This requirement is commonly referred to as the "locality rule." See Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn.Ct.App. 1997); see also Tilley, 2002 Tenn. App. LEXIS 349, at *12. "Without this requisite threshold evidence of the standard of care in the locality, a plaintiff cannot demonstrate a breach of duty."
Id. First, the expert may demonstrate that he or she has first-hand knowledge of the standard of care applicable in the subject community. Tenn. Code Ann. ยง 29-26-115(a)(1); Robinson, 83 S.W.3d at 724; see alsoMabon v.Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn. Ct. App. 1997); Eckler v. Allen, 231 S.W.3d 379 (Tenn. Ct. App. 2006). Second, an expert may demonstrate that he or she has first-hand knowledge of the standard of care in a community that is similar to that of the defendant.
โ Id. at 600. In Mabon v. JacksonโMadison Cnty. Gen'l Hosp., 968 S.W.2d 826 (Tenn.Ct.App.1997), the defendant doctor was a surgeon practicing in Jackson, Tennessee, and the plaintiff's expert was a surgeon practicing in Missouri. The Mabon court summarized the plaintiff's expert's testimony, which the court held to be insufficient, as follows:
See Shelby County v. Barden, 527 S.W.2d 124, 131 (Tenn. 1975); Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 829 (Tenn. Ct. App 1997). Accordingly, appellate courts reviewing a trial court's decision regarding the qualifications or competency of a patient's medical expert employ the "abuse of discretion" standard.
In other words, Dr. Engel's affidavit did not satisfy the "locality rule." See Howell v. Baptist Hosp., No. M2001-02388-COA-R3-CV, 2003 WL 112762, at *5 (Tenn.Ct.App. Jan.14, 2003); Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn.Ct.App. 1997); see also Tilley, 2002 WL 1000196, at *6. "Without this requisite threshold evidence of the standard of care in the locality, a plaintiff cannot demonstrate a breach of duty."
Without an opposing expert affidavit, patients cannot demonstrate the existence of a genuine factual dispute regarding whether the physician breached the professional standard of professional practice in the community. Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn.Ct.App. 1997). The substance of the evidence offered by the patient to oppose a physician's summary judgment motion must be admissible at trial but need not be in admissible form. Messer Griesheim Indus. v. Cryotech of Kingsport, Inc., 45 S.W.3d at 598; Versa v. Policy Studies, Inc., 45 S.W.3d 575, 582 (Tenn.Ct.App. 2000).
The plaintiff in a medical malpractice action carries the burden of proof as to the statutory requirement that medical experts practice in a community similar to the one in which the claim arose. See Mabon v. Jackson-Madison County General Hosp., 968 S.W.2d 826, 828 (Tenn.Ct.App. 1997). Although this Court has "admonished lawyers to couch their medical experts' conclusions in the language of" the statute, we realize that "a mere ritualistic incantation of statutory buzz evidences very little."
The order states in pertinent part: [T]he plaintiff is not able to establish the requirements of Tennessee Code Annotated ยง 29-26-115(a)(1) insofar as the locality rule is concerned as has been interpreted in the case of Mabonv. Jackson-Madison County General Hospital, 968 S.W.2d 826 (Tenn.Ct.App. 1997). The Court specifically rejects plaintiff's argument that the standard of care is a national standard or that the standard of care in Memphis, Tennessee is the same as in Lexington, Kentucky because all gynecologist read the same journals and articles and because they have to pass the same examination to be board certified.
If a plaintiffs opinion witness cannot demonstrate adequate knowledge concerning the medical resources and standards of care in the community in which the defendant practices, the plaintiffs claim must fail. Mabon v.Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn.Ct.App. 1997); Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987). An opinion witness may not base his or her testimony solely on his or her familiarity with a national, regional, or statewide standard of professional practice.
" Id. at 600. In Mabon v. Jackson-Madison Cnty. Gen'l Hosp., 968 S.W.2d 826 (Tenn. Ct. App. 1997), the defendant doctor was a surgeon practicing in Jackson, Tennessee, and the plaintiff's expert was a surgeon practicing in Missouri. The Mabon court summarized the plaintiff's expert's testimony, which the court held to be insufficient, as follows: