Georgia Supreme Court Imposes Stricter Expert Witness Requirements in Medical Malpractice Lawsuits


December 14, 2013

Our Atlanta Medical Malpractice Attorneys have previously discussed some of the unique challenges that make pursuing a negligence action against a doctor, hospital or other medical professional especially difficult. These obstacles include special rules that protect physicians, jury sympathy toward physicians, difficulty in proving causation and many other obstacles. A recent decision by the Georgia Supreme Court has now clarified the requirements for a witness to be qualified as an expert in a medical malpractice case regarding the acceptable standard of conduct - with the potential to make obtaining the needed expert more of a challenge to the parties.

In its October 2013 decision Hankla v. Postell ("Hankla"), the Supreme Court of Georgia agreed with the lower court's interpretation of the applicable statute regarding expert witnesses in professional malpractice actions. In Hankla, expert testimony was presented to the jury to assist in determining whether the proper standard of care had been applied during an infant's delivery. Post delivery, the infant was found to suffer from a condition called shoulder dystocia; this resulted in a permanent injury to the child's arm and hand. Importantly to the case, the infant had been delivered by a certified nurse midwife, not an obstetrician, thus the malpractice claim was asserted against the mid-wife.

A board certified obstetrician and gynecologist testified as an expert 0n behalf of one of the parties. The opposing party appealed the use of this expert contending that a proper interpretation of the expert witness statute meant that this particular physician was not qualified to offer an opinion. The reason? The physician had not supervised or taught nurse midwives during three of the past five years preceding the delivery at issue as stated in the statute. The party that called this physician to testify argued that as long as the doctor met what is called the "active practice" requirement, she did not also have to meet supervision or teaching requirements .

The Supreme Court of Georgia concurred with the lower court however, in that despite her active practice, the physician was not qualified to testify as an expert in this matter. Justice Hunstein, writing for the court, held that to be qualified to testify as an expert, the witness must be a member of the same profession as the defendant whose conduct is alleged to have been at fault, OR be a physician who satisfies the supervision/teaching/instruction requirement even if the expert has the "requisite personal knowledge" of the treatment at issue through active practice. The court also indicated that public policy in favor of tort reform made it appropriate to apply the more stringent standard for proffered medical experts even if they had extensive experience with the procedure at issue. Thus this physician was not qualified to testify about whether a certified nurse midwife had breached the appropriate standard of care during the delivery of the infant even though the physician was a board-certified obstetrician and gynecologist who had been involved in more than a thousand deliveries and had experience in handling shoulder dystocia maneuvers and complications. .

The applicable portion of the law follows:

"(2) In the case of a medical malpractice action, {the expert can testify if she} 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 . . .; or
(B) The teaching of his or her profession for at least three of the last five years . . .; and
(C) Except as provided in subparagraph (D) of this paragraph:
       (i) [i]s a member of the same profession . . .; 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 [non-physician health care providers] 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." [Emphasis added].

Official Code of Georgia Annotated ("OCGA") § 24-7-702 (c) (2013).

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Many of our blog articles discuss the law. All information provided about the law is very general in nature and should not be relied upon as legal advice. Every situation is different, and should be analyzed by a lawyer who can provide individualized advice based on the facts involved in your unique situation, and a consideration of all of the nuances of the statutes and case law that apply at the time.