S08G1833. CONDRA et al. v. ATLANTA ORTHOPAEDIC
We granted certiorari to the Court of Appeals in this medical malpractice
action to consider (1) whether plaintiffs were properly prohibited from inquiring
at trial into the personal practices of defendants’ expert witnesses with respect
to the medical treatment at issue in the case; and (2) whether the so-called
“hindsight” jury instruction was appropriately given under the circumstances
presented. The Court of Appeals answered both questions in the affirmative.
Condra v. Atlanta Orthopaedic Group, P.C., 292 Ga. App. 276 (664 SE2d 281)
(2008). We now reverse on both issues.
In May 1998, Daphyne Condra sought treatment for back, neck, and arm
pain from orthopedist James Chappuis, M.D., who prescribed a 30-day regimen
of the anti-convulsive drug Tegretol, followed by another 30-day regimen when
her condition had not improved. Shortly after Condra began her second
prescription, she began experiencing leg cramping and shortness of breath,
leading ultimately to her hospitalization, where she was diagnosed with aplastic
anemia, a rare and serious bone marrow disease. Condra and her husband sued
Dr. Chappuis and his orthopedic group for medical malpractice, asserting that
Tegretol had been an inappropriate drug choice for Condra and that Dr.
Chappuis had been negligent in failing to conduct blood count monitoring
during Condra’s Tegretol therapy to detect any potential adverse reactions.
At trial, Condra’s experts and treating hematologists opined that the
Tegretol had caused Condra’s aplastic anemia and that development of the
disease could have been avoided had Dr. Chappuis conducted blood count
monitoring during Condra’s treatment. Specifically, they testified that
conducting an initial “baseline” blood count prior to beginning the medication,
followed by subsequent blood tests at regular intervals thereafter, may have
alerted her care providers to a drop in white blood cells and in turn led to a
discontinuation of the Tegretol and reversal of the development of the aplastic
anemia. Condra’s expert neurosurgeon further testified that the failure to
conduct blood conduct monitoring was a breach of the standard of care.
Defense experts Richard Franco, M.D. and Peter Staats, M.D.
acknowledged at trial that much of the medical literature recommends blood
count monitoring during Tegretol therapy. They testified further, however, that
such monitoring was, though a “reasonable” course of action, not “mandatory
or essential”; that failure to conduct such monitoring did not constitute a breach
of the standard of care; and that such monitoring, even if it had been conducted,
would have been unlikely to detect development of the aplastic anemia at a point
at which its development could have been arrested. During pretrial discovery,
however, Dr. Franco had deposed that it was his usual practice to conduct blood
count monitoring when he prescribed Tegretol.1 Before trial, the defense moved
in limine to prevent plaintiffs from inquiring at trial into these experts’ personal
practices, and the trial court granted the motion.
Also at trial, the court, over plaintiffs’ objection, gave the so-called
I charge you that in the medical malpractice action the defendantcannot be found negligent on the basis of an assessment of apatient’s condition that only later in hindsight proves to be incorrectas long as the initial assessment was made in compliance with
1Though the Condras assert that Dr. Staats likewise testified at his
deposition to his usual practice of conducting blood count monitoring whenprescribing Tegretol, this assertion is unsupported given the omission of Dr.
Staats’ deposition transcript from the record.
reasonable standards of care. In other words, the concept ofnegligence does not include hindsight. Negligence consists of notforeseeing and guarding against that which is probable and likely tohappen, not against that which is only remotely and slightlypossible.
See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (5th ed.), § 62.311.
Despite plaintiffs’ objections that the charge was inapplicable to their case and
that the last sentence thereof is an incorrect statement of the law, the trial court
gave this instruction both during the initial jury change and during a recharge
the following day. The jury ultimately returned a defense verdict, and, on
appeal, the Court of Appeals affirmed. Condra, supra, 292 Ga. App. at 281.
1. Regarding the personal practices testimony of defendants’ experts, the
Court of Appeals upheld the trial court’s decision to exclude such testimony by
relying on the controlling authority of Johnson v. Riverdale Anesthesia Assocs.,
275 Ga. 240 (563 SE2d 431) (2002). In Johnson, a majority of this Court held
that testimony regarding a medical expert’s personal practices was inadmissible
both as substantive evidence regarding the applicable standard of care and as
impeachment evidence. Id. at (1), (2). The Court reasoned that, because the
applicable standard of care in medical malpractice actions refers to those
practices employed by the medical profession generally rather than those
employed by any individual provider, evidence as to an expert’s personal
practices is irrelevant in establishing the standard of care. Id. at (1). Because
a witness may not be impeached with irrelevant facts or evidence, the Court held
further that such evidence was not admissible for purposes of impeachment. Id.
Having considered the matter anew in light of recent statutory
developments and the practice of other jurisdictions, we have determined that
Johnson is no longer viable. Accordingly, we now overrule Johnson and hold
that evidence regarding an expert witness’ personal practices, unless subject to
exclusion on other evidentiary grounds, is admissible both as substantive
evidence and to impeach the expert’s opinion regarding the applicable standard
Our decision in this regard is predicated primarily on the fact that,
subsequent to the Johnson decision, our Legislature enacted as part of its Tort
Reform Act, Ga. L. 2005, p. 1, § 7, a new statute governing admissibility of
expert testimony in civil actions. OCGA § 24-9-67.1. This statute places
particular emphasis on a proffered medical expert’s professional experience and
practice in assessing his or her qualification to serve as an expert witness:
in professional malpractice actions, the opinions of an expert, whois otherwise qualified as to the acceptable standard of conduct of theprofessional whose conduct is at issue, shall be admissible only if,at the time the act or omission is alleged to have occurred, suchexpert: . . . had actual professional knowledge and experience in thearea of practice or specialty in which the opinion is to be given asthe result of having been regularly engaged in: . . . [t]he activepractice of such area of specialty of his or her profession for at leastthree of the last five years, with sufficient frequency to establish anappropriate level of knowledge, as determined by the judge, inperforming the procedure, diagnosing the condition, or renderingthe treatment which is alleged to have been performed or renderednegligently . . . .
(Emphasis added.) OCGA § 24-9-67.1 (c) (2) (A). Thus, there can be no
dispute as to the relevance, post-Tort Reform Act, of an expert’s personal
experience and practice to the threshold inquiry into the expert’s qualifications.
Given the prominence of the expert’s personal practice in this threshold
inquiry, it would defy logic to find such experience categorically irrelevant in
assessing the credibility of the expert’s testimony. “[T]he jury is entitled to
fully evaluate the credibility of the testifying expert, and the fact that an expert
testifies that the standard of care does not require what that expert personally
does in a similar situation may be a critical piece of information for the jury’s
consideration.” Smethers v. Campion, 108 P3d 946, 956 (Ariz. Ct. App. 2005).
The relevance and importance of a medical expert's personal choice
of a course of treatment is highly probative of the credibility of theexpert's opinion concerning the standard of care. A jury is free todisregard the expert's opinion entirely and find that the standard ofcare is reflected by the course of treatment the expert would havechosen, a highly probable scenario if other evidence admitted in thecase supports this proposition. . . . Permitting the expert to becross-examined on a personal choice regarding course of treatmentand why it would be different than the defendant-doctor allows afull examination of the expert's opinion on standard of care and thebasis therefor.
(Footnotes omitted.) Overby et al., Trial Practice and Procedure, 51 Mercer L.
Rev. 487, 501-502 (Fall 1999). Accord Bergman v. Kelsey, 873 NE2d 486, 507
(Ill. App. Ct. 2007) (“a medical expert’s personal practices may well be relevant
to that expert’s credibility, particularly when those practices do not entirely
conform to the expert’s opinion as to the standard of care”).
We find implicit support for this conclusion in the Legislature’s
exhortation in the expert testimony statute that
the courts of this state . . . draw from the opinions of the UnitedStates Supreme Court in Daubert v. Merrill Dow Pharmaceuticals,Inc., 509 U.S. 579 [(113 SC 2786, 125 LE2d 469)] (1993), [and itsprogeny].
OCGA § 24-9-67.1 (f). See also Mason v. Home Depot USA, Inc., 283 Ga. 271
(3) (658 SE2d 603) (2008) (affirming Legislature’s ability to suggest that courts
consider foreign authority). Under the Daubert line of cases, the trial judge acts
as the gatekeeper in determining the admissibility of expert opinion, and the jury
is charged with the responsibility of evaluating the credibility of the expert’s
testimony. Daubert, 509 U.S. at (II) (B), (III). Such evaluation is made
possible through, among other things, “[v]igorous cross-examination.” Id. at
The right of . . . cross examination . . . . is a substantial right, thepreservation of which is essential to the proper administration ofjustice, and extends to all matters within the knowledge of thewitness, the disclosure of which is material to the controversy.
News Publ’g Co. v. Butler, 95 Ga. 559, 559 (1) (22 SE 282) (1895). Neither the
jury’s ability to perform its role as arbiter of the expert’s credibility, nor the
party’s right to a “thorough and sifting cross-examination,” OCGA § 24-9-64,
is well served by a prohibition on cross-examination of the opposing party’s
expert regarding personal practices that differ from the standard of care as
Also important in our decision to shift course on this issue is the growing
body of case law from other jurisdictions supportive of the admissibility of
expert personal practices testimony, at least for some purposes. See, e.g., Swink
v. Weintraub, 672 SE2d 53 (III) (N.C. Ct. App. 2009) (affirming admission of
personal practices testimony); Bergman, supra, 873 NE2d at 507 (II) (B) (2) (d)
(affirming admission of personal practices testimony for impeachment
purposes); Smethers, supra, 108 P3d at 956 (reversing exclusion of personal
practices testimony); Gallina v. Watson, 821 NE2d 326 (II) (A) (Ill. App. Ct.
2004) (reversing exclusion of personal practices testimony); Wallbank v.
Rothenberg, 74 P3d 413 (I) (Colo. Ct. App. 2003) (affirming admission of
personal practices testimony); See also Hartel v. Pruett, 998 So2d 979 (I) (E)
(Miss. 2008) (no abuse of discretion in permitting expert personal practices
testimony); Walker v. Sharma, 655 SE2d 775, 782-783 (W. Va. 2007) (where
physician qualified as expert, personal practices as to procedures on which
expert opinion offered relevant for purposes of assessing credibility). Though
not all jurisdictions have followed this trend, see, e.g., Vititoe v. Lester E. Cox
Med. Ctrs., 27 SW3d 812 (III) (Mo. Ct. App. 2000) (affirming exclusion of
personal practices testimony); Carbonnell v. Bluhm, 318 NW2d 659 (III) (Mich.
Ct. App. 1982) (same), admissibility of personal practices testimony appears
Finally, though defendants assert that allowing expert personal practices
testimony is likely to confuse the jury by conflating the standard of care with an
expert’s personal protocols, we find that such potential for prejudice does not
as a general rule outweigh the usefulness of such information in evaluating an
expert’s credibility. Moreover, any potential confusion created by the admission
of such evidence may be remedied through the use of careful jury instructions.
Such instructions should, for example, clearly define the legal meaning of
standard of care; enunciate the principle that a mere difference in views between
physicians does not by itself prove malpractice, see, e.g., Brannen v. Prince, 204
Ga. App. 866 (2) (421 SE2d 76) (1992), overruled on other grounds by Gillis
v. City of Waycross, 247 Ga. App. 119 (543 SE2d 423) (2000); and clarify
concepts such as burden of proof and credibility of witnesses. In addition, the
party whose expert has been cross-examined will have the ability to elicit
explanations for why the expert’s practices differ from what that expert attested
to as the standard of care. Armed with complete information regarding the
expert’s opinion and personal practices, jurors can make intelligent judgments
about the reliability of the expert’s testimony.
In this case, the jury was precluded from achieving such an informed
judgment. Lacking the benefit of knowledge that defendants’ own experts
routinely practiced differently from the standard of care to which they had
testified, the jury was compelled to make a determination as to the standard of
care based on incomplete and potentially misleading information. Under these
circumstances, we cannot find the erroneous exclusion of personal practices
testimony to have been harmless. The curtailment of plaintiffs’ substantial right
to a thorough and sifting cross-examination of the defense’s experts clearly
warrants reversal. See Lightfoot v. Applewhite, 212 Ga. 136 (3) (91 SE2d 37)
2. On retrial, the use of the hindsight instruction will be limited as set
forth in our opinion, issued contemporaneously herewith, in Smith v. Finch
Ga. (Case No. S08G1845, decided June 29, 2009).
Judgment reversed. All the Justices concur.
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