IN THE COURT OF APPEALS

STATE OF GEORGIA

 

BENNETT D. COTTEN, JR., M.D.

And SOUTHWEST GEORGIA
ORTHOPEDIC AND SPORTS
MEDICINE CENTER,INC.,  CASE NO.
APPELLANTS,  A06A0014
vs.
HERMAN R. PHILLIPS and
MATTIE L. PHILLIPS,
APPELLEES.

 

BRIEF OF THE GEORGIA TRIAL LAWYERS ASSOCIATION
AS AMICUS CURIAE
STATEMENT OF INTEREST

The Georgia Trial Lawyers Association (“GTLA”) is a voluntary organization comprised of approximately 2,700 trial lawyers licensed to practice in this State whose clients have an interest in this Court’s rulings on the important issues presented by this appeal.

In the past few years, the GTLA has consistently appeared as Amicus Curiae in various matters presented before the appellate courts of Georgia. The intent of the GTLA is not to support the petitioner or respondent as Amicus Curiae. Rather, the GTLA desires and attempts to aid the Court to a proper resolution of this case by seeing that the law is correctly and thoroughly followed. Wherefore, pursuant to Georgia Court of Appeals Rule 25, the Georgia Trial Lawyers Association respectfully submits this brief as Amicus Curiae in the above-styled action.

INTRODUCTION

In addition to the order under review herein, at least two other Georgia trial courts have issued similar rulings. In Murphy v. Anders, M.D., et al., Superior Court of Muscogee County, August 5, 2005, the case involved a family practice physician, not specialty trained in emergency medicine, who was working as an emergency room doctor. The issue concerned that physician’s assessment, care, and treatment of a patient suffering from sickle cell disease, a hematological disorder. Interpreting OCGA § 24-9-67.1, the trial court found that a renowned hematologist, who had authored textbooks on sickle cell disease and its treatment, was qualified as an expert witness under the plain language of newly enacted OCGA § 24-9-67.1. (Order attached.)

In Canas v. Al-Jabi, M.D., et al., Superior Court of Glynn County, September 19, 2005, the Court determined that three pediatricians were qualified to testify as experts under OCGA § 24-9-67.1 regarding medical care provided to a pediatric patient. (Order attached.)

Amici show that the construction of the statute urged by Defendants/Appellants herein would result in the disqualification of persons as expert witnesses who would often be the most qualified to speak to the standard of care regarding particular medical conditions, procedures, and treatments. Under Appellants’ construction, a cardiologist would not even be competent to testify regarding treatment of a cardiac patient by an emergency department physician. As will be shown, this is not the result intended by the plain language of OCGA § 24-9-67.1.

ARGUMENT AND CITATION OF AUTHORITIES

A. STANDARD OF REVIEW

The question of whether a witness is qualified to testify as an expert is a legal determination for the trial court which will not be disturbed absent a manifest abuse of discretion. Yeomans & Associates Agency, Inc. v. Bowen Tree Surgeons, Inc., 274 Ga. App. 738, 749 (618 S.E. 2d 673) (2005).

B. THE TRIAL COURT PROPERLY INTERPRETED OCGA § 24-9-67.1 WHEN IT DENIED DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE TESTIMONY OF HORST S. FILTZER, M.D.

 

This Appeal focuses generally upon OCGA § 24-9-67.1 and specifically upon section (c) of that statute which provides in pertinent part as follows:

(c) Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, 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.

In framing their enumeration of error, defendants contend that “orthopedic surgery” is the “area of practice or specialty in which the opinion is to be given.” Defendants then argue that Dr. Filtzer, a vascular surgeon, is not competent to testify against Dr. Cotten, who is a orthopedic surgeon. Thus, this defense argument focuses upon the area of practice or specialty of the defendant instead of focusing upon the “area of practice or specialty” of the expert as OCGA § 24-9-67.1 (c) requires.

In determining whether a proffered expert may testify in a particular case, Georgia courts currently and have always been required to focus their attention upon the expert; our courts do not focus upon the defendant or his area of practice or specialty. On July 15, 2005, after enactment of OCGA § 24-9-67.1, this Court reconfirmed that the expert is the cynosure of attention during actions requiring the presentation of expert testimony, to wit:

An expert is anyone who, through training, education, skill, or experience, has peculiar knowledge that the average juror would not possess as to any question of science, skill, trade, or like questions [.] [T]he expert witness may render an expert opinion within the witness’ area of expertise after the qualifications have been proven to the trial court. It is for the trial court to determine, as a matter of law after hearing evidence, whether a witness is competent by way of qualifications to render an opinion within [his or her] area of expertise…

(Emphasis supplied.) Yeomans & Associates Agency, Inc. v. Bowen Tree Surgeons, Inc., 274 Ga. App. 738, 748-749 (618 S.E. 2d 673) (2005). Thus, it is clear that the focus of inquiry in Georgia is always upon the expert and his or her area of expertise -- and never upon the defendant doctor or his/her specialty.

Georgia’s historic focus upon the expert (and, hence not upon the defendant) has been preserved in the text of OCGA § 24-9-67.1 (c). That code section speaks in terms of “such expert” having “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.” OCGA § 24-9-67.1 (c) (2). That statute also refers to “the active practice of such area of specialty of his or her profession” which unmistakably is a reference to the expert and not to the defendant. And, that statute requires that the expert “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…” (Emphasis supplied) OCGA § 24-9-67.1 (c) (2) (A).

In the order which denied defendants’ Motion in Limine in this case, the trial judge determined that the facts framed by the Complaint and by the §9-11-9.1 affidavit of Dr. Filtzer showed that “‘the area of practice in which the opinion is to be given’ is vascular surgery.” Indeed, the expert Dr. Filtzer contended that: (1) Dr. Cotten failed to conduct a preoperative vascular circulation assessment to confirm the presence of peripheral vascular disease, (2) Dr. Cotten failed, in the alternative, to refer Mr. Phillips for a pre-operative vascular consult and (3) Dr. Cotten failed post-operatively to recognize and respond to vascular compromise in Mr. Phillips’ left lower extremity. That the vascular aspects of Plaintiff’s total knee replacement were paramount was made abundantly clear by defendants’ own experts -- e.g., by Dr. Elsey who agreed that Plaintiff had at least three risk factors for Peripheral Vascular Disease (R. 1128) and by Dr. Adcock who agreed that Mr. Phillips’ previous heart attack was also a risk factor for Peripheral Vascular Disease (R. 1045) and who also conceded that Mr. Phillips had Peripheral Vascular Disease (R. 1044). Moreover, when defendant Cotten later sought a remedy for the problems being experienced by Mr. Phillip, he called in Charles Holley, M.D., a vascular surgeon, to take over the care of Plaintiff. Thus, there can be no doubt that the vascular aspects of Mr. Phillips’ condition were dominant. Hence, a vascular specialist like Dr. Filtzer would be competent to testify in this case.

Yet, in the instant case, defendants persist in trying to alter the well-established course of Georgia law by striving to shift the focus of legal inquiry pertaining to expert testimony away from the qualifications of a proffered expert and toward the peculiar specialty of the defendant doctor. If that were allowed to occur, numerous qualified expert witnesses, determined by trial judges to be knowledgeable about the medical conditions important in specific litigation, could be precluded from rendering reliable and relevant testimony in medical malpractice cases. Certainly such a result was never intended by our legislature when it enacted OCGA § 24-9-67.1.

1. The Plain Meaning of OCGA § 24-9-67.1 Authorized

the Trial Court to Deny Defendants’ Motion in Limine.

 

Where the language of an act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. City of Jesup v. Bennett, 226 Ga. App. 606, 609 (176 S.E. 2d 81) (1970). Here the plain meaning of OCGA § 24-9-67.1, and particularly section (c) thereof, is unequivocal. This statute sets forth the requirements of expert testimony from the perspective of the expert, without regard to the medical specialty of the defendant. It is “such expert[’s]”… “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given” that controls admissibility. OCGA § 24-9-67.1 (c) (2). And, it is that expert’s “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…” that matters. (Emphasis supplied) OCGA § 24-9-67.1 (c) (2) (A). Thus, the trial court was correct when it stated:

The Court finds the phrase “in which the opinion is given” critical in determining the legislative intent of the expert witness prerequisites. This language reveals that the law does not require that the medical expert be in the same area of practice or specialty as the defendant doctor in order to render an opinion about that doctor. Instead, this included 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 light of the above reasoning and in conjunction with the other expressly included language of the entire statute, to construe the statute otherwise would render this crucial language meaningless. See, Killearn Partners, Inc. v. Southeast Properties, Inc., 279 Ga. 144 (2005) (The language of a statute cannot be extended beyond its plain and ordinary meaning).

(R. 857). For this reason, “[t]he proffered physician need not be a specialist in the particular medical discipline to render expert testimony relating to that discipline. [Cit. omitted]” McDowell v. Brown, 392 F. 3d 1283, 1297 (11th cir. 2004). Thus, under OCGA § 24-9-67.1, it was not necessary for Dr. Filtzer to be an orthopedist in order for him to render expert testimony on vascular issues against Dr. Cotten who is an orthopedist. It was only necessary for Dr. Filtzer to be an expert “in the area of practice… in which the opinion is to be given,” which he was by virtue of his being a vascular surgeon.

If the General Assembly had intended that only experts from a particular defendant’s own medical specialty could provide testimony in medical malpractice actions, it could have so stated in the Act. But, the legislature did not do that. Instead, it properly focused upon the qualifications of the proffered expert and not upon the defendant’s specialty. Through inclusion of the words “area of practice” and “in which the opinion is to be given,” the legislature recognized that numerous medical disciplines and specialties overlap in limited areas of specialized knowledge. Thus, under OCGA § 24-9-67.1, it is only required that a proffered expert possess exquisite and particular experience and understanding of the area of practice in which the opinion is to be given in order to testify. By including the words “as determined by the judge” in the Act, the legislature fashioned an evidentiary rule with sufficient flexibility to permit trial courts to exercise discretion in determining the qualifications of expert witnesses. Thus, trial judges remain the ultimate arbiters of when testimony is offered by sufficiently similar experts so as not to prejudice a party or mislead a juror. As the statute appropriately provides, it is the trial judge’s determination that the proffered expert has the “appropriate level of knowledge” in “diagnosing the condition” or “rendering the treatment” that “is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue” that determines an expert’s qualifications. Here there can be no doubt that Dr. Filtzer, a vascular surgeon, was at least as qualified as the defendant Cotten in diagnosing the Peripheral Vascular Disease that resulted in the amputation of Plaintiff’s leg. See Dempsey v. Phelps, 700 So. 2d 1340 (Ala. 1997) (cardiovascular thoracic surgeon permitted to testify against defendant orthopedic surgeon).

2. The Trial Court’s Denial of Defendants’ Motion In Limine Was Correct Because It Harmonized and Gave Sensible and Intelligent Effect to Each Part of OCGA § 24-9-67.1.

 

A statute must be viewed so as to make all of its parts harmonize and to give sensible and intelligent effect to each part because it is not presumed that the legislature intended any part to be without meaning. Houston v. Lowes of Savannah, Inc.,235 Ga. 201, 203 (219 S.E. 2d 115) (1975). Thus, courts must seek to give meaning to each part of a statute and to avoid constructions which render a portion of a statute mere surplusage. City of Buchanan v. Pope, 222 Ga. App. 716, 717 (476 S.E. 2d 53) (1996). That is to say, all words of a statute are to be given due weight and meaning. Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 742 (152 S.E. 2d 768) (1966).

In denying defendants’ Motion in Limine, the trial court harmonized all parts of OCGA § 24-9-67.1 by giving sensible and intelligent effect to each part of the statute. The trial judge accomplished this task by avoiding a construction of the statute that would render a portion mere surplusage and by giving effect to all words by the statute.

Defendants, however, do not want the words of this statute that clearly attach to the expert to be upheld. Indeed, at pages 18 and 19 of their brief, defendants state:

it is apparent that the legislative intent was to restrict expert testimony to those experts who share the same specialty as the defendant. The construction that most closely follows this legislative intent requires “area of practice or specialty in which the opinion is to be given” to be interpreted to focus on the opinion as to the standard of care applicable to the defendant doctor, and only permit expert testimony from those experts having actual knowledge of and experience in that defendant doctor’s area of practice or specialty.

(Emphasis supplied) (Defendants’ Brief at 18-19.) Once again defendants misrepresent the plain words of the Act and strive to shift the focus of the statute away from the expert’s qualifications and toward the defendant doctor’s specialty.

To accept the shift in focus urged by defendants would necessarily require this Court to find that all of the words in the statute that refer to the expert (e.g., “such expert,” “his or her profession,” etc.) are mere surplusage. The interpretation urged by defendants, therefore, would not give effect to the words of the statute that clearly pertain to the proffered expert. Contrary to defendants’ assertions, the words “area of practice or specialty in which the opinion is to be given” refer exclusively to that of the expert and not to the defendant doctor. No other legislative intent appears on the face of this statute. Indeed, OCGA § 24-9-67.1 specifically requires that the trial court review the qualifications of a proffered expert in a certain way -- i.e., from the perspective of the expert. See 2A Norman J. Singer, Sutherland Statutory Construction § 47.23 (6th Ed. 2000) (“A statute which provides that a thing be done in a certain way carries with it an implied prohibition against doing that thing in any other way.”). Thus, a trial court may not focus upon “the defendant doctor’s area of practice or specialty,” as defendants argue, but instead must focus upon the expert’s “area of practice or specialty in which the opinion is to be given,” just as the trial court here found.

3. The Trial Court’s Denial of Defendants’ Motion in Limine was Correct Because It Did Not Extend the Language of the Statute Beyond Its Plain and Ordinary Meaning.

 

As the trial court correctly observed in its order denying defendants’ Motion in Limine, the language of a statute cannot be extended beyond its plain and ordinary meaning. Killearn Partners, Inc., v. Southeast Properties, Inc., 279 Ga. 144, 146 (611 S.E. 2d 26) (2005). But, in order to accept defendants’ view of this case, this Court would necessarily be required to “extend” the “language” of this statute and to hold that the defendant doctor’s specialty, rather than the proffered expert’s qualifications, controls allowable expert testimony. That the legislature did not intend such a result is obvious. The very title of OCGA § 24-9-67.1 is “Expert opinions; admissibility; civil actions.” Thus, the focus of the Act is upon the expert and not upon the defendant doctor’s specialty. In order to comply with this statute’s demands, the trial court only must satisfy itself that the proffered expert knows whereof he speaks through reliance upon his or her “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.” That requirement has been satisfied in this case.

4. The Trial Court’s Denial of Defendants’ Motion In Limine Is Supported By Federal Courts Applying the Daubert Standard.

 

In OCGA § 24-9-67.1 (f) the General Assembly stated that “in interpreting and applying this Code section, the courts of this state may draw from opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)… and other federal courts applying the standards announced by the United States Supreme Court in these cases.” Federal courts applying the Daubert standard support the trial court’s ruling in this case. For example, the Daubert standard for determining the admissibility of expert scientific testimony does not require particular credentials for an expert witness. Tuf Racing Products, Inc. v. American Suzuki Motor Corp., 223 F. 3d 585, 591 (7th Cir. 2000) (the notion that Daubert requires particular credentials for an expert witness is radically unsound). The expert testimony rule is not so wooden as to demand an intimate level of familiarity with every component of a transaction or device as a prerequisite to offering expert testimony. Microfinancial, Inc. v. Premier Holidays Intern., Inc., 385 F. 3d 72, 80 (1st Cir. 2004). That a physician is not a specialist in the field in which he is giving his opinion affects not the admissibility of his opinions, but the weight the jury may place on it. Mitchell v. U.S., 141 F. 3d 8, 15-16 (1st Cir. 1998) (expert, who was internist with specialties in hematology and oncology, was qualified to testify as to physicians’ treatment of colonoscopy patient on anticoagulant therapy even though expert was not specialist in gastroenterology, particularly when testimony offered was within the expert’s area of expertise); see Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 84 (532 S.E. 2d 159) (2000); Gibbs v. Abiose, 235 Ga. App. 214, 218 (508 S.E. 2d 690) (1998). Thus, the opinion of a medical doctor is to be admitted even though he is not an expert in a specialized field of medicine. Bado-Santana v. Ford Motor Co., 364 F. Supp. 2d 79, 86 (D.C.P.R. 2005); Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F. 3d 777, 782 (3rd Cir. 1996) (it is abuse of discretion to exclude testimony simply because a proposed expert does not have specialization that the trial court considers most appropriate; who is best qualified is a matter of weight). These federal principles which may be used to guide the court in this case clearly support the trial court’s decision in the instant case. Moreover, the specific wording of OCGA § 24-9-67.1 (c) (2) (A) permits admission of Dr. Filtzer’s testimony “as determined by the judge,” and that is because in Georgia a trial court enjoys broad discretion in addressing the admissibility of expert opinion testimony. Deloach v. Deloach, 258 Ga. App. 187, 188 (573 S.E. 2d 444) (2002). Thus, it is clear from both federal and Georgia appellate court decisions that the admission of expert evidence, including ruling on a Motion in Limine, is a matter within the sound discretion of the trial court. Carlock v. Kmart Corp, 227 Ga. App. 356, 361 (489 S.E. 2d 99) (1997).

CONCLUSION
For the above reasons, this Honorable Court should AFFIRM the trial court’s Order Denying Defendants’ Motion in Limine to Exclude Testimony of Horst S. Filtzer, M.D. Defendants’ interpretation of the new statute would have the deleterious effect of eliminating expert witnesses who may well be the most knowledgeable about the medical conditions at issue in medical malpractice actions. Certainly that could not be and was not the intent of our General Assembly when it enacted OCGA § 24-9-67.1.

The clear purpose of OCGA § 24-9-67.1 is to insure that those persons proffered as expert witnesses know whereof they speak. The statute requires that they have knowledge and experience in the area of practice or specialty “in which the opinion is to be given.” The trial judge determines whether the proffered expert has an appropriate level of knowledge in “diagnosing the condition” or “rendering the treatment” in the area “which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.” The area of practice or specialty of the defendant doctor is of no import. The expert’s knowledge and experience in the area of practice or specialty “in which the opinion is to be given” is paramount.

 

Respectfully submitted, this ____ day of November, 2005.

GEORGIA TRIAL LAWYERS ASSOCIATION

AMICUS CURIAE

 

 

_________________________________

J. Sherrod Taylor

Georgia Bar No. 700550

Attorney for Amicus Curiae

 

 

__________________________________

Jefferson C. Callier

Georgia Bar No. 105250

Attorney for Amicus Curiae

 

P.O. Box 2645

Columbus, GA 31902-2645

706/323-7711