When the Georgia General Assembly rushed two years ago to pass Senate Bill 3, the sponsors could not be bothered with the tedious and time consuming committee work of careful legislative drafting, reflection, discussion and revision. The result is the legislation is being picked apart piece by piece. The Court of Appeals has dissected a contradiction in the new rule on who may testify as an expert in medical malpractice cases.
See discussion below.
One of the provisions of S.B. 3, codified as OCGA Section 24-9-67.1(c), which provides:
(c) Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of 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; and
(C) Except as provided in sub-paragraph (D) of this paragraph:
(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or
(iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and
(D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician’s assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician’s assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician.
The Court of Appeals has now decided three cases that bring a measure of common sense to interpretation of the statute, deciding that the language requiring an expert witness in a medical malpractice action must have "actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given" — which I personally think is a sensible rule — prevails over the requirement that the expert be in the same specialty as the defendant.
In Cotten v. Phillips , 280 Ga. App. 280 (633 SE2d 655) (2006), the Court noted thatthe plain meaning of [this] statute conveys best the legislative intent therefor. Here, the statute expressly provides that the expert must have "actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given ." . . . Had the General Assembly intended that only experts in the same area of practice/specialty as the defendant doctor be deemed qualified to provide expert testimony against those doctors, it could have plainly done so, as have legislatures in other states.
Later, the Court held "that the statutory ‘area of practice or specialty in which the opinion is to be given’ is dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff’s injury." Abramson v. Williams , __Ga. App.__ (Case No. A06A1493, decided Sept. 20, 2006).
Now, in Mays v. Ellis, __Ga. App.__ (Case No. A06A1696, decided Jan. 5, 2007), the Court of Appeals allowed testimony by a gastroenterologist regarding allegedly unnecessary laproscopic surgery conducted by an OB/GYN on a patient’s pancreas. The testimony of the gastroenterologist addressed only the alleged misdiagnosis and whether the surgery could have been avoided by a timely, accurate diagnosis. Accordingly, "the area of practice or specialty in which the opinion is to be given" involved the diagnosis and treatment of pancreatitis, not the actual performance of exploratory abdominal surgery by an OB/GYN.
This is a common sense decision, as a gastroenterologist should be better qualified to give an opinion on diagnosis of pancreatitis than an OB/GYN. One cannot ignore the terms of the statute, but one can use experts on the basis of expertise rather than whether they are members of the same specialty group as the defendant.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.