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 defined by law. The court granted the motion for a new trial based solely upon this legal issue. In 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 Cos. 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
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 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)
Pursuant to this statute,
(Emphasis original.) Hankla v. Postell, 293 Ga. at 694, 749 S.E.2d 726. See also Smith r. Harris, 294 Ga.App. 333, 336-337(1), 670 S.E.2d 136 (2008) (accord).
The Evidence Code does not define what is meant by the phrase "a member of the same profession," and our case law has not provided a clear definition. There are several cases that offer some guidance on determining whether two professions are not the same. In Smith r. Harris, for example, we held that a pharmacist could not offer expert testimony in a trial against a medical doctor because the two were not members of the same profession. 294 Ga.App. at 336-337(1), 670 S.E.2d 136. In determining that the two professions were not the same, this Court relied upon OCGA § 9-11-9.1(g), which lists the professions to which the expert affidavit requirement for malpractice actions applies, and we noted that "medical doctors" and "pharmacists" are enumerated separately. 294 Ga.App. at 336-337(1), 670 S.E.2d 136. Later, in Ball v. Jones, 301 Ga.App. 340, 341, 687 S.E.2d 625 (2009), this Court likewise held that a nurse could not give expert testimony at trial against a licensed physical therapist because OCGA § 9-11-9.1 explicitly categorized nurses and physical therapists as practicing separate professions.
Recently, in Bacon Comity Hasp. & Health System r. Whitley, 319 Ga.App. 545, 549-550, 737 S.E.2d 328 (2013), we held that the plaintiff in a medical malpractice action could not introduce the testimony of a chiropractor against a physical therapist because the two professions are not the same. Once again, we looked to OCGA § 9-11-9.1, noting that chiropractors and physical therapists are listed separately. The plaintiff, who sought to introduce the chiropractor's testimony, argued that in the chiropractor's home state of Florida, the two occupations were not viewed separately. We rejected this argument, observing that although there exists "some overlap in activities," chiropractors and physical therapists are defined differently under Florida law, are governed by different regulatory boards, and have different licensing requirements. Id. at 549, 737 S.E.2d 328. Thus, in those cases where express statutory authority as to what constitutes the same or distinct professions is lacking, we are 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).
In this case, the trial court ruled that Mannering was not a member of the same profession as the hospital's RNs because she is a CNM. But it is undisputed that Mannering is both an RN and a CNM. Georgia law requires a CNM to be licensed as an RN and both are regulated by the Georgia Board of Nursing.
Given the undisputed facts and the law set forth above, we conclude that Mannering is a member of the same profession as the hospital's RNs. Thus, the trial court erred in granting the hospital's motion for a new trial on the ground that Mannering could not testify as to the standard of care exercised by those RNs because she is not a member of the same profession.
(b) During oral argument before this Court, the hospital argued that Mannering was unqualified to testify against its RNs under the "actual professional knowledge and experience" requirements of OCGA § 24-7-702(c)(2). The record shows that the hospital raised this argument in its motion for new trial. However, the trial court granted the motion for new trial based solely upon its conclusion that Mannering was not a member of the "same profession," evaluating only that requirement of subsection (c)(2)(C)(i), and did not reach any of the other arguments raised by the hospital in support of the motion. Thus, this issue is not ripe for our review. See Division 3, infra.
2. Dempsey contends that, even if Mannering's testimony should have been excluded because she is not a member of the same profession as the hospital's RNs, the trial court erred in granting a new trial on that basis because her testimony was merely cumulative of the obstetrician's testimony on the standard of care.
3. In its cross-appeal, the hospital contends that the trial court erred in denying its motion for a directed verdict or its motion for JNOV on several grounds. Our review of the record reveals that the trial court did not, either expressly or impliedly, issue a ruling denying any of the remaining grounds for relief asserted in the hospital's motion, which remains pending below. The hospital acknowledges in its brief that "[t]he subject of this cross-appeal is the remaining grounds contained in the [h]ospital's motion for new trial and remittitur, which were not ruled on by the trial court."
The Appellate Practice Act provides that "this article shall be liberally construed so as to bring about a decision on the merits of every case appealed." OCGA § 5-6-30. The Act disfavors "multiple appeals and piecemeal litigation." (Citation omitted.) Cochran v. Levitt Furniture Co., 249 Ga. 504, 505(1), 291 S.E.2d 535 (1982). Nevertheless, in authorizing cross-appeals in civil cases, it is fundamental that there must exist an adverse ruling of the trial court from which an appeal may be taken. The Act provides that, when an appellee cross-appeals, he may present "all errors or rulings adversely affecting him [.]" (Emphasis supplied.) OCGA § 5-6-38(a). See also Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711(1), 363 S.E.2d 140 (1987) ("The
Because the trial court has not entered an order addressing and ruling upon the remaining grounds raised in the hospital's motion, it would be improper for this Court to address them in this appeal. "Inasmuch as we are a court for the correction of errors, we do not consider issues which were not raised below and ruled on by the trial court." (Citation and punctuation omitted.) Spivey v. State, 272 Ga.App. 224, 228(2), 612 S.E.2d 65 (2005). Further, "Georgia appellate courts are not authorized to render advisory opinions as to potential error." (Citations omitted.) Bibbins v. State, 280 Ga. 283, 284-285, 627 S.E.2d 29 (2006). See also City of Atlanta v. Hotels.com, 285 Ga. 231, 674 S.E.2d 898, fn. 4 (674 S.E.2d 898) (2009) (citation and punctuation omitted) (accord). Whether the hospital is entitled to the relief it seeks
(Citation omitted.) An v. Active Pest Control South, 313 Ga.App. 110, 117, 720 S.E.2d 222 (2011).
Judgment reversed in Case No. A14A1427. Appeal dismissed without prejudice in Case No. A14A1428.
PHIPPS, C.J., BARNES, P.J., and McFADDEN, J., concur.
ANDREWS, P.J., RAY and McMILLIAN, JJ., dissent.
McMILLIAN, Judge, dissenting.
Because I believe that the trial court correctly found that Mannering was not a member of the same profession as the hospital's RNs, I must respectfully dissent. OCGA § 24-7-702(c)(2) specifically governs expert testimony in medical malpractice cases, and subsection (c)(2)(C)(i) requires that a proffered expert be "a member of the same profession" as the defendant whose conduct is at issue. Subsection (c)(2)(D) goes on to provide the sole exception to that requirement. An otherwise qualifying physician may testify as to the standard of care provided by "nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff' that he or she has "supervised, taught, or instructed." OCGA § 24-7-702(c)(2)(D). There is no other statutory provision permitting a member of any of the enumerated medical professions to testify as to the standard of care of any other separately enumerated profession, and significantly, nurses and nurse midwives are separately enumerated as medical professionals against whom a physician may testify.
Moreover, the fact that nurses and nurse midwives are not listed separately within the more general OCGA § 9-11-9.1(g) does not persuade me that the legislature intended for them to be treated the same when deciding whether they are of the "same profession" as that term is used in OCGA § 24-7-702. Rather, OCGA § 9-11-9.1(g) is prefaced by the clause "[t]he professions to which this Code section [requiring an affidavit to accompany a charge of professional malpractice] shall apply are ..." without defining any of the professions listed therein. Furthermore, OCGA § 24-7-702(e) modifies OCGA § 9-11-9.1 and specifically requires that all affiants "shall meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1." As our Supreme Court explained, the "same profession" requirement of OCGA § 24-7-702(c)(2)(C)(i), which was not previously recognized in Georgia, "was part of the legislature's effort to impose more exacting requirements on expert witnesses in medical malpractice cases." Hankla v. Postell, 293 Ga. 692, 696, 749 S.E.2d 726 (2013).
Thus, I am convinced that the more specific requirements of the Daubert statute control whether a nurse midwife is qualified to
I am authorized to state that Presiding Judge ANDREWS and Judge RAY join in this dissent.