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Dempsey v. Gwinnett Hosp. Sys.

Court of Appeals of Georgia

November 21, 2014

DEMPSEY et al.
v.
GWINNETT HOSPITAL SYSTEM, INC.; and vice versa

Reconsideration denied December 16, 2014 -- Cert. applied for.

Medical malpractice. Gwinnett State Court. Before Judge Iannazzone.

Summerville Moore, Darren J. Summerville, S. Leighton Moore III, Nelson O. Tyrone, for appellants.

Hall Booth Smith, John E. Hall, Jr., W. Scott Henwood, Mark W. Wortham, Steven P. Bristol, Heather L. Saum, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., Barnes, P. J., and McFadden, J., concur. Andrews, P. J., Ray and McMillian, JJ., dissent. MCMILLIAN, Judge, dissenting.

OPINION

Page 526

Ellington, Presiding Judge.

A Gwinnett County jury returned a verdict in favor of Melissa Dempsey, individually and as the guardian of her daughter, Kailey Watson, in this medical malpractice case. Thereafter, defendant Gwinnett Hospital System, Inc. filed a motion for new trial or, in the alternative, a judgment notwithstanding the verdict (" JNOV" ). In its motion, the hospital contended, inter alia, that the trial court erred in admitting the testimony of one of Dempsey's expert witnesses, a certified nurse midwife (" CNM" ) on the ground that she was not properly qualified under OCGA § 24-7-702 (c) (2) (C) (i) to testify on the standard of care applicable to the registered professional nurses (" RNs" ) who attended Dempsey's labor and delivery because she was not a member of " the same profession" as the RNs as that term is [330 Ga.App. 470] defined by law. The court granted the motion for a new trial based solely upon this legal issue. In Case No. A14A1427,[1] Dempsey contends, inter alia, that the trial court erred in so concluding and that this Court should reverse the grant of a new trial to the hospital.[2] For the following reasons, we hold that the trial court erred in finding that the CNM was not a member of the same profession as the hospital's RNs; consequently, we reverse.

Case No. A14A1427

1. Because the trial court granted the hospital's motion for new trial on a special ground -- a legal question concerning the meaning of the term " the same profession" as used in OCGA § 24-7-702 (c) (2) (C) (i) -- instead of the general grounds, we review the ruling de novo. Hankla v. Postell, 293 Ga. 692, 693 (749 S.E.2d 726) (2013) (using de novo standard of review where issue to be decided was purely legal); Government Employees Ins. Co. v. Progressive Cas. Ins. Co., 275 Ga.App. 872, 873-874 (622 S.E.2d 92) (2005) (accord).

So viewed, the relevant, undisputed facts are as follows. Dempsey is the mother of Kailey Watson, a child with permanent physical and mental disabilities. Dempsey alleged that Kailey's disabilities resulted from traumatic brain injury that occurred when she suffered fetal distress and oxygen deprivation

Page 527

during her birth, complications that the RNs attending the labor and delivery negligently failed to detect and to address. Dempsey averred that the hospital's RNs negligently misread and/or misinterpreted data from a fetal monitor and committed other violations of the applicable standard of care. At trial, Dempsey presented the testimony of two expert witnesses on the question of the nurses' negligence -- Colleen Mannering, the CNM, and an obstetrician. Both offered testimony concerning whether the RNs attending the labor and delivery breached the standard of care applicable to the RNs.

With respect to whether Mannering was qualified to give that expert opinion, the record shows that, during the five years preceding Kailey's birth, Mannering practiced as a CNM, both supervising and working with RNs as part of a labor and delivery team. She testified that she has practiced in the area of labor and delivery for nearly two [330 Ga.App. 471] decades, beginning her career as an RN, holding the same professional license held by the hospital's RNs. Mannering then acquired additional education and training to become certified as a nurse practitioner and, later, as a CNM. Although Mannering has practiced as a CNM since 1996, she is also licensed as an RN. She testified that she is familiar with the standard of care regarding reading and interpreting fetal monitoring strips, and that the applicable standard of care for providing these services is the same for RNs and for CNMs.

(a) The narrow question before this Court is whether the trial court erred in ruling that Mannering is not qualified to offer expert testimony on the standard of care applicable to the hospital's RNs because she, as a CNM, is not a member of the same profession as the RNs, whose conduct is at issue. In resolving this question, we must first apply OCGA § 24-7-702 (c),[3] a subsection ...


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