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Court of Appeals Rules Midwives Can Offer “Expert” Testimony Against Nurses

Expert testimony is usually the key to winning a medical malpractice case. Georgia law governs the admission of expert testimony. In a lawsuit alleging negligence against a medical professional, a proposed expert must be “a member of the same profession” as the defendant. In other words, a pharmacist cannot offer expert testimony in a malpractice case against a neurosurgeon.

A divided Georgia Court of Appeals recently addressed a much closer question: is a certified nurse midwife in “the same profession” as a registered professional nurse?

Dempsey v. Gwinnett Hospital System, Inc.

This case arose from the tragic birth of a child with permanent mental and physical disabilities. The child’s mother sued the hospital and the registered nurses who attended the birth for malpractice. She alleged the nurses committed negligence during the labor and delivery, which caused the child to be deprived of oxygen and suffer brain damage.

The case proceeded to trial and the jury ruled in favor of the mother. The defendants then asked for a new trial on the grounds that one of the mother’s experts was not qualified. The expert was a certified nurse midwife who previously worked as a registered nurse. Although she had supervised nurses as a midwife for more than five years, she was not working as a nurse at the time of the trial. Accordingly, the judge held she was not “in the same profession” as the defendants, and granted the motion for a new trial. The mother appealed that decision to the Court of Appeals.

A seven-judge Court of Appeals decided, by a vote of 4-3, to reverse the trial judge and reinstate the jury’s verdict in favor of the mother. Presiding Judge John J. Ellington wrote the majority opinion. He said Georgia law did not clearly define the phrase “member of the same profession.” He said the courts must therefore must look at “professional licensing laws and regulatory schemes” in deciding whether there is compatibility.

Here, Judge Ellington noted the mother’s expert was, in fact, both a registered nurse and a certified nurse midwife. In Georgia, a certified nurse midwife must also be licensed as a registered nurse, and in fact both professions are regulated by the same statewide body, the Georgia Board of Nursing. The licensing law further defines “nurses” without separately referencing nurse midwives. Based on all these factors, Judge Ellington said the expert was qualified to testify in this case.

Judge Carla Wong McMillan dissented. She argued that the law governing expert testimony “specifically enumerated” registered nurses and certified nurse midwives as separate occupations, and that law made no exception allowing one to testify against the other. Judge Wong said the “same profession” requirement was imposed by the Georgia legislature to tighten up the requirements for expert testimony, and the courts should not read exceptions into the law which are not clearly stated.

The Court of Appeals’ decision does not end this litigation. The defendants presented several additional arguments for setting aside the jury’s verdict. The Court of Appeals declined to hear those issues, however, because the trial court is yet to address them.