Oral Moore sued for damages under the Federal Tort Claims Act for medical malpractice by physicians at the Memphis Healthcare Center of the Department of Veterans Affairs. He sustained floppy glans and a shortening of penile length from a surgical implantation of an inflatable penile prosthesis. The district court granted the government’s motion for summary judgment—and denied a motion to reconsider—because his claim failed as a matter of law, due to the burden of proof under the applicable state law. Moore appealed.
When a plaintiff brings a claim against the United States under the Federal Tort Claims Act, the controlling law is that of the state in which the act or omission occurred. The conduct here occurred in Tennessee.
Under Tennessee law, in a healthcare liability action, a plaintiff must prove: (1) The recognized standard of acceptable professional practice in the profession; (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. Tenn. Code Ann. § 29-26-115(a)(1)-(3). To be competent to testify in any court of law to establish the facts required to be established by subsection (a), an expert witness must be a licensed practitioner in either the state of Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115(b).
The United States Court of Appeals for the Eighth Circuit stated in its March 14, 2024 Per Curiam: “Moore’s expert witness was licensed to practice only in Pennsylvania, which does not border Tennessee, and, thus, was not competent to testify in this case. Without an expert that met the competency requirement, Moore failed to meet the statutory burden of proof.”
The federal appellate court further stated: “Moore claims the government waived the state-law deficiency by failing to
assert it as an affirmative defense in an answer. See Fed. R. Civ. P. 8(c)(1). However, “the argument” that Moore did not meet his burden of proof “was not an affirmative defense, but simply negated an element of [Moore’s] prima facie case.””
Lastly, the federal appellate court further held: “Moore raises many issues on appeal that he did not raise below … Moore does not assert a miscarriage of justice, and no miscarriage exists on the record. The issues not presented to the district court are waived. Moore raises two issues on appeal that do not affect the grant of summary judgment: compliance with a national standard of care, and the exclusion of the government’s expert witness. This court affirms on both issues.”
Source Moore v. United States of America, No. 23-2251.
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