In medical malpractice cases, evidence regarding an expert witness's professional 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.
Plaintiffs, a patient and her spouse, sued a physician and his orthopedic group for medical malpractice. Plaintiffs' experts opined that a medication the physician prescribed was inappropriate for the patient's condition; that it caused her to develop aplastic anemia; that this disease could have been avoided had he conducted blood count monitoring during her treatment; and that the failure to conduct blood conduct monitoring was a breach of the standard of care. Defense experts testified that the failure to conduct such monitoring was not a breach of the standard of care. However, a defense expert had stated in his deposition that it was his usual practice to conduct blood count monitoring when he prescribed the medication at issue. The trial court prevented plaintiffs from cross-examining the experts as to their personal practices. The jury returned a defense verdict; the Georgia Court of Appeals affirmed. The patient and spouse appealed. The judgment was reversed.
May, in medical malpractice cases, evidence regarding an expert witness's professional practices be admissible both as substantive evidence and to impeach the expert's opinion regarding the applicable standard of care?
The high court overruled Johnson v. Riverdale Anesthesia Assocs., 563 S.E.2d 431 (Ga. 2002), and held that under O.C.G.A. § 24-9-67.1(c)(2)(A) of the Georgia Tort Reform Act, evidence of an expert's personal practices, unless excludable on other grounds, was admissible both as substantive evidence and to impeach the expert's opinion as to the applicable standard of care. In a medical malpractice case, the jury is entitled to fully evaluate the credibility of the testifying expert, and the fact that an expert testifies that the standard of care does not require what that expert personally does in a similar situation may be a critical piece of information for the jury's consideration. The relevance and importance of a medical expert's personal choice of a course of treatment is highly probative of the credibility of the expert's opinion concerning the standard of care. Further, the trial court's "hindsight instruction" was improper. On retrial, the use of the hindsight instruction had to be limited as set forth in the high court's opinion in Smith v. Finch.