Vickie S. Young, Individually and as Administrator of the Estate of Randall Josh Young v. Frist Cardiology, PLLC ( 2020 )

04/20/2020
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 11, 2020 Session
VICKIE S. YOUNG, INDIVIDUALLY AND AS ADMINISTRATOR OF
THE ESTATE OF RANDALL JOSH YOUNG, DECEASED v. FRIST
CARDIOLOGY, PLLC ET AL.
Appeal by Permission from the Circuit Court for Davidson County
No. 17C597 Joseph P. Binkley, Jr.
___________________________________
No. M2019-00316-SC-R11-CV
___________________________________
We granted review to determine whether a doctor is qualified to testify in a health
care liability case as an expert witness under Tennessee Code Annotated section 29-26-
115(b) when the doctor was not licensed to practice medicine in Tennessee or a
contiguous state within one year of the alleged injury or wrongful conduct, but was
practicing under a licensure exemption. Section 29-26-115(b) provides that a doctor is
competent to testify as an expert witness only if the doctor is licensed to practice
medicine in Tennessee or a contiguous state and the doctor was practicing medicine in
Tennessee or a contiguous state during the year before the date of the alleged injury or
wrongful conduct. We hold 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. We reverse and remand this case to the trial court for further proceedings.
Tenn. R. App. P. 11 Appeal by Permission; Ruling of the Trial Court Reversed;
Case Remanded to the Trial Court
SHARON G. LEE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
Travis B. Swearingen, Andrew D. Tharp, and James A. Beakes III, Nashville, Tennessee,
for the appellants, Frist Cardiology, PLLC and Thomas J. Killian, M.D.
D. Russell Thomas, Murfreesboro, Tennessee, for the appellee, Vickie S. Young.
OPINION
I.
On December 1, 2011, Thomas J. Killian, M.D., performed a cardiac cryoablation
procedure1 on Randall Josh Young at TriStar Centennial Medical Center in Nashville.
Two days later, Mr. Young died from a stroke.
In March 2017, Vickie S. Young, Mr. Young’s surviving spouse and the
administrator of his estate, sued the Defendants, Dr. Killian and Frist Cardiology, PLLC,
in the Davidson County Circuit Court.2 Ms. Young alleged that the Defendants failed to
appropriately evaluate and monitor Mr. Young’s condition before and during the
cryoablation procedure, and that the procedure should not have been performed on a
patient in Mr. Young’s medical condition. Ms. Young alleged that the Defendants’
negligent conduct caused her husband’s death.
The trial court’s case management order required the parties to identify the expert
witnesses they planned to use at trial. Ms. Young named Dr. Jason A. Rytlewski as the
expert witness who would testify that Dr. Killian deviated from the applicable standard of
care in his treatment of Mr. Young, which caused or contributed to his death. The
Defendants identified two experts who were expected to testify that Dr. Killian followed
the recognized standard of acceptable professional practice in his treatment of Mr.
Young.
The Defendants moved for summary judgment, arguing that Ms. Young had failed
to come forward with competent proof to support her claim that Dr. Killian did not follow
the applicable standard of care, as required by Tennessee Code Annotated section
29-26-115(a)-(b). The Defendants asserted that Dr. Rytlewski did not have a medical
license in Tennessee or a contiguous state during the year before Mr. Young’s heart
procedure, as required by Tennessee Code Annotated section 29-26-115(b). The
Defendants also moved to exclude the testimony of Dr. Rytlewski.
Ms. Young responded that Dr. Rytlewski was competent to testify. According to
Dr. Rytlewski’s curriculum vitae, he had received a medical degree from the University
of Michigan Medical School in 2005. He then pursued postdoctoral training in internal
medicine and cardiology from 2005 to 2012. When Mr. Young died in December 2011,
1
Cardiac cryoablation uses cold energy to scar or destroy heart tissue responsible for an abnormal
heart rhythm. Pulmonary vein isolation, Mayo Clinic, https://www.mayoclinic.org/tests-
procedures/pulmonary-vein-isolation/about/pac-20384996 (last visited Apr. 9, 2020).
2
Ms. Young had previously filed and nonsuited a health care liability action against these
Defendants.
-2-
Dr. Rytlewski was an electrophysiology3 fellow with the Division of Cardiology at
Vanderbilt University School of Medicine in Nashville. In 2012, Dr. Rytlewski became
licensed to practice medicine in Missouri. Later, he was licensed to practice medicine in
North Carolina, Virginia, Colorado, Wyoming, and Nebraska. Dr. Rytlewski stated in an
affidavit that he was engaged in the practice of electrophysiology and cardiology in the
year before the events involving Mr. Young. Dr. Rytlewski asserted that he was familiar
with the standards of acceptable professional practice for Mr. Young’s heart procedure in
the Davidson County area. Dr. Rytlewski also stated that in his opinion, within a
reasonable degree of medical certainty, the Defendants deviated from the acceptable
standard of care in treating Mr. Young and caused or contributed to Mr. Young’s death.
Ms. Young explained that the Tennessee Board of Medical Examiners had granted
Dr. Rytlewski an exemption that allowed him to practice medicine without a medical
license during his fellowship at Vanderbilt University. Ms. Young argued that the
requirements of Section 29-26-115(b) apply only “if one is required to have a license.” In
a supplemental affidavit, Dr. Rytlewski stated that the Board of Medical Examiners had
given him a licensing exemption for his training at Vanderbilt.
The Defendants did not dispute that a limited licensure exemption allowed Dr.
Rytlewski to practice medicine as a fellow in training at Vanderbilt University during the
year before Mr. Young’s death. They argued, however, that Dr. Rytlewski was not
competent to testify under section 29-26-115(b) because he had no license to practice
medicine in Tennessee or any contiguous state during that time period.4
The trial court denied the Defendants’ motion for summary judgment and allowed
Dr. Rytlewski’s testimony, finding that under section 29-26-115(b), an expert witness
must have a license only if the expert practices in a health care profession requiring
licensure in Tennessee. Because Dr. Rytlewski was exempt from the licensure
requirement during his fellowship at Vanderbilt, the trial court concluded that he was not
practicing in a health care profession requiring licensure in Tennessee. The trial court
granted the Defendants’ motion for interlocutory appeal. The Court of Appeals denied the
Defendants’ application for interlocutory appeal. Young v. Frist Cardiology, PLLC, No.
M2019-00316-COA-R9-CV (Tenn. Ct. App. Mar. 5, 2019) (Order).
3
Electrophysiology procedures “test the electrical activity of your heart to find where an
arrhythmia (abnormal heartbeat) is coming from.” Electrophysiology Studies (EPS), American Heart
Association, https://www.heart.org/en/health-topics/arrhythmia/symptoms-diagnosis--monitoring-of-
arrhythmia/electrophysiology-studies-eps (last visited Apr. 9, 2020).
4
Ms. Young also filed the affidavit of her attorney, D. Russell Thomas. Mr. Thomas stated that
after an in-state and out-of-state search, he found only one expert witness who was familiar with the
cardiology and electrophysiology standard of care in Tennessee and willing to testify against the
Defendants.
-3-
We granted the Defendants’ application for permission to appeal. See Tenn. R.
App. P. 9(c).
II.
Our decision in this case hinges on our interpretation of the language of Tennessee
Code Annotated section 29-26-115(b). Statutory construction is a matter of law. Thus,
our review is de novo, and we give no deference to the trial court’s interpretation of the
statute. Rich v. Tenn. Bd. of Med. Exam’rs, 350 S.W.3d 919, 926 (Tenn. 2011) (citations
omitted).
When construing a statute, the intent of the legislature must prevail, and that intent
is to be determined from the natural and ordinary meaning of the language in the statute,
within the context of the entire statute. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526–
27 (Tenn. 2010) (citations omitted). We must “construe a statute so that no part will be
inoperative, superfluous, void or insignificant,” and the court “must give effect to every
word, phrase, clause and sentence . . . in order to achieve the Legislature’s intent . . . .”
City of Caryville v. Campbell Cnty., 660 S.W.2d 510, 512 (Tenn. Ct. App. 1983) (citing
Tidwell v. Collins, 522 S.W.2d 674, 676–77 (Tenn. 1975)). When the language of a
statute is clear, we enforce the statute by applying the plain meaning of the written
language “without complicating the task.” In re Estate of Davis, 308 S.W.3d at 837
(citing Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004); Abels ex rel.
Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006)). “We ‘presume that the
legislature says in a statute what it means and means in a statute what it says there.’”
Rich, 350 S.W.3d at 926 (quoting Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799,
803 (Tenn. 2000)).
Under Tennessee Code Annotated section 29-26-115(a) (2012), a plaintiff in a
health care liability action must prove the applicable standard of care, a deviation from
the standard of care, and an injury caused by the deviation from the standard of care.5
5
Section 29-26-115(a) provides:
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.
-4-
Generally, the evidence required by section 29-26-115(a) must be proven through the
testimony of a qualified expert witness. Shipley v. Williams, 350 S.W.3d 527, 550 (Tenn.
2011) (citing Tenn. Code Ann. § 29-26-115(a); Williams v. Baptist Mem’l Hosp., 193
S.W.3d 545, 553 (Tenn. 2006); Stovall v. Clarke, 113 S.W.3d 715, 723 (Tenn. 2003);
Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002)).
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):
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.
Tenn. Code Ann. § 29-26-115(b) (2012).
It is undisputed that Dr. Rytlewski 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.
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).
Tenn. Code Ann. § 29-26-115(a).
-5-
This interpretation is consistent with the Legislature’s intent in enacting Tennessee
Code Annotated 29-26-115(b), as shown by the separate and specific requirements for a
medical expert witness: (1) that the person be licensed in Tennessee or a contiguous state,
and (2) that the person be practicing in Tennessee or a contiguous state. Tenn. Code Ann.
§ 29-26-115(b); see also Shipley, 350 S.W.3d at 550 (stating that one of the grounds for
excluding the testimony of an expert witness in a health care liability case is “that the
witness was not licensed to practice in Tennessee, Georgia, Alabama, Mississippi,
Arkansas, Missouri, Kentucky, North Carolina, or Virginia”); Payne v. Caldwell, 796
S.W.2d 142, 143 (Tenn. 1990) (stating that there is “no ambiguity or lack of clarity” in
section 29-26-115, which “provides unequivocally that each of the three basic elements
of a [health care liability] action . . . be proven by testimony of experts who were licensed
and practicing in Tennessee or a contiguous bordering state during the year preceding”
the alleged wrongful conduct (emphasis added)); Childress v. Bennett, 816 S.W.2d 314,
315 (Tenn. 1991) (quoting Payne, 796 S.W.2d at 143) (“‘We see no ambiguity or lack of
clarity in the dictates of T.C.A. § 29-26-115.’”).
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. City of Caryville, 660 S.W.2d at 512.
In sum, 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.
III.
We reverse the ruling of the trial court and remand this case to the trial court for
further proceedings. The trial court did not decide, and therefore we do not address,
whether waiver of the requirements of section 29-26-115(b) is appropriate. The costs of
this appeal are taxed to Vickie S. Young, for which execution may issue if necessary.
_________________________________
SHARON G. LEE, JUSTICE
-6-