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Lowndes Co. case to be heard by GA SUPCO

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ATLANTA, GA (WALB) -

A nurse midwife is asking for a new trial in a case that resulted from the injury to a baby as it was being delivered in 2003.

Here is a summary provided by the Georgia Supreme Court-

 

HANKLA ET AL. V. POSTELL (S12G1964)

            A nurse midwife who won a judgment in her favor after she was sued for medical malpractice, is appealing a Georgia Court of Appeals ruling that reversed that judgment and ordered the case be retried.

            FACTS: In August 2003, Anita Postell gave birth to a son, Zamarion Everett, at South Georgia Medical Center in Valdosta, Lowndes County. Vicki Hankla, a certified nurse midwife employed by Southern OB-GYN Associates, P.C., assisted in the delivery. During the birth, the baby developed a "shoulder dystocia," which occurs when the infant's shoulders become lodged in the mother's pelvis after delivery of the head. Hankla freed the baby's shoulder through the performance of various obstetrical maneuvers. However, the baby sustained a permanent "brachial plexus" injury, which is an injury to the bundle of nerves at the base of the neck that control arm and hand movement.

Postell sued Hankla and her employer for medical malpractice, arguing that Hankla was negligent when she applied "lateral traction," moving the infant's head to one side to help deliver him, with such force that it caused the injury. Following a 2011 trial, the jury returned a verdict in favor of Hankla and Southern OB/GYN. Postell then appealed to the Court of Appeals, arguing in part that the trial court erred in denying her motion to exclude the testimony of Hankla's expert witness, Dr. Sandra Brickman. The Court of Appeals agreed and reversed the lower court's ruling.

            At issue in this case is the interpretation of what is now Official Code of Georgia§ 24-7-702, which was part of Georgia's 2005 tort reform laws. The statute says that an expert's testimony will be admissible only if the expert:

(2) "In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

            (A) "The active practice of such area of specialty…for at least three of the last five years…; or

            (B) "The teaching of his or her profession for at least three of the last five years…; and

            (C) "Except as provided in subparagraph (D) of this paragraph: (i) "Is a member of the same profession;…; and

            (D) "Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years …supervised, taught, or instructed nurses,…nurse midwives,…or medical support staff, has knowledge of the standard of care of that health care provider…shall be competent to testify as to the standard of that health care provider."

            The Court of Appeals ruled that the statute means "a medical expert must show either ‘active practice' or ‘teaching' for ‘at least three of the last five years,' but that whichever of these may be the case, the expert must also be a ‘member of the same profession' as the person whose performance he is evaluating." If the expert is not a member of the same profession, the Court of Appeals found, the doctor must qualify for the exception contained in subsection D, which would allow a medical doctor to testify as to the standard of care of a nurse midwife, only if the doctor has "supervised, taught or instructed" nurse midwives during the required time period. Brickman, a board certified OB-GYN who delivered more than 1,000 babies and had hands-on

 experience dealing with shoulder dystocia, is not a nurse midwife and did not supervise or instruct nurse midwives and was therefore unqualified to testify, the Court of Appeals ruled. Hankla now appeals to the state Supreme Court, which has agreed to review the case to determine whether the Court of Appeals correctly interpreted the statute.

ARGUMENTS: Hankla's attorneys argue that the "Court of Appeals' decision in this case is the first reported decision in Georgia history where a physician expert who has extensive personal experience providing the medical care at issue nevertheless has been declared incompetent to testify." Until now, under the statute, "an expert's actual, ‘hands-on' experience has been the critical determining factor in evaluating the expert's competency to testify," they argue in briefs. In the nearly eight years since § 24-7-702 was enacted, "physician experts in Georgia unanimously have been held competent to testify when they have demonstrated sufficient personal experience either providing or teaching the care at issue in a given case."

 The Court of Appeals erred by holding that a physician expert who indisputably satisfies the requirements of the statute's subsection A is incompetent to testify against a nurse midwife unless the expert also meets the requirements of D. Given the legislative intent behind the statute, it is "inconceivable" the legislature intended to "require the exclusion of a physician expert, who undeniably has extensive hands-on experience rendering the treatment at issue, simply because she does not also supervise, teach or instruct non-physician personnel," they contend.

"Rather, subsection D almost certainly was meant to apply where a physician expert attempts to testify regarding medical care that the expert does not personally provide, i.e. medical care that is provided exclusively by non-physicians." It makes "no sense, and it is directly contrary to the legislative intent to interpret subsection D so narrowly in a case like this one, where the physician expert has extensive experience providing the care at issue and where the standard of care is the same for physicians and non-physicians." The attorneys argue that the "ambiguity in the text of subsection D begs for judicial interpretation" as it is unclear whether the "supervised, taught or instructed" language was intended by the legislature "to represent the only means by which a physician expert could acquire knowledge of the standard of care applicable to a non-physician."

Postell's attorney argues that the "language of the statute provides that in order to give standard of care opinions in a case alleging medical malpractice, an expert witness must be a member of the same profession as the individual whose actions are at issue except…physicians may testify against health care providers of other professions, if and only if, they supervised, taught or instructed that type of health care provider during three of the five years immediately preceding the act or omission at issue." Contrary to Hankla's contention, the "language of the statute is clear and unambiguous, and the legislature's ‘intent' is embodied in that language." The Court of Appeals correctly ruled that Dr. Brickman was not qualified to render standard of care opinions with respect to the care given by Hankla, a nurse midwife. "If the expert is not a member of the same profession as the person whose conduct he or she is evaluating, then the expert must qualify under subparagraph D in order to testify as to the provider's conduct," the attorney argues in briefs.

Because Dr. Brickman was not a member of the same profession as Hankla, and because she had not taught nurse midwives as required by subsection D, "she was not qualified to testify as to the standard of care of the defendant in this case." And contrary to Hankla's arguments, "courts in Georgia have held that doctors are not qualified to testify as to the standard of care of nurses if they have not supervised, taught or instructed nurses during three of the five years before the conduct at issue," the attorney argues. The statute as written reflects the legislature's intent "to limit the universe of individuals who may testify as to standard of care in a medical malpractice case."

Attorneys for Appellants (Hankla): Gregory Talley, A.A. Howell, IV, Wade Coleman, R. Page Powell, Jr.

Attorney for Appellee (Postell): Anita Postell  

 

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