Georgia Court of Appeals Reverses Defense Verdict on Hearsay Ruling

The Georgia Court of Appeals has reversed a defense verdict in a medical malpractice case because the trial court improperly admitted hearsay testimony under the “learned treatise” exception. In Moore v. Wellstar Health, plaintiff sued a surgeon and an anesthesiologist after her husband died when he aspirated during rapid sequence induction.

The evidence showed that the patient had a high grade bowel obstruction. Plaintiff’s expert anesthesiologist contended that the standard of care required placement of a nasogastric tube before induction of anesthesia. The defense countered that placement of an NG tube after rapid sequence induction was reasonable.

The defense cross-examined plaintiff’s expert with a document published by the American Society of Anesthesiologists entitled “Committee on Expert Witness Testimony Review and Findings” regarding the testimony of a different expert in a different case. In the document, the ASA sanctioned an expert for testifying that the standard of care required placement of a nasogastric tube before rapid sequence induction. The Moore defense used the document to cross-examine plaintiff’s expert over objection. The jury returned a defense verdict.

The Court of Appeals reversed, holding that the document was hearsay and did not qualify as a “learned treatise” because it was not a published treatise, periodical, or pamphlet. Rather, relying on cases from other jurisdictions, the Court held that the “learned treatise” exception to the hearsay rule is limited and does not include documents that are litigation-inspired, even if they are published by a reputable entity. In addition, the Court held that the error was harmful because the use of the document implied that the plaintiff’s expert’s testimony was sanctionable and therefore not worth of belief.

Take-home: a similar theory has been leveled against a number of publications, including the widely-used ACOG guidelines regarding neonatal encephalopathy (the “Green Book”), among others. Practitioners should look carefully at documents they intend to use for cross-examination to make sure that they are admissible. Notably, the Court did not delve into whether the issue was admissibility into evidence versus use on cross-examination solely for impeachment.

The case is Moore v. Wellstar Health, 2019 Ga.App. LEXIS 170 (March 12, 2019).

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Georgia Court of Appeals Holds Treating Doctor Must Be Identified as Expert Witness

The Georgia Court of Appeals affirmed the exclusion of a treating physician who was not identified as an expert witness on standard of care during discovery and only on the eve of trial. Plaintiff claimed she was injured by the defendant physician following three foot surgeries. The defendant recommended additional treatment, including removal of bone spurs. The defendant physician then recommended the plaintiff seek a second opinion from Dr. Light.

Plaintiff sued the defendant and attached the affidavit of a specially-retained expert witness, who offered three opinions regarding deviation from the standard of care. The parties also had a scheduling order, which was modified three times, but included specific deadlines for the identification of experts, including “rebuttal” experts. During discovery, defendant asked plaintiff to identify “any witness whom you expect to call as an expert witness at trial, including any . . . treating physicians from whom you may elicit standard of care or causation testimony at trial.” Initially, Plaintiff responded that she had not decided who she was going to call. During the extended discovery period, Plaintiff identified the affiant/specially-retained expert, who only testified to the three deviations set forth in the affidavit.

After the close of the discovery period per the scheduling order, the trial was set for over a year later. Less than a month before trial, plaintiff served supplemental discovery responses, identifying the treating physician, Dr. Light, as a witness and stating that he would offer three new opinions regarding deviations from the standard of care. Defendant deposed Dr. Light and established what he reviewed to form his opinions, which included records and imaging studies that he had not reviewed while he was caring for plaintiff.

Defendant moved to exclude Dr. Light’s standard of care testimony because he had not been identified as an opinion witness during the discovery period. The trial court granted the motion and the Court of Appeals affirmed. On appeal, plaintiff conceded she failed to identify Dr. Light as an expert witness, but argued that she was not required to do so under what she called the “treating physician exception.” The Court rejected the idea of such an exception, holding that once Dr. Light reviewed materials that he did not have while he was treating the patient and offered standard of care opinions, he was an expert witness for purposes of disclosure during discovery. The Court distinguished cases in which a treating provider is called to offer opinions derived solely from firsthand observation and those opinions are not standard of care opinions, writing “a party may present expert testimony from a fact witness (i.e., a witness who does not have to be identified pursuant to Rule 26), who is testifying as to facts he or she observed or learned” while treating the patient, but that “such a witness may not, however, provide expert opinion testimony on the standard of care and whether that standard was breached, unless the witness has been identified as an expert” under Rule 26.

Take-Home:

This is the clearest declaration by the Georgia appellate courts regarding the distinction between an “expert witness” and what is labeled a “percipient witness” in Federal court. In the course of discovery, if a treating physician is going to review data that they did not have at the time they were taking care of the patient and they are offering standard of care testimony, that witness must be disclosed. In our practice, we ask two separate interrogatories, one regarding witnesses who have been specially-retained for purposes of litigation and a separate interrogatory regarding any witness who will offer opinion testimony at trial regarding standard of care, causation, or damages.

The case also supports the notion that Georgia courts are strongly enforcing scheduling orders and doing so against all parties. All parties should be mindful that, within the confines of a scheduling order, the deadlines are meaningful and discovery and disclosure should be focused on full compliance.

The case is Glover v. Atkinson-Sneed, 2019 Ga. App. LEXIS 73 (Ga.Ct.App. Feb. 20, 2019).

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Georgia Court of Appeals Affirms that Partner in Medical Practice is Not an Expert Witness

The Georgia Court of Appeals has held that a partner in a medical practice group, called as a corporate witness under Rule 30(b)(6), is not an “expert witness” such that their opinion testimony is automatically admissible into evidence. In Yugeros v. Robles, the plaintiff alleged that Dr. Yugeros failed to diagnose and treat a complication of plastic surgery. When the patient presented to the hospital, Dr. Yugeros did a workup, but did not order a CT scan.

During the lawsuit, Plaintiffs took the deposition of Dr. Yugeros’ partner, Dr. Alexander, as the corporate representative of the practice group pursuant to Rule 30(b)(6). During her deposition, Dr. Alexander testified the standard of care would be to order a CT scan. Plaintiffs asked for the representative familiar with the records to testify. However, Dr. Alexander had not realized Dr. Yugeros did not order a CT scan.

Prior to trial, Dr. Yugeros moved to exclude Dr. Alexander’s testimony. The trial court granted the motion. After going up to the Supreme Court, the Court of Appeals held the trial court did not abuse its discretion in excluding the testimony because Plaintiffs failed to show that Dr. Alexander was qualified as an expert to opine on the standard of care.  The reasoning was that, although Dr. Alexander was a corporate representative, to be admissible, her testimony still had to be otherwise admissible. Since standard of care testimony is expert testimony, the Plaintiffs bore the burden of qualifying her and they didn’t do so.

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Georgia Supreme Court Reverses on 30b6 Testimony

The Georgia Supreme Court reversed the Court of Appeals’ decision in the case of Yugueros v. Robles and remanded for review of whether a corporate representative was qualified to give standard of care testimony in a medical malpractice case. In Yugueros, the medical issue was whether a stat CT scan was needed after discharge from an emergency department. The post-abdominal surgery patient presented to the emergency department with pain. An x-ray was read as unremarkable, but with a recommendation for a CT scan. Dr. Yugueros was contacted after the pain worsened.  Dr. Yugueros saw the patient, but did not order a CT scan.

During the litigation, plaintiff served a notice of deposition for a corporate representative (a “30b6 witness”). Dr. Yugueros’ partner was designated as the representative of the group. During the 30b6 deposition, the representative testified that Dr. Yugueros ordered a CT scan, when, in fact, she had not. The follow-up questions indicated that the representative considered ordering a CT scan part of the standard of care. Before trial, Dr. Yugueros and her group moved to exclude the 30b6 witness testimony because it was not based on facts in the record, consistent with the rules regarding expert witness testimony. Plaintiff opposed, and argued that it was an admission against interest. The trial court excluded the testimony and the Court of Appeals reversed because the testimony was not “expert” testimony but rather an admission against interest.

On certiorari, the Supreme Court reversed, holding that while depositions may be used by an adverse party “for any purpose,” that does not trump the rules regarding the admissibility of evidence, including the requirement that opinion testimony be based on facts. The Court sent the case back to the Court of Appeals for further review.

Take-home: the case is not yet decided. But, it demonstrates that deposition testimony must still meet other evidentiary thresholds before it becomes admissible into evidence.

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Georgia Court of Appeals Holds that Fall from Wheelchair is Ordinary Negligence

The Georgia Court of Appeals has held that a claim against a hospital for the negligence of a nurse involving the fall of a patient from a wheelchair is not a claim that requires an expert affidavit. Plaintiff is an elderly patient who used a cane to walk. Seeing the patient struggle, a nurse offered the patient a wheelchair for transport in the hospital. After moving the patient through the treatment area without incident, the nurse wheeled the patient back to the waiting room. Along the way, they encountered a door through which the wheelchair would not fit. The patient lifted out of the wheelchair but their pants leg got caught on the foot pedals. The patient fell and was injured.

Plaintiff filed the suit without an expert affidavit, claiming ordinary negligence. The trial court granted summary judgment to the hospital. The Court of Appeals reversed, holding that the record did not demonstrate that only medical people could transport the patient with a wheelchair. Similarly, the record showed that the nurse failed to follow the manufacturer’s instructions, forming the basis for the ordinary negligence claim.

As an aside, in a footnote, the Court noted that the hospital moved for a setoff of the patient’s medical bills for sums not charged or which the hospital paid for the patient. The Court declined to rule on that part of the appeal because the trial court did not rule on it.

The case is Byrom v. Douglas Hosp., 2016 Ga. App. LEXIS 543 (Oct. 4, 2016).

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Georgia Court of Appeals Writes “The law . . . is at this moment crystal clear”

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.

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Georgia Court of Appeals Affirms Exclusion of Expert Witness

In McKuhen v. TransformhealthRX, Inc., the Georgia Court of Appeals affirmed the exclusion of an unqualified expert witness in a medical malpractice case. The expert, Dr. Kern, stated in the affidavit submitted to comply with O.C.G.A. §9-11-9.1 that he had experience with correctional health and alcohol detoxification. In his deposition, however, Dr. Kern “provided more specific testimony that contradicted his affidavits.” While Dr. Kern testified he had done some teaching, he conceded his coursework did not relate to alcohol detoxification, the issue in the case. Likewise, although he claimed working in correctional health, it was as an administrator, not a clinician and without nursing supervision oversight. The Court concluded that it was “constrained by the standard of review” to affirm the trial court’s decision to exclude the testimony and ultimately, summary judgment on the medical malpractice claim in the case.

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Georgia Court of Appeals Grants New Trial Because Witness Improperly Excluded

The Georgia Court of Appeals has reversed a defense verdict and ordered a new trial because the trial court improperly excluded the relevant testimony of a witness who was not disclosed in discovery. Plaintiff suffered post-operative paralysis following back surgery. Plaintiff sued the surgeon and his group, identifying one expert witness on standard of care and causation. Plaintiff alleged the doctor delayed diagnosing and treating post-operative leg weakness, which progressed to paralysis. Later surgery revealed the presence of abscesses. An electronic record entry by the doctor indicated that he was aware Plaintiff was unable to move his legs. However, other evidence showed that the same doctor was in another procedure at the time of the electronic record entry. The causation theory pivoted around whether the doctor knew of Plaintiff’s paralysis at the time of this electronic record entry.

The parties conducted “extensive discovery,” apparently under a scheduling order. The parties also submitted a consolidated pretrial order. During the case-in-chief, Plaintiff called the defendant physician and asked one question: whether the doctor was at the bedside at the time of the electronic record entry. The doctor denied that he was and that he only learned of the paralysis later, at a time when it was too late to change the outcome. Plaintiff then called an eyewitness nurse to testify that she was with the doctor at the bedside at the time of the electronic record entry. The defense objected on the grounds that the witness was not identified in discovery responses or listed as a witness in the pretrial order. Plaintiff suggested the trial court let the defense depose the witness before she testified. The trial court excluded the witness.

The Court of Appeals reversed, holding that the only proper remedies were a continuance or a mistrial. The Court recognized that a retrial would create a “significant burden” but that it must remain “steadfast” in its commitment to a “fair and impartial jury trial.” The Court concluded the trial court abused its discretion.

Notably, the opinion does not make it clear whether the identity of this nurse was known to the defense or whether even the identity was truly a surprise. Nonetheless, the Court of Appeals’ decision is consistent with its precedent, including Hart v. Northside Hospital, 291 Ga.App. 208 (2008). The take-home message is to ask for a mistrial or a continuance when there is a surprise witness.

The case is Elliott v. Resurgens, P.C., ___ S.E.2d ___ (March 4, 2016).

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Georgia Court of Appeals Holds Expert Statute Does Not Apply to Ordinary Negligence Case

The Georgia Court of Appeals reversed summary judgment based on the spontaneous (“sua sponte”) exclusion of an expert witness in an ordinary negligence case. Plaintiff’s son was a day resident at a rehabilitation facility. Plaintiff’s son wandered off and was found on the ground unresponsive. The non-medical personnel at the facility called 911 and started to administer CPR. Emergency response personnel arrived and transported Plaintiff’s son to the hospital, where he was pronounced dead.

Plaintiff sued the day rehabilitation facility for simple negligence, ordinary negligence, and other claims, but not medical malpractice. The facility moved for summary judgment on causation. Plaintiff responded by pointing to the testimony of an expert witness. The trial court ruled that the expert’s testimony created a fact dispute on causation, but then excluded the witness’s testimony because Plaintiff did not prove that the expert was qualified under O.C.G.A. §24-7-702. That Code Section requires proof of an expert’s qualifications before the expert can testify as to standard of care in a medical malpractice case.

The Court of Appeals reversed, holding the trial court erred in applying Section 24-7-702 because it was not a medical malpractice case. The day rehabilitation facility is not one of the entities listed in O.C.G.A. §9-11-9.1 as an entity against whom an affidavit must be filed to institute a claim for professional negligence. Similarly, Plaintiff’s pled the claims as ordinary negligence, not professional malpractice.

The case is Blake v. KES, Inc., ___ S.E.2d ___ (March 2, 2016).

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