Qualification for Expert Witness Dictated by Complaint; Not by Treating Doctor Expertise

A man suffered a chemical burn to his left foot while working at his job as a chemical technician. He underwent surgery to excise his wound and to apply a skin graft. Following his surgery, he was prescribed a medicine used to prevent blood clotting because he was at high risk for deep vein thrombosis (DVT). Sixteen days later, he underwent a second skin graft surgery. A nurse practitioner and a doctor assessed him after the surgery and developed a treatment plan. The treatment plan called for increasing the man’s mobility, such as turning side-to-side and sitting up in the bed, sitting on the side of the bed and moving his legs and arms, to prevent DVT. The doctor did not prescribe the medicine used to prevent blood clotting, unlike after the first surgery.


The day after his second surgery, the man was able to get out of the bed and sit in a chair. Occupational therapists also administered in-bed physical therapy that day to help increase his range of motion. The second day after his surgery, he stood up on crutches with the help of a physical therapist. He walked about ten feet with assistance and use of the crutches before he told the therapist that he was in pain, felt dizzy, had difficulty breathing and wanted to return to his bed. He went into respiratory distress, stopped breathing and could not be resuscitated. He died from a DVT blood clot that formed in his leg, broke loose and traveled to his lungs where it became a pulmonary embolism (“PE”).


The man’s wife sued his healthcare providers for medical malpractice. The complaint alleged that the healthcare providers failed to evaluate, diagnose, and properly treat the man at the time of his skin-graft surgery for increased risk of deep-vein thrombosis and pulmonary embolism. In support of her complaint, the woman filed the affidavit of a medical expert. The medical expert opined that the man was at significant risk for DVT and PE because he was over forty years old and significantly obese, he had undergone surgery lasting more than thirty minutes under general anesthesia, he was bed-bound for more than forty hours, and his leg was immobilized with an Ace wrap, which restricted the venous blood flow in the leg. The medical expert further opined that the healthcare providers' failure to evaluate the patient’s increased risk of DVT and failure to take measures to decrease that risk constituted substandard care.


The healthcare providers filed a motion to disqualify the woman’s medical expert on the ground that he was not qualified to testify regarding the standard of care applicable to the treatment of a post-surgical burn care patient who had undergone skin graft surgery. The trial court disqualified the plaintiff’s only expert witness and granted the healthcare providers’ motion to for summary judgment.


The Court of Appeals of Georgia reversed. The court held that the wife’s expert witness was competent to testify as to a breach of the standard of care. The court noted that, under Daubert, disputes as to an expert's credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.


In order to determine whether the applicable statute authorizes the admission of proposed expert testimony in a medical malpractice action, it is necessary to accurately state both the area of specialty at issue and what procedure or treatment was alleged to have been negligently performed. The area of specialty at issue in a medical malpractice action is dictated by the allegations in the complaint, not the apparent expertise of the treating physician. In this case, the court found the area of specialty at issue was the standard of care applicable to DVT prophylaxis in a hospitalized patient who was at increased risk for DVT and pulmonary embolism (PE). The court concluded that the wife’s expert witness was competent to testify because he had 22 consecutive years of experience treating hundreds of people in hospitals who were at risk for DVT and PE, he had been an assistant clinical professor at a college of medicine for three years, he had given over 450 lectures on DVT and PE, and was a co-developer of the first DVT protocol in United States. The court held that the trial court abused its discretion when it disqualified the woman’s medical expert.


The Court of Appeals of Georgia reversed the trial court’s disqualification of the wife’s expert and subsequent grant of the healthcare provider’s motion for summary judgment.


See: Toombs v. Acute Care Consultants, Inc., 2014 WL 1043636 (Ga.App., March 19, 2014) (not designated for publication).


See also Medical Law Perspectives, December 2013 Report: Thicker Than Water: Liability When Blood Clots Cause Injury or Death


See also Medical Law Perspectives, September 2013 Report: Physical Therapy: Rehabilitation Services and Liability Risks