A woman underwent breast implant surgery. After the procedure, her incision did not heal and the implant began to protrude though her skin. The surgeon who performed the breast implant surgery re-sutured the non-healing skin. A month later, the surgeon reinserted the implant and attempted to use the implant as a tissue expander. After suffering further complications, the woman sought the help of another physician who removed the implant.
The woman sued the surgeon and his practice for medical malpractice. The complaint sought compensatory and punitive damages. Prior to trial, the woman filed a motion in limine to prevent the surgeon from testifying as an expert witness and to provide opinion testimony when he could not meet the relevant requirements of OCGA § 24–7–702(c). This statute provides in part: “The opinion of a witness qualified as an expert under this Code section may be given on the facts as proved by other witnesses.” Subsection (b) provided in part: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise....” Subsection (c) provided: “Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if” the expert meets certain qualifications. The woman argued that because the surgeon did not meet the qualifications to testify as an expert, he should not be allowed to give testimony about whether he met the appropriate standard of care. The Superior Court denied the woman’s motion in limine.
At trial the surgeon testified about whether he met the appropriate standard of care. He testified that he met the standard of care in his performance of the original breast augmentation surgery and that implant extrusion, the implant protruding from the skin, was a known rare complication that occurred in less than one percent of breast augmentation patients. The surgeon explained further that when the woman contacted him to tell him that a “hole” had “opened up” in her breast, she explained that the hole had been there for ten days, and that she did not come and see him upon first discovering it because it was tough for her to get out of work. He also testified that at that time, he instructed her to come to his office the next day, but that she did not come to see him until at least three days later and declined removal of the implant. He testified that he should have removed the breast implant when it became exposed rather than suture the opening, and agreed that re-inserting the implant was not an appropriate treatment for the woman at that point in time and fell below the standard of care. The surgeon explained that he did not initially think he had violated the standard of care in his post-operative treatment of the woman and asserted that he did not in his deposition, but that he changed his mind after reading the depositions of three other experts, and in retrospect believed that he should have removed the implant instead of suturing the opening.
Following a five-day trial, a jury awarded the woman $125,000 in total damages. The Superior Court entered judgment on the verdict. Both parties moved for attorney fees. The woman moved for a new trial in light of what she alleged was the surgeon’s impermissible expert testimony. The trial court denied all of the motions of each party.
The Court of Appeals of Georgia affirmed. The appeals court held that, as a matter of first impression, the rule of evidence governing qualifications to testify as an expert witness in professional malpractice actions, OCGA § 24–7–702, did not apply to the surgeon; the trial court did not err in denying the surgeon’s motion for attorney fees pursuant to OCGA § 9–11–68 because the surgeon's settlement offer did not meet the statute’s requirements; and the trial court did not abuse its discretion in denying the woman’s motion for attorney fees and costs pursuant to OCGA § 9–15–14, governing attorney fees when an attorney brings or defends an action lacking substantial justification.
As a matter of first impression, the rule of evidence governing the qualifications to testify as an expert witness in professional malpractice actions, OCGA § 24–7–702, did not apply to the defendant surgeon. The legislature intended the qualification requirement to apply to a third-party expert, not a defendant physician. The court found no authority requiring a defendant physician to meet any qualifications as an expert in order to testify in his own defense.
The trial court did not err in denying the surgeon’s motion for attorney fees pursuant to OCGA § 9–11–68 because the surgeon's settlement offer did not meet the statute’s requirements. The statute stated that if a defendant makes an offer of settlement that is rejected by the plaintiff, the defendant is entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of the offer of settlement, so long as the offer meets eight requirements. The court found that the surgeon made an offer of settlement in the amount of $200,000, and that the woman rejected the offer. The jury returned a verdict in favor of the woman in the amount of $125,000, which was less than 75 percent of the surgeon's offer. The trial court, in denying the surgeon's motion for attorney fees and expenses pursuant to OCGA § 9–11–68, found that the defendant failed to satisfy each of the eight requirements in order to trigger its application. Specifically, the trial court found that the surgeon failed to state with particularity the amount proposed to settle a claim for punitive damages. The court found that the record showed that punitive damages were listed as an issue to be tried in the pretrial order and in the complaint. The court reasoned that because the woman asserted a claim for punitive damages, and this claim was pending at the time the offer was made, the surgeon was required to state with particularity the amount proposed to settle that claim, which he failed to do. The court concluded that the surgeon’s offer did not meet the requirements of OCGA § 9–11–68(a), and the trial court did not err in ruling that he could not recover attorney fees for an offer of settlement pursuant to that code section.
The trial court did not abuse its discretion in denying the woman’s motion for attorney fees and costs pursuant to OCGA § 9–15–14, governing attorney fees when an attorney brings or defends an action lacking substantial justification. In denying her motion, the trial court found that the surgeon's admission during his trial testimony that some of his treatment of the woman fell below the standard of care related only to the post-operative care and treatment. The surgeon denied that any of his care and treatment proximately caused her injuries. The trial court held that the surgeon’s admission regarding the post-operative care and treatment did not rise to the level of showing that the defense lacked complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted defense or that the defense lacked substantial justification such that it was substantially frivolous, substantially groundless, or substantially vexatious. The court reasoned that because there was evidence to support the trial court's finding that the surgeon's admissions did not rise to the level of showing a complete absence of any justiciable issue of law or fact, and that his defense was not substantially frivolous, the court must affirm the trial court's denial of fees.
The Court of Appeals of Georgia affirmed the trial court’s entry of judgment on a jury verdict awarding the woman $125,000 in total damages.
See: Chadwick v. Brazell, 2015 WL 1243887 (Ga.App., March 19, 2015) (not designated for publication).
See also Medical Law Perspectives, September 2012 Report: Cosmetic Surgery Gone Wrong: High Hopes Meet Unexpected Results
See also Medical Law Perspectives Blog, December 17, 2014: Who Qualifies As An Expert for Certified Nurse Midwife Malpractice Litigation?