Nathans v. Diamond

Citation282 Ga. 804,654 S.E.2d 121
Decision Date21 November 2007
Docket NumberNo. S07A0738.,S07A0738.
PartiesNATHANS et al. v. DIAMOND et al.
CourtSupreme Court of Georgia

David Scott Crawford, Eason, Kennedy & Crawford, Atlanta, for appellants.

Scott C. Commander, Mayfield Commander & Pound, LLC; Susan V. Sommers, Jane C. Taylor, Sommers, Scrudder & Bass, LLP; Randolph Page Powell, Jr., Erica S. Jansen, Huff, Powell & Bailey, LLC, Atlanta; Clarence O. Taylor IV, Clarence O. Taylor, IV, P.C., Marietta, for appellee.

SEARS, Chief Justice.

The appellants, Increase and Joy Nathans, appeal from the trial court's grant of summary judgment to the appellees, Dr. Andrew Diamond, and Northside Ear, Nose and Throat, P.C. ("Northside ENT"). On appeal, the appellants contend that the trial court erred in ruling that their expert was not qualified to give an opinion in this case under the standards set forth in OCGA § 24-9-67.1(c) and erred in ruling against their claims that § 24-9-67.1 is unconstitutional. For the reasons that follow, we find no merit to these contentions and affirm.

On March 19, 2003, Dr. Diamond performed surgery on Mr. Nathans to treat his obstructive sleep apnea. Shortly after the surgery, Mr. Nathans suffered bleeding in the lungs and respiratory distress, and he lapsed into a coma. On March 17, 2005, the appellants filed this medical malpractice action against Diamond. The appellants' complaint did not allege that Dr. Diamond negligently performed the surgery, but that he failed to adequately inform Mr. Nathans of the potential risks and complications of the surgery. The appellants attached an affidavit from Dr. David Goldstein to their complaint. Dr. Goldstein is a pulmonologist from Tampa, Florida. In the affidavit, he stated that Dr. Diamond "deviated from the standard of care in the informed consent in that he failed to adequately inform Mr. Nathans of the potential risks and complications of the surgical procedure, inclusive of, but not limited to, respiratory failure, aspiration and coma." On April 19, 2005, Dr. Diamond and Northside ENT answered the complaint, contending, among other things, that the appellants' complaint failed to comply with OCGA § 9-11-9.1. On July 29, 2005, the appellants filed an amended affidavit from Dr. Goldstein, and on September 2, 2005, the appellees filed a motion for summary judgment, contending that Dr. Goldstein was not qualified to give an opinion in this case under the standards set forth in OCGA § 24-9-67.1(c), which had become effective on February 16, 2005. In their response to Dr. Diamond's motion for summary judgment, the appellants amended Dr. Goldstein's affidavit on September 30, 2005, and contended that § 24-9-67.1(c) violated equal protection and due process; denied them access to the courts; violated the separation of powers; and could not be retroactively applied to the appellants' case, as Mr. Nathan's injuries arose before the effective date of § 24-9-67.1 of February, 16, 2005.

On February 15, 2006, the trial court held a hearing on the appellees' motion for summary judgment at which the trial court primarily addressed Dr. Goldstein's qualifications as an expert.1 On February 28, the court granted summary judgment to Dr. Diamond and Northside ENT, ruling that, under § 24-9-67.1(c), Dr. Goldstein was not qualified to give an opinion about "obtaining informed consent from a patient undergoing the procedures performed by Dr. Diamond in this case." As for the appellants' constitutional attacks on § 24-9-67.1, the trial court ruled that § 24-9-67.1 "is constitutionally applied in this case, which was filed by plaintiffs after the enactment of this new statute."

1. The appellants contend that the trial court erred in ruling that Dr. Goldstein was not qualified as an expert under § 24-9-67.1(c)(2)(A).2 For the reasons that follow, we conclude that the trial court did not err.

OCGA § 24-9-67.1(c) provides, in relevant part, that, even if an expert is "otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue,"3 the opinions of the expert will only be admissible in a medical malpractice action if the expert

(c) (2) . . . 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.4

In construing § 24-9-67.1(c), the Court of Appeals has held, correctly we conclude, that the requirement that the expert have "actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given" means that the plaintiff's expert does not have to have knowledge and experience in the "same area of practice/specialty as the defendant doctor."5 Instead, under the foregoing language, the issue is whether the expert has knowledge and experience in the practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiff's injuries.6 However, it is not sufficient that the expert have just a minimum level of knowledge in the area in which the opinion is to be given. Instead, the expert must have "regularly engaged in the active practice" of the area of specialty "in which the opinion is to be given" and must have done so "with sufficient frequency to establish an appropriate level of knowledge . . . 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."7 Moreover, even if the expert is generally qualified as to the acceptable standard of conduct of the medical professional in question, the expert cannot testify unless he also satisfies the specific requirements of subsection (c)(2). The foregoing considerations demonstrate that, in enacting § 24-9-67.1, the General Assembly intended to require a plaintiff to obtain an expert who has significant familiarity with the area of practice in which the expert opinion is to be given.

In the present case, we conclude that the trial court did not abuse its discretion in concluding that Dr. Goldstein was not qualified to give an opinion in this case.8 Dr Diamond, an otolaryngologist, is alleged to have "deviated from the standard of care in the informed consent in that he failed to adequately inform Mr. Nathans of the potential risks and complications of the surgical procedure." Thus, the area of specialty "in which the opinion is to be given" concerns the type of otolaryngology surgery performed on Mr. Nathans and the risks associated with it.9 Dr. Goldstein thus had to be qualified in this area of specialty by having actively practiced in that area "with sufficient frequency to establish an appropriate level of knowledge . . . 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."

Although Dr. Goldstein's affidavit states that he has performed surgeries, he does not state that he has performed surgeries like the one in question or obtained informed consents for similar surgeries. Instead, he states only that he has consulted with other surgeons such as otolaryngologists, Dr. Diamond's specialty. Moreover, Dr. Goldstein's affidavit does not state that the surgeries that he has performed involved risks that are similar to the risks involved with the surgery that Dr. Diamond performed in the present case. In addition, although Dr. Goldstein states that he is familiar with the standard of conduct required of doctors in similar cases, this is insufficient by itself to satisfy the requirements of § 24-9-67.1(c), as § 24-9-67.1(c) specifically states that an expert who is generally familiar with the standard of conduct of the medical professional in question may only give an opinion in the case if the expert demonstrates the specific experience set forth in § 24-9-67.1(c). For these reasons, we conclude that the trial court did not abuse its discretion in finding that Dr. Goldstein's affidavit failed to show that he had "`actual professional knowledge or experience' in the area of obtaining informed consent from a patient undergoing the procedures performed by Dr. Diamond" and in finding that Dr. Goldstein's affidavit failed to establish that he had performed surgeries and obtained informed consents "with sufficient frequency to establish an appropriate level of knowledge" in performing the surgery in question and obtaining informed consents for that surgery.

Accordingly, the trial court did not err in ruling that Dr. Goldstein was not qualified to give an opinion under the standards set forth in § 24-9-67.1 and did not err in granting summary judgment to Dr. Diamond and Northside ENT.

2. The appellants contend that OCGA § 24-9-67.1 is unconstitutional in several respects. We conclude, however, that only one constitutional challenge is preserved for review and that that challenge is without merit. "It is well established that this Court does not ever `"pass upon the constitutionality of an Act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge."'"10 Before the trial court, the appellants contended that § 24-9-67.1 violated equal protection and due process, denied them access to the courts, and violated the separation of powers. The appellants also contended that the...

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