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By: Michael Eshman
At issue in Hankla, et. al. v. Postel is the qualification of a medical doctor to testify as an expert regarding the standard of care owed by a nurse midwife. Georgia statute sets forth certain requirements a medical expert must satisfy in order to testify as to the standard of care of the medical professional at issue. To qualify, the expert must be a member of the same profession and either taught or actively practiced in the area of the alleged area of negligence for at least three of the last five years preceding the act or omission at issue. See O.C.G.A. § 24-7-702, formerly O.C.G.A. § 24-9-67.1.
However, the statute allows for an exception to the “same profession” requirement to allow physicians to testify as to the standard of care for nurses and other allied health professionals. In order to do so, the physician must have supervised, taught, or instructed such professionals regarding the “circumstances at issue” for three of the last five years preceding the act or omission at issue.
In Postel, the plaintiff claimed that the nurse midwife breached the standard of care during delivery of a baby, resulting in permanent brachial plexus injury. The trial court allowed the defense to present the expert testimony of a medical doctor specializing in obstetrics and gynecology, but who did not supervise, teach or instruct nurse midwives for three of the five years immediately preceding the delivery. The medical doctor testified that the nurse midwife did not breach the standard of care owed to the patient. After a defense verdict, the court of appeals reversed the judgment, finding that the medical doctor was not qualified under the Georgia statute to testify as an expert regarding the actions of a nurse midwife, because she was not in the same profession as the nurse midwife nor had she supervised, taught, or instructed nurse midwives in three of the five years preceding the delivery.
The Georgia Supreme Court granted certiorari to address the question of whether a doctor actively engaged in the area of practice at issue, gynecology and obstetrics, may be qualified to testify regarding the conduct of a nurse midwife, even if the doctor has not supervised, taught, or instructed nurse midwives in three of the last five years immediately preceding the alleged act or omission. While there is certainly overlap in the treatment an OB/GYN doctor and a nurse midwife are authorized to provide a patient, a plain reading of the statute suggests that the court of appeals will be affirmed, and a best practice in retaining experts is to make certain that they satisfy the explicit requirements of O.C.G.A. § 24-7-702, formerly O.C.G.A. § 24-9-67.1. The Georgia Supreme Court will hear oral argument on this issue in April of this year, with a definitive decision expected later this year.