Georgia Rules Obstetrician Unqualified to Testify in Support of Certified Nurse Midwife

Baby being helpThe Georgia Tort Reform Act of 2005, which was vigorously endorsed by health care providers and health insurance companies in Georgia in part to make it more difficult for injured persons to bring medical malpractice suits, backfired against those endorsers with the Georgia Supreme Court’s recent decision in Hankla v. Postell.

Anita Postell filed a lawsuit against Vicki Hankla, a certified nurse midwife, alleging that Hankla committed medical malpractice during the labor and delivery of Ms. Postell’s baby in Georgia in 2005. Ms. Postell alleged that Hankla breached the standard of care by improperly handling an obstetrical complication known as shoulder dystocia, in which the baby’s shoulders become lodged in the birth canal. Handled improperly, shoulder dystocia can result in irreversible nerve and muscle damage, as it did in the case of Ms. Postell’s baby.

At trial, the midwife’s defense team called a board certified OB/GYN as an expert witness to testify that the midwife complied with the standard of care during the delivery of Ms. Postell’s baby. The OB/GYN expert testified that she had practiced obstetrics for 13 years, had delivered well in excess of one thousands babies, and had experience performing obstetrical maneuvers to address shoulder dystocia. After the trial, the jury determined that the midwife was not negligent, and returned a defense verdict.

Ms. Postell appealed the verdict, arguing that the trial court erred in qualifying the defendant’s OB/GYN witness as an expert regarding the care and treatment rendered by the midwife. Ms. Postell’s argument relied on the stringent language of the Georgia expert witness statute, which was enacted as a component of the Tort Reform Act of 2005 to shield health care providers from malpractice suits by imposing more exacting requirements on expert witnesses in medical malpractice cases. Using the language of the Georgia statute, Ms. Postell argued that because the defense OB/GYN expert was not a member of the same profession as the defendant midwife, and had not otherwise supervised, taught, or instructed midwives, the expert was not qualified under the statute to offer expert testimony in support of the midwife’s care. Both the intermediate appellate court and the Georgia Supreme Court agreed, and overturned the defense verdict.

The Georgia expert witness statute, much like the Maryland expert witness statute, establishes strict requirements that witnesses must meet in order to be qualified as an expert witness in a medical malpractice case. The Georgia statue requires, among other things, that the expert witness either be a “member of the same profession” as the defendant health care provider, or, in the case of physicians testifying regarding care rendered by non-physician health care providers (such as midwives or nurses), the expert physician must have supervised, taught, or instructed that type of non-physician health care provider during at least three of the last five years.

By contrast, Maryland’s medical malpractice expert witness statute requires that an expert witness have clinical or teaching experience in “the defendant’s specialty or a related field of health care.” The “related specialties” qualification in Maryland is a fluid concept and is case sensitive, but is generally satisfied when there is an overlap between treatment and procedures across specialties. For example, had this case been decided using the Maryland law, the court likely would have found that there is an overlap between the treatment and procedures performed by the OB/GYN expert and the nurse midwife regarding the treatment of shoulder dystocia during labor and delivery, and that the OB/GYN defense expert was therefore qualified to testify that the nurse midwife complied with the standards of care.

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