The testimony of two expert witnesses was excluded in a recent Georgia medical malpractice case because the experts’ knowledge and experience did not meet the requirements specified by state law. This case is an important reminder that plaintiffs and defendants in all states must ensure that their witnesses are in complete compliance with applicable statutes governing medical expert witness testimony.
Background
After Rhonda Orr had surgery in February 2014 to repair the quadriceps tendon in her knee, she developed an infection requiring readmission to the hospital for additional treatment. In June 2014, her attending physician, Dr. Sam Qingshuang Peng, admitted her to Northeast Atlanta Health and Rehabilitation Center (NAHR) to continue her recovery. While at NAHR, Orr, suffering from shortness of breath and a decrease in oxygen saturation, became unresponsive, prompting a transfer to the hospital, where she died the same day.
In a negligence and wrongful death suit against the rehab center and the doctor, Orr’s daughter, Stephanie Orr, claimed that her mother had died from a pulmonary thromboembolism due to a dislodged deep-vein thrombosis (DVT). In the complaint, Orr alleged Dr. Peng failed to recognize that the patient was at risk for DVT due to limited mobility while at the rehab facility and that the doctor failed to prescribe an oral or injectable anticoagulant medication as a preventive measure.
The complaint also alleged a failure on the part of the NAHR nurses to appreciate the patient’s risk of DVT, to report her immobility to physicians, or to start a DVT prophylaxis protocol.
Expert Testimony
In support of her claims, Orr offered deposition testimony from medical providers, including Nurse Ethel Willis and Dr. Richard Bonfiglio, who opined that the care of NAHR’s nursing staff fell below minimum standards of care and treatment generally required of nurses under similar circumstances. NAHR moved to disqualify the testimony of both witnesses, claiming that neither had “the requisite knowledge of the nursing standard of care under the circumstances at issue” as required by the Official Code of Georgia (OCGA). NAHR also moved for summary judgment. The trial court granted NAHR’s motion to dismiss the witnesses’ testimony and granted summary judgment, concluding that without Dr. Bonfiglio’s and Nurse Willis’ testimony, Orr could not establish that the facility’s employees or agents breached the standard of care. Orr appealed the ruling, claiming the trial court erred in excluding the witnesses.
The Appeal
In Stephanie Orr et al. v. SSC Atlanta Operating Company d/b/a Northeast Atlanta Health and Rehabilitation Center, the Court of Appeals of Georgia examined OCGA’s requirements for expert testimony in medical malpractice cases. According to Section 702(c), experts in professional malpractice actions must have actual professional knowledge and experience in the area of practice or specialty, which must come from active practice of such area of specialty “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.” The expert either must be a member of the same profession or, in the case of a physician testifying about care given by nurses (or other healthcare providers), must have, during at least three of the last five years, supervised, taught, or instructed nurses and have the knowledge of the standard of care of that healthcare provider under the circumstances at issue.
To determine whether an expert is qualified under this provision, Georgia courts look at both the area of specialty at issue and the procedure or treatment that was allegedly performed negligently.
Regarding Dr. Bonfiglio, the Court of Appeals said there was no evidence from either his original affidavit or his deposition testimony that he supervised, taught, or instructed nurses during at least three of the five years immediately preceding the alleged act or omission at issue. In fact, while Dr. Bonfiglio has extensive knowledge and experience in rehabilitation medicine, he expressly testified that he had not supervised nurses in more than a decade.
According to Nurse Willis’s curriculum vitae and deposition testimony, she worked in endocrinology and nephrology in an outpatient facility during the relevant timeframe. There is no evidence to suggest that her work at this facility involved the management or care of rehabilitation patients at risk for DVT. Therefore, the Court of Appeals said, there is no evidence that she had knowledge and experience relevant to the act or omission in question.
The Court of Appeals concluded in July 2021 that the trial court properly disqualified Dr. Bonfiglio and Nurse Willis as expert witnesses.
The Takeaway
Trial attorneys who rely on the testimony of medical expert witnesses must ensure that their experts are in full compliance with the requirements of their specific state. When an expert’s credentials and/or experience fail to meet these requirements, opposing counsel will discredit the witness’s qualifications which, in nearly all instances, will lead to their dismissal and exclusion. A successful motion for summary judgment, when predicated on a foreseeable failure to secure a statutorily compliant expert, will derail the case and may also expose counsel to allegations of legal malpractice.
