Every medical malpractice lawyer has this recurrent nightmare: You bring a case to trial with all the ducks in a row. Your expert gave a great deposition. Then he gets up on the stand and turns to jello. He contradicts half of what he said at his deposition and stumbles through the little he didn’t contradict. The judge gets restive and jurors start to frown. I usually wake up at that point.
A related phantasmagoria rattled a trial lawyer in Lagrange, Georgia recently. His client had been in such a bad automobile wreck that she had a stroke. She was seen by several physicians in the emergency room, including a general surgeon who failed to diagnose her ruptured spleen. The poor lady died two weeks later and the pathologist opined that she died from the ruptured spleen.
The accident happened in 1997 and though I can’t even speculate why this litigation has taken more than 13 years and counting, a little delay surely must be attributed to a side battle about the testimony of the plaintiff’s expert. To get a medical malpractice lawsuit going in Georgia and in many other states, the plaintiff must file an affidavit swearing that some act of the defendant failed to meet the standard of care. In his affidavit, the expert said that if the general surgeon had intervened, the lady would have survived. In his deposition, however, the expert only gave her a 50-50 chance of survival. Because Georgia law requires that proof in a medical malpractice trial must rise to a “reasonable degree of medical probability,” which requires that the patient needed slightly more than a 50-50 chance of survival, the defendant moved for summary judgment. The judge denied summary judgment and an interlocutory appeal followed. A sharply divided Georgia Court of Appeals ruled in favor of the plaintiff, so that this case will proceed, however, one of the judges openly called on the Georgia Supreme Court to change the law.
The majority opinion was that conflicting testimony by an expert is a credibility issue for the jury to decide, not a judge. Although this result would make perfect sense to an average four-year old (quick, go out and find me a four-year old, as Groucho Marx once said), lawyers spend hours struggling over such issues. In Georgia, as in most states, we have a legal doctrine that allows the judge to believe the worst if a party to the litigation gives self-contradictory testimony. Typically, and especially if the self-contradictory party is the plaintiff, the judge will believe the worst and throw the case out of court. But, our courts have been (so far) unwilling to extend the rule of self contradiction to experts. The judge who called for the Supreme Court to reverse itself on this stance gave this extreme hypothetical: Suppose the expert admits during his deposition that he had been smoking marijuana when he signed the affidavit and that the affidavit was a pack of lies. Should the defendant have to go to the time and expense of a jury trial to be vindicated? Somehow I just can’t imagine any judge allowing a case to proceed in which the expert admitted he lied in his affidavit. After all, the judge is the gatekeeper of all expert testimony here in Georgia and being a dope-smoking liar seems to me a likely disqualifying trait. But then again, some accuse me of having about as much common sense as a four-year old.
Reading the tea leaves of what the Supreme Court will say about this case, I believe that this ruling will stand. The Supreme Court just threw out caps on pain-and-suffering damages ruling unanimously that the Georgia constitution guarantees that the “right to trial by jury shall remain inviolate.” Allowing a judge to cashier a case because of the expert’s credibility or lack thereof seems to me to encroach upon the traditional role of the jury. It is often said that you can never know what a jury is going to do. The same can be said about judges and Justices of the Supreme Court. I could be completely wrong about our Supreme Court. Keep posted.