Marsha McDonald filed a medical malpractice lawsuit against Dr. Paul F. Shea and Shea Ear Clinic after experiencing complete hearing loss in one ear following treatment for Ménière’s disease. McDonald claimed lack of informed consent, asserting that Dr. Shea did not adequately inform her of the risks, specifically that total hearing loss could occur. During the trial, the court allowed McDonald to use an expert witness from a non-contiguous state after local experts declined to testify against Dr. Shea. A juror raised concerns about potential bias due to a social event involving a relative of Dr. Shea, prompting the trial judge to excuse her, utilizing McDonald's remaining peremptory challenges. The jury awarded McDonald substantial compensatory damages, and Dr. Shea appealed on several grounds, including the admissibility of the non-contiguous expert and the handling of juror dismissal. The appellate court affirmed the trial court’s decisions on all issues except the dismissal of the juror, finding the exercise of a peremptory challenge during trial to be an error but harmless in this case. The judgment of the circuit court was thus upheld.
On July 20, 2004, McDonald began a three-day perfusion treatment at the Shea Clinic, where she was presented with a risk disclosure document highlighting potential adverse effects, including complete hearing loss. McDonald, unable to read the form due to not having her eyeglasses, claimed she was told she had to sign it to receive treatment, but the risks were not explained to her. After signing, she underwent three rounds of therapy administered by Dr. Shea. Following the treatment, McDonald experienced severe symptoms, including dizziness and fullness in her left ear, eventually leading to a diagnosis of 100% hearing loss in that ear by November 2004. In June 2005, she filed a lawsuit against Dr. Shea and the Shea Clinic for negligence and failure to obtain informed consent, seeking compensatory damages.
During trial preparation, McDonald moved for permission to identify a medical expert from outside Tennessee, citing concerns that local physicians were unwilling to testify due to fear of retaliation from Dr. Shea’s father, a notable local physician. The trial court granted this motion, allowing McDonald to present Dr. Dennis R. Maceri from Los Angeles as an expert witness. Dr. Shea later attempted to exclude Dr. Maceri's testimony on grounds of unfamiliarity with local standards and irrelevant specialties, but the court denied the motion.
The jury trial commenced on June 14, 2010, with a voir dire process that included a broad question about jurors' impartiality. McDonald exercised four of her six peremptory challenges, while Dr. Shea and the Shea Clinic utilized all eight of their challenges, resulting in the selection of twelve jurors and two alternates, including Juror H.
On June 15, after jury selection and opening statements, Juror H notified the trial judge about her upcoming social event with Dr. Shea’s mother, a friend of her mother-in-law. Juror H, who had met Dr. Shea’s mother a few times, expressed discomfort in potentially voting against Dr. Shea due to the social implications but stated she could set aside her feelings to fulfill her duty. Following additional voir dire, the trial court allowed McDonald’s attorney to exercise a peremptory challenge to excuse Juror H, despite objections from Dr. Shea’s counsel. Juror H was ultimately excused, and the trial continued with an alternate juror.
Throughout the trial, testimonies were provided by both parties, including expert witness Dr. Maceri, who asserted that Dr. Shea's treatment of McDonald fell below the accepted standard of care, particularly regarding his misdiagnosis and treatment decisions. After the plaintiff rested, Dr. Shea moved for a directed verdict on McDonald's informed consent claim, which the trial court deferred. Upon the defense's conclusion, the trial court denied the motion and included the informed consent issue in jury instructions. The jury ultimately returned a verdict in favor of McDonald, awarding her $500,000 in damages. The defendants filed an appeal.
Defendants Dr. Shea and Shea Clinic contend on appeal that the trial court incorrectly refused to grant a directed verdict on McDonald’s informed consent claim. They challenge the admissibility of Dr. Maceri's expert testimony, arguing that he did not meet the Tennessee statutory requirement for a medical expert, lacked first-hand knowledge of the Memphis standard of care, improperly compared Memphis to Los Angeles, relied on a national rather than a local standard of care, and was unqualified regarding the specific treatment protocols relevant to McDonald’s condition. Additionally, they assert that the trial court erred by allowing McDonald’s counsel to exercise a peremptory challenge to dismiss Juror H post-selection.
The appellate review standards are as follows: a directed verdict decision is reviewed de novo, requiring that the evidence be viewed in favor of the non-moving party; expert witness testimony is reviewed under an abuse of discretion standard regarding admissibility and qualifications; and the trial court's waiver of the contiguous state requirement and community similarity determination are also subject to abuse of discretion review. Furthermore, the decision to excuse Juror H is reviewed for abuse of discretion, emphasizing the discretionary power of trial judges in juror qualifications. A trial court abuses its discretion if it applies an incorrect legal standard or makes an unreasonable decision.
Shea contends that the trial court improperly denied a directed verdict on McDonald’s claim of lack of informed consent, asserting that McDonald was adequately informed of the risks associated with the perfusion treatment through a pamphlet, Dr. Shea’s conversation with her, and a consent form she signed prior to the procedure. Shea argues that the information provided met the professional standards for disclosure, warranting a directed verdict in his favor.
Under Tennessee law, a patient claiming lack of informed consent must demonstrate what a reasonable medical practitioner would have disclosed regarding the procedure’s risks and that the defendant failed to meet that standard. The evaluation hinges on whether the physician provided sufficient information for the patient to make an informed decision about consenting to or refusing the procedure.
In this case, the pamphlet indicated that 5% of patients experienced worsened hearing post-procedure and included disclaimers about the potential for ongoing symptoms or complete hearing loss. The consent form warned of possible further hearing loss, including total loss. McDonald stated she could not read the consent form due to not having her glasses and claimed it was not read to her. During her discussion with Dr. Shea, she raised concerns about her hearing worsening; however, Dr. Shea allegedly dismissed her worries and assured her that her hearing would likely remain the same, without mentioning the possibility of total hearing loss.
Dr. Maceri, McDonald’s expert witness, found no fault with the pamphlet or consent form, noting he used similar forms in his practice. However, he emphasized the importance of verbally discussing risks with patients to enhance their understanding.
Dr. Maceri testified that adherence to the standard of care requires consistency between verbal communications and written materials provided to patients. He asserted that Dr. Shea failed to adequately inform McDonald about the risks of perfusion, particularly the potential for total loss of hearing, which hindered McDonald’s ability to make an informed decision regarding the treatment. Dr. Shea contended that the risk was sufficiently disclosed in the written materials provided to McDonald. However, evidence from McDonald’s expert indicated that the standard of care necessitated verbal discussions about these risks as well. Testimony revealed that Dr. Shea did not inform McDonald about the risk of total hearing loss and instead made reassuring remarks. Consequently, the court found that Shea did not meet the burden of proving that reasonable minds could only conclude in his favor, leading to the denial of his motion for a directed verdict on informed consent.
Additionally, Shea challenged the trial court's decision to allow Dr. Maceri’s testimony, arguing that the contiguous state requirement for expert witnesses, as per Tennessee Code Annotated 29-26-115, was improperly waived. The statute mandates that an expert must be licensed in Tennessee or a contiguous state during the year preceding the alleged injury, but allows for waiver if appropriate witnesses are unavailable. McDonald’s counsel detailed extensive efforts to find a qualified expert, noting that numerous physicians acknowledged the merit of McDonald’s case but declined to testify due to concerns about professional retaliation from Dr. Shea's father. The trial court granted the waiver based on this information. On appeal, Shea argued that the affidavit did not demonstrate the unavailability of appropriate witnesses, equating the situation to a lack of willingness to testify due to the absence of malpractice.
McDonald contends that Tennessee law does not differentiate between qualified experts who are 'unavailable' versus those who are 'unwilling' to testify, focusing instead on whether a qualified expert can be found in Tennessee or a neighboring state. The waiver of the contiguous state requirement is seen as a 'safety valve' for parties unable to find qualified experts within Tennessee or adjacent areas. Tennessee courts typically uphold such waivers if they fall within acceptable alternatives, as illustrated in Ward v. Glover and Steele v. Ft. Sanders Anesthesia Grp. In Rose v. H.C.A. Health Servs., plaintiffs unsuccessfully sought a waiver after failing to locate an expert in hospital risk management, with their counsel's affidavit deemed insufficient by the appellate court, which found the efforts to locate an expert to be generalized and lacking specificity. Shea argues that McDonald’s counsel's affidavit demonstrates a lesser effort than in Rose but fails to convince that the size of the defendant corporation should be considered as a basis for unavailability. The appellate court clarifies that Rose does not support Shea’s position since it only discusses denial of a waiver, while the current case examines the appropriateness of granting one. Ultimately, McDonald’s reasons for the unavailability of experts are deemed adequate, and the trial court's decision to allow a waiver is upheld as falling within acceptable judicial discretion.
In a medical malpractice case under Tennessee Code Annotated § 29-26-115(a), the plaintiff must establish the standard of care relevant to the defendant's practice through competent expert testimony. Shea argues that Dr. Maceri is not qualified to provide this testimony due to his lack of first-hand knowledge of the standard of care in Memphis, Shelby County, and the dissimilarity of his practice location in Los Angeles, California. Shea asserts that Dr. Maceri's opinions reflect a national standard, rather than local standards. The document references the Supreme Court case Shipley v. Williams, which involved the exclusion of an expert's testimony based on similar grounds. The Shipley Court examined the locality rule, emphasizing that while the trial court should not weigh the expert's testimony, it must ensure that the expert meets minimum competency requirements. Additionally, the term "similar community" is not specifically defined in the statute, and no prescribed method exists for establishing what constitutes such a community, but a medical expert must show some familiarity with the community where the defendant practices or a comparable one.
An expert’s testimony in a medical malpractice case can be deemed relevant and probative under Tennessee Rules of Evidence 702 and 703 if the expert demonstrates familiarity with pertinent statistical information about the medical community, such as community and hospital size, types of medical facilities, and available medical services. This familiarity can be established through various means, including discussions with local medical providers, visits to the community or hospital, and reviewing relevant reference materials. The Shipley Court rejected the requirement for medical experts to have personal, firsthand knowledge of the local medical community and its standard of care, emphasizing that experts need not demonstrate such direct experience to qualify as competent witnesses.
Furthermore, the Court acknowledged that when an expert references a national standard of care, it can be relevant if the expert first establishes familiarity with the local or similar community standards. The Court recognized that national standards often reflect local standards and should not preclude an expert from testifying. However, an expert's opinion must not solely rely on the existence of a national standard; it must be supported by an explanation of its applicability to the local context.
Evaluation of the issues raised by Shea and the appellate record is required in the context of Shipley. Dr. Maceri provided a sworn affidavit, deposition testimony, and trial testimony, asserting his familiarity with the accepted medical practices in Memphis, Tennessee, and similar areas, including Los Angeles. He affirmed that the medical standards for diagnosing and treating patients, specifically in the case of Ms. McDonald, are consistent across different communities, including those with leading treatment centers like the Shea Clinic. In his deposition, Dr. Maceri discussed his communication with Dr. Fetterman, a former resident practicing in Memphis, regarding local medical practices. He inquired about the preferred drug for chemical labyrinthectomy and confirmed the existence of vestibular rehabilitation facilities in Memphis. Dr. Maceri concluded that the standard of care in Memphis aligns with a national standard, emphasizing the uniformity of practices in otology, which is informed by publications and research disseminated by professional medical societies.
A national standard of care exists, as asserted by Dr. Maceri, who believes all physicians should adhere to it. He references standards from medical academies and subspecialty societies that aim for consistency in medical practices across the country. During his testimony, Dr. Maceri acknowledged that his practice and training were in Los Angeles and Michigan, and he admitted he has never practiced in Memphis or worked with local physicians, except for a past acquaintance. He recognized that while Los Angeles has a much larger population and more hospitals than Memphis, core medical principles remain consistent nationwide, although individual practices may vary regionally. Dr. Maceri mentioned that he learned from Dr. Fetterman that Gentamicin is commonly used in Memphis, except at the Shea Clinic, the largest facility in the area. He contended that the standard of care in both Los Angeles and Memphis is a national standard applicable to the case at hand. The trial court's decision to consider Los Angeles similar to Memphis is under scrutiny, and Dr. Maceri provided a supplemental affidavit outlining specific demographic and hospital statistics to support his claim of similarity between the two communities.
Los Angeles and Memphis, while differing in population size, are fundamentally similar medical communities due to their shared characteristics, such as the presence of university-based medical centers, medical training programs, community and specialty hospitals, and a comparable range of medical specialties, including otology. Both cities have a similar number of healthcare facilities and beds when adjusted for population, indicating no significant differences in the delivery of medical services. The considerations for using transtympanic perfusion therapy and medication choices, such as Gentamycin or Streptomycin, are consistent across both communities, unaffected by geographic location. The diagnostic criteria for Ménière’s disease are uniformly understood within the medical specialties in both locations, reinforcing that standards of care should be equivalent for patients, regardless of whether they present in Los Angeles or Memphis. While Shea argues that the trial court erred in allowing expert testimony due to perceived dissimilarities, particularly in population size, the analysis indicates that this factor alone does not negate the substantial similarities relevant to the case. Instead, the concept of a "similar community" is contextual, particularly concerning the medical procedures at issue. Dr. Maceri's affidavit articulates well-founded reasons supporting the assertion of similarity, which is consistent with the discussions in the Shipley case regarding standards of care, suggesting that local and national standards often align.
Dr. Maceri asserts that the Memphis medical community's size and sophistication allow for the application of urban medical standards, similar to those in Los Angeles, particularly regarding Dr. Shea and Shea Clinic. The trial court, as emphasized in Shipley, is tasked with determining whether an expert meets minimum competency standards, trusting that the expert's credibility will be tested through cross-examination. The court found no abuse of discretion in admitting Dr. Maceri's testimony, concluding that the similarities between Los Angeles and Memphis justified his expert opinion. Dr. Maceri supported his assertion of a national standard of care with explanations rather than mere assertions, thus aligning with Shipley's criteria for permissible testimony.
Despite Dr. Maceri lacking first-hand knowledge of Memphis's standard of care, he reviewed statistical data and consulted local practitioners, which the court found sufficient for qualification under Shipley. The court also noted that, under Tennessee Code Annotated § 29-26-115, an expert need only testify about the standard of care in the community where the defendant practices or a similar one, negating the need to further evaluate Dr. Maceri’s qualifications for Memphis specifically.
Shea contends that Dr. Maceri lacks the necessary expertise to testify on three specific medical issues: perfusion treatment, the use of Streptomycin, and the diagnosis of Ménière’s disease. Shea points out that Dr. Maceri does not perform perfusion procedures, has never worked with Streptomycin, and is unfamiliar with the electrocochleogram test used by Dr. Shea in his diagnosis. Shea argues that Dr. Maceri's claims of knowledge gained through education and contact with peers do not sufficiently qualify him to provide expert testimony on these matters.
Shea argues that the trial court incorrectly assessed the reliability of Dr. Maceri's expert testimony under Tennessee Rules of Evidence 702 and 703. Shea claims that the court failed in its gatekeeping role by not adequately evaluating whether Dr. Maceri's testimony would assist in determining the case's facts and whether the underlying data was trustworthy. Shea references the Tennessee Supreme Court case McDaniel v. CSX Transp. Inc., which outlines factors for assessing scientific testimony reliability, including: the testing of the scientific evidence, peer review status, known error rates, general acceptance in the scientific community, and whether the research was conducted independently of litigation. Shea also cites later cases that expand on this by considering the expert's qualifications and the relevance of their knowledge to the opinions provided. In response, McDonald argues that Dr. Maceri does not need to have the same educational background as Dr. Shea but must be familiar with the standard of care relevant to the specialty, asserting Dr. Maceri's qualifications to provide testimony on Ménière’s perfusion treatment and Streptomycin. The discussion also acknowledges the Tennessee Supreme Court's position in Shipley v. Williams, which further informs the analysis of expert testimony qualifications.
The plaintiff in Shipley alleged medical malpractice against her general surgeon, claiming negligence for failing to admit her promptly to the hospital, misdiagnosing her condition, and not providing adequate follow-up care. A trial court excluded one of her expert witnesses, a board-certified emergency medicine physician, due to his specialty not being directly related to surgical care. The Supreme Court indicated it would agree with this exclusion if the case involved surgical issues but clarified that experts are not required to have the same specialty as the defendant. Instead, relevance to the specific issues in the case is key. Given that the case focused on follow-up care rather than surgery, the Court found the plaintiff's expert qualified to testify.
In examining McDonald’s allegations against Dr. Shea, Dr. Maceri testified regarding the standards of care for diagnosing and treating Ménière’s disease. He noted that McDonald’s symptoms lacked key indicators of the condition, and in his opinion, a proper diagnosis required conservative treatment, including dietary changes, before considering more invasive options like perfusion therapy. Dr. Maceri criticized Dr. Shea for bypassing conservative measures and directly recommending perfusion, asserting this violated the standard of care. He also stated that if perfusion therapy is necessary, Gentamycin should be used instead of Streptomycin due to its lower risk of ototoxicity. Dr. Maceri, board-certified in otolaryngology, has substantial experience treating Ménière’s patients and educates medical students on the condition. He typically refers patients to another physician for perfusion treatment if it becomes necessary.
Dr. Maceri, knowledgeable in perfusion therapy, testified about the appropriateness of the treatment, its risks, potential side effects, and long-term impacts. He is familiar with Streptomycin and Gentamycin, although not an expert in these agents. His understanding stems from attending medical education events, reading relevant literature, and consulting with other physicians. The case, similar to Shipley, focuses not on Dr. Shea's method of using an electrocochleogram to diagnose Ménière’s disease, but on his diagnosis of a patient without vertigo symptoms. Dr. Maceri regularly diagnoses Ménière’s disease and asserts that McDonald did not have the condition. He was asked to assume her diagnosis was correct and evaluate Dr. Shea’s treatment standard, which primarily concerns the decision to perform perfusion therapy, specifically his choice of Streptomycin over Gentamycin. Dr. Maceri's practice involves assessing treatment options for Ménière’s disease, including the risks of perfusion agents, qualifying him as an expert witness relevant to McDonald’s lawsuit. The court found no error in allowing Dr. Maceri to testify.
Additionally, Shea argued that the trial court erred by allowing McDonald’s counsel to exclude Juror H through a peremptory challenge after the jury was sworn. While acknowledging that jurors can be challenged for cause post-swearing, Shea contended that Juror H was not excused for cause. He claimed the exercise of peremptory challenges should end once the jury is sworn and argued this error compromised his constitutional right to a jury trial, warranting a new trial. In contrast, McDonald maintained that the trial court acted appropriately by permitting her to challenge Juror H after discovering bias, considering the juror's statements indicated difficulty in remaining impartial. McDonald argued that this was effectively a challenge for cause and that the court had the authority to allow the peremptory challenge under the circumstances.
McDonald argues that even if there was an error by the trial judge, it was harmless, and a new trial is unnecessary. In Tennessee, civil case parties have the right to a fair and unbiased jury as guaranteed by the state constitution. The trial court may disqualify a juror if their state of mind prevents impartiality, as outlined in Tennessee Code. Jury selection involves randomly designating jurors from a venire, with attorneys able to "de-select" jurors through challenges. Challenges can be for cause or peremptory; the former requires a specified reason for disqualification, while the latter allows rejection without cause. Challenges for cause are categorized into two types: propter defectum (due to personal disqualifications) and propter affectum (due to bias). The former can be raised at any time until the verdict, while the latter can be raised even post-verdict. The trial court has discretion to dismiss a juror for cause, regardless of the juror's assurance of impartiality, as a disqualified juror cannot assure impartiality solely by claiming they can be fair.
The excerpt addresses the legal principles surrounding peremptory challenges in jury selection, citing the case of Rice v. State, where the trial court's failure to dismiss a juror was reversed despite the juror's assurance of impartiality. Peremptory challenges allow parties to exclude a limited number of jurors without providing a reason, as established by Tennessee statutes (Tenn. Code Ann. 22-3-104). This right is granted to the accused by legislative grace, not constitutional mandate, and the trial judge has discretion over the challenge procedures.
McDonald argues for the allowance of unused peremptory strikes on jurors after the jury is sworn, referencing cases from Louisiana and North Carolina that support various interpretations of peremptory challenge procedures. However, the appellate court is not persuaded by these arguments, noting that in most jurisdictions, including Tennessee, peremptory challenges do not extend beyond the jury selection process. Tennessee case law indicates that peremptory challenges must occur before the jury is sworn, as established in Kirkendoll v. State and Estep v. State. No Tennessee authority supports the use of peremptory challenges after jurors have been sworn or empaneled.
A party may challenge a juror for cause or use a peremptory challenge before the jury is sworn, but such challenges cannot be exercised once the jury is impaneled. The Michigan Supreme Court established that the right to peremptory challenges ends when the parties express satisfaction with the jury panel. In the case at hand, it is ambiguous whether Juror H was dismissed through a peremptory challenge or for cause, although the trial court indicated the juror's impartiality as a valid reason for dismissal. McDonald contends that any error related to Juror H's dismissal, even if it occurred, was harmless. Shea argues that such an error necessitates a new trial, citing constitutional rights. However, Shea failed to demonstrate how the error impacted the judgment, as the case proceeded with impartial jurors. The court concludes that the error in dismissing Juror H was harmless. The trial court's decisions, including the denial of Shea’s directed verdict motion and the allowance of an expert witness from a non-contiguous state, are affirmed. Costs on appeal are assigned to the appellants, Paul F. Shea, M.D., and Shea Ear Clinic.
