Doctor examining a pregnant woman

Certified Nurse Midwife Allowed to Give Expert Testimony Against Registered Nurse in 14 Million Dollar Case

Written on Wednesday, July 20th, 2016 by T.C. Kelly
Filed under: ExpertWitness

A medical malpractice case that resulted in one of the highest malpractice verdicts in the history of Georgia has settled for an undisclosed amount. The case was about to proceed to a second appeal after the initial appeal was resolved in favor of the woman who brought the lawsuit. The issue on appeal was whether a certified nurse midwife should have been precluded from testifying as an expert about the standard of professional care that is expected of registered nurses.

Facts of the Case

Melissa Dempsey gave birth to Kailey Watson at a Gwinnett Medical Center hospital in Gwinnett County, Georgia. Kailey suffers from permanent physical and mental disabilities. Her mother sued the hospital, alleging that Kailey suffered from fetal distress and oxygen deprivation during her birth, resulting in a traumatic brain injury. Dempsey contended that registered nurses (RNs) who were attending the delivery misread or misinterpreted data from a fetal monitor and otherwise failed to detect and address the problem.

Dempsey supported her case with testimony from two expert witnesses. One was an obstetrician. The other was a certified nurse midwife (CNM). After hearing the evidence, the jury ruled in Dempsey’s favor, returning a verdict of nearly $14 million.

Gwinnett filed a motion for a new trial, contending that the CNM was not qualified to testify as an expert. Georgia law permits an expert to testify about the standard of care that a prudent health care practitioner is expected to follow, provided that the expert is a member of “the same profession.” The trial judge agreed with Gwinnett that the CNM was not a member of “the same profession” as the RNs and should not have been allowed to testify. The court therefore granted a new trial. Dempsey appealed.

Court of Appeals’ Decision

The Georgia Court of Appeals decided that the CNM was qualified to testify about the standard of care that an RN should follow. She began her career as an RN and she supervised RNs as part of a labor and delivery team. She testified that the standard of care involved in reading and interpreting fetal monitoring strips is the same for RNs and CNMs.

In many states, the CNM’s professional experience would obviously qualify her to testify as an expert in the standard of care that applies to an RN. Georgia law, however, permits expert opinions about standards of care in malpractice lawsuits to be expressed only by an expert who has actual knowledge or experience in the relevant area, either by active practice or by teaching during at least three of the last five years, and is a member of the same profession as the defendant. (The statute carves out an exception for physicians, who are allowed to express an opinion as to the standard of care that non-physicians in the medical profession must follow.)

The question was therefore whether a CNM is a member of the “same profession” as an RN. In earlier cases, the court held that a pharmacist could not testify against a doctor and that a neither a nurse nor a chiropractor could testify against a physical therapist because they are not members of the same profession. But chiropractors and physical therapists are regulated by different licensing authorities under Georgia law, while Georgia requires a CNM to be licensed as an RN. It was therefore easy for a majority of the court to conclude that a CNM is an RN with advanced training, and therefore a member of the same profession as RNs. More surprising is that three dissenting judges, noting that the statute lists RNs and CNMs separately, concluded that RNs and CNMs belong to different professions, even if the CNM is also licensed as an RN.

Settlement After Remand

Since the trial court granted a new trial based on an incorrect understanding of the law, the court of appeals reversed the order for a new trial. The court did not address the hospital’s argument that the CNM was not qualified by “actual knowledge and experience” to testify against the RNs in the case. Because the trial court did not address that aspect of the hospital’s motion, the court of appeals remanded the case to the trial court to decide the issue.

After the case returned to the trial court, the judge rejected the hospital’s argument that the CNM did not have the necessary knowledge or experience required of an expert witness. The hospital appealed again, but (perhaps bowing to the inevitable) settled the case for an undisclosed sum before the appeal was decided.

Implications of the Decision

In the absence of legislation, courts typically permit any expert to testify about an applicable standard of care who is qualified to do so. General standards of expert testimony admissibility do not depend on a witness’ licensing status or job title.

In some states, legislatures have modified the general rule when expert evidence is required to establish the relevant standard of care in a medical malpractice lawsuit. Georgia is one of 32 states that have adopted statutes setting minimum qualifications for expert witnesses in medical malpractice cases. The statutes have often been enacted as part of a “tort reform” package that also requires lawyers to file an expert’s affidavit certifying that the case has merit.

Whether the legislative limitation on expert testimony is beneficial is far from clear. From the standpoint of lawyers who defend malpractice cases, the statutes prevent unqualified experts from rendering opinions about the standards of care that apply to healthcare providers. From the standpoint of lawyers who represent malpractice victims, the statutes prevent qualified experts from testifying while making it more difficult to find experts, given the fact that members of the same profession are often shunned if they testify against each other.

The Georgia case highlights the importance, at least in most states, of finding expert witnesses in the same profession as the party who is alleged to be negligent in medical malpractice cases. It also illustrates the difficult burdens that legislatures have placed on lawyers as they attempt to determine the “profession” to which an expert belongs. Lawyers searching for experts in malpractice cases need to understand the relevant evidentiary rule (and judicial interpretations of the rule) in the state where the lawsuit will be filed.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.