MARC T. TREADWELL, District Judge.
This matter is before the Court on the Defendant's motion for summary judgment and motions in limine to exclude the expert testimony of Dr. Dozier Russell Hood and Dr. Matthew E. Spector (Docs. 17-19) and the Plaintiffs' motion in limine to exclude the expert testimony of Dr. Trad Wadsworth (Doc. 20). For the reasons discussed below, the Defendant's motions in limine are
Plaintiff John Callaway
O'Connell and Callaway discussed the risks of surgical treatment, including that Callaway would lose his voice box, would always have a tracheostomy, would always need a speech apparatus, and might have trouble swallowing. (Docs. 17-2 at ¶ 13; 24 at ¶ 9). However, Callaway also contends O'Connell advised him that he would be able to return to work following surgery, and O'Connell never discussed the possibility that Callaway could become disabled from the surgery. (Doc. 24 at ¶ 9). Callaway signed an informed consent form, and O'Connell performed the surgery on April 7, 2011. (Doc. 17-2 at ¶ 10).
Following surgery, Callaway developed a fistula
When evaluating expert testimony in Georgia medical malpractice claims brought in federal court pursuant to diversity jurisdiction, the competency of an expert is determined by Georgia substantive law. McDowell v. Brown, 392 F.3d 1283, 1295 (11th Cir.2004). "Once a plaintiff has met the burden of producing a competent expert, a district court must still engage in a Rule 702 analysis [because] the state law `is directed at establishing a substantive issue in the case,' while the gatekeeping structure of Rule 702 is `designed to ensure fair administration' of the case." Id. (quoting Legg v. Chopra, 286 F.3d 286, 292 (6th Cir.2002)).
In this case, the competency requirement concerns whether the proffered experts are qualified to render an opinion regarding the applicable standard of care. In a medical malpractice action, the opinion of an expert who is otherwise qualified will be admissible only if, at the time of the alleged act or omission, the expert:
O.C.G.A. § 24-7-702(c). "[T]he 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' means that the plaintiff's expert does not have to have knowledge and experience in the `same area of practice/specialty as the defendant doctor.'" Nathans v. Diamond, 282 Ga. 804, 806, 654 S.E.2d 121, 123 (2007) (citation omitted). Rather, the expert must have "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." Id. (citations omitted). Once the expert is found competent to testify under the qualifications statute, his testimony should then be screened under Rule 702 to determine if it is otherwise admissible expert testimony.
Pursuant to Rule 702, the opinion of an expert witness who is qualified based on knowledge, skill, experience, training, or education is admissible if:
Fed.R.Evid. 702. The proponent of the expert testimony has the burden of showing that: (1) the expert is qualified to testify competently regarding the matters the expert will address; (2) the methodology used by the expert is sufficiently reliable; and (3) the testimony will assist the trier of fact. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) (citation omitted).
To assess reliability, trial courts must determine "whether the reasoning or methodology underlying the testimony is... valid and whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This inquiry must focus "solely on the principles and methodology [of the expert], not on the conclusions that they generate." Id. at 595, 113 S.Ct. 2786.
To assist the trier of fact, expert testimony must "concern[] matters that are beyond the understanding of the average lay person." United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir.2004) (citation omitted). "Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments." Id. at 1262-63 (citation omitted).
That said, judges are only Daubert's gatekeepers, nothing more:
Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1334 (11th Cir.2014) (quoting United States v. Ala. Power Co., 730 F.3d 1278, 1282 (11th Cir.2013) (emphasis added by Eleventh Circuit)).
Dr. Hood is a community-based otolaryngologist who practices in Fayetteville, Georgia, and he is board certified by the American Board of Otolaryngology Head and Neck Surgery. (Doc. 26-2 at 19). Although Dr. Hood has not performed the surgery at issue within the requisite time period, he has performed laryngectomies in the past and is familiar with the procedure. Dr. Hood has treated and continues to treat patients with Stage 4 laryngeal cancer, and he advises these patients of their treatment options. He is also familiar with proper post-surgical anatomy following a laryngectomy.
O'Connell argues that Callaway's expert, Dr. Hood, should be excluded from testifying because he is not qualified pursuant to O.C.G.A. § 24-7-702(c). Dr. Hood has not performed a laryngectomy within at least three of the five years preceding Callaway's surgery. Thus, O'Connell concludes Dr. Hood is precluded from testifying about either the standard of care related to the performance of the procedure or any issues otherwise related to the procedure such as informed consent.
O'Connell reads Georgia's expert witness statute too narrowly. First, Callaway has conceded that Dr. Hood will not testify on O'Connell's surgical performance. Rather, Dr. Hood asserts he will limit his testimony to the issues of O'Connell's evaluation of Callaway, O'Connell's consultation with Callaway regarding treatment options, and how the surgical technique affected Callaway's postoperative care.
Second, the statute does not require an expert witness testifying against a surgeon to have performed the precise surgery at issue to offer an opinion on any matter related to the medical care provided by the defendant surgeon. See Nathans, 282 Ga. at 807, 654 S.E.2d at 124 (evaluating whether the expert otolaryngologist had "performed surgeries like the one in question or obtained informed consents for similar surgeries" and whether any surgeries performed by the expert "involved risks that are similar to the risks involved with the surgery" performed by the defendant (emphasis added)). Citing Akers v. Elsey, 294 Ga.App. 359, 670 S.E.2d 142 (2008) and Long v. Natarajan, 291 Ga.App. 814, 662 S.E.2d 876 (2008), O'Connell contends these cases hold, respectively, that a surgeon is not competent to testify as an expert unless he has "performed the specific surgery at issue within the requisite time period" and that "non-surgeons may not provide standard of care criticisms against surgeons in such matters." (Doc. 31 at 6). Neither case stands for the proposition for which O'Connell cites it. In Akers, the court held that neither proffered expert was competent to testify regarding the performance of the procedure because neither expert had practiced or performed the procedure within the requisite time period. 294 Ga. App. at 362, 670 S.E.2d at 144. Again, Callaway concedes Dr. Hood cannot criticize O'Connell's performance of the procedure. In Long, the court held that the plaintiff's family practitioner could not testify as an expert against the defendant surgeon because the family practitioner's affidavit did not provide sufficient information for the court to determine whether the testimony was the product of reliable principles and methods or whether the witness applied the principles and methods reliably to the facts pursuant to O.C.G.A. § 24-7-702(b). 291 Ga.App. at 817-18, 662 S.E.2d at 879. The claim at issue was for battery rather than medical malpractice, and the court did not evaluate the proffered expert's competency pursuant to O.C.G.A. § 24-7-702(c). Moreover, the court never made the broad holding that O'Connell claims, i.e., non-surgeons cannot
Instead, the appropriate inquiry is whether the expert has professional knowledge and experience regarding the specific issues on which the expert intends to testify. Compare Cartledge v. Montano, 325 Ga.App. 322, 326-27, 750 S.E.2d 772, 776-77 (2013) (holding that an expert who was board certified in obstetrics and gynecology for over 30 years was not precluded from testifying against the defendant gynecologist regarding issues surrounding the performance of surgery even if the expert had not performed the same procedure at issue), with Bonds v. Nesbitt, 322 Ga.App. 852, 858, 747 S.E.2d 40, 46 (2013) (finding that an expert who specialized in pulmonary and critical care medicine who did not regularly practice in the emergency room could not testify regarding an ER physician's standard of care), and Hope v. Kranc, 304 Ga.App. 367, 369-70, 696 S.E.2d 128, 130-31 (2010) (holding that a veteran general practitioner was precluded from evaluating the performance of a specialist, regardless of whether the issues involved procedures or referrals).
Here, O'Connell and Dr. Hood are both community-based otolaryngologists who treat patients with laryngeal cancer. Although Dr. Hood no longer performs laryngectomies,
O'Connell's initial argument that Dr. Spector is incompetent to testify as an expert rests on Dr. Spector's status as a resident during the requisite time period provided by the qualifications statute. Dr. Spector's medical license precluded him from performing any non-emergency surgery, including a laryngectomy, without the supervision of an attending physician during his residency. Thus, O'Connell contends Dr. Spector is precluded from testifying about the standard of care. O'Connell further argues Dr. Spector is incompetent to testify because he could not have made the decision regarding what treatment options to present to a cancer patient without supervision.
Belatedly acknowledging the holding in Emory-Adventist in his reply brief, O'Connell now argues that Callaway must show specific evidence of Dr. Spector's regular and repeated performance of the acts alleged in this case during his residency. See Aguilar v. Children's Healthcare of Atlanta, Inc., 320 Ga.App. 663, 665, 739 S.E.2d 392, 395 (2013) (distinguishing the expert's lack of qualifications from those of the expert in Emory-Adventist because, although both were residents during the requisite time period, the expert in Emory-Adventist "had regularly engaged in the repeated performance of acts relevant to the acts or omissions alleged to constitute malpractice").
O'Connell contends Dr. Spector's deposition testimony provides insufficient evidence of the number of and degree of participation in total laryngectomies prior to April 2011. This argument is also without merit. Dr. Spector testified that he had actively participated in "around ten" total laryngectomies by performing the surgery with a faculty member or fellow. (Doc. 17-5 at 8:4-16). There is no requirement that Dr. Spector specify the degree to which he physically performed each surgery, and as noted above, those surgeries are not disqualified from the Court's evaluation of Dr. Spector's competency merely because they were supervised.
Dr. Spector's other qualifications show he has sufficient professional knowledge and experience acquired through the active practice of the specialized field of medicine at issue. At the time of Callaway's surgery, Dr. Spector was in the fourth year of a five-year program to become a head and neck cancer surgeon. As the chief resident, Dr. Spector ran the tumor board
Callaway challenges Dr. Wadsworth's competency to testify regarding the standard
In Georgia, the legal duty owed by a medical professional is "a reasonable degree of care and skill." O.C.G.A. § 51-1-27. "[T]he reasonable degree of care and skill required of physicians is that `which is ordinarily employed by the profession generally and not such as is ordinarily employed by the profession in the locality or community.'" West v. Breast Care Specialists, LLC, 290 Ga.App. 521, 523, 659 S.E.2d 895, 897 (2008) (citations omitted). This legal duty, however, does take into consideration "similar conditions and like circumstances." Smith v. Finch, 285 Ga. 709, 711, 681 S.E.2d 147, 149 (2009) (citations omitted). Expert testimony is required to establish the required level of skill and care, i.e., the standard of care, in a particular case. Kapsch v. Stowers, 209 Ga.App. 767, 767, 434 S.E.2d 539, 540 (1993) (citations omitted). In considering whether a physician has complied with the standard of care, "the jury may consider all the attendant facts and circumstances which may throw light on the ultimate question." Critser v. McFadden, 277 Ga. 653, 654, 593 S.E.2d 330, 332 (2004) (quoting Word v. Henderson, 220 Ga. 846, 849, 142 S.E.2d 244, 247 (1965)).
While Callaway contends Dr. Wadsworth posits a standard of care based on O'Connell's locality, Dr. Wadsworth's testimony read in the context of his entire deposition shows that he was merely taking into account similar conditions and like circumstances as part of the applicable standard of care. Dr. Wadsworth defined the standard of care generally: "It is a concept, what is reasonable and prudent, what would other people do in the same situation given the same variables. That's the standard of care." (Doc. 35 at 62:25 — 63:3). Dr. Wadsworth also discussed the standard of care applicable to this case when he opined on the best practices for a patient like Callaway:
(Doc. 35 at 12:13-25). Dr. Wadsworth went on to testify why he believed O'Connell complied with the standard of care:
(Doc. 35 at 79:7-80:5). Thus, Dr. Wadsworth did not determine O'Connell's conduct fell within the standard of care solely because Callaway is now cancer free. Rather, Dr. Wadsworth testified that O'Connell achieved the desired outcome, which is a factor in determining compliance with the standard of care.
Thus, Callaway's contention that Dr. Wadsworth is unable to articulate the applicable standard of care is without merit. Accordingly, Callaway's motion in limine to exclude the testimony of Dr. Wadsworth is
Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A factual dispute is genuine only if `a reasonable jury could return a verdict for the nonmoving party.'" Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir.1991)). The burden rests with the moving party to prove that no genuine issue of material fact exists. Info. Sys. & Networks Corp., 281 F.3d at 1224. The party may support its assertion that a fact is undisputed by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A).
The burden then shifts to the non-moving party, who must rebut the movant's showing "by producing ... relevant and admissible evidence beyond the pleadings." Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The non-moving party does not satisfy his burden "if the rebuttal evidence is `merely colorable, or is not significantly probative' of a disputed fact." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). However, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (citation omitted).
In his complaint, Callaway alleges that O'Connell failed to obtain informed
Georgia's informed consent statute provides: "any person who undergoes any surgical procedure under general anesthesia, spinal anesthesia, or major regional anesthesia ... must consent to such procedure and shall be informed in general terms of the following:
O.C.G.A. § 31-9-6.1(a). "The Georgia informed consent statute does not impose a general requirement of disclosure upon physicians; rather, it requires physicians to disclose only those factors listed [above]." Blotner v. Doreika, 285 Ga. 481, 482, 678 S.E.2d 80, 81 (2009) (citation omitted). There is no "common law duty to inform patients of the material risks of a proposed treatment or procedure" apart from what is required under the statute. Id. at 481, 678 S.E.2d at 80. Further, the informed consent statute "must be strictly construed and cannot be extended beyond its plain and explicit terms," meaning there can be no "impermissibly expanded[,]... judicially-created[] duty of disclosure." Id. at 482-83, 678 S.E.2d at 81.
The informed consent statute also defines the elements of a medical malpractice claim based on a breach of the statute. The plaintiff must make a showing:
O.C.G.A. § 31-9-6.1(d).
Strictly construing section (d) of Georgia's informed consent statute, the statute contemplates a cause of action based on an injury resulting from an undisclosed material risk of the procedure. This is apparent from reading subsection (d)(2), requiring an injury resulting from information that was not disclosed, with the requirement that an expert testify that such injury was caused by a material risk required to be disclosed pursuant to subsection (a) (3).
Essentially, Callaway's complaint and his experts allege that O'Connell breached his duty to obtain informed consent because he did not advise him of practical alternatives as required by O.C.G.A. § 31-9-6.1(a)(5).
Even if Callaway had premised his informed consent claim on the failure to disclose the risk of developing a fistula or the disability resulting from a fistula, his claim would still fail. The statute enumerates the material risks which must be disclosed. The only conceivable category of risks a fistula could fall under is "loss or loss of function of any limb or organ." O.C.G.A. § 31-9-6.1(a)(3). Assuming a fistula falls into this category, O'Connell disclosed this risk on the consent form. (Doc. 17-6 at 14). If a fistula does not fall within this category, however, then failure to disclose that risk cannot be the basis of an informed consent claim because it is not one of the enumerated risks in the statute. Accordingly, O'Connell is entitled to summary judgment on Callaway's informed consent claim.
Callaway has also asserted a claim for the negligent performance of his total laryngectomy. Callaway alleges that O'Connell performed a partial laryngectomy at best and failed to remove any lymph nodes. O'Connell did not move for summary judgment on this claim but rather argues for the first time in his reply brief that the only qualified expert, Dr. Wadsworth, testified that O'Connell's surgical performance complied with the standard of care. As discussed above, Dr. Spector is competent to testify that O'Connell breached the standard of care. Thus, even if O'Connell had appropriately moved for summary judgment on Callaway's negligent performance claim, this argument would fail. Accordingly, summary judgment is not appropriate on this claim.
For the foregoing reasons, O'Connell's motions in limine are
