Georgia Supreme Court Discusses Medical Expert Qualifications In Medical Malpractice Cases

162017_132140396847214_292624_nThe Supreme Court of Georgia issued an opinion on July 13, 2015 discussing Georgia’s requirements concerning medical experts who testify in Georgia medical malpractice cases: in particular, what sort of experience is required of a practicing surgeon who is offered as an expert witness in a medical malpractice case in order to render an opinion that another surgeon breached the applicable standard of care in performing a surgical procedure, under OCGA § 24–7–702 (“Rule 702”).

Rule 702(b) provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

Rule 702(c) sets forth an additional requirement for the admission of expert testimony about the applicable standard of care in all professional malpractice cases, including medical malpractice cases: in a professional malpractice case, an expert on the standard of care must have been “licensed by an appropriate regulatory agency to practice his or her profession … or teaching in the profession” at the time of the alleged negligence at issue.

Rule 702(c)(2)(C) requires that an expert in a medical malpractice case generally must be “a member of the same profession” as the defendant about whose alleged malpractice the expert will testify; Rule 702(c)(2)(A) and (B) require that such an expert had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result having been regularly engaged in: (A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or (B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue․

In the case the Georgia Supreme Court was deciding, the plaintiff claimed that the defendant surgeon negligently punctured his pancreas with a trocar during a laparoscopic procedure to repair his umbilical hernia. The plaintiffs’ expert general surgeon testified that he uses trocars to perform a variety of abdominal laparoscopic procedures and has performed laparoscopic procedures to repair umbilical hernias in the past, but he no longer performs the particular sort of laparoscopic procedure that the defendant surgeon had performed on the plaintiff but instead now repairs umbilical hernias by open surgery.

The defendant surgeon challenged whether the plaintiffs’ expert was qualified to testify on their behalf under Rule 702 because the expert had not regularly performed laparoscopic procedures to repair umbilical hernias in the past five years. The trial court denied the defendant’s challenge and the defendant appealed to the Georgia Court of Appeals, which concluded that the plaintiffs’ expert was not qualified as a matter of law under Rule 702(c)(2)(A) to offer any opinion about negligence in connection with a laparoscopic procedure to repair an umbilical hernia because he had not participated in laparoscopic procedures to repair umbilical hernias in the past five years (he had been involved in only one such procedure).

The Supreme Court of Georgia overturned the Georgia Court of Appeals’ decision, holding: a careful reading of the text shows that Rule 702(c)(2)(A) and (B) do not require that an expert actually have performed or taught the very procedure at issue. Rather, these provisions require only: that the expert has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given”; that this “actual professional knowledge and experience” is derived from the expert “having been regularly engaged in [t]he active practice of such area of specialty for at least three of the last five years [or] [t]he teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession”; and, that the expert has been “regularly engaged in [active practice or teaching] with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure [or] teaching others how to perform the procedure” – the pertinent question is whether an expert has “an appropriate level of knowledge in performing the procedure [or] teaching others how to perform the procedure,” not whether the expert himself has actually performed or taught it. If the Georgia General Assembly had meant to require absolutely that the expert actually has performed or taught the procedure in question, it presumably would have said so.

The Supreme Court of Georgia therefore held that the trial court properly could have concluded that the plaintiffs’ expert had experience enough to establish a reliable basis for the opinions that he proposed to render, and on the record before it, it cannot be said that the trial court abused its discretion when it found that the plaintiffs’ expert had an “appropriate level of knowledge in performing the procedure” to opine under Rule 702(c)(2)(A) that the defendant surgeon was negligent when he inserted the primary trocar.

Source Dubois et al. v. Brantley et al., No. S14G1192.

If you or a loved one were harmed as a result of medical negligence in Georgia or in another U.S. state, you should promptly find a Georgia medical malpractice lawyer, or a local medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find medical malpractice lawyers in Georgia or medical malpractice lawyers in your state who may assist you.

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This entry was posted on Monday, July 27th, 2015 at 5:36 am. Both comments and pings are currently closed.

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