In a recent Georgia Court of Appeals decision, the Georgia Court of Appeals wrote in a footnote that the “law in Georgia regarding affidavits in medical malpractice cases is at this moment crystal clear.” In the case of McKuhen v. TransformHealthRX, Inc., 2016 Ga.App. LEXIS 458 (Ga.Ct.App. July 15, 2016), the Court, led by Presiding Judge Yvette Miller, wrote this in response to the malpractice defendant’s challenge to the qualifications of plaintiff’s expert.
The case involved charges of malpractice and deliberate indifference at a jail. Plaintiff’s expert submitted an affidavit in support of the complaint in which he recited that he had been in the active practice for three of the five years leading up to the incident, ostensibly in compliance with Georgia law. The defense moved to dismiss and, alternatively, for summary judgment, challenging the claim. The expert submitted a supplemental affidavit, in which he claimed to have actively practiced. In his deposition, however, he explained that his active practice and teaching experience did not include the specific issue in the case – monitoring and treatment of someone withdrawing from alcohol.
The Court of Appeals affirmed the trial court’s ruling that the expert was not qualified under an abuse of discretion standard. In a footnote, the Court wrote:
“The law in Georgia regarding affidavits in medical malpractice cases is at this moment crystal clear. One set of rules applies when the expert’s competency is challenged and a hearing is held; a different set of rules governs the trial court’s evaluation of the affidavit when the expert’s competency is challenged and no hearing is held. Similarly, the standard of appellate review differs depending on whether the trial court had a hearing on the issue of the expert’s competency. It is irrelevant whether or not evidence was offered at the hearing. If there is a hearing on the expert’s competence, the trial judge weighs the evidence in the plaintiff’s witness’s affidavit, or in the competing affidavits, and decides whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of [OCGA § 24-7-702 (c)]. When such a hearing has taken place, the trial court’s decision is reviewed on appeal for abuse of discretion.”
In other words, the Court firmly concluded that the standard of review of the decision to exclude expert testimony is the highly deferential “abuse of discretion” standard, as opposed to the “de novo” standard used for summary judgment, which involves the Court examining all of the evidence and reaching its own conclusions.