives in Jackson other than Mr. Camp?

A. No, sir.

Q. Do you know of anyone that’s ever practiced medicine or practiced nursing
or respiratory therapy in Jackson, Tennessee?

A. Know them personally?

Q. Know anybody, yeah.

A. No, sir

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Q. Are you familiar with the skills of nurses and respiratory therapists in
Jackson, Tennessee?

....

A. I would have to answer that question that I would–I would–I would expect
the skills of the nursing staff at–in Jackson to be comparable to the nursing
skills that I would see here at Dunwoody Medical Center, at Northeast
Georgia Medical Center.

Q. But you don’t know that’s the case. You just expect that?

A. I would expect any physician would expect that.

Q. Okay. Have you ever practiced in Tennessee?

A. No, sir.

Q. Have you ever treated a patient from Jackson, Tennessee?

A. I’m absolutely positive that I have in my 25 years. We see a significant
number of transients that come through here at this hospital and also at
Northeast Georgia, but to mention a specific name, no, sir, I could not.

Q. How many colleges and universities are in Jackson, Tennessee?

A. I don’t know.

Q. How many medical schools in Jackson in 1997?

A. Don’t know.

Q. Were there any teaching hospitals in Jackson in 1997?

A. Don’t know. I believe Jackson-Madison County Hospital is a teaching
hospital.

Q. Have you ever reviewed any - - any medical records in any other case from
Jackson, Tennessee other than this–this case?

A. Well, I think we answered that when we did the deposition, that I’ve - - I’ve
reviewed in my 25 years, 10 or 15 cases, and several have been from
Tennessee, but as to whether they were from Jackson, I can’t recall.

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 Despite the initial similarity between Dr. Harkrider’s testimony and that provided by the
expert in Mabon, we find the facts of Mabon distinguishable from the facts presented in this case.
Although, like the expert in Mabon, Dr. Harkrider’s testimony during examination by
Defendant’s counsel appeared to establish that Dr. Harkrider lacked knowledge about the
Jackson community, our review of the record shows that, unlike the proffered expert in Mabon,
Dr. Harkrider later rehabilitated himself under questioning by counsel for Plaintiff. Specifically,
Dr. Harkrider testified that he had conducted research concerning the community of Jackson,
Tennessee, including referencing information concerning physicians and medical specialties in
Jackson from a 1997 edition of the “Yellow Pages” directory for Jackson Tennessee; reviewing
information from the Madison County Chamber of Commerce regarding the community of
Jackson, Tennessee; and reviewing information about the Defendant Jackson-Madison County
General Hospital.

In relation to his review of information and materials concerning Jackson, Tennessee, Dr.
Harkrider, subsequent to questioning by Defendant’s counsel, testified as follows:

Q. [by Plaintiff’s counsel] Looking with me at Exhibit 3 specifically, Dr.
Harkrider, you indicated you had previously reviewed this prior to your
deposition here today; is that correct?

A. Yes.

Q. And this is involving the community or rather the Madison County Chamber
of Commerce?

A. Yes.

Q. I want to turn if I could please, sir, to community data, and if you would look
with me under location, do you see an indication in there as to precisely
where Jackson is located?

A. It looks like it’s 79 miles from Memphis and 126 miles from Nashville.

....

Q. (By Mr. Camp) Doctor, in relation to the community data sheet, can you look
at that very briefly, and I’m going to ask you a few questions about that.

A. Open this page here?

Q. Yes sir, I think on the flip side too there’s information on the back as well.
I believe it’s categorized. Do you see anything in there that references
population?

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A. I think that’s on the first page actually. The population in 1980 was 49,000,
county is 75,000; 1990, 48,000, 77,000; and 2000, 59,000 and 91,000.

Q. Also Doctor, I believe there’s another provision on the page if you could flip
it over again maybe involving health.

MR. KIZER: Object to the form of the question, its clearly leading.

MR. CAMP: I didn’t mean to cut you off, Jerry. Go ahead.

MR. KIZER: It’s clearly leading. He’s already testified he didn’t know these things.

MS. TUTTLE: Same objection.

Q. (By Mr. Camp) Doctor, do you see anything on that document which you
previously identified by testimony that you had reviewed related to health?

A. To health?

Q. Hospitals, things of that nature?

A. Oh.

MR. KIZER: Can we have a continuing objection to this line of questioning so I
don’t continually interrupt you?

MS. TUTTLE: I join in.

MR. KIZER: Thank you.

MR. CAMP: No problem.

THE WITNESS: Healthcare, hospitals, Jackson-Madison County Hospital, and
hospitals, Methodist LeBonheur.

Q. (By Mr. Camp). Okay. Does it reflect anything else [sic] either two of those
facilities?

A. 300-plus doctors, 74-plus dentists, 11 nursing.

Q. Doctor, is there also something in there referencing anything regarding
schools?

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 A. Daycare, educations, is state industrial training site available, yes; elementary
schools, 14, middle, six, seniors, three, colleges or universities, five.

Q. Okay.

A. It looks basically like Hall County, Georgia[,] where I practice at Northeast
Georgia Medical Center.

Q. All right. If I might have that back, Doctor. Doctor, do you have any
information or any reason to believe that Jackson has somehow moved or
relocated or is in a different location than it was in 1997?

A. No.

Q. Doctor, do you feel then that you still have sufficient knowledge regarding
the locale of Jackson-Madison County, Tennessee[,] and/or Jackson-Madison
County General Hospital so as to offer the opinions that you’ve previously
offered here today relating to standard of care, deviation from standard of
care, and those other aspects of your testimony?

MR. KIZER: Object - - object to the leading form of the question and its repetitive.

MS. TUTTLE: Same objection.

THE WITNESS: Yes

In addition, the record further shows that Dr. Harkrider testified that he had been licensed to
practice medicine in Georgia since 1977 and had practiced emergency medicine for twenty-five
years. Dr. Harkrider also testified that he practiced medicine at Dunwoody Medical Center in
Atlanta Georgia as well as at the Northeast Georgia Medical Center in Gainesville, Georgia.
Furthermore, Dr. Harkrider also compared the Defendant Hospital with Northeast Georgia
Medical Center, based in Gainesville, Georgia, where Dr. Harkrider practiced, and testified as
follows:

Q. (By Mr. Camp) Doctor, what - - you’ve mentioned previously that you
worked at Northeast Georgia Medical?

A. Yes, sir.

Q. What type of hospital is Northeast Georgia Medical?

A. It’s a full service hospital based in Gainesville, Georgia, which is
approximately 40 miles north east of Georgia - - of Atlanta. It’s a tertiary

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 facility. Has all subspecialties, areas of medicine. It has a 20-county
catchment area of patients that are referred to it.

Q. Okay. And have you made any comparisons with the work or practice that
you have at the Northeast Georgia Medical facility to Jackson-Madison
County General Hospital?

A. I have.

Q. And what were the comparisons that you made?

A. The hospitals look fairly similar. They both are referral hospitals. They both
have large catchment areas. They both have very busy emergency
departments. I think Jackson-Madison County has somewhere around a
hundred thousand, a hundred and five thousand. Northeast Georgia is
between 75 and 80,000. I see all types of patients, and that would be the
similarity.

Q. What area in or what department did you primarily work at at Northeast
Georgia Medical?

A. In the emergency department.

Q. And did you work at this facility in 1997?

A. I did.

Q. Okay. Doctor, based upon your review of the documents that have been
previously marked and your own independent research, review of the
Jackson-Madison County community as well as your own work experience
at Northeast Georgia Medical, do you believe you have sufficient knowledge
of the community of Jackson-Madison County so as to be familiar with the
recognized standard of acceptable professional practice of medicine as it
relates to emergency intervention and emergency medicine and proper
administration of cardiopulmonary resuscitation?

A. I have.

As previously noted, trial courts have broad discretion in determining expert witness
competency and qualifications, and this Court will not reverse the trial court’s actions unless
there has been an abuse of discretion. Wilson, 73 S.W.3d at 102. Furthermore, as held by this
Court in Roberts v. Bicknell, 73 S.W.3d 106, 114 (Tenn. Ct. App. 2001),

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 The law on expert witnesses, as it exists in Tennessee, requires the expert to have
some knowledge of the practice of medicine in the community at issue or in a similar
community. We believe that it is reasonable to base such knowledge, among other
things, upon information such as the size of the community, the existence or non-
existence of teaching hospitals in the community and the location of the community.
Without such information, it is difficult to compare communities for the purpose of
satisfying the locality rule.

Based upon the record above, we find that the trial court did not abuse its discretion in ruling that
Dr. Harkrider satisfied the locality rule. Specifically, we find that Dr. Harkrider possessed
adequate knowledge of the standard of professional care in a community sufficiently shown to be
similar to that of Jackson, Tennessee. Dr. Harkrider established that he was sufficiently familiar
with the local standards of medical practice in 1997 at the Northeast Georgia Medical Center
located in Hall County, Georgia. Furthermore, we find that Harkrider adequately established that
the community surrounding the Northeast Georgia Medical Center was similar enough to that of
Jackson, Tennessee, to satisfy the locality rule.

Having determined that Dr. Harkrider satisfied the locality rule, we next address
Defendant’s argument that Dr. Harkrider’s testimony was based upon a national standard of care
rather than the standard of care in Jackson, Tennessee, or a similar community. In Robinson v.
LeCorps, 83 S.W.3d 718 (Tenn. 2002), the Tennessee Supreme Court refused to broaden
Tennessee’s locality rule, set forth at section 29-26-115(a)(1) of the Tennessee Code, “by
adopting a national standard of professional care for all malpractice actions. . . .” Id. at 723.
Rather, the court held as follows:

[W]e believe that the legislative intent and purpose of Tenn. Code Ann. § 29-26-
115(a)(1), as presently derived from the statutory language, continues to be that the
conduct of doctors in this State is assessed in accordance with the standard of
professional care in the community in which they practice or one similar to it.

Id. at 724. However, in discussing the effect of an expert’s reference to a national standard of
care, the court further noted that “[w]hile an expert’s discussion of the applicability of a national
standard does not require exclusion of the testimony, such evidence may not substitute for
evidence that first establishes the requirements of Tenn. Code Ann. § 29-26-115(a)(1).” Id. at
724. See also Stovall v. Clarke, 113 S.W.3d 715, 722 (Tenn. 2003).

In the case at bar, Defendant cites to the following testimony by Dr. Harkrider in support
of its assertion that Dr. Harkrider relied upon a national standard of care:

Q. Okay. You also told me in your deposition that you know that the standard
of care for these nurses and other personnel and Dr. Houchin because it’s a
national standard of care; did you not?

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A. Yes, sir. But I also based - -

Q. Wait just a minute. I just need a yes or no answer.

A. Yes, sir.

Q. On page 62, I ask you: Do you contend that you know the standard of care for
emergency room physicians in Jackson, Tennessee. And your answer was:
I would say that the practice of emergency medicine throughout the United
States has a certain standard of care that needs to be met or is met and is
expected throughout all towns and communities in the United States.
My question on line 16: So that’s the reason that you know the
standard in Jackson, Tennessee[,] because it’s a national standard.
Answer: Yes sir.
Do you agree with that?

A. Yes, sir.

Q. Okay. And then I ask you about the standard of care for nurses, and you also
testified that you knew the standard of care for nursing personnel in Jackson,
Tennessee[,] because it was a national standard; isn’t that right?

A. And you’re looking on line?

Q. Page 63.

A. Okay.

Q. Line 3: Do you contend that you know the standard of care for nursing
personnel in Jackson, Tennessee, and then you gave a rather long answer, and
then on line 19: You think there’s a national standard of care for nurses.
Answer: Yes, sir. Question on line 22: As well as physicians. Answer: Yes,
sir. Line 24: So that would be the reason that you would know the standard
of care for nurses in Jackson, Tennessee; is that correct. Answer: Yes, sir.

A. I’ll agree with that.

Q. Okay. Now - -

A. Can I - - can I expound on my answer?

Q. Well, you can if your attorney wants to follow-up on it.

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 A. Okay.

Q. And then on page 65 you said, I asked you: How can you say there’s a
national standard for RNs on page - - on line5?

A. Okay.

Q. Do you see that?

A. Uh-huh.

Q. And your answer was: Based on my experience and what I would expect if
I picked up and practiced in Tennessee, what I would expect from the nursing
service or if I practiced in Seattle or in Houston, Texas. Question: Or in New
York City. Answer: Or in New York City. Question: Or San Francisco,
California. Answer: Yes, sir.

A. I would agree with that.

Although Dr. Harkrider testified to a national standard of care, it appears from the record
that he did in fact rely upon a local standard of care in testifying regarding the duty of care owed
to Mr. Taylor in this case, and whether such standard of care was breached. Specifically, earlier
in his deposition, Dr. Harkrider testified as follows:

Q. Okay. Doctor, based upon your review of the documents that have been
previously marked and your own independent research, review of the
Jackson-Madison County community as well as your own work experience
at Northeast Georgia Medical, do you believe that you have sufficient
knowledge of the community of Jackson-Madison County so as to be
familiar with the recognized standard of acceptable professional practice
of medicine as it relates to emergency intervention and emergency
medicine and proper administration of cardiopulmonary resuscitation?

A. I have.

....

A. I think that I can make a comparison between the two hospitals, and they
look very similar in size, scope, types of patients that they see, type of
treatments that they do, and I think the standard of care would be similar
between the two hospitals.

....

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 Q. (By Mr. Camp) Dr. Harkrider, are you familiar with the recognized
standard of acceptable professional practice in the profession of medicine
and in the specialty of emergency medicine that the defendants, Dr.
Michael Houchin and Jackson–and the employees of Jackson-Madison
County General Hospital would have practiced in the Jackson-Madison
County community or in similar communities at the time [Mr. Taylor] was
injured in 1997?

A. I am.

....

Q. . . . . Dr. Harkrider, would you be familiar with the recognized standard of
acceptable professional practice in the profession of medicine and the
specialty of emergency medicine as it pertains to respiratory therapists,
registered nurses, and other hospital personnel relating to the
administration of cardiopulmonary resuscitation in the Jackson-Madison
County community or in similar communities at the time the plaintiff was
injured in 1997?

A. I would.

Later in his deposition, Dr. Harkrider again stated his familiarity with the proper standard of local
care, in conjunction with discussing his belief in a national standard, and testified as follows:

Q. [by opposing counsel] And when your deposition was taken in March with
regard to Dr. Houchin, you testified that your knowledge of the applicable
standard of care in 1997 that Dr. Houchin would have been required to
confirm to was based upon your knowledge of a national standard of care
applicable to emergency medicine physicians; isn’t that correct?

A. That’s correct.

Q. And in fact, Dr. Houchin was not a board certified emergency physician in
1997?

A. Let me amend that. My opinion came from not only my experience of being
an emergency room physician and being the director of an emergency
department reviewing cases, but also my experience of being the director of
a small immediate care facility, actually three of them for the hospital, which
is more of a family practice-type - - type situation, where I would treat
patients myself as well as review and set policies and procedures for those
facilities. So my opinion came from my experience of both these situations.

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 Q. Okay. So your opinion of the applicable standard of care that would have
pertained to Dr. Houchin, a third year family practice resident, was based
upon your experiences that you have had here in Georgia; correct?

A. Here in Georgia working in the hospital, at several hospitals in the area,
working multiple codes in these hospitals in like and similar circumstances.

....

Q. [by Plaintiff’s counsel] Doctor, do you feel then that you still have sufficient
knowledge regarding the locale of Jackson-Madison County, Tennessee[,]
and/or Jackson-Madison County General Hospital so as to offer the opinions
that you’ve previously offered here today relating to standard of care,
deviation from standard of care, and those other aspects of your testimony?

....

THE WITNESS: Yes.

Furthermore, as previously noted, Dr. Harkrider testified that he had reviewed information about
the Jackson, Tennessee, community, including information about the type of medical care
available in the Jackson community, and further testified that Jackson Tennessee, and the
Jackson-Madison County Hospital, were similar to the locality and medical center at which he
practiced in Northeast Georgia. Based upon the foregoing, we find that the trial court did not
abuse it discretion in finding that Dr. Harkrider properly based his testimony on the local
standard of medical care in a community sufficiently similar to that of Jackson, Tennessee, and
not on that of a national standard.

Burden of Proof on Issue of Causation

The Defendant also asserts that the trial court erred in finding that Plaintiff met the
requisite burden of proof on the issue of causation. Specifically, Defendant argues that Plaintiff’s
expert, Dr. Harkrider, failed to establish to a reasonable degree of medical certainty that the
alleged negligent conduct of Defendant’s employees caused the injuries suffered by Mr. Taylor.
For the reasons set forth below, we agree with Defendant.

Our standard of review of a trial court sitting without a jury is de novo upon the record.
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of
correctness as to the trial court’s findings of fact, unless the preponderance of evidence is
otherwise. Tenn. R. App. P. 13(d)(2005). However, no presumption of correctness attaches to a
trial court’s conclusions on issues of law. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).

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 As previously discussed in this opinion, in order to succeed in a malpractice action, a
plaintiff must prove:

(1) The recognized standard of acceptable professional practice in the
profession and the specialty thereof, if any, that the defendant practices in the
community in which the defendant practices or in a similar community at the time
the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary or
reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the
plaintiff suffered injuries which would not have otherwise occurred.

Tenn. Code Ann. § 29-26-115 (Supp. 2005); see also Payne v. Caldwell, 796 S.W.2d 142, 143
(Tenn. 1990). In order to establish causation, a

plaintiff must introduce evidence which affords a reasonable basis for the conclusion
that it is more likely than not that the conduct of the defendant was a cause in fact of
the result. A mere possibility of such causation is not enough. . . . [Citation omitted].
. . . Thus, proof of causation equating to a “possibility,” a “might have,” “may have,”
“could have,” is not sufficient, as a matter of law, to establish the required nexus
between the plaintiff’s injury and the defendant’s tortious conduct by a
preponderance of the evidence in a medical malpractice case. Causation in fact is a
matter of probability, not possibility, and in a medical malpractice case, such must
be shown to a reasonable degree of medical certainty.

Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993) (citations omitted) (emphasis added).

In the case at bar, Plaintiff’s expert witness, Dr. Harkrider, testified that Defendant’s
employees deviated from the recognized standard of medical care in treating Mr. Taylor. In
addressing causation, Dr. Harkrider testified as follows:

Q. All right. Doctor, as it relates to the conduct, acts, and/or omissions of the
specific employees of the hospital previously identified, . . . do you have an
opinion, sir, as to whether the–whether those conduct–whether that conduct,
those acts, or omissions more likely than not caused [Mr. Taylor’s] injury in
this matter?

A. I do.

Q. And what would be the opinion as it relates to that?

....

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 A. My opinion is that he was hypoxic or did not have enough oxygen in his
system for a significant period of time during the cardiopulmonary
resuscitation, and this caused his hypoxic encephalopathy.

Q. Okay. And upon what are you basing that opinion?

A. The time line - - the time line of how long it took to get him intubated, the
time line as to how long it took to get Epinephrin on board. I don’t - - I can’t
guarantee that the offending agent was–was removed from his system.

Q. Okay. And ultimately, this combination of things you testified to, what
would have resulted in happening as it relates to the cardiopulmonary
resuscitation?

A. . . . . In this case, the patient in my opinion did not receive adequate
oxygenation for at least the first part of the code and at least until 5:12 [p.m.]
when they say he was intubated. But I don’t know from the documentation
whether that - - this tube was ever in the correct place or not.

Q. Is the opinion that you’ve offered us here today offered to a reasonable degree
of medical certainty?

A. Yes.4

Although Dr. Harkrider initially testified to a reasonable degree of medical certainty that
the conduct, acts, and/or omissions of the Defendant’s employees caused Mr. Taylor’s injuries,
we find, upon a closer examination of Dr. Harkrider’s deposition, that Dr. Harkrider ultimately
failed to establish causation to a reasonable degree of medical certainty that any of these alleged
breaches of duty actually caused the subsequent harm to Mr. Taylor. Specifically, on cross
examination, Dr. Harkrider failed to sufficiently link the alleged negligent acts by Defendant’s
employees to the injuries suffered by Mr. Taylor to meet the required burden of proof.

In relation to whether or not the Unasyn was turned off, Dr. Harkrider appeared unable to
affirmatively establish whether Defendant’s employees breached a duty of care in turning the

4
Throughout his deposition, Dr. Harkrider was also critical of Defendant’s employees’ actions regarding the
use of a CO2 detector and pulse oximeter as well as the use of adequate fluid replacement to Mr. Taylor during the
resuscitation. However, as noted in the quoted testimony above, it appears that Dr. Harkrider found the actions regarding
intubation, administration of Epinephrin, and removal of the Unasyn as being the chief contributing factors to Mr.
Taylor’s injury. After reviewing Dr. Harkrider’s testimony, we found no direct testimony stating to a reasonable degree
of medical certainty whether the alleged misuse or non-use of a CO2 detector, pulse oximeter, or fluids would have made
a difference in Mr. Taylor’s final outcome in this case.

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Unasyn off and, if the Unasyn was left on, this contributed to Mr. Taylor’s injury.5 However, Dr.
Harkrider did testify as follows:

Q. What would be the significance of failing to stop that Unasyn drip?

A. You’d not be able to resuscitate the patient at all.

....

Q. Okay. Now, you would agree would you not that the Unasyn was turned off
in this case?

A. My gut reaction is that at some point the Unasyn was turned off because if it
had not been turned off, I don’t think they could have resuscitated the patient
at some point.

In relation to the intubation of Mr. Taylor, Dr. Harkrider acknowledged in his deposition that his
main criticism of Mr. Taylor’s care was that intubation was not performed in a timely enough
manner. However, when questioned as to whether the alleged failure to timely intubate
proximately caused Mr. Taylor’s injury, Dr. Harkrider testified as follows:

Q. Okay. Now, you can’t testify to a reasonable degree of medical certainty
whether the - - whether any delay in intubation would have–would have
made a difference in the outcome of this case, can you?

A. I guess I need to be a little more specific than that. It would - - it would be
difficult for any - - anyone to - - to answer that question.

5
In his deposition, Dr. Harkrider testified to the lack of proper documentation concerning all of the procedures
performed on Mr. Taylor during his resuscitation. Particularly, D r. H arkrider noted the lack of documentation
concerning whether the Epinephrin was turned off although he admitted reading the deposition testimony of Nurse Karen
Forrest stating that she turned the Unasyn off upon discovering M r. Taylor’s reaction to it. However, from our review,
it does not appear that Dr. Harkrider could ever establish whether the Unasyn was left on during the resuscitation or that
any negligent acts regarding the Unasyn during the resuscitation effort proximately caused Mr. Taylor’s harm. Instead,
as noted above, Dr. Harkrider testified that he believed that the Unasyn was in fact turned off at some point.
Furthermore, in relation to the alleged failure of Defendant’s employees to document all aspects of the resuscitation, Dr.
Harkrider testified as follows:

Q. You would agree, Dr. Harkrider, that–that a failure to properly document as you have
asserted in this case does not cause the patient harm?

A. No.

Q. Do you agree?

A. I agree.

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 Q. Okay. Well, you told me on page 31 - - 131 line 23, you said: I have to
answer that question exactly like I did before. Any situation where you’re
getting more oxygen to your brain, heart, lungs, and kidneys, is going to
increase your changes of a reasonable outcome, of a good outcome. As to
what percentage, I can’t tell you.

A. That’s absolutely correct

Q. Okay. And again, the same issue on page 94 of your deposition, line 15.
You said: And I also read in the deposition that the respiratory therapist
had the ability to intubate without the physician being present.
Line 18: And can you testify to a reasonable degree of
medical certainty that that would have changed Mr. Taylor’s
outcome. Answer: It would have put–it would have increased the
oxygen saturation in the blood whereby it would have increased the
oxygen saturation to the brain, the lungs, the heart, and the kidneys,
and his chances of returning to normal life in my opinion would
have been greater. Question: How much greater. Can you quantify
that. Answer: No.
Do you agree with that?

A. I agree with that statement.

....

Q. Okay. Do you have an opinion based upon a reasonable degree of medical
certainty whether or not if Mr. Taylor had been intubated at 16:58 or 4:58
[(the time the nurse called the code)] versus when he was intubated
almost 14 minutes later at 5:12 p.m., whether or not that would have made
a difference in the outcome of this case?

A. I don’t think any expert can say absolutely one way or the other. The only
way I can answer that question is that the sooner he was intubated, the
sooner he got the Epinephrin, the greater his chance of resolving the issue
and having a normal life.

Finally, in relation to the administration of Epinephrin, Dr. Harkrider testified that
although he felt that the doses were appropriate, they where were not administered in a timely
enough fashion. Specifically, Dr. Harkrider testified that the first Epinephrin dose should have

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been administered a minute sooner than Defendant’s employees administered it. Dr. Harkrider
further testified as follows:6

Q. Okay. Now, if that [first] dosage [of Epinephrin] had been given a minute
earlier or 45 seconds earlier, can you state with a reasonable degree of
medical certainty whether that would have made a difference in the outcome
in this case?

A. No.

....

Q. 1 milligram as a second dose is - - is adequate and appropriate?

A. And appropriate, IV.

6
At one point in his deposition Dr. Harkrider stated:

I realize that the nurse could not have given [Mr. Taylor] Epinephrin up here at 4:58 or at 5:00
because a doctor was not there to order it. But my opinion is that if he had received Epinephrin at
5:00, that maybe potentially one dose of Epinephrin total would have resuscitated him.
....
So at 5:00 or 16:58 [4:58] when M r. Taylor started exhibiting obvious signs of shortness of
breath, shallow breathing, if - - if Nurse Forrest had called the code earlier and an ACLS certified
nurse had administered Epinephrin earlier, 5, 10, 12 minutes earlier, do you have a reasonable - - do
you have an opinion with a reasonable degree of medical certainty as to whether that would have
changed the outcome in this case?

A. I do

Q. And what’s your opinion?

A. My opinion is that the sooner the Epinephrin was given after he received the drug, the more
chance that he would have survived.

Although Dr. Harkrider stated that he believed that Mr. Taylor would have been resuscitated and recovered had the
Epinephrin been administered at 5:00, he admits that no Epinephrin could have been administered by the responding
nurse, Nurse Forrest, until a doctor arrived. Furthermore, in testifying as to whether Dr Houchin, the first doctor to the
scene, was negligent in failing to timely respond to the code, Dr. Harkrider stated as follows:

Q. All right. Let’s go back and talk about the situation that Dr. Houchin was in fact facing when
he did arrive at 5:07 and how he handled the situation that he was faced with.
First of all, let’s be clear. You have no criticism of Dr. Houchin prior to his arrival at 5:07.
He had no involvement with this patient?

A. None.

(emphasis added).

-22-
 Q. You’re critical of the timing. You say it should have been given two minutes
later than the first dose rather than three.

A. Right.

Q. Okay. And let’s go on to the third dose.

....

Q. Okay. So we’re talking about the dosages of Epinephrin, and we’re down to
the third dose, I believe. What time would you have in your opinion - -
should the third dosage of Epinephrin been given?

A. If the patient had no blood pressure or pulse or vital signs and we’re still
doing CPR?

Q. Right.

A. Because - - I would say two minutes later . . . .

Despite Dr. Harkrider’s testimony that the doses of Epinephrin were not administered in a timely
enough fashion and despite prior testimony in his discovery deposition indicating that Mr. Taylor
would not have suffered brain damage had Epinephrin been properly administered, when
questioned by Defendant’s counsel about whether the alleged improper administration of
Epinephrin caused the ultimate harm to Mr. Taylor, Dr. Harkrider testified as follows:

Q. (By Ms. Tuttle) With regard to your opinion pertaining to the timing of the
Epinephrin, if each of those dosages had been moved up to where they were
administered two minutes apart rather than three minutes apart, do you have
an opinion based upon a reasonable degree of medical certainty whether that
would have made a difference in the injury to Mr. Taylor and the outcome of
this case?

A. I think in my deposition in the initial interrogatories I said that - - that the
lack of administration of Epinephrin certainly impacted. I don’t - - I don’t
think you can isolate the Epinephrin itself, giving the Epinephrin one minute
sooner than before would have had him less of a brain injury. I think you’d
have to view all of this - - all of the things that were going on at the time.

Q. Okay. So is your answer to that question no?

A. No.

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 After reviewing Dr. Harkrider’s testimony, it appears to this Court that Dr. Harkrider
failed to establish causation to a reasonable degree of medical certainty as required in Kilpatrick.
Rather, Dr. Harkrider’s opinions appear to set forth a “loss of chance” theory whereby the alleged
negligent acts of the Defendant’s employees “might have” or “possibly” resulted in Mr. Taylor
not making as full a recovery. We found this particularly prevalent when the following
testimony in Dr. Harkrider’s deposition:

Q. Okay. Do you have an opinion based upon a reasonable degree of medical
certainty whether or not if Mr. Taylor had been intubated at 16:58 or 4:58
versus when he was intubated almost 14 minutes later at 5:12 p.m., whether
or not that would have made a difference in the outcome of this case?

A. I don’t think any expert can say absolutely one way or the other. The only
way I can answer that question is that the sooner he was intubated, the
sooner he got the Epinephrin, the greater his chance of resolving the issue
and having a normal life.

(emphasis added). As recognized by the Tennessee Supreme Court in Kilpatrick,

we are persuaded that the loss of chance theory of recovery is fundamentally at odds
with the requisite degree of medical certitude necessary to establish a causal link
between the injury of a patient and the tortious conduct of a physician. As stated
earlier, a plaintiff in Tennessee must prove that the physician’s act or omission more
likely than not was the cause in fact of the harm.

Kilpatrick, 868 S.W.2d at 602 (citing Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 861 (Tenn.
1985)). Furthermore, as previously noted, the court in Kilpatrick also held that “proof of
causation equating to a ‘possibility,’ a ‘might have,’ ‘may have,’ ‘could have,’ is not sufficient as
a matter of law, to establish [proximate causation] in a medical malpractice case.” Id. at 602.
Since we find from the record that Dr. Harkrider did not establish causation to a reasonable
degree of medical certainty, we hereby reverse the trial court’s holding awarding judgment to
Plaintiff.

Conclusion

For the forgoing reasons, we affirm the trial court’s holding regarding the competency of
Dr. Harkrider to testify as an medical expert witness in this case, but reverse the trial court’s
finding that Dr. Harkrider established causation to a reasonable degree of medical certainty.

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Accordingly, we reverse the trial court’s award of damages against Defendant, Jackson-Madison
County General Hospital District. Costs of this appeal are taxed to Plaintiff, Kay Taylor
Gneiwek as administrator of the estate of Jerry Alan Taylor, for which execution may issue if
necessary.

___________________________________
DAVID R. FARMER, JUDGE

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