In 2005, the Georgia legislature amended the evidence code to heighten the qualification requirements for expert witnesses testifying in medical malpractice actions. This amendment was part of a broad sweeping tort reform package advanced by the defense bar. The expert statute amendment was primarily geared at raising the bar for plaintiffs seeking to sue Georgia healthcare providers like doctors and nurses and prevent them from identifying experts who lacked the requisite skill to criticize healthcare professionals. The intent behind the amendment was to add additional requirements that experts have certain “real world” or teaching experiences relevant to their testimony and opinions. That statute, O.C.G.A. §24-7-702, has now been weakened by the Georgia Supreme Court in Dubois v. Brantley, 2015 WL 4181840, making it easier to “expert shop” without mandating that the expert be someone as skilled as the defendant.
In Dubois, the Georgia Supreme Court was asked to particularly interpret 24-7-702’s requirement that an expert satisfy the following standard before being qualified to render a standard of care opinion:
(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 … for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge…in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently …
(B) The teaching … for at least three of the last five years … with sufficient frequency to establish an appropriate level of knowledge… 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…
Id., 702(c)(2). In Dubois, the defendant surgeon performed a laparoscopic procedure to repair an umbilical hernia and in inserting a trochar, punctured the plaintiff’s pancreas. In the suit, the plaintiffs attached the malpractice affidavit of Dr. Swartz, a general surgeon who had not performed more than one laparoscopic procedure to repair an umbilical hernia in the last five years (although he had performed other laparoscopic procedures). His opinion was that the trochar inserted by the doctor should not have injured the pancreas if properly inserted. The defendant, Dr. Brantley, filed a motion to dismiss/motion for summary judgment, arguing that Dr. Swartz was not competent to offer the expert opinions because he had not “regularly performed laparoscopic procedures to repair umbilical hernias in the past five years.” The trial court denied the motion but the Court of Appeals reversed (finding that Dr. Swartz lacked a “significant familiarity” with performing laparoscopic hernia repairs). The case was then appealed to the Georgia Supreme Court.
In this appeal, the Supreme Court focused on the above quoted provisions requiring an expert to have certain knowledge by virtue of having practiced the profession or having taught it. Drilling down the Court’s analysis, it preliminarily focused on what the legislature meant by the word “procedure” and what level of generality was envisioned by the Georgia legislature (commenting that the same procedure could be done in different ways and using different tools and the like). Obviously, the defense interpreted procedure to mean the exact same procedure performed by Dr. Brantley. The Supreme Court disagreed with this narrow definition, pointing to the statute, which states that the expert must only have “actual professional knowledge and experience in the area of practice…in which the opinion is to be given”.
In broadening the inquiry beyond the definition of procedure, the Court focused on the “appropriate level of knowledge” and NOT “whether the expert himself has actually performed or taught it.” The Court rationalized that if the legislature had meant to require the expert to actually perform or teach the procedure in question, it would have said so. The Court ultimately held that an expert must have the “appropriate level of knowledge … in performing the procedure to the extent the expert has sufficient knowledge about the performance of the procedure.” In so holding, the Supreme Court reversed the Court of Appeals, finding Dr. Swartz to be qualified.
While the opinion did not discuss in detail or focus on Dr. Swartz’s prior experience in performing laparoscopic procedures using trochars, it is likely the basis of the Court’s finding that Dr. Swartz was qualified to render standard of care criticisms. The opinion simply does not focus on these facts, which leaves much open for interpretation going forward. What is clear from the opinion is that the original intent behind the tort reform has been eroded and weakened by this Opinion, moving away from requiring the expert to perform the same procedure as what the defendant provider did. This arguably allows a plaintiff to expert shop and retain less-qualified providers to serve as experts. This opinion also has the unfortunate consequence of making it far more difficult to seek to disqualify the plaintiff’s expert.