A Georgia medical-malpractice ruling offers an inherently important reminder to expert witnesses: impressive credentials and extensive clinical experience do not necessarily qualify a professional to give an opinion on every aspect of a case.
The decision in Orr v. SSC Atlanta Operating Company, decided by the Court of Appeals of Georgia, concerned the alleged failure of nursing staff at a rehabilitation facility to recognize and respond reasonably to a patient’s risk of deep-vein thrombosis (DVT). At the center of the evidential dispute was whether the plaintiff’s proposed medical experts possessed the particular knowledge and recent professional experience necessary to testify about the standard of nursing care in focus.
The case underpins the increasingly important role of the trial judge as evidentiary gatekeeper. It also demonstrates why an expert’s curriculum vitae, professional reputation and general medical expertise must be matched against the precise proposition for which testimony is being offered.
The Underlying Medical-Malpractice Claim
The case came to the fore after Rhonda Orr underwent surgery in February 2014 to repair the quadriceps tendon in her right knee. She subsequently developed an infection and underwent further treatment before being admitted to Northeast Atlanta Health and Rehabilitation Center (NAHR) on June 25, 2014, for recovery and convalescence.
The subsequent claim alleged that Mrs Orr’s mobility was compromised following her surgery, placing her at increased risk of DVT. According to the allegations, the rehabilitation facility’s nursing staff failed to recognize that risk, failed adequately to notify the relevant physician of her continuing immobility and failed to institute appropriate DVT prophylaxis.
The pleaded case further alleged that a DVT ultimately resulted in a pulmonary thromboembolus and death. Claims were brought in negligence and wrongful death.
An affidavit supporting the claim was supplied by Dr Richard P. Bonfiglio, who expressed the opinion that the care provided by the nursing staff fell below the minimum standard of care required of nurses in comparable circumstances. His evidence was therefore inherently important tin establishing the alleged breach of the applicable professional standard.
Dr Bonfiglio’s credentials
Dr Bonfiglio was far from an inexperienced witness. He was a physician with extensive experience in physical medicine and rehabilitation, or physiatry. Published professional material identifies him as board certified by the American Board of Physical Medicine and Rehabilitation and records substantial experience as a medical director of rehabilitation facilities. His clinical practice included the treatment of adults and children with traumatic brain injuries, spinal-cord injuries, amputations and acute and chronic pain.
His rehabilitation credentials were therefore substantial.
That, however, was not the end of the issues at hand.
NAHR challenged his competency to give the particular opinion proposed in the case: namely, an opinion concerning the standard of care applicable to nurses caring for rehabilitation patients at risk of DVT.
Under Georgia’s evidentiary framework, medical expert testimony is subject to specific qualification requirements. The relevant statute, O.C.G.A. § 24-7-702, requires the court to examine whether the proposed expert possesses the knowledge, skill, experience, training or education appropriate to the opinion being offered. Medical malpractice cases impose additional requirements concerning recent professional practice or teaching.
The Expert’s Evidence Problematic Starting Point
The Court of Appeals noted that there was no evidence in Dr Bonfiglio’s affidavit or deposition establishing that, during the required period, he had supervised, taught or instructed nurses.
His deposition evidence referred to his interactions with nurses as part of ordinary medical practice. He had also delivered some lectures to nurses. But he expressly acknowledged that he had not recently supervised nurses and had not done so for more than a decade. That distinction proved decisive.
The trial judge was entitled to act as the evidentiary gatekeeper and determine that Dr Bonfiglio’s experience did not satisfy the statutory qualification requirement for the particular opinion he was being asked to give. The appellate court found no abuse of discretion in that conclusion.
The ruling is significant because it demonstrates that an expert cannot necessarily rely upon general professional experience to bridge a gap between one area of expertise and another.
A physician may be highly experienced in rehabilitation medicine, for example, without necessarily satisfying the statutory requirements to testify about the professional standard governing nursing care.
Nurse Expert also Excluded
The court reached a similar conclusion regarding Ethel Willis, RN, BSN, MSN.
The plaintiff maintained that Nurse Willis had experience relevant to the management of rehabilitation patients who were at risk of DVT. The court, however, found insufficient evidence connecting her recent professional experience to the precise clinical circumstances involved.
Her curriculum vitae showed that, during the relevant period, she had worked in an outpatient setting involving endocrinology and nephrology. Although another position involved a healthcare service providing long-term acute care, the record did not establish that this gave her the requisite knowledge concerning the management of rehabilitation patients at risk of DVT.
The court stressed that it is insufficient for an expert merely to possess a minimum level of general knowledge. The question is whether the expert has knowledge and experience relevant to the particular acts or omissions alleged to constitute malpractice.
The court’s important distinction
The decision contains an important lesson for lawyers instructing medical experts.
Expertise is proposition-specific.
The relevant question is not simply:
“Is this person a doctor?”
Nor is it:
“Does this person have extensive experience in medicine?”
Instead, the inquiry is closer to:
“Does this witness possess the appropriate knowledge and experience to give this particular opinion concerning this particular professional standard, clinical procedure or alleged breach?”
That distinction is inherently important in multidisciplinary healthcare litigation, where physicians, nurses, therapists, pharmacists and other professionals may work alongside one another.
A physician may understand the overall clinical environment while lacking the statutory qualification to testify about the nursing standard of care. Conversely, a nurse may possess extensive clinical experience but lack the specific recent experience necessary to address a particular specialist or institutional practice.
The Summary Judgment — and a Qualification Notice
The trial court initially granted summary judgment to NAHR after excluding Dr Bonfiglio and Nurse Willis, reasoning that without their evidence the plaintiff could not establish the alleged breach of the nursing standard of care.
The Court of Appeals agreed that the two expert witnesses had properly been disqualified. However, it did not simply endorse every aspect of the trial court’s reasoning. The appellate court held that the lower court had erred in granting summary judgment on the issue of causation because disputed factual questions remained. At the summary-judgment stage, courts are not permitted to weigh conflicting evidence or determine credibility in the manner reserved for a fact-finder.
The result was therefore nuanced: the exclusion of the proposed experts was upheld, but the causation aspect of the summary judgment required separate consideration.
Lessons for Expert Witnesses
For expert witnesses, the decision carries a straightforward warning. A distinguished CV is not a substitute for demonstrating specific competency. Experts should therefore identify at the outset precisely what opinions they intend to offer and ensure that their recent clinical practice, teaching, supervision, training and experience support those opinions. Lawyers, equally, should scrutinize the proposed expert’s credentials against the statutory requirements before relying upon an affidavit or deposition.
The case also reinforces the importance of giving the court a complete evidential record. After the trial court excluded the experts, the plaintiff attempted to rely upon additional affidavits submitted with a motion for reconsideration. The court declined to consider that new material because the plaintiff had been given an opportunity to present the necessary evidence earlier in the proceedings.
For the expert witness community, that may be the most practical lesson of all. In medical litigation, being an expert in medicine is not necessarily the same thing as being an expert on the proposition before the court. The distinction can determine whether an opinion reaches the jury at all.
As courts continue to exercise their gatekeeping function under modern expert-evidence rules, experts and instructing attorneys should expect greater scrutiny of the precise relationship between professional credentials and the opinions ultimately offered in evidence.
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By Edward Price
