The Court of Appeals of Georgia (“Georgia Appellate Court”), in its opinion filed on March 12, 2019, reversed a Georgia medical malpractice defense verdict because the trial court had allowed inadmissible evidence “used to unfairly impeach [the plaintiff’s] expert witness as to the core issue of the standard of care.”
The Underlying Facts
At the start of the plaintiff’s decedent’s surgery for a bowel obstruction, the anesthesiologist performed a rapid sequence induction during which the decedent aspirated gastric fluid into his lungs. The anesthesiologist suctioned the decedent’s lungs, then placed an NG tube, and the surgery proceeded to correct the bowel obstruction. After the surgery, the anesthesiologist had trouble keeping up the decedent’s oxygen levels. The decedent suffered lung failure, from which he never recovered, and he died on January 5, 2012.
The plaintiff alleged that the failure to place an NG tube prior to the induction of anesthesia was a breach of the standard of care (i.e., medical negligence). The plaintiff alleged at trial that the standard of care required placement of an NG tube before the induction of anesthesia and the failure to do so was the cause of death. The defendants argued that there was no requirement to place an NG tube prior to the induction of anesthesia and that the placement of an NG tube after the induction of anesthesia, using a process called rapid sequence induction, did not breach the applicable standard of care.
During cross-examination of the plaintiff’s expert during trial, the defense presented evidence taken from a document by the American Society of Anesthesiologists (ASA) – “Committee on Expert Witness Testimony Review and Findings Regarding Expert Witness Testimony of Ronald L. Katz” (the “Katz Committee Findings”). Such evidence showed that in 2011, the ASA sanctioned an anesthesiologist – Dr. Ronald Katz (who had no involvement in the present case) – for giving certain standard-of-care testimony (in a different case), and that the sanctioned testimony was similar to standard-of-care testimony given by the plaintiff’s expert-anesthesiologist in the present case.
The plaintiff argued that the ASA’s findings in a wholly different case against an expert witness who had nothing to do with the present case amounted to inadmissible, prejudicial hearsay. The defense argued that the evidence was admissible under the “learned treatise” hearsay exception found at OCGA § 24-8-803 (18).
The Georgia Appellate Court stated, “[e]ven if we assume arguendo that the Katz Committee Findings document was “published” within the meaning of OCGA § 24-8-803 (18), we cannot thus conclude that the document automatically falls within the ambit of that statutory provision merely because its authoring organization is highly regarded … On its face, OCGA § 24-8-803 (18) limits its scope to statements contained in published “treatises, periodicals, or pamphlets,” which are established as a reliable authority. Application of even “a liberal interpretation of [OCGA § 24-8-803 (18)], favoring admissibility,” cannot eviscerate that explicit requirement.”
The Georgia Appellate Court stated, “the Katz Committee Findings (document) was written by the ASA about its own disciplinary proceedings against a particular anesthesiologist for a violation of specific ASA guidelines. The Medical Defendants posit that the Katz Committee Findings nevertheless serves to guide ASA members when called upon to give expert testimony. But even if so, as numerous jurisdictions have held, the logic for admitting hearsay materials under the “learned treatise” exception is undermined where an author has published the materials with a view toward litigation.”
The Georgia Appellate Court held: “there was no basis to find that the Katz Committee Findings fell within the scope of OCGA § 24-8-803 (18), and admission of statements contained therein was error.” “[B]ecause it was used to unfairly impeach [the plaintiff’s] expert witness as to the core issue of the standard of care, and because the sanctioning of Dr. Katz by the ASA for violating ASA expert-witness guidelines was conflated with standard-of-care issues reserved for the jury, we believe that admission of evidence from the Katz Committee Findings was prejudicial to the extent that [the plaintiff] is entitled to a new trial.”
Source Moore v. Wellstar Health System, Inc., A18A1810.
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