The Court of Appeals of Georgia (“Georgia Appellate Court”) held in its decision filed on November 1, 2018 that the defendant urologist in a Georgia Medical Malpractice case was not entitled to summary judgment because of contradictory testimony by the plaintiff’s experts. The Georgia Appellate Court held that to the extent that the plaintiff’s expert’s testimony may be contradicted by the testimony of other medical experts, “that conflict is for the jury to resolve.”

The Underlying Facts

The defendant urologist performed a robotic-assisted laparoscopic prostatectomy (“RALP”) on the plaintiff that lasted approximately 9 hours and 21 minutes. The RALP procedure required the plaintiff to be positioned in the lithotomy in a steep Trendelenburg position, with his left and right arms tucked to his side (in the lithotomy position, a patient is placed on his or her back with his or her legs up in the air and spread away from the body and with the hips flexed; in a steep Trendelenburg position, the patient’s head is positioned below his pelvis at an angle greater than 30 degrees. Thus, a patient in a lithotomy in a steep Trendelenburg position is first placed in the lithotomy position and his or her body is then tilted, head first, 30 degrees or more down against the floor.).

At no time during the plaintiff’s surgery did the defendants reposition the plaintiff’s body nor did they discuss doing so. The plaintiff’s body remained in the same position throughout the entire procedure. The plaintiff complained of pain in both of his shoulders and arms when he was in the post-surgery recovery room. The plaintiff was diagnosed with compartment syndrome in his right arm and had surgery the next day to relieve the pressure that was causing the condition. Nonetheless, the plaintiff did not regain complete use of his right arm and hand.

The plaintiff alleged in his Georgia medical malpractice lawsuit that the defendant urologist committed medical malpractice by failing to position him properly at the outset of surgery and then failing to reposition him during the surgery. The plaintiff further alleged that as a result of this medical negligence, the plaintiff suffered injuries in both of his arms and Developed Compartment Syndrome in his right arm, which left him in significant pain and partially disabled.

One of the plaintiff’s experts testified in his deposition that when a patient is placed in the lithotomy in the steep Trendelenburg position (the “LST position”) for a lengthy surgery, the standard of care requires the physician to give the patient a “positional holiday” sometime between the four and five hour mark of the surgery, depending on how the surgery was progressing (during a positional holiday, the patient would be taken out of the steep Trendelenburg position, his feet would be removed from the stirrups, and he would be placed in a flat, supine position for some period of time to allow his body to regain equilibrium).

The plaintiff submitted an affidavit from another medical expert in which he stated, “While it is possible that [the plaintiff] developed compartment syndrome prior to the 4-hour mark, it is not probable because the body can typically withstand surgery in a lithotomy with steep Trendelenburg position without complications for that period of time and, had [the plaintiff] developed compartment syndrome earlier in the surgical procedure, his condition following surgery would have been far more advanced and, more likely than not, would have required rapid surgical intervention … [the plaintiff] would not have developed compartment syndrome if he had been taken out of the lithotomy with steep Trendelenburg position no later than the 6-hour mark of surgery.”

The trial court granted the defendant urologist’s motion for summary judgment, finding that the applicable standard of care required that the plaintiff be repositioned by the six-hour mark of surgery but the plaintiffs’ experts’ testimony failed to create a question of fact as to whether the defendant urologist’s negligence caused the plaintiff’s injuries, relying on one expert’s testimony that there was a high probability that the plaintiff developed compartment syndrome between four and five hours into surgery. The trial court rejected another expert’s testimony that even if the compartment syndrome had already begun, giving the plaintiff a positional holiday at the six-hour mark would have lessened the severity of his injuries, finding that it was not based on sufficient facts or data.

The plaintiff appealed.

Georgia Appellate Court Decision

The Georgia Appellate Court cited a Georgia Supreme Court decision that stated: “Because a party to litigation is without power to prevent his or her witnesses from contradicting themselves when testifying, the party should not be held responsible . . . when such contradictions inevitably arise in the testimony of expert witnesses. Furthermore, simply because an expert witness’s testimony is contradicted is no cause for disregarding it . . . [and] the fact that an expert witness’s testimony is contradictory has never rendered that testimony inadmissible. To the contrary, such contradictions go solely to the expert’s credibility, and are to be assessed by the jury in weighing the expert’s testimony.”

The Georgia Appellate Court therefore held that the trial court erred in concluding that the standard of care required only that the defendant urologist give the plaintiff a positional holiday no later than the sixth hour of surgery, noting the testimony from the plaintiff’s expert that the standard of care required the defendant urologist begin preparing for a positional holiday by the fourth hour of surgery and give one no later than the fifth hour.

The Georgia Appellate Court further held that the trial court erred in finding that the opinion testimony of one of the plaintiff’s experts was not based on scientific facts or data: although OCGA § 24-7-702 requires that an expert opinion be based on sufficient facts and data, such facts and data may include the medical records relevant to the current case, the expert physician’s own training and experience, and the use of differential diagnosis, and an expert need not have clinical studies to support his opinion, and an opinion will be admissible even if the expert admits there are some unknowns with respect to the plaintiff’s injury.

In the case the Georgia Appellate Court was deciding, the record showed that the plaintiff’s expert’s opinion was based on his review of the plaintiff’s medical records, his familiarity with operating on patients in the LST position and the risks associated therewith, his familiarity with compartment syndrome and its causes and treatments, and his 32 years of experience as a vascular surgeon. “Under relevant law, therefore, [the expert’s] opinion was based on sufficient facts and data. Moreover, any alleged deficiencies in the bases for his opinion would go to both the credibility of [the expert’s] testimony and any weight a jury might wish to assign to it.”

Source Swint v. Alphonse, Jr., A18A0869.

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