The Court of Appeals of Georgia (“Georgia Appellate Court”) ruled in its opinion filed on September 7, 2017 that the trial court did not err in excluding the plaintiff’s medical malpractice expert’s opinion in a birth injury case because the expert’s opinion was unreliable.
The plaintiff alleged in her Georgia medical malpractice lawsuit against the defendant midwife who managed her labor and delivered her son that the midwife’s negligence during delivery caused her newborn son to suffer a serious brain injury manifested by seizures after his birth and confirmed by a head CT scan that revealed ischemic injuries to his brain.
The plaintiff designated a medical expert to testify as to causation on her behalf during the Georgia medical malpractice trial who opined that the baby’s injury was the result of ischemia caused by mechanical compressive forces on his head during the course of labor. The expert defined “mechanical compressive forces” as the use of pitocin, excessive uterine activity, malposition of the baby, pushing prior to his mother’s full cervical dilation, and fundal pressure. The plaintiff’s expert referred to this mechanism of injury as “cranial compression ischemic encephalopathy” (“CCIE”).
The plaintiff’s expert is an obstetrician/gynecologist with a subspecialty certification in maternal-fetal medicine. However, the plaintiff’s expert has not had hospital privileges since 2011; the last time he was a full time maternal-fetal medicine physician was approximately 17 years ago; and, he has not regularly delivered babies since 2003. Currently, the plaintiff’s expert primarily writes, researches, and gives lectures.
The Georgia medical malpractice defendant challenged the plaintiff’s medical malpractice expert’s opinion, and the trial court ruled that his testimony and any expert testimony regarding the mechanism of injury posited by him would be inadmissible pursuant to OCGA § 24-7-702 (b) and the Daubert factors because the expert’s theory has not been reliably tested, has not been subject to peer review and publication, is not generally accepted in the scientific community, and has not been clinically diagnosed in any other patients.
OCGA § 24-7-702(b)
OCGA § 24-7-702(b) governs the admissibility of expert testimony in Georgia civil cases and 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.”
In determining the admissibility of expert testimony, the trial court assesses both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony. Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training.
The plaintiff’s medical malpractice expert had co-authored a chapter of a book in which he proposes the concept of CCIE and stated “[t]he overall contribution of [mechanical] forces to ischemic brain injury during labor is difficult to establish, in no small measure because in modern obstetrics necessary details about theses various factors are often unmeasured, unrecorded, and not considered” and “[t]o isolate the contribution of mechanical factors it will be necessary for epidemiologic studies to adjust for the role of potentially mitigating factors” because “[w]e must learn more about the ability of the fetal skull to protect the fetal brain.”
In his book chapter, the plaintiff’s expert explains how this mechanism of injury is not accepted in the scientific community: “[i]n recent decades, only scant attention has been turned to the effects of the mechanical forces of labor and delivery on intracranial pressure” and “[t]he prevailing monolithic view is that . . . contractile forces cannot be “excessive.””
During his deposition, the plaintiff’s expert testified that there have not been any long-term epidemiological studies on the mechanism of injury and that he “recommend[s] them in the context of understanding [CCIE] as a potential cause of injury.” The expert further testified during his deposition that he had not diagnosed one of his patients in the past decade with an ischemic injury due to this mechanism of injury but that it “may” have happened to a previous patient.
The trial court had determined that lack of diagnosis in other patients of this mechanism of injury weighed against the theory’s reliability.
The Georgia Appellate Court held: “Accordingly, under the circumstances of this case, the trial court did not abuse its discretion in concluding that ‘the preponderance of the evidence weighs against the admissiblity of the CCIE theory of causation under OCGA § 24-7-702 (b)’ and thus ‘exclud[ing] the theory and [the plaintiff’s expert’s] testimony.'”
Source Smith v. Braswell, A17A1191
If you or your baby suffered a birth injury during labor and/or delivery in Georgia or in another U.S. state, you should promptly find a Georgia birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.
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