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Tuesday, February 01, 2011

Medical Malpractice: Trial Court's Striking of Plaintiffs' Only Expert Upheld on Appeal

The Middle Section of the Tennessee Court of Appeals recently issued its opinion in Westmoreland v. Bacon, No. M2009-02643-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2011). Here's the summary from the majority opinion, to wit:

Plaintiffs appeal the summary dismissal of their medical malpractice claims against three physicians, an orthopedic surgeon, and two hematologists. In December 2004, Plaintiffs’ mother, who suffered from several medical conditions, underwent a total hip replacement and remained in the hospital under the care of several doctors for ten days. Nine days after surgery, her condition dramatically declined; she died the following day from a severe diffuse pulmonary and gastrointestinal hemorrhage. Plaintiffs filed suit alleging the physicians breached the standard of care for their respective specialties in the care of their mother. Each defendant filed a motion for summary judgment and each motion was supported by the affidavit of the defendant as an expert witness. Plaintiffs submitted an affidavit of their expert witness in response. The trial court ruled that Plaintiffs’ only expert was not a qualified witness under Tenn. Code Ann. § 29-26-115 and granted summary judgment to all three defendants. On appeal, Plaintiffs claim the trial court abused its discretion in finding that their expert witness was not qualified to testify. We affirm the trial court’s ruling that Plaintiffs’ expert was not qualified to testify under Tenn. Code Ann. § 29-26-115 and the summary dismissal of Plaintiffs’ claims.

Here's a link to the majority opinion:

Judge Dinkins wrote a dissenting opinion. Here's a link to it:

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