In a recent medical malpractice/wrongful death case, the Georgia Court of Appeals reversed summary judgment for the defendant nurses on causation and reinstated the testimony of an expert witness identified after a deadline in a scheduling order. The patient presented to Piedmont Hospital for an appendectomy. The defendant surgeon performed a preoperative risk assessment for deep venous thrombosis using the Caprini Scale. According to the surgeon, he ordered preoperative administration of heparin for prophylaxis and then sequential compression devices to be placed during surgery and used post-operatively. Apparently, the preoperative heparin ordered was not carried out.

Four days after surgery, the patient developed an abscess, which required surgical drainage. The surgeon testified that he rounded on the patient regularly and reassessed her risk for DVT but found no evidence suggestive of a DVT. In contrast, the patient’s daughter testified that the patient’s legs were hurting and that she told this to a nurse. A few days later, the patient developed acute respiratory distress that required intubation. She was transferred to the ICU but coded and then passed away. The discharge summary did not contain a definitive cause of death and the family refused autopsy. The death certificate listed the cause of death as cardiac arrest due to respiratory failure. The family filed suit and identified multiple experts, who opined that the cause of death was pulmonary embolism. Defendants denied that this was the cause of death and argued there were no signs of pulmonary embolism.

Plaintiffs alleged, among other things, the nursing staff failed to evaluate the patient’s risk for DVT after surgery to ensure that she received adequate anticoagulation. The trial court entered a scheduling order for identifying experts, including rebuttal experts. During discovery, Plaintiffs identified one physician expert before the primary deadline for expert. That physician expert testified in deposition that even if the nurses had done what Plaintiffs alleged the standard of care required of them, it may not have prevented the PE or the patient’s death. A day after the deadline to identify rebuttal experts, Plaintiffs identified Dr. Caprini, who developed the risk score that was used. Dr. Caprini testified that if the nurses had completed an appropriate DVT risk assessment, the physicians would have been notified of the increased risk, she would have been treated, and she would not have suffered a fatal PE. Plaintiffs also supplemented the opinions of their original physician standard of care expert with new standard of care opinions and identified a medical epidemiologist. The medical epidemiologist testified that he did not have a medical license, but did not need one because he did not treat live patients. He also testified that the probabilities favored PE as the cause of death.

Piedmont Hospital moved for summary judgment for the nurses on the basis that there was no evidence proving their deviation from the standard of care caused the patient’s death based on the original physician expert’s admissions. The trial court granted the motion, ruling that none of Plaintiffs’ experts testified that the continuous use of the SCDs would have prevented the patient’s death and the surgeon testified that he performed his own DVT risk analysis when he rounded and therefore the nurses’ failure to do so could not be the proximate cause, among other things. Defendants also moved to exclude the opinions of the medical epidemiologist on the basis of Daubert and the opinions of Dr. Caprini because he interjected new opinions as a rebuttal witness.

On the Daubert motions as it related to the qualifications of the witnesses, the Court held that it was not necessary for Plaintiffs’ experts to be surgeons. As for Dr. Caprini’s new standard of care opinions, the Court held that it is an abuse of discretion to exclude a new opinion solely because it was presented after a scheduling order deadline. Rather, the trial court is required to determine why the opinions were not identified on time before entering any sanction. Lastly, the Court affirmed exclusion of the opinions of the medical epidemiologist because he was testifying outside his area of expertise because “Georgia law considers opinions about medical diagnosis to fall outside the limits of expertise of a non-physician.” (citations omitted).

Take-home: There is a lot to unpack in this decision and, as is not uncommon in Court of Appeals’ decision, the recitation of the facts may not always do the case justice. But, the take-home is that late identification of an expert is not grounds for automatic exclusion. In addition, the Court reiterated the rule that physician testimony is necessary for medical causation in Georgia.

The case is Adams v. Piedmont Hospital, _ S.E.2d _, 2022 WL 4005835 (Ga.Ct.App. Sept. 2, 2022).