In a typical medical malpractice case, Tennessee law requires a plaintiff to establish and prove a physician breached the applicable standard of professional care. Most often, a plaintiff must provide expert testimony to establish the physician’s standard of care and that it was breached by the physician. Experts testifying in medical malpractice cases are required to be licensed to practice within Tennessee or in a contiguous state in the year prior to the alleged injury. In addition, Tennessee law requires that these experts base their testimony on first-hand knowledge of the professional custom of the same or a similar community in which the alleged injury took place.

 

 

Yes. A recent Tennessee Court of Appeals decision, Watkins v. Affiliated Internists, P.C., permitted a plaintiff to rely on regulations promulgated by the Board of Medical Examiners in order to establish the standard of care of a physician who oversees physician assistants. 

 

 

A patient was prescribed a three week supply of Demerol by a physician assistant after complaining of pain from a recent surgery. Two weeks after the physician assistant’s examination, the patient called complaining of nausea and vomiting. Although instructed to seek treatment in the ER, she did not act on the physician assistant’s instructions. Later that day, she died after suffering cardiac arrest and seizure. The husband brought a medical malpractice claim against the supervising physician where he alleged, among other things, that by failing to prepare written protocols and failing to properly oversee the physician assistant in accordance with Tennessee medical board regulations, the physician engaged in medical malpractice. 

 

 

The trial court denied the plaintiff’s assertion that regulations regarding the oversight of physician assistants could conclusively established the standard of care of a supervising physician. On appeal, the Court of Appeals, however, held that a regulation can substitute for expert testimony in establishing the standard of care and its breach in medical malpractice cases, but only if the regulation truly establishes a professional standard instead of merely providing administrative requirements for regulatory oversight. The Court noted that regulations requiring a physician to create and maintain protocols for physician assistants were merely administrative in nature. Surprisingly, however, the Court found that regulations requiring physicians to make personal review of physician assistant charts within ten days following the examination of a patient who is administered a controlled substance was not an administrative requirement and thus “constituted the standard of care.” The Court held that the physician’s sanction by the Board for violating the regulation equated a breach of that standard by failing to review the charts of his physician assistant within the time period prescribed by the regulations. Consequently, the plaintiff was not required to prove the standard of care or its breach through expert testimony.

 

No. As the Court of Appeals made clear, administrative regulations do not establish a professional standard of care. However, regulations that create a “professional standard” may be used to establish a breach of the standard of care.

 

 

The Court did not engage in an exhaustive analysis as to which regulations were administrative and which establish the standard of care. Nevertheless, the Court did make clear that regulations merely imposing requirements designed to support the regulatory scheme, such as regulations that require the filing of reports or obtaining certain licenses, will not be sufficient to establish the standard of care in medical malpractice cases.

 

 

Yes. While the court in Watkins found the oversight regulation established the standard of care, to constitute medical malpractice the physician’s violation must be the actual and proximate cause of the plaintiff’s injury. In Watkins, the Court did not directly address this issue. Instead, the Court simply held that the plaintiff could amend his complaint to include this claim and the trial court would have to make a factual determination as to causation. To date, no amended complaint has been filed and thus the issue of causation has not been addressed.

 

Special thanks to Paul Singleton in the preparation of this article. Mr. Singleton is a third-year law student at the University of Tennessee College of Law and currently works as a clerk at London & Amburn, P.C.