Term
| Qualifications v. Reliability |
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Definition
| Qualifications and reliability are distinct. Since 2005, GA has had statutory criteria to qualify as a med mal expert. Even if the expert is qualified though, a challenge can be raised to whether the offered opinion is reliable pursuant to Daubert and related law. (Daubert = Daubert v. Merrell Dow Pharmaceuticals) |
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Term
| Daubert (civil and criminal) |
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Definition
| The State courts may conduct a Daubert v. Merrell Dow Pharmaceuticals review of all expert testimony whenever requested by a civil litigant. Daubert does NOT apply to Georgia criminal cases. OCGA 24-9-67.1 & 67. In such a review the party offering the expert has the burden of proving reliability. HNTB Georgia Inc. v. Hamilton-King 287 Ga. 641, S.E.2d 770. |
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Term
| Differential Diagnosis - is it a reliable method? |
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Definition
| Differential diagnosis can be a reliable method. Doctors often use differential diagnoses, ruling in as possible causes a variety of conditions, then ruling out he items on the list until the likely cause remains. This method can survive Daubert scrutiny if the expert's ruling in and ruling out were based on scientifically reliable reasoning. That reasoning can be based in the expert's personal experiences with patients. Board of Regents v. Casey, 300 Ga. App. 850 (2009) |
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Term
| Med Mal Expert (Subject) Familiarity Requirements |
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Definition
| To qualify as an affidavit expert or testifying in a medical malpractice case, must have practiced or taught in the subject area of specialty for three of the five years immediately preceding the incident in question. OCGA 24-9-67.1(c), (e). |
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Term
| Med Mal Expert Familiarity Requirements - Special Rules: Residency and Overseas |
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Definition
| Residency counts, but overseas does not. Years spend as a resident can count as "active practice" for the three out of five rule, but time spent practicing outside the United States cannot. Craigo v. Azizi, 301 Ga. App. 181, 687 S.E.2d 198 (2009). |
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Term
| Use of Non-Medical Experts in Medical Cases |
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Definition
| A bio-engineer may be able to testify on the mechanism of possible injury, but he will not be allowed to opine whether that was the mechanism of injury in the particular case. Hankla v. Jackson, 305 Ga.App 391 (2010). |
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Term
| Familiarity Law - Treated Differently in Different Cases |
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Definition
| Since the new expert rules became effective in 2005, the Ga appellate courts have issued several opinions which can seem difficult to reconcile. |
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Term
| Familiarity Requirement Varies from one Case to Another |
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Definition
| Whether the speciality requirement is satisfied depends on the criticisms alleged and the qualifications of the expert rather than the defendant doctor's area of practice. Abramson v. Williams, 281 Ga.App. 617, 636 S.E.2d 765 (2006). |
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Term
| Qualification is Case-Specific |
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Definition
| Whether a plaintiff's expert has "actual professional knowledge and experience in the area of practice or speciality in which the opinion is to be given under OCGA 24-9-67.1(c)(2). is determined "not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning plaintiff's injury". Therefore an emergency physician who has experience diagnosing testicular torsion may testify against a urologist who failed to make the diagnosis. MCG Health, Inc v. Barton, 285 Ga.App.577, 647 S.E.2d 81 (207). However, a generalist could not testify against a specialist's decision-making regarding sending a patient for surgery. Hope v. Kranc. 304 Ga.App.367, 696 S.E.2d 128 (2010). |
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Term
| Familiarity with the Conduct at Issue May Come in Various Settings |
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Definition
A nurse who had experience classifying patients in the outpatient setting could criticize a nurse for wrongly classifying patients in the outpatient setting could criticize a nurse for wrongly classifying patients in the emergency department. Houston v. Phoebe Putney Mem. Hosp, Inc 295 Ga.App.674, 673 S.E.2d. 54 (2009).
A nurse who regularly managed patient safety when patients were being moved satisfied the three-out-of-five rule, even though she had not regularly directed patients to stand on a scale, which was teh particular maneuver complained of in the case. Anderson v. Mountain Management Services, Inc. 306 Ga.App. 412 (2010). |
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Term
| Nurses may not criticize physical therapists. |
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Definition
| Since OCGA 9-11-9.1(g) explicitly categorizes physical therapists and nurses practicing separate professions, and since there is not statutory permission given to do otherwise (such as in OCGA 9-11-9.1(c)(2)(C)). a nurse may not criticize a physical therapist. Ball v. Jones, 301 Ga.App. 340, 687 S.E.2d 625 (2009). |
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Term
| Retroactive Disqualification of an Expert for No Particular Experience |
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Definition
| An expert is not qualified to criticize the performance of a procedure or even the particulars of an informed consent for the procedure unless the expert has performed it. Also, the qualification rule can be used to disqualify an expert, even if the case was filed before the effective date of the statute. Nathans v. Diamond, 282 Ga. 804 (2007). |
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Term
| Courts still using general notions of qualifications |
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Definition
| Generally speaking, nothing is more required to qualify a witness as an expert than to show that, through education, training, or experience, he has special knowledge concerning the matter of science of skill to which his testimony relates" Barngrover v. Hins, 289 Ga.App. 410 (2008). |
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Term
| One May Be Qualified to Testify about Treatment but Not Diagnosis |
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Definition
| The statute does not mean that a pediatric surgeon can never testify against a newborn specialist (neonatologist) or against a pediatric ear, note and throat physician (otolaryngologist). However, even if that surgeon has 30 years' experience workng alongside neonatologists and otolaryngologists, while they make the diagnosis which he then treats surgically, if he does not actually make the diagnosis himself, he may not be qualified to testify about diagnosis. Spacht v. Troyer 288 Ga.App 898 (2007). On the other hand, if the allegation is a complete failure to examine the plaintiff at all, the plaintiff's expert may be qualified even though he sees just six patients per week in a nursing home and does not diagnose the condition the plaintiff had. Carter v. Smith, 294 Ga.App. 590 (2008). |
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Term
| Qualification by Teaching Requires Employment |
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Definition
| An expert may not be qualified by way of having taught in the field unless it can be shown that the expert was employed by an educational facility. Being on the faculty at two medical schools may not be enough without a showing that the schools actually employed the expert. Spacht v. Troyer, 288 Ga.App. 898 (2007). A part-time teaching position that required 12 hours per week may not be enough to satisfy the teaching criterion. Collins v. Dickman, 295 Ga.App. 601, 672 S.E.2d 433 (2008). Piling on reasons why nurse was not qualified to give medical causation testimony. |
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