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Medical Malpractice Cases Face Tighter Expert Rules

Last week, a divided Georgia Supreme Court in Nathans v. Diamond, S07A0738 tightened the rules relating to expert testimony in medical malpractice cases.

In 2003, Dr. Andrew Diamond of Northside Ear, Nose and Throat (Northside ENT) performed surgery on plaintiff Nathans to correct his sleep apnea.During the surgery, Nathan suffered bleeding, respiratory distress and lapsed into a coma.After recovering, Nathans and his wife filed a medical malpractice lawsuit against Diamond, claiming he failed to adequately inform him of the risks of the surgery.

As required in Georgia under O.C.G.A. § 9-11-9.1, all medical malpractice complaints must be filed with an attached affidavit of a medical expert attesting that the defendant deviated from the standard of care.The Nathans attached an affidavit of a pulmonologist from Tampa, Florida.

In the answer and the subsequent motion for summary judgment filed by the defendant, Diamond contended that the attached affidavit was insufficient as the expert was not an ENT.

The trial court granted summary judgment to Diamond, holding that the expert was not sufficiently qualified to give testimony pursuant to the rules of expert testimony provided by O.C.G.A. § 24-9-67.1.This evidentiary rule (based on a federal rule) provides that expert opinion testimony is admissible if the expert has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.” The Georgia Supreme Court upheld the trial court’s decision, holding that in order to be qualified to give an expert opinion, the expert must have “actively practiced in the specialty area with sufficient frequency to establish an appropriate level of knowledge.”

This decision arises out of the rule changes effectuated by the Georgia Tort Reform Act of 2005 that made it harder for plaintiffs to win lawsuits.With this decision, now doctor experts must walk in the same shoes and at the same time as the defendant doctor in medical malpractice cases.

Of note, the expert pulmonologist in issue here is a Harvard trained doctor with 28 years of experience in pulmonology.The plaintiffs contended that the medical complication that arose was a pulmonary complication, not one specific to the ear, nose and throat specialty.The dissent opinion noted this important distinction, claiming that the essence of the medical malpractice was that Diamond failed to inform Nathan of the pulmonary risks of the surgery.

The Georgia Trial Lawyers Association downplays this decision, claiming it won’t have much affect on future medical malpractice cases as the case is fact specific.

More constitutional cases are on the horizon challenging the Georgia Tort Reform Act of 2005.The Georgia Supreme Court has yet to decide, Mason vs. Home Depot, S07A1486.In Mason, the defendants challenge another part of the law that tightens standards for expert witness testimony in all civil cases, known as the Daubert Rule.The Daubert rule makes it easier for a trial judge to disqualify expert testimony as being “junk science.”The rule allows the trial judge to be the “gatekeeper” to ensure that expert testimony is based on a “reliable foundation.” As the rules regarding expert testimony tighten, plaintiffs will face tougher challenges getting their case before a jury.Moreover, fewer plaintiffs’ attorney may want to take on the more challenging cases.

With over twenty years of experience in tort litigation, the law firm of Robert N. Katz is very familiar with the changing area of tort law.We look forward to helping you with your claim.

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