Posted by Jonathan A. Barash
You are defending a medical malpractice lawsuit. At trial, plaintiff’s expert testifies that treatment your doctor-client failed to do was required by the applicable standard of care. From pre-trial discovery you know, despite her trial testimony, that plaintiff’s expert did not always employ that particular treatment in her own practice. Until two months ago, you would not be able to offer this evidence to impeach plaintiff’s expert. Evidence of an expert’s own practice was deemed irrelevant on the grounds that the standard of care is that which is employed by the medical profession generally, not what one individual doctor thought was advisable and would have done under the circumstance.
Two months ago, in Condra v. Atlanta Orthopaedic Group, the Georgia Supreme Court overruled prior case law prohibiting such evidence, holding that an “expert witness’s personal practices, unless subject to exclusion on other evidentiary grounds, is admissible both as substantive evidence and to impeach the expert’s opinion regarding the applicable standard of care.” Interestingly, this new rule does not necessarily benefit one side over the other. In Condra, the plaintiff wanted to offer evidence of the personal practice of defendant’s expert witness. Defendant’s expert testified that blood count monitoring was not “mandatory or essential” when prescribing a certain medication, and that the failure to conduct such monitoring did not constitute a breach of the standard of care. At trial, plaintiff was prevented from offering evidence that it was the defense expert’s usual practice to conduct blood count monitoring under those circumstances. The Court of Appeals upheld the trial court’s decision.
In its reversal of the Court of Appeals, the Court relied upon new expert qualification standards enacted as part of the 2005 Tort Reform Act that placed particular emphasis on a proffered medical expert’s professional experience and practice in assessing qualifications to serve as an expert. These new standards, the Court held, makes evidence of the expert’s own practices relevant. The Court also noted a “growing body of law from other jurisdictions supportive of the admissibility of expert personal practice testimony, at least for some purposes.” “Though not all jurisdictions have followed this trend . . . admissibility of personal practice testimony appears now to be the prevailing view.”
In a practical sense, this rule should have a profound effect on the way that expert witnesses are chosen. It is no longer sufficient that your expert have the proper credentials and an opinion favorable to your case. You must now also determine what your expert doctor does (and has done) in his or her own medical practice. Lawyers and their clients will need to add these considerations to the normal expert witness selection process. Our experts will now need to practice what they preach.