Expert Witnesses: The “same specialty” standard does not require experts to show actual experience in the procedure in question

 

Zarate-Martinez v. Echemendia, — S.E.2d — 2016 WL 3658913 (Ga. 2016)

In this recent case, the Georgia Supreme Court has ruled that the state’s “same specialty” requirement is not unconstitutional. The plaintiff’s constitutional challenges against this requirement were unpromising and there is no need to discuss them.

The Court’s decision, however, contains an important clarification: the “same specialty” standard does not require experts to show actual experience in the procedure in question. The Court made that clarification in regard to Georgia’s statute, OCGA §§ 24–7–702 (c) (2) (A) & (B), according to which –

(c) [I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:

(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

(A) The active practice of such area of specialty of his or her profession 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; or

(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.

This statutory arrangement is fairly standard, which makes the decision described below generally important. This decision cited and reaffirmed the Court’s previous holding in Dubois v. Brantley, 775 S.E.2d 512 (Ga. 2015), that “A careful reading of the text [of OCGA §§ 24–7–702 (c) (2) (A) and (B)] shows that Rule 702 (c) (2) (A) and (B) do not require that an expert actually have performed or taught the very procedure at issue. Rather, these provisions require only: [t]hat the expert has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given … No doubt, the simplest way to demonstrate that an expert has “an appropriate level of knowledge … in performing [a] procedure … [or] teaching others how to perform [a] procedure” is by proof that the expert actually has done these things himself. Moreover, it may be that, in many cases, if an expert has not actually performed or taught a procedure himself, he will be found lacking “an appropriate level of knowledge.” But by the plain terms of the statute, the pertinent question is whether an expert has “an appropriate level of knowledge … in performing the procedure … [or] teaching others how to perform the procedure,” not whether the expert himself has actually performed or taught it.”

Based on this interpretation of the statute, the Court reversed the trial judge’s decision to strike an affidavit of the plaintiff’s expert who failed to state her experience with the procedure in question. The Court ruled in this connection that “In rejecting this … affidavit, the trial court once again relied on the number of open laparoscopic tubal ligations that Dr. Hendrix may or may not have performed in at least three of the last five years, rather than focusing on whether she had the “appropriate level of knowledge … in performing the procedure” at issue, in order to be qualified as an expert. … Because the trial court’s reasoning with regard to striking this second affidavit is … inconsistent with the analysis that this Court set forth in Dubois, the trial court must reconsider its decision relating to this … affidavit under the requirements of Dubois as well.”