Obstetrician Not Qualified Expert On Treatment of Midwife

A pregnant woman was under the care of a certified nurse midwife. During labor, the infant’s shoulders became lodged in the birth canal, an obstetrical complication known as shoulder dystocia.  The certified nurse midwife delivered the woman’s son.  The son sustained irreversible nerve and muscle damage that rendered him permanently unable to move or use his right arm.


The woman sued the certified nurse midwife and her medical practice alleging professional negligence. Specifically, the woman alleged that the certified nurse midwife had breached the standard of care in handling the shoulder dystocia resulting in her son’s injuries.


At trial, the certified nurse midwife presented expert testimony from a board-certified obstetrician and gynecologist, who testified that she had handled well in excess of a thousand deliveries in her career and had experience performing obstetrical maneuvers to address shoulder dystocia. This expert opined that the certified nurse midwife had not breached the standard of care in her delivery of the woman's son. After trial, the jury returned a verdict in favor of the certified nurse midwife.


The Court of Appeals reversed, holding that the trial court had erred in qualifying the obstetrician as an expert. Specifically, the Court of Appeals concluded that the obstetrician did not satisfy the requirements of the expert witness statute because she neither was a member of the “same profession” as the certified nurse midwife as prescribed in OCGA § 24–7–702(c)(2)(C) nor had “supervised, taught, or instructed” nurse midwives in accordance with subparagraph (c)(2)(D). Because the obstetrician was the only disinterested witness to testify in the certified nurse midwife's favor as to her compliance with the standard of care, the Court of Appeals held that admission of her testimony was reversible error, requiring a new trial.


The Supreme Court of Georgia affirmed the judgment of the Court of Appeals. Based on the statutory language and legislative intent, the court held that Georgia's expert witness statute does not permit a physician to testify as to the standard of care applicable to a nurse midwife, even where the physician satisfies the statute’s “active practice” requirement. To be qualified to give expert medical testimony, a physician or other health care provider, regardless of her experience in active practice, must satisfy either the “same profession” requirement or the “supervision” requirement.  More specifically, to qualify as an expert in a medical malpractice action under OCGA § 24–7–702(c), the witness must (1) have actual knowledge and experience in the relevant area through either “active practice” or “teaching” and (2) either be in the “same profession” as the defendant whose conduct is at issue or qualify for the exception to the “same profession” requirement set forth in subparagraph (c)(2)(D). Under the exception, a proffered expert who is a physician is permitted to qualify as an expert as to a non-physician health care provider, but only if she has knowledge regarding the relevant standard of care as a result of having supervised, taught, or instructed such non-physician health care providers.


The court reasoned that because it was undisputed that the obstetrician neither was a member of the same profession as the certified nurse midwife nor had supervised nurse midwives in accordance with subparagraph (c)(2)(D), the Court of Appeals correctly held that the trial court abused its discretion in allowing her to testify as an expert regarding the treatment rendered by the certified nurse midwife.


See: Hankla v. Postell, 2013 WL 5508611 (Ga., October 7, 2013) (not designated for publication).


See also Medical Law Perspectives, April 2013 Report: Complementary and Alternative Medicine: Practitioner Liability