Georgia Supreme Court Clarifies Experience Qualifications Required of Expert Witnesses in Medical Malpractice Cases

October 12, 2015

The Supreme Court of Georgia clarified the experience requirements of a physician presented to testify as an expert regarding the standard of care in a medical malpractice case. In Dubois v. Brantley, 775 S.E.2d 512 (2015), David Dubois underwent a laparoscopic procedure conducted by Dr. Damon Brantley, to treat his umbilical hernia.

Although Mr. Dubois was discharged from the hospital the same day as the procedure, he returned a few days later due to complications from the surgery and was given multiple diagnoses, spent several days in a coma, and underwent numerous additional surgeries. In 2012, Mr. Dubois and his wife filed suit against Dr. Brantley and Southeast Georgia Health (the “Hospital”) alleging that the complications Dubois experienced following the procedure were due to Dr. Brantley negligently puncturing his pancreas with a trocar during the surgery. Dr. Brantley admitted that although he used a trocar to begin the procedure and that the trocar may have punctured Mr. Dubois’s pancreas, he did not agree that the insertion of the trocar was a breach of the standard of care. Mr. Dubois filed two affidavits and a deposition of Dr. Steven E. Swartz, a practicing general surgeon, as his expert witness to attest that Dr. Brantley’s use of the trocar during his surgery breached the standard of care regarding a laparoscopic procedure to repair an umbilical hernia. Although Dr. Swartz did not regularly perform laparoscopic procedures to repair umbilical hernias and had conducted only one such procedure in the past five years, he had performed them in the past and currently repaired umbilical hernias by means of “open surgery.” Dr. Brantley and the Hospital filed a motion to dismiss the complaint, or alternatively for summary judgment, alleging that Dr. Swartz was not competent to offer expert testimony since he had not “regularly performed” laparoscopic procedures to repair umbilical hernias in the past five years. The trial court denied the motions and Dr. Brantley and the Hospital appealed.

The Court of Appeals held that the trial abused its discretion when it qualified Dr. Swartz as an expert witness. The court found determinative additional criteria listed by FRE 702(c)(2)(A) & (B) for expert testimony regarding the standard of care in medical malpractice cases, which require that such an expert:

[H]ad 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. . . .

The court held that Dr. Swartz did not meet these criteria since he had only performed one laparoscopic procedure to repair an umbilical hernia within the past five years and thus was not actively involved in the practicing or teaching of such a procedure “with sufficient frequency” to qualify as an expert under the Statute. Accordingly, the court disallowed Dr. Swartz from giving any opinion about negligence in connection with laparoscopic procedures to repair an umbilical hernia.

In an opinion focusing on statutory construction, the Supreme Court of Georgia reversed the judgment, concluding that the Court of Appeals erred in interpreting the statute. The Supreme Court held that it is not absolutely necessary for an expert witness to have “actually performed or taught” the precise procedure at issue to qualify as an expert to testify on that issue – otherwise the General Assembly would have included language in the statute to that effect. The Court rejected Defendants argument that the relevant procedure must be characterized specifically as “a laparoscopic procedure to repair an umbilical hernia” – rather than more general characterizations, such as “the surgical repair of an umbilical hernia” or as “an abdominal laparoscopic procedure” – noting that Rule 702(c)(2)(A) does not define the term “procedure” and thus no definitive level of generality or specificity is necessarily required of a particular procedure in identifying an expert under the Statute.

Moreover, the Supreme Court determined that the Court of Appeals construed the statute too narrowly when it required a medical professional to have performed or taught the specific procedure at issue to qualify as an expert under the Statute. The Court thus held that a witness is not required to have actually performed or taught a specific procedure and possesses an “appropriate level of knowledge” if he or she has requisite experience to offer testimony regarding an aspect of the surgery that is not “different in any material way” from surgeries with which he or she has experience. As is typically the case in evidentiary determinations, the Court noted that the key is whether the expert has sufficient knowledge about the procedure “to reliably give the opinions about the performance of the procedure that the expert proposes to give.”

Selecting an expert witness in a medical malpractice case can be challenging, and as illustrated by Dubois, choosing an unqualified expert may prevent an otherwise meritorious claim from moving forward. The attorneys at Parks, Chesin & Walbert have the knowledge and experience required to handle cases involving expert witnesses the medical malpractice context. Contact our firm today at 404-873-8048 or firm@pcwlawfirm.com.