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CONDRA RULE ON EXPERT’S PERSONAL PRACTICE EVIDENCE EXTENDED TO TREATING PHYSICIANS

Posted by Jonathan A. Barash
Last year we reported on Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 681 S.E.2d 152 (2009), in which the Georgia Supreme Court overruled prior case law prohibiting the admission of evidence of an expert witness’s personal medical practices. Prior to Condra 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.

On December 31, 2009, the Georgia Court of Appeals took the holding in Condra one step further. In Griffin v. Bankston, 2009 Ga. App. LEXIS 1454 (2009), plaintiff brought a dental malpractice action to recover damages stemming from her oral surgeon’s alleged negligence in failing to administer an antibiotic before, during, or after the surgical extraction of her wisdom teeth despite the presence of certain risk factors which plaintiff contended called for such antibiotics. A few days after her surgery, plaintiff began having difficulty breathing and was rushed to the hospital by her parents where she underwent an emergency tracheotomy to open and preserve her airway. Physicians at the hospital determined that plaintiff was suffering from a virulent bacterial infection that originated in her mouth. To combat the infection, she was placed on a powerful combination of antibiotics and underwent two surgeries for the placement of drainage tubes in her face, mouth, and neck. The treatment regime ultimately proved successful, but plaintiff suffered an extreme exacerbation of an already existing condition of vitiligo, a skin disorder that causes loss of pigment.

At the malpractice trial, an expert for plaintiff testified that the failure to provide plaintiff with penicillin was the cause of the virulent bacterial infection she suffered. In contrast, a defense expert testified that the oral surgeon was not required to give penicillin under the applicable standard of care. But, arguably the most compelling testimony came from one of the physicians who treated plaintiff during her hospitalization after the infection problem arose. During his deposition, plaintiff’s treating physician testified that he did not believe that administering penicillin would have been effective in light of plaintiff’s “mixed flora” infection that included bacteria resistant to that antibiotic. The trial court allowed the introduction of almost all of the treating physician’s deposition testimony, but excluded a portion of the deposition in which he testified that his personal practice was to administer penicillin as a preventative measure when he extracts impacted wisdom teeth and a steroid is used. The jury returned a verdict in favor the defense.

Consistent with the law in effect at the time, the Court of Appeals upheld the trial court’s ruling excluding the personal practice evidence. However, following Condra, the Georgia Supreme Court remanded the case back to the Court of Appeals to reconsider in light of that decision. Upon reconsideration, the Court of Appeals found that the same reasoning employed by the Supreme Court in Condra would apply to any case where evidence of the physician’s personal practices could be construed by the jury as calling into question the credibility of the physician’s testimony at trial, irrespective of whether the physician was a standard of care expert. In other words, “evidence that [the treating physician] routinely took the same precaution to guard against infection that he now claimed would not have made a difference in the present case arguably called into question the credibility of such a claim.” Concluding that the exclusion of evidence of the treating physician’s personal practice undermined the jury’s ability to fully evaluate his credibility and deprived plaintiff of her substantial right to a thorough and sifting cross-examination, the Court of Appeals ordered a new trial where such evidence would be admissible.