Dempsey v. Gwinnett Hosp. Sys., Inc.

• Decision Date: 21 November 2014
• Docket Number: A14A1428.,Nos. A14A1427,s. A14A1427
• Court: Georgia Court of Appeals
• Parties: DEMPSEY et al. v. GWINNETT HOSPITAL SYSTEM, INC. Gwinnett Hospital System, Inc. v. Dempsey et al.

330 Ga.App. 469

765 S.E.2d 525

DEMPSEY et al.

v.GWINNETT HOSPITAL SYSTEM, INC.

Gwinnett Hospital System, Inc.

v.Dempsey et al.

Nos. A14A1427

A14A1428.

Court of Appeals of Georgia.

Nov. 21, 2014.

Reconsideration Denied Dec. 16, 2014.

Certiorari Denied April 20, 2015.

Summerville Moore, Darren Summerville, Nelson Otis Tyrone III, Atlanta, Sidney Leighton Moore III, for Appellants.

Hall Booth Smith, John E. Hall Jr., W. Scott Henwood, Atlanta, Heather Loraine Saum, Mark W. Wortham, for Appellee.

Opinion

ELLINGTON, Presiding Judge.

A Gwinnett County jury returned a verdict in favor of Melissa Dempsey, individually and as the guardian of her daughter, Kailey Watson, in this medical malpractice case. Thereafter, defendant Gwinnett Hospital System, Inc. filed a motion for new trial or, in the alternative, a judgment notwithstanding the verdict (“JNOV”). In its motion, the hospital contended, inter alia, that the trial court erred in admitting the testimony of one of Dempsey's expert witnesses, a certified nurse midwife (“CNM”) on the ground that she was not properly qualified under OCGA § 24–7–702(c)(2)(C)(i) to testify on the standard of care applicable to the registered professional nurses (“RNs”) who attended Dempsey's labor and delivery because she was not a member of “the same profession” as the RNs as that term is defined by law. The court granted the motion for a new trial based solely upon this legal issue. In Case No. A14A1427,¹ Dempsey contends, inter alia, that the trial court erred in so concluding and that this Court should reverse the grant of a new trial to the hospital.² For the following reasons, we hold that the trial court erred in finding that the CNM was not a member of the same profession as the hospital's RNs; consequently, we reverse.

Case No. A14A1427

1. Because the trial court granted the hospital's motion for new trial on a special ground—a legal question concerning the meaning of the term “the same profession” as used in OCGA § 24–7–702(c)(2)(C)(i) —instead of the general grounds, we review the ruling de novo. Hankla v. Postell, 293 Ga. 692, 693, 749 S.E.2d 726 (2013) (using de novo standard of review where issue to be decided was purely legal); Government Employees Ins. Co. v. Progressive Cas. Ins. Co., 275 Ga.App. 872, 873–874, 622 S.E.2d 92 (2005) (accord).

So viewed, the relevant, undisputed facts are as follows. Dempsey is the mother of Kailey Watson, a child with permanent physical and mental disabilities

. Dempsey alleged that Kailey's disabilities resulted from traumatic brain injury that occurred when she suffered fetal distress and oxygen deprivation during her birth, complications that the RNs attending the labor and delivery negligently failed to detect and to address. Dempsey averred that the hospital's RNs negligently misread and/or misinterpreted data from a fetal monitor and committed other violations of the applicable standard of care. At trial, Dempsey presented the testimony of two expert witnesses on the question of the nurses' negligence—Colleen Mannering, the CNM, and an obstetrician. Both offered testimony concerning whether the RNs attending the labor and delivery breached the standard of care applicable to the RNs.

With respect to whether Mannering was qualified to give that expert opinion, the record shows that, during the five years preceding Kailey's birth, Mannering practiced as a CNM, both supervising and working with RNs as part of a labor and delivery team. She testified that she has practiced in the area of labor and delivery for nearly two decades, beginning her career as an RN, holding the same professional license held by the hospital's RNs. Mannering then acquired additional education and training to become certified as a nurse practitioner and, later, as a CNM. Although Mannering has practiced as a CNM since 1996, she is also licensed as an RN. She testified that she is familiar with the standard of care regarding reading and interpreting fetal monitoring

strips, and that the applicable standard of care for providing these services is the same for RNs and for CNMs.

(a) The narrow question before this Court is whether the trial court erred in ruling that Mannering is not qualified to offer expert testimony on the standard of care applicable to the hospital's RNs because she, as a CNM, is not a member of the same profession as the RNs, whose conduct is at issue. In resolving this question, we must first apply OCGA § 24–7–702(c)³ , a subsection of the Evidence Code governing the admissibility of expert testimony, which provides in pertinent part:

[I]n 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 ...; 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)⁴ [of this paragraph [,] ... [i]s a member of the same profession....

Pursuant to this statute,

to qualify as an expert in a medical malpractice action under OCGA § 24–7–702(c), the [non-physician] witness must (1) have actual knowledge and experience in the relevant area through either “active practice” or “teaching” and (2) ... be in the “same profession” as the defendant whose conduct is at issue[.]

(Emphasis in original.) Hankla v. Postell, 293 Ga. at 694, 749 S.E.2d 726. See also Smith v. Harris, 294 Ga.App. 333, 336 –337(1), 670 S.E.2d 136 (2008) (accord).

The Evidence Code does not define what is meant by the phrase “a member of the same profession,” and our case law has not provided a clear definition. There are several cases that offer some guidance on determining whether two professions are not the same. In Smith v. Harris, for example, we held that a pharmacist could not offer expert testimony in a trial against a medical doctor because the two were not members of the same profession. 294 Ga.App. at 336 –337(1), 670 S.E.2d 136. In determining that the two professions were not the same, this Court relied upon OCGA § 9–11–9.1(g), which lists the professions to which the expert affidavit requirement for malpractice actions applies, and we noted that “medical doctors” and “pharmacists” are enumerated separately. 294 Ga.App. at 336 –337(1), 670 S.E.2d 136. Later, in Ball v. Jones, 301 Ga.App. 340, 341, 687 S.E.2d 625 (2009), this Court likewise held that a nurse could not give expert testimony at trial against a licensed physical therapist because OCGA § 9–11–9.1 explicitly categorized nurses and physical therapists as practicing separate professions.

Recently, in Bacon County Hosp. & Health System v. Whitley, 319 Ga.App. 545, 549–550, 737 S.E.2d 328 (2013), we held that the plaintiff in a medical malpractice action could not introduce the testimony of a chiropractor against a physical therapist because the two professions are not the same. Once again, we looked to OCGA § 9–11–9.1, noting that chiropractors and physical therapists are listed separately. The plaintiff, who sought to introduce the chiropractor's testimony, argued that in the chiropractor's home state of Florida, the two occupations were not viewed separately. We rejected this argument, observing that although there exists “some overlap in activities,” chiropractors and physical therapists are defined differently under Florida law, are governed by different regulatory boards, and have different licensing requirements. Id. at 549, 737 S.E.2d 328. Thus, in those cases where express statutory authority as to what constitutes the same or distinct professions is lacking, we are guided by professional licensing laws and regulatory schemes to determine whether a witness is a member of the same profession as the person whose conduct is at issue within the meaning of OCGA § 24–7–702(c)(2)(C)(i).

In this case, the trial court ruled that Mannering was not a member of the same profession as the hospital's RNs because she is a CNM. But it is undisputed that Mannering is both an RN and a CNM. Georgia law requires a CNM to be licensed as an RN and both are regulated by the Georgia Board of Nursing.⁵ A review of this regulatory scheme reveals that a CNM is an RN who has advanced training in a specialized area.⁶ Further, the expert affidavit statute upon which we relied in Smith, Ball, and Whitley, lists only “nurses”; it does not have a separate listing for “certified nurse midwives.” See OCGA § 9–11–9.1(g)(12). Thus, that statute does not support an inference that the professions are different. Dempsey has offered no other persuasive authority (nor have we found any) from which we may infer a basis for holding that a CNM should not be considered a member of the same profession as an RN.⁷

Given the undisputed facts and the law set forth above, we conclude that Mannering is a member of the same profession as the hospital's RNs. Thus, the trial court erred in granting the hospital's motion for a new trial on the ground that Mannering could not testify as to the standard of care exercised by those RNs because she is not a member of the same profession.

(b) During oral argument before this Court, the hospital argued that Mannering was unqualified to testify against its RNs under the “actual professional knowledge and experience” requirements of OCGA § 24–7–702(c)(2). The record shows that the hospital raised this argument in its motion for new trial. However...