Who Can Testify?  Expert Witnesses in Professional Malpractice Cases

In a professional malpractice case a jury is asked to determine whether a professional caused the plaintiff’s injury by deviating from the standard of care.  These cases present complex issues that are often difficult for jurors to understand, and it is unlikely that any particular juror will be trained in the same field as the defendant professional.  Because of this, the law allows expert witnesses to testify and assist the jury in understanding these issues.

Expert Witness Requirements

Under Georgia law, there are several requirements that an expert witness must meet before he or she may testify in a professional malpractice case.  First, the witness must possess sufficient “knowledge, skill, experience, training, or education” to be qualified as an expert in the area in which the witness is testifying.  O.C.G.A. § 24-7-702(b).

Second, the witness must be licensed in one of the states of the United States at the time the defendant’s negligent conduct occurred.  Wilson v. McNeely, 307 Ga. App. 876 (2011); O.C.G.A. § 24-7-702(c)(1).

Third, the witness must be “practicing or teaching in one of the states of the United States at the time” the defendant’s negligent conduct occurred.  Id.  Maintaining a license, without more, is not enough to satisfy the practicing or teaching requirement.  See Id.

Special Requirements for Medical Malpractice Cases

An expert witness in a medical malpractice case must meet additional requirements, along with the three above, before he or she will be allowed to testify.  First, the expert must have “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given. . .”  O.C.G.A. § 24-7-702(c)(2).  The “actual professional knowledge and experience” must come about by actively practicing or teaching for three of the last five years, “with sufficient frequency to establish the appropriate level of knowledge. . .”  Id.

Second, the expert witness must be a member of the same profession as the defendant.  O.C.G.A. § 24-7-702(c)(2)(C)(i).  The expert, however, is not required to have the same specialty as the defendant.  Cotten v. Phillips, 280 Ga. App. 280 (2006).

The Importance of Tendering a Qualified Expert

In all professional malpractice cases the plaintiff has the burden of proving that the defendant professional deviated from the standard of care.  If the plaintiff does not produce expert evidence of what the applicable standard of care is, he or she cannot show that the defendant deviated from it.  When this happens, the defendant is entitled to summary judgment.  Oehlerich v. Llewellyn, 285 Ga. App. 738 (2007).

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