The court overturned the Georgia Court of Appeals and decided that an expert testifying on the standard of care in a medical malpractice case was allowed under Georgia Rule of Evidence 702(c)(2)(A) and (B).
Facts: This case (Dubois et al v. Brantley et al – Georgia Supreme Court – July 13th, 2015) involves the expert witness testimony of a laparoscopic surgery expert witness. It begins with a laparoscopic procedure performed on David Dubois by Dr. Damon Brantley in March 2011. The procedure was necessary to repair a hernia. After the procedure, Dubois went back to the hospital and it was diagnosed with acute pancreatitis and it was revealed that his pancreas had been punctured. Dubois spent many days in a coma, was hospitalized for close to a month, and had to have additional surgeries to fix his damaged pancreas.
Dubois and his wife filed a lawsuit against Dr. Brantley and the Southeast Georgia Health System alleging that that the doctor punctured his pancreas while using a trocar during the initial laparoscopic procedure. While Dr. Brantley does not dispute that his used a trocar and that the puncture caused by the trocar is a reasonable reason why the pancreas was punctured, he states that using the trocar was not a breach of the applicable standard of medical care. The plaintiffs hired Dr. Steven E. Swartz, a general surgeon, as an expert witness, and one who performs many abdominal laparoscopic procedures using a trocar. Dr. Swartz testified that he no longer uses a trocar in performing these procedures, choosing instead to repair these types of hernias by open surgery. Dr. Swartz provided a written affidavit which was attached to the plaintiff’s medical malpractice complaint.
Discussion: The defendants moved to dismiss the complaint, arguing that Dr. Swartz was not qualified to offer an expert opinion on Dr. Brantley’s supposed breach of the applicable standard of care because Dr. Swartz has not performed laparoscopic procedures to repair umbilical hernias in the past five years. After the trial court denied the motion, the defendants appealed and the appeals court reversed. The Court of Appeals opined that since Dr. Swartz had not participated these types of procedures in the past five years, he was not qualified under Rule 702(c)(2)(A) to offer an expert opinion in this case. The case was elevated to the Georgia Supreme Court.
The Supreme Court focused on the definition of “procedure” in the Rule cited above. While there is no arguments by any sides, nor the Court of Appeals, that the term is used generally in the statute, the Supreme Court noted that there are levels of generality that can come into play when looking at the term. The court used an example of the word “dog”, which can be described very generally as a dog, or very specifically, such as a Canis lupis. Similarly, in medical procedures, there are different levels of generality. The Court of Appeals defined the term on a more specific level of generality than the trial court but did not explain why it did that.
Also, the Supreme Court opined that the statute does not state that the expert does not require that the expert actually had to have performed the procedure at issue, only that they have knowledge and experience in the area of practice. They continue by stating that the statute refers to “performing the procedure” as a subject which the expert must have an appropriate level of knowledge in. In other words, the expert must have appropriate knowledge of performing the procedure, not actually having had actually performing the procedure.
Held: The judgment of the Court of Appeals is reversed.