Term
| The Basic Requirement of Expert Testimony |
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Definition
| Except in extreme circumstances, the issue of whether a healthcare provider in a medical malpractice action has complied with the applicable standards of professional conduct must be presented through expert testimony. Clanton. |
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Term
| Causation and Expert Testimony |
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Definition
| Because medical causation issues are "beyond the ken of a layperson" medical experts, qualified pursuant to O.C.G.A. § 24-9-67.1 are needed to testify as to causation. |
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Term
| Historical Hypothetical Requirement |
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Definition
| Georgia law has long required that experts testify by way of hypotheticals that are based upon facts in evidence. But see Card #4 on Recent Statutory Circle on Hypos. |
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Term
| Recent Statutory Circle on Hypotheticals |
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Definition
The 2005 tort-reform legislation created a "logical circle": since 2/16/05, a qualified expert's opinions may be based on inadmissible evidence. That inadmissible support for the opinion will be told to the jury if the judge determines that its probative value outweights its prejudicial effect.
At the same time, however, an expert will not be qualified unless his or her opinion is based on sufficent facts or data which are or will be admitted into evidence at the hearing or trial.
The Supreme Court has recognized that these sections can't be harmonized, thus rendering the statute unconstitutionally vague. However, it allowed the trial court to sever the contradictory part of (b)(1) thereby removing the requirement that the expert's testimony be admitted evidence. |
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Term
| TRUE OR FALSE: Counsel can propound a hypothetical which has no basis in the record. |
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Definition
| FALSE: Counsel should NEVER propound a hypothetical which has no basis in the record. |
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Term
| Good Faith Basis Requirement for Hypotheticals |
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Definition
| A hypo may be based upon any evidence which counsel, in good faith believes will be elicited during trial. The hypo will be valid so long as it is based on facts and circumstances placed into evidence at some point during the trial. The evidence does not need to have been introduced prior to the expert's testimony. |
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Term
| Hypotheticals and Jury Questions |
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Definition
| The facts presented in the hypothetical must be placed before the jury by either direct or circumstantial evidence. If the assumed facts are disputed, then the truth of those facts is a question for the jury, unless the judge determines that there is no evidence to support the testimony. |
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Term
| Is the fact that the defense expert has the same mutual insurance company as the defendant, and therefore could potentially save money if the jury finds for the defendant admissible? |
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Definition
| NO. An expert's possible financial interest in the outcome of the litigation is not admissible. Carlisle. |
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Term
| Evidence of an Expert's Personal Practices (practice what you preach!) |
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Definition
| A witness may be cross-examined on his/her personal practices and the jury may consider the differences between what a witness preaches about the standard of care and what he or she practices. This rule applies even to witnesses who were not called as standard of care experts. |
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Term
| The use of Learned Treatises on Direct Exam |
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Definition
| Georgia courts do NOT allow medical literature to come in as primary evidence. Under this rule, experts can't act as a conduit by merely reciting the opinions of others. Often, an expert's opinion will be based on both his experience and his research and an expert's testimony based on his research/readings is admissible, but the articles/readings themselves are inadmissible. |
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Term
| May one party's expert be subpoenaed and testify for the opposing party? (Basically, can you convert the oppososing expert into your own witness?) |
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Definition
Yes. A court may allow an expert witness to be subpoenaed and testify for the other side, BUT references to the expert's original employment (the fact that he/she was originally employed by the opposing party to be their expert) is prejudicial and would therefore be excluded.
Additionally, evidence that such an expert was retained and utilized an earlier action but was not called by the opposing party in the instant action, is excluded. |
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Term
| May Hospital Manuals be used as evidence of negligence? |
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Definition
| Hospital service manual outlining responsibilities of physicians performing services at the hospital can be used as evidence of the standard of care, even if the defendant physician was not shown to have been aware of this manual. Byrd. |
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Term
| May a defendant bolster himself by asserting "I have never been sued before"? |
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Definition
| NO. Defendant can't bolster themselves by asserting that they have never been sued before. Unless defendants do so tesify, plaintiff's can't use prior suits to impugn defendants' credibility. |
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Term
| Acknowledgements of Error and Acts of Sympathy |
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Definition
| Expressions or intimations of mistake, error, regret, sympathy, sorrow, compassion, and the like are not admissible in a medical malpractice case. If a medical professional admits that he/she made a mistake or error, that is not considered an admission of liability or a statement against interest. |
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