December 4, 2013

162017_132140396847214_292624_nIn its decision issued on November 20, 2013, the Court of Appeals of Georgia (“Georgia Court of Appeals”), Georgia’s intermediate appellate court, determined that the trial judge improperly excluded the testimony of the plaintiff’s expert in a medical malpractice case. The trial judge had decided that the plaintiff’s medical expert was not qualified to testify because he stated during his deposition that he does not perform hysteroscopic removal of fibroids and because his testimony did not rely on the evidence in the record.

The Underlying Factual Allegations

In March 2005, the medical malpractice plaintiff was experiencing abnormal uterine bleeding and irregular menstrual cycles for which she sought treatment from the defendant obstetrician/gynecologist. An ultrasound indicated a possible polyp or fibroid on the interior lining of the plaintiff’s uterus, for which the defendant recommended a dilation and curettage (“D & C”) with a hysteroscopy that entails dilating the cervix, distending the uterus with a laparoscopic solution such as Sorbitol, inserting a small scope into the uterus to evaluate its lining, and then scraping the lining to remove the abnormal growth.

The plaintiff’s D & C and hysteroscopy were performed by the defendant on May 4, 2005 during which the defendant removed what she believed to be a fibroid from the lining of the plaintiff’s uterus. At the conclusion of the D & C, the defendant noted that approximately 1500 milliliters of the Sorbitol fluid used during the procedure had not been reclaimed after suctioning, which could indicate a perforation, but she believed that the discrepancy was due to a significant amount of the fluid saturating the surgical drapes covering the plaintiff and fluid spilled onto the operating room floor.

On May 7, 2005, the plaintiff experienced nausea and severe abdominal pain during a bowel movement. The plaintiff returned to the hospital emergency room where she underwent diagnostic testing and subsequent surgery that discovered that the plaintiff’s uterus and bowel had been perforated, which the surgeons attempted to repair and performed a temporary colostomy to bypass the damaged portion of the plaintiff’s bowel. The surgeons also discovered necrosed tissue, blood, and nearly two liters of fluid in the plaintiff’s abdomen. The plaintiff required three additional surgeries to reverse the colostomy and treat the perforations to her bowel and uterus.

The patient filed her Georgia medical malpractice lawsuit on April 27, 2007 against the OB/GYN and her medical practice group. The plaintiff alleged that the defendant negligently performed the D & C and hysteroscopy procedure that resulted in the perforation of her uterus and bowel. The medical malpractice complaint was accompanied by the affidavit of the plaintiff’s medical expert (an expert in gynecology and gynecological surgery) that alleged that the defendant was negligent in failing to perform a bimanual examination of the plaintiff to determine the position of her uterus before dilating her cervix; failing to sound the uterus to determine its depth prior to dilation; failing to recognize that she perforated the plaintiff’s uterus; failing to rule out perforation after more than 1000 milliliters of hysteroscopic fluid could not be accounted for at the conclusion of the surgery; and, failing to monitor the plaintiff for signs of uterine perforation.

The defendant moved to exclude the plaintiff’s expert’s testimony, alleging that the testimony exceeded the scope of his expertise. The trial judge subsequently excluded the plaintiff’s expert’s testimony, finding that the expert was not qualified to testify because he stated during his deposition that he does not perform hysteroscopic removal of fibroids and because his testimony did not rely on the evidence in the record. The plaintiff appealed the exclusion of her expert’s testimony.

The Georgia Court of Appeals noted that Georgia’s requirement that the expert have actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given does not mean that the plaintiff’s expert has to have knowledge and experience in the same area of practice/specialty as the defendant doctor but rather the issue is whether the expert has knowledge and experience in the practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiff’s injuries. The Georgia Court of Appeals further noted that expert testimony is only admissible if it is both: (1) relevant and (2) reliable, and that an expert opinion is ‘relevant’ if it will assist the trier of fact to understand the evidence or to determine a fact in issue.

The Georgia Court of Appeals held that the credibility of the plaintiff’s expert and the weight to be given to his opinions were “matters to be addressed by the jury[,]”  and therefore the trial court abused its discretion in concluding that the plaintiff’s expert’s testimony was inadmissible.


If you or a loved one were injured as a result of medical malpractice in Georgia or in another U.S. state, you should promptly seek the advice of a Georgia medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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