Cotten v. Phillips, A06A0014.

• Decision Date: 06 July 2006
• Docket Number: No. A06A0014.,A06A0014.
• Citation: 633 S.E.2d 655,280 Ga. App. 280
• Parties: COTTEN et al. v. PHILLIPS et al.
• Court: Georgia Court of Appeals

280 Ga. App. 280

633 S.E.2d 655

COTTEN et al. v. PHILLIPS et al.

No. A06A0014.

Court of Appeals of Georgia.

July 6, 2006.

W. Earl McCall, Albany, McCall, Finney & Phillips, P.C., Alex J. Kaplan, McCall, Phillips & Williams, LLC, Albany, for Appellant.

Chrisna D. Jones, Earnest Redwine, Devlin & Robinson, P.C., Annette D. Brown, Atlanta, for Appellee.

Daniel J. Huff, Atlanta, Huff, Powell & Bailey, Jefferson C. Callier, Columbus, Taylor, Harp, Callier & Morgan, amici curiae.

MIKELL, Judge.

In this medical malpractice action, Herman R. Phillips and Mattie L. Phillips sued Bennett D. Cotten, Jr., M.D., an orthopedic surgeon, and his practice group, Southwest Georgia Orthopedic & Sports Medicine Center, Inc., alleging that Dr. Cotten committed malpractice in the course of treating Mr. Phillips for pain and arthritis in his left knee.¹ Appellees filed with their complaint the affidavit of Dr. Horst Filtzer, a vascular surgeon. Appellants filed a motion in limine to exclude the testimony of Dr. Filtzer, arguing that he was not competent to testify against Dr. Cotten under the new statute governing expert witness testimony in civil actions, OCGA 167; 24-9-67.1, because he was not an orthopedic surgeon. The trial court denied the motion in limine but granted appellants a certificate of immediate review. We granted appellants' application for interlocutory appeal. For the reasons outlined below, we affirm the trial court's ruling.

The record shows that on October 21, 1999, Dr. Cotten performed total knee replacement surgery on Phillips's left knee. On November 1, 1999, Dr. Cotten discovered that Phillips had developed an acute vascular problem. Dr. Charles Holley, a vascular surgeon, was consulted. On November 1, Dr. Holley performed a femoral arteriogram, which showed that Phillips had an abrupt occlusion of the popliteal artery at "above the level of his knee," meaning that there was no blood flow in the artery below the occlusion. On that same day, Dr. Holley performed a revascularization and bypass on Phillips's left leg to attempt to restore his blood flow. The surgery was unsuccessful. On November 3, Dr. Holley performed a guillotine amputation of the ankle because Phillips had a "dead left foot," and six days later on November 9, Dr. Holley amputated the remainder of Phillips's left leg below the knee. Dr. Holley opined that the occlusion was caused by peripheral vascular disease ("PVD"), not an intraoperative injury to the artery.

In his affidavit in support of Phillips's complaint, Dr. Filtzer opined that Dr. Cotten was negligent in failing (1) to conduct a pre-operative vascular circulation assessment to confirm the presence of circulation; (2) in the alternative, to obtain a pre-operative consultation from a vascular surgeon prior to the performance of the knee replacement surgery; and (3) to timely monitor and respond to foot drop occurring in Phillips and recognize and respond to the vascular compromise in Phillips's lower left leg. Dr. Filtzer asserted that Dr. Cotten's deviations from the usual accepted standard of care resulted in the below-the-knee leg amputation. In his deposition, Dr. Filtzer testified that in light of Phillips's age, 70, his history of high blood pressure, hyperlipidemia, and heart attack, and the fact that he only had one kidney, an objective assessment of the circulation in his lower extremities was required; that there were indications in the medical record of problems with Phillips's foot from the moment he left the operating room, but nothing was done until November 1, when Dr. Holley was consulted; and that the stiffness in Phillips's toe indicated vascularization problems, not a peroneal nerve injury often seen with foot drop, which causes the symptom of a floppy foot.

Dr. David Adcock, an orthopedic surgeon, and Dr. James Elsey, a vascular surgeon, have provided deposition testimony in favor of the appellants. Dr. Adcock testified that before the surgery, Dr. Cotten evaluated Phillips for pulses in his extremities, which are indicative of blood flow; that Phillips had PVD, a disease resulting from the narrowing of the arteries; that Phillips had PVD in his popliteal artery; and that the amputation was necessitated by an occlusion in Phillips's popliteal artery. Dr. Elsey testified that as a vascular surgeon, he is often consulted by orthopedists contemplating a surgical procedure to determine if a patient has PVD and whether the patient can tolerate the procedure; that in cases involving total knee replacements, he would evaluate whether the patient had good circulation to the lower extremity; and that Phillips did not have significant PVD.

Dr. Cotten and his practice group moved to exclude Dr. Filtzer's testimony on the grounds that as a vascular surgeon, he was not qualified under OCGA § 24-9-67.1 to give an expert opinion as to the conduct of an orthopedic surgeon. The statute provides, in pertinent part:

Notwithstanding . . . in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: (1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and (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 of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or (B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.²

The trial court denied the motion and admitted Dr. Filtzer's testimony, finding the statutory language "in which the opinion is to be given" critical to its resolution of the case.³ It reasoned that

this . . . language reveals that the law simply requires that an expert have actual professional knowledge and experience in the area of practice/specialty in which his expert opinion is to be given. It appears that the legislature has allowed for an overlap in specialties, whereby an otherwise qualified medical doctor belonging to "Specialty A" can render an opinion about the acts or omissions of another medical doctor belonging to "Specialty B" — so long as the opinion of the expert witness belonging to "Specialty A" pertains to Specialty A. . . . In the instant case, . . . "the area of practice in which the opinion is to be given" is vascular surgery — Dr. Filtzer's specialty — not orthopedics — Dr. Cotten's specialty. Accordingly, because Dr. Filtzer is a licensed vascular surgeon who is qualified to give an opinion on the vascular issues in this case, he clearly has the requisite "knowledge and experience in the area in which his opinion is given" necessary to satisfy the statute.

The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court's ruling thereon cannot be reversed absent an abuse of discretion.⁴ We find no such abuse.

Appellants argue that the trial court misconstrued the statute. The cardinal rule of statutory construction is to ascertain the intent of the legislature.⁵ Section 1 of Senate Bill 3 sets forth the legislature's intent in enacting the statute:

The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers.⁶

By concluding that an expert must have knowledge and experience in the area of practice or specialty about which he is providing testimony, the trial court's ruling comports with the legislative intent of the statute.

Our Supreme Court has stated that

[a]lthough the legislative intent prevails over the literal import of words, where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.⁷

In other words, the plain meaning of the...