In its opinion filed on April 20, 2020, the Supreme Court of Tennessee at Nashville (“Tennessee Supreme Court”) held that “under Tennessee Code Annotated section 29-26-115(b), a doctor, who was permitted to practice medicine in Tennessee under a statutory licensure exemption but was not licensed to practice medicine in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct, does not meet the requirements of section 29-26-115(b) to testify as an expert witness in a health care liability action.”
Tennessee Code Annotated Section 29-26-115
Section 29-26-115(a) states: “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.”
Section 29-26-115(b) sets forth the requirements of a witness who is qualified to testify about the evidence required by section 29-26-115(a), and states: “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 . . . 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.”
Tennessee Supreme Court Opinion
The Tennessee Supreme Court stated, “It is undisputed that Dr. Rytlewski [the plaintiff’s electrophysiology expert in a negligent ablation Tennessee medical malpractice wrongful death case] was not licensed to practice medicine in Tennessee or a contiguous bordering state during the year before the alleged injury or wrongful act. Dr. Rytlewski was exempt from the licensure requirement during his fellowship at Vanderbilt under Tennessee Code Annotated section 63-6-207(d)(2)(A)(i) (2017 & Supp. 2019), which exempts “medical students, interns, residents, and clinical fellows” from the requirement to have a license to practice medicine when they are participating in a training program at an accredited medical school or affiliated teaching hospital in Tennessee under the supervision of a licensed physician.”
The Tennessee Supreme Court stated: “Our focus is on the meaning of the introductory language of section 29-26-115(b): “No person in a health care profession requiring licensure under the laws of this state . . . .” We find that the meaning of this language is clear and unambiguous. The phrase “requiring licensure under the laws of this state” modifies the term “health care profession” that immediately precedes it in the sentence, not “person” that comes earlier in the sentence. Thus, the statute refers to a profession that requires licensure, not to the person requiring licensure. The practice of medicine is a “profession requiring licensure under the laws of this state.” See Tenn. Code Ann. § 63-6-201(a) (2017). In short, a person who practices medicine may be competent to testify as an expert witness if that person meets the license and practice requirements of section 29-26-115(b). A licensure exemption for a person who practices medicine does not eliminate the license requirement in section 29-26-115(b) … A contrary finding—that Dr. Rytlewski was competent to testify as an expert witness even though he was not licensed in Tennessee—would make the licensure requirement of section 29-26-115(b) “inoperative, superfluous, void or insignificant,” which our standard of review does not allow.”
The Tennessee Supreme Court concluded: “we hold that under the clear and unambiguous language of Tennessee Code Annotated section 29-26-115(b), Dr. Rytlewski, who was permitted to practice medicine in Tennessee under a statutory license exemption but was not licensed to practice medicine in Tennessee or a contiguous state in the year before the alleged injury or wrongful act, was not qualified to testify as an expert witness in this health care liability case.”
Source Young v. Frist Cardiology, PLLC, No. M2019-00316-SC-R11-CV.
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