In its decision dated November 21, 2014, the Court of Appeals of Georgia (“Court of Appeals”) addressed the issue whether a certified nurse midwife (“CNM”) was qualified to offer expert testimony on the standard of care applicable to the defendant hospital’s RNs. In particular, the Court of Appeals had to address OCGA § 24-7-702 (c), which requires that to qualify as an expert in a medical malpractice action, the [non-physician] witness must (1) have actual knowledge and experience in the relevant area through either “active practice” or “teaching” and (2) … be in the “same profession” as the defendant whose conduct is at issue.
The Court of Appeals noted that the Georgia Evidence Code does not define what is meant by the phrase “a member of the same profession,” and Georgia’s case law has not provided a clear definition, yet in those cases where express statutory authority as to what constitutes the same or distinct professions is lacking, the Court of Appeals is guided by professional licensing laws and regulatory schemes to determine whether a witness is a member of the same profession as the person whose conduct is at issue within the meaning of OCGA § 24-7-702 (c) (2) (C) (i).
The Underlying Facts
The plaintiff is the mother of a child with permanent physical and mental disabilities that allegedly resulted from traumatic brain injury that occurred when the child suffered fetal distress and oxygen deprivation during her birth that the RNs attending the labor and delivery negligently failed to detect and to address. In particular, the plaintiff alleged 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, the plaintiff presented the testimony of two expert witnesses (the CNM and an obstetrician) on the question of the nurses’ negligence, concerning whether the RNs attending the labor and delivery breached the standard of care applicable to the RNs. The testimony at trial showed that the CNM practiced as a CNM, both supervising and working with RNs as part of a labor and delivery team, during the five years preceding the plaintiff’s child’s birth, and that she has practiced in the area of labor and delivery for nearly two decades, beginning her career as an RN (holding the same professional license held by the hospital’s RNs). The CNM then acquired additional education and training to become certified as a nurse practitioner and, later, as a CNM. She has practiced as a CNM since 1996 but 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 those services is the same for RNs and CNMs.
The Georgia medical malpractice jury returned a verdict in favor of the plaintiff. The defendant thereafter filed its motion for new trial, alleging that the trial court erred because the plaintiff’s CNM was not qualified to testify as an expert on behalf of the plaintiff because she was not a member of “the same profession” as the RNs who attended the delivery. The trial court granted the defendant’s motion for new trial, determining that the plaintiff’s CNM expert was 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 was at issue.
The Court of Appeals noted that it is undisputed that the plaintiff’s CNM is both an RN and a CNM (a CNM is an RN who has advanced training in a specialized area), that Georgia law requires a CNM to be licensed as an RN, and that both are regulated by the Georgia Board of Nursing. Furthermore, Georgia’s expert affidavit statute lists only “nurses” and does not have a separate listing for “certified nurse midwives,” and thus that statute does not support an inference that the professions are different. The Court of Appeals held that the plaintiff’s CNM was a member of the same profession as the hospital’s RNs and thus the trial court erred in granting the hospital’s motion for a new trial on the ground that the plaintiff’s CNM could not testify as to the standard of care exercised by the RNs because she is not a member of the same profession.
Dempsey et al. v. Gwinnett Hospital System, Inc., A14A1427; A14A1428.
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