Evidence of Expert’s Personal Practices: A New Opinion in Georgia

The Georgia Supreme Court recently ruled in Condra v. Atlanta Orthopaedic Group on an interesting issue in medical malpractice cases: can the standard-of-care medical expert be subject to cross examination about what the expert would have done if the doctor had treated the patient?

(If you are not interested in the nuance of the facts, skip the next two paragraphs to cut to the chase.) Plaintiff went to an ortho for back, neck and arm pain. The ortho prescribed a 30-day regimen of the anti-convulsive drug Tegretol, which was followed by another 30-day regimen when the patient failed to improve. During the second regimen, Plaintiff began to experience leg cramps and shortness of breath. Ultimately, she was diagnosed with aplastic anemia, an awful bone marrow disease where the bone marrow does not produce sufficient red blood cells, requiring many a bone marrow transplant. (Marie Curie was thought to have died as a result of aplastic anemia.) Plaintiff’s lawsuit against her doctor, who belongs to a huge Atlanta orthopedic practice, alleged that Tegretol was the wrong drug to prescribe and that the doctor should have monitored Plaintiff’s blood count during the Tegretol therapy. Had he done so, according to Plaintiff, this terrible disease could have been avoided.

The doctors’ experts admitted that there is medical literature to support blood count monitoring during Tegretol therapy as appropriate but weaseled out by arguing that it was not “mandatory or essential” even though it was both experts’ regular practice. They also fought the doctor’s malpractice lawyer’s favorite alternative argument: it would not have made a difference if he had done what the Plaintiff’s experts said should have been done because blood monitoring would not have detected aplastic anemia.

The key point on appeal was whether the defendant’s experts could be cross examined on the fact that it was their practice to do the very thing that they testified was not a breach of the standard of care. So the defendant doctor’s expert says in deposition, “Sure, I do what you say the doctor should have done in this case but the standard of care does not require it.”
The point here is not subtle: Plaintiffs’ lawyers want the jury to conclude that if the defendant’s experts are taking the same precaution that they claim is above and beyond the standard of care, it underscores what the real standard of care is. Think about it. If a doctor testifies that the defendant’s failure to take a precaution conforms with the “acceptable standard of care”, the credibility of that doctor’s testimony is severely diminished if the medical expert concedes on cross examination that he/she makes sure to do exactly what the plaintiff contends should have been done.

Of course, no one can argue that the standard of care cannot be established by what the defense expert does. But while the expert’s personal practices may not establish the appropriate standard of care, if even the doctors selected by the defendant’s malpractice lawyer are doing what plaintiff says should have been done, it is pretty powerful evidence. This is particularly true in the real world where most doctors’ opinions about standard of care are not based on real data but what the doctor personally believes is – or should be – the standard of care.
In this case, Defendant’s malpractice lawyer moved in limine to exclude evidence of what the Defendant’s experts “would have done.” The motion was granted and, after a defense verdict, Plaintiff appealed. The Court of Georgia Appeals affirmed.

The Georgia Supreme Court reversed not only the Court of Appeals of Georgia but prior Georgia case law clearly on point. The court found that under the Georgia Tort Reform Act, evidence of an expert’s personal practices, unless excludable on other grounds, was admissible both as substantive evidence and to impeach the expert’s opinion as to the applicable standard of care. So the Georgia Tort Reform Act saves the Plaintiff. Breathe in the irony.

Beyond statutory interpretation, the court clearly agreed with the reasoning behind allowing inquiry of the expert’s personal practices:

Given the prominence of the expert’s personal practice in this threshold inquiry, it would defy logic to find such experience categorically irrelevant in assessing the credibility of the expert’s testimony. “[T]he jury is entitled to fully evaluate the credibility of the testifying expert, and the fact that an expert testifies that the standard of care does not require what that expert personally does in a similar situation may be a critical piece of information for the jury’s consideration” (citing Arizona authority).

The Georgia Supreme Court summarily rejected the argument that personal practices testimony is “likely to confuse the jury by conflating the standard of care with an expert’s personal protocols.” The reality is that medical malpractice lawyers on both sides are trying to confuse the jury by conflating all kinds of evidence. If that were a real basis for not admitting evidence, we wouldn’t have any evidence at trials.

Interesting opinion and the good guys win. What more can you ask from the Maryland Injury Lawyer Blog on a Friday? You can read the entire case here.

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