By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
News: The Georgia Court of Appeals reversed a trial court that applied the wrong standard in rejecting a plaintiff’s experts, clarifying that an expert’s opinion need only be supported by a “reasonable medical probability or medical certainty,” not “concrete evidence.” The trial court applied an incorrect standard requiring the expert witnesses offer “definitive conclusions” on the issue of what caused the injury at issue.
The case involved a medical malpractice lawsuit filed by a woman who alleged that a hospital, physician, and nurse negligently failed to inform her of the dangers of co-sleeping with her newborn son. The plaintiff alleged that as a result, she co-slept with her child and caused him serious injury, resulting in a permanent disability. The trial court granted summary judgment to the defendants, finding that “the only evidence” the plaintiff provided that her child’s injuries were caused by co-sleeping was the “speculative testimony from her expert witnesses.” However, the appeals court reversed the trial court, nullifying the prior defense victory and clarifying the standard for admitting expert testimony does not require “certainty” and emphasizing that an expert’s opinion could be based entirely on circumstantial evidence.
Background: The infant at the center of the case was born without incident as the mother’s fourth child. After the birth, the defendant hospital and physicians documented that the mother did not fully understand how to care for her newborn. The defendants also failed to comply with the hospital’s protocol to educate new parents about newborn safety, including warning against co-sleeping. Moreover, the hospital also failed to provide the mother with a bassinet that should have been provided to her as a Medicaid recipient.
The mother alleged she co-slept with the baby because she did not have a crib or bassinet for him. She positioned the newborn flat on his back and moved blankets and pillows away from his body. Despite these precautions, the mother claimed that she noticed the baby made grunting noises while sleeping and that he showed signs of reflux following feedings. The mother did not medically address the issues and failed to attend a well-baby appointment with a pediatrician within three days of discharge.
The mother brought her child to the hospital after she witnessed him struggling to breathe one night. The baby was diagnosed with hypoxic-ischemic encephalopathy and with several other issues. Because of his brain injury, the baby was diagnosed with cerebral palsy and developmental delays.
The mother filed a medical malpractice lawsuit against the hospital, pediatrician, and nurse who attended to them when they were discharged from the hospital. She alleged that they failed to instruct her about infant sleep safety and the dangers of co-sleeping and claimed their failure to do so resulted in her co-sleeping with the child, which caused his injuries. In support, the plaintiff offered two expert witnesses. The first witness testified the child’s injuries resulted from a lack of oxygen “most likely” caused by his mother laying on him and that he reached that conclusion by ruling out other explanations. The second expert testified that it was his opinion that the co-sleeping was “more likely than not” the cause of the child’s injuries.
The defendants were granted summary judgment, arguing that the expert opinions were speculative and thus inadmissible. On appeal, the court ruled otherwise. The appeals court found the expert testified that co-sleeping was “more likely than not” the cause of the baby’s injuries and that he ruled out any other cause. Although the expert conceded there was no direct evidence of what happened, that does not make an opinion speculative. The trial court applied an incorrect standard when it held that the plaintiff’s experts were required to “give a definite conclusion as to what had occurred” based on “concrete evidence.” Instead, the expert’s opinion need only claim a “reasonable medical probability or reasonable medical certainty.” An expert can satisfy this standard by stating the only apparent cause of the injury was the defendant’s action.
What this means for you: Cases involving expert opinions are sometimes referred to as “a battle of the experts” due to the degree of importance in medical malpractice cases and other matters involving technical, medical, and scientific issues. Well-spoken, persuasive, and experienced experts can sway juries and judges and mean the difference between a victory or loss. Before the expert ever sits in front of the jury, medical malpractice actions can be won and lost based on the admission, or refusal to admit, an expert’s opinion. For medical malpractice cases, expert testimony is required in Georgia and most other states. The result is that both parties in medical malpractice actions put enormous time, energy, and expense into admitting their expert’s testimony and attempting to exclude the other side’s expert. Judges are the gatekeepers of whether expert opinions are reliable enough to be admitted. As the Georgia Court of Appeals found, judges can sometimes get it wrong.
Before an expert’s opinion of what caused a medical injury ever gets to a jury, it is the subject of significant briefing and argument in the trial court. Typically, there is a fight about whether the testimony meets basic standards of reliability and soundness to assist the jury. This case clarifies that standard under Georgia law, which is like many other states. The appellate court emphasized that expert witnesses are not required to state with “certainty” the cause of an injury. Holding an expert to a “certainty” standard is unreasonable and inconsistent with Georgia law. The standard for admissibility of an expert’s opinion is, rather, a “reasonable medical probability or medical certainty.” A “reasonable medical probability” is far more helpful to plaintiffs in medical malpractice cases and an easier threshold to cross than the “certainty” required by the trial court in this case.
However, the court’s clarification of the standard for the admissibility of expert testimony is not by any means new law. In its opinion, the Georgia Court of Appeals even referred to a previous case that involved the cause of a fire, stating that “absolute certainty” was not required for the admission of expert opinions in that case. Nor should it have been here. Even courts can misstate and misapply the standard.
What does a “reasonable medical probability” mean in practice? That is more of an art than a science. But one thing it does require is direct evidence. The Georgia Court of Appeals went out of its way to clarify that direct evidence is not required for an expert’s opinion to be admissible in a medical malpractice case. Even where, as here, the expert had no direct evidence of what caused the child’s injuries, and even where there may be more than one reasonable interpretation of how the injuries were caused, experts may rely on circumstantial evidence to support their theory of causation.
In its decision, the appellate court also emphasized the importance of the jury in medical malpractice cases. How much credibility should be given to the expert’s opinion is a matter for the jury to decide. Although the jury ultimately may afford the expert’s opinion little or no weight, if the opinion meets the standard of “reasonable medical probability,” the opinion still should be heard by the jury. The appellate court thus reaffirmed the jury’s role in determining the weight and credibility of such evidence and reinforced the principle that juries, not judges, are the primary arbiters of evidentiary value and credibility in trials.
Of importance to medical practitioners, the case also is a reminder that hospitals must adhere to protocol when discharging patients who have given birth even when the patient is not a first-time mother. The injuries in this case were to the plaintiff’s fourth child. However, the court noted that despite her experience, the plaintiff exhibited a lack of education. She also qualified for Medicaid, and as a result, the hospital should have provided her with a bassinet for her child. The plaintiff also missed pediatrician appointments after the birth of her child. These may have been important factors for the court in the background of its opinion. Either way, hospitals and medical staff should strictly adhere to all release protocols for patients who have given birth and all others they are discharging. This should include the provision of written instructions that are reviewed with the patient before discharge. Copies should be kept in the medical files, and the patient should be asked to sign a related form indicating the material has been explained to and understood by the patient.
REFERENCE
- Decided Oct. 23, 2023, In the Court of Appeals of Georgia, Case No. A23A1014.
Cases involving expert opinions are sometimes referred to as “a battle of the experts” due to the degree of importance in medical malpractice cases and other matters involving technical, medical, and scientific issues. Judges are the gatekeepers of whether expert opinions are reliable enough to be admitted. As the Georgia Court of Appeals found, judges can sometimes get it wrong.
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