Legislatively, these are hard-fought battles, and even when won, sometimes the new laws are overturned on appeal to state supreme courts by a tenacious plaintiff’s bar. Forces undermining these new standards are even closer than we think. Our colleagues providing expert witness testimony for plaintiffs may knowingly or unknowingly undermine the use of increased negligence standards and the burden of proof. They are the expert witnesses who testify falsely, misleadingly, or in a biased way, propagating and fueling our litigious medical-legal environment. We have an obligation to identify those who are violating the ethical obligations of the expert witness and to ensure unbiased testimony in our courts for a more level playing field, guaranteeing the most appropriate legal outcomes.
Explore This IssueACEP Now: Vol 33 – No 09 – September 2014
Case in Point
As an illustrative example, in 2010, Georgia passed a major tort reform measure. This measure requires a plaintiff to present “clear and convincing evidence” to prove gross negligence has occurred. The legislative initiative is applied to emergency medicine cases.
“[G]ross negligence is the absence of even slight diligence, and slight diligence is defined…as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of diligence that even careless men are accustomed to exercise.” Johnson v. Omondi GA Sup Ct. decided Nov. 14, 2013, p. 7. O.C.G.A. § 51-1-4
Even the Supreme Court of Georgia recognizes that this is a confusing definition, particularly as applied to medical malpractice cases. However, many other courts have simply stated that gross negligence is a significant deviation from negligence. While it may yet be ill-defined by case law, it is meant to be a very high hurdle to overcome. This legislative change is a very positive movement in tort reform and has the ability to prompt meaningful tort reform in many other states. However, a single expert witness who convinces a jury that a case constitutes gross negligence, even if the majority of the medical community would disagree, can nullify the risk-management benefits and legislative momentum gained. When we hear of or see such testimony, be it from the defense or plaintiff, we have an obligation to scrutinize it and act accordingly.
The above-cited case included testimony for the plaintiff from emergency physicians Peter Rosen, MD, and Steven Gabaeff, MD. Remember, if the standard of negligence in Georgia is one of gross negligence, then the testimony provided is to support the allegation that the defendant physician was grossly negligent. An argument could be made that if gross negligence is not clear, then this matter is not appropriate for advancement in the legal system, and summary judgment may be awarded. However, when it is determined that sufficient evidence exists to support the gross negligence allegation, then this may become a matter of fact and not of law. A jury deliberates matters of fact, and matters of law are decided by the court (ie, judge). In order to find sufficient evidence to pursue the question of gross negligence, qualified expert witnesses must have provided testimony to that exact fact. So the plaintiff’s experts in this case were willing to testify that the physician was grossly negligent. Although admittedly an oversimplification of the facts, the patient presented with an unusual left-sided chest pain. A history was obtained, and he was examined. Several tests (eg, electrocardiogram, chest radiograph, etc.) were ordered, and the patient improved with symptomatic treatment and was discharged. He died two weeks later from a pulmonary embolism. An ideal outcome? Of course not. A complicated case? Probably. Grossly negligent (reckless care)? Not even close.