2010 Tennessee Code
Title 29 - Remedies And Special Proceedings
Chapter 26 - Medical Malpractice
Part 1 - General Provisions
29-26-115 - Claimant's burden in malpractice action Expert testimony Presumption of negligence Jury instructions.

29-26-115. Claimant's burden in malpractice action Expert testimony Presumption of negligence Jury instructions.

(a)  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.

(b)  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 to establish the facts required to be established by subsection (a), 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. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection (b) when it determines that the appropriate witnesses otherwise would not be available.

(c)  In a malpractice action as described in subsection (a), there shall be no presumption of negligence on the part of the defendant; provided, there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant's (or defendants') exclusive control and that the accident or injury was one which ordinarily doesn't occur in the absence of negligence.

(d)  In a malpractice action as described in subsection (a), the jury shall be instructed that the claimant has the burden of proving, by a preponderance of the evidence, the negligence of the defendant. The jury shall be further instructed that injury alone does not raise a presumption of the defendant's negligence.

[Acts 1975, ch. 299, § 14; 1976, ch. 759, § 15; 1980, ch. 852, § 9; T.C.A., § 23-3414.]  

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