Facts
In Howell et al. v. Cochran, the Plaintiff filed a complaint alleging medical malpractice and negligence. The Defendants filed a Motion for Summary Judgment alleging that the Plaintiff's expert was unqualified to testify. The trial court denied the motion and certified its order for immediate review by the Court of Appeals.
The Court of Appeals granted the Defendants' request for an interlocutory appeal and affirmed the trial court's order denying the motion.
On January 8, 2016, the Plaintiff underwent a replantation surgery after severing three fingers on his left hand. The severed fingers included his index, middle, and ring fingers. A Defendant, Dr. Howell, performed the procedure. He reattached the middle and index fingers but could not reattach the ring finger.
A few weeks after surgery, the Plaintiff discovered his fingers were attached incorrectly. The amputated portion of his index finger was replanted on his middle finger, and the amputated part of his index finger was attached to his middle finger. He followed up with Dr. Howell in April 2016. Dr. Howell denied any wrongdoing.
Plaintiff filed suit alleging Dr. Howell failed to exercise reasonable care and skill during the surgery. He also argued that the procedure fell below the standard of care as he transposed amputated portions of two fingers and later failed to acknowledge the error.
Per statutory requirements, the Plaintiff attached an expert affidavit to his complaint certifying his claim. That expert was Dr. Mirsad Mujadzic.
During discovery, Dr. Mujadzic failed to be available for a deposition. The Defendants filed a motion to exclude Dr. Mujadzic as an expert and to enter summary judgment against the Plaintiff. In response, the Plaintiff's attorney filed an affidavit listing his efforts to contact and locate Dr. Mujadzic to schedule a deposition. Despite these efforts, Dr. Mujadzic stayed out of contact.
The Plaintiff sought another expert. However, since replantation surgeries involving multiple fingers are rare, it took a while to find someone. Eventually, they found Dr. Morse.
In his February 2020 deposition, Dr. Morse listed his qualifications, including:
- Board-certified plastic and reconstructive surgeon
- Ran his plastic surgery practice, "Morse Hand and Plastic Surgery," since 1999
- Practice involved plastic and reconstructive surgery on hands 75 percent of the time
- Completed a hand fellowship but did not obtain a subspecialty in hand surgery
At the time of the deposition, Dr. Morse was on staff at five hospitals, including trauma calls at two. He previously served on "hand call" and "replantation call schedule" at one of the larger hospitals. That is where he performed most of his replantation surgeries.
From 2011 to 2016, Dr. Morse estimated he performed around 15 finger replantation procedures, averaging about three per year. He believed he performed two to three of these procedures per year since 1995, for a total of 50 procedures. Dr. Morse also explained he performed fewer replantation procedures because he took fewer trauma calls. Also, the two hospitals where he was most frequently on-call were less likely to receive amputation injuries.
He also testified that he only performed four multi-digit replantation procedures, which occurred before 2011. But he explained that multi-finger procedures were uncommon; patients were more likely to amputate a single digit rather than several.
Dr. Morse further emphasized the rarity of this surgery and skillset. He estimated that between 7 and 15 physicians in his area (Washington D.C.) were comfortable performing a multi-digit replantation procedure. When he was on-call at one of the larger hospitals, only three or four surgeons were comfortable completing replantation procedures.
Regarding the Plaintiff's procedure, Dr. Morse testified that Dr. Howell replanted the middle and index finger amputations on the wrong fingers. He based this testimony on post-operative X-rays and photographs. He also believed it was unintentional because it was not a possibility discussed with the Plaintiff ahead of time. No operative notes indicated it was intentional either. Dr. Morse opined that Dr. Howell violated the standard of care because he made an avoidable error.
However, when defense counsel asked Dr. Morse about the standard of care when determining where to attach fingers, he replied that he did not know the answer. Dr. Morse explained he saw why the ring finger was not reattached, so that decision was within the standard of care. He could not determine the same for the other fingers.
The Defendants used that testimony to file a supplemental brief supporting their Motion for Summary Judgment. They claimed Dr. Morse was unqualified to act as an expert witness. The trial court denied the motion by citing Dr. Morse's work history and experience. After the trial court certified the order for immediate review, the Defendants applied for an interlocutory appeal, which the Court of Appeals granted.
Issues and Holdings
Did the trial court abuse its discretion by determining that Dr. Morse was qualified to be an expert witness?
No
Reasoning
The Defendants claimed the trial court erred and abused its discretion when finding Dr. Morse was qualified to testify. They based this on two factors: (1) Dr. Morse lacked the requisite experience concerning multi-digit replantation, and (2) He admitted lacking knowledge regarding the standard of care in these procedures.
Requisite Experience
Rule 702 offers standards for evaluating expert witness qualifications. Generally, an expert must have particular knowledge and experience about the procedure at issue. Experience may include recent practice or teaching the technique. Ga. Code Ann. § 24-7-702 (c) (2) (A), (B).
The Defendants claimed the scope of alleged negligence is limited to complications arising from multi-digit procedures rather than single-digit ones. Since Dr. Morse only performed four of these procedures, and they were all before 2011, he was not qualified to testify on the procedures.
However, Rule 702 also places expert witness qualifications firmly in the trial court's discretion. Unless the Defendants can show an abuse of discretion, the Court of Appeals will not reverse these determinations.
The Court of Appeals also concluded that it was not unreasonable that Dr. Morse only performed four multi-digit replantation surgeries. All parties admitted these were uncommon procedures. The Court also explained experts must have appropriate knowledge of the procedure; they do not necessarily need experience performing it to meet Rule 702 requirements. It could not find an abuse of discretion when the trial court determined Dr. Morse was a qualified expert witness. Howell, 365 Ga. App. at 86.
Sufficient Knowledge
The Court of Appeals did not address Dr. Morse’s lack of knowledge regarding the standard of care, because the defense did not raise that theory in the trial court. Howell, 365 Ga. App. at 86-7.
Conclusion
Howell is an encouraging case because it demonstrates that medical malpractice plaintiffs do not need to find the "perfect" expert witness. As long as they have performed the procedure at issue or have sufficient knowledge of it through their practice, the trial court is within its discretion to consider them qualified.
It is unclear if the Court of Appeals would have affirmed an order excluding Dr. Morse, given the broad discretion trial courts have in considering and admitting expert testimony.
When dealing with exceedingly uncommon procedures, this case demonstrates that trial and appellate courts will not apply exacting qualifications standards that may be impossible, or at least extremely difficult, to meet.
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Citation: Howell et al. v. Cochran, A22A0913 (Ga. Ct. App. Aug. 19, 2022)
