DUBOIS et al.
BRANTLEY et al
Reconsideration denied July 27, 2015.
Certiorari to the Court of Appeals of Georgia -- 327 Ga.App. 14.
Franklin, Taulbee, Rushing, Snipes & Marsh, James B. Franklin; Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellants.
Hall, Booth, Smith, Charles A. Dorminy, Norman D. Lovein, William S. Mann, for appellees.
This case presents a question about the qualification of expert witnesses under OCGA § 24-7-702 (" Rule 702" ), specifically, what sort of experience is required of a practicing surgeon who is offered as an expert witness in a medical malpractice case to opine that another surgeon breached the applicable standard of medical care in the course of performing a surgical procedure. In Brantley v. Dubois, 327 Ga.App. 14 (755 S.E.2d 351) (2014), the Court of Appeals held that a surgeon was not qualified as a matter of law under Rule 702 (c) (2) (A) to give expert testimony about negligence in connection with a laparoscopic procedure to repair an umbilical hernia because he had not performed more than one laparoscopic procedure to repair an umbilical hernia in the last five years, notwithstanding that the surgeon had performed many other abdominal laparoscopic procedures during that time. We issued a writ of certiorari to consider whether the Court of Appeals understood Rule 702 (c) (2) (A) correctly, and we now conclude that it did not. Accordingly, we reverse the judgment of the Court of Appeals.
1. David Dubois was diagnosed with an umbilical hernia, and in March 2011, he underwent a laparoscopic procedure to repair it. Dr. Damon Brantley performed the laparoscopic procedure at a Southeast Georgia Health System hospital in Camden County, and within hours, Dubois was discharged. A couple of days later, however, Dubois returned to the hospital with a fever and other symptoms, and he soon was diagnosed with acute pancreatitis. An exploratory laparotomy revealed that his pancreas had been punctured, which was the likely cause of the pancreatitis. In the days that followed, additional complications arose, including respiratory failure, acute renal failure, and sepsis. Dubois survived these complications, but he spent several days in a coma, was hospitalized in intensive care for almost a month, and had to undergo a number of additional surgeries to repair the damage to his pancreas.
In January 2012, Dubois and his wife filed a lawsuit against Dr. Brantley and Southeast Georgia Health, and they contend that Dr. Brantley negligently punctured his pancreas with a trocar in connection with the laparoscopic procedure to repair his umbilical [297 Ga. 576] hernia. Dr. Brantley admits that he inserted a trocar in the upper abdomen to begin the procedure, and he concedes that attributing
the puncture of the pancreas to his use of this trocar is a reasonable hypothesis. Dr. Brantley disputes, however, that his insertion of the primary trocar was a breach of the applicable standard of medical care.
To show that Dr. Brantley was negligent in his use of the trocar, Dubois and his wife offered Dr. Steven E. Swartz as an expert witness. Dr. Swartz is a practicing general surgeon, and in his practice, he uses trocars to perform a variety of abdominal laparoscopic procedures. Although Dr. Swartz has performed laparoscopic procedures to repair umbilical hernias in the past, he testified that he no longer performs that particular sort of laparoscopic procedure, explaining that he now repairs umbilical hernias by open surgery instead. At his deposition, Dr. Swartz admitted that he has performed no more than one laparoscopic procedure to repair an umbilical hernia in the past five years. Nevertheless, Dr. Swartz opined that, if performed within the applicable standard of medical care, no abdominal laparoscopic procedure -- whether to repair an umbilical hernia or for any other purpose -- should involve a trocar puncturing the pancreas unless the pancreas is located unusually, anatomically speaking. And Dr. Swartz saw no indication that Dubois has an unusually located pancreas.
To comply with the statutory requirement that an affidavit of a competent expert accompany a complaint for medical or other professional malpractice, Dubois and his wife filed an affidavit by Dr. [297 Ga. 577] Swartz with
their complaint, and they later amended their complaint [297 Ga. 578] by filing a second affidavit by Dr. Swartz. Following the deposition of Dr. Swartz, Dr. Brantley and Southeast Georgia Health moved to dismiss the complaint or, in the alternative, for summary judgment, contending that Dr. Swartz was not competent to offer expert testimony that Dr. Brantley breached the applicable standard of medical care in connection with a laparoscopic procedure to repair an umbilical hernia simply because Dr. Swartz has not regularly performed laparoscopic procedures to repair umbilical hernias in the past five years. The trial court denied the motion, and Dr. Brantley and Southeast Georgia Health appealed.
The Court of Appeals reversed. In its opinion, the Court of Appeals acknowledged that the qualification of an expert witness under Rule 702 is generally a matter committed to the sound discretion [297 Ga. 579] of the trial court. See Brantley, 327 Ga.App. at 16. The Court of Appeals held, however, that the trial court in this case abused its discretion when it qualified Dr. Swartz as an expert witness. The Court of Appeals considered whether Dr. Swartz had participated in laparoscopic procedures to repair umbilical hernias in the past five years, and finding that he had been involved at most in only one such procedure, the Court of Appeals concluded that he was not qualified as a matter of law under Rule 702 (c) (2) (A) to offer any opinion about negligence in connection with a laparoscopic procedure to repair an umbilical hernia:
Here, there is only speculation that Dr. Swartz performed the procedure in issue in the three to five years prior to the surgery. Even if we accepted that Dr. Swartz performed one laparoscopic umbilical hernia repair in the requisite time period, there otherwise is no showing demonstrating a significant familiarity with the same, particularly given the fact that Dr. Swartz had never assisted in such a procedure [during the past ...