New Georgia Nursing Malpractice Expert Opinion

A Georgia appeals court on Wednesday affirmed a trial court’s disqualification of an expert witness in a suit accusing a hospital’s nurses of failing to prevent a patient’s internal bleeding, which proved fatal, saying the plaintiffs’ expert, a physician, was not qualified to opine on the standard of care for nurses.

Facts of Smaha v. Medical Center of Central Georgia

A woman underwent surgery at the Medical Center of Central Georgia in Macon to remove her left kidney. Several days post-surgery, while recovering in the hospital, she suffered from internal bleeding and died.

Smaha’s three surviving children hired a lawyer and brought a medical malpractice lawsuit in Bibb County against the hospital, accusing the nurses who treated their mother of malpractice. Their malpractice suit alleged that the nurses failed to inform her surgeon about the signs and symptoms of her internal bleeding.

Their malpractice lawyer hired a doctor who expressed his opinion that the nurses had violated the accepted standard of care under similar circumstances by failing to detect and notify about the signs and symptoms of Smaha’s post-surgical bleeding.

The medical center moved to disqualify the expert on the grounds of him being unqualified to give a nursing standard of care opinions as he had not supervised, taught or instructed nurses as required to provide expert testimony under Georgia law expressed in OCGA §24-7-702(c)(2)(D). The medical center also moved for summary judgment because the plaintiffs did not have another expert.


The trial court approved the motion to disqualify the doctor and granted summary judgment in favor of the medical center because the plaintiffs could not prove that the nurses had breached the relevant standard of care without an expert.

Appellate Opinion

On appeal, the plaintiffs argue that the expert was qualified to testify as an expert. The three-judge panel of the Georgia Court of Appeals disagreed. The court found that Georgia’s statutory requirements for medical experts allow only experts for non-physician health care providers if he or she has “supervised, taught, or instructed such non-physician health care providers” for at least three of the past five years before the date of alleged negligence.

The expert admitted that during the period in question, he neither taught at a nursing school nor supervised nurses on a day-to-day basis. So the court found Georgia malpractice law compelled them to find that he was not qualified to testify as a nursing expert under the clear language in the statute.

Doctors Testifying Against Nurses

Doctors are often asked to evaluate a nurse or nurse practitioner’s actions to determine if they align with the standard of care. The question of whether a doctor can provide an opinion in such situations varies across states and depends on the specific case context.

There are two extremes on this issue. One camp believes that a physician cannot provide competent and reliable expert opinions on nursing standards unless a physician has practiced as a nurse. The dissent in this Georgia case from 30 years ago presses this idea. The other extreme is doctors are upstream of the food chain of nurses and can testify to exactly what a nurse should do.

The middle ground allows physicians to testify on the standard of care typically requires the doctor to prove that they possess the skill, knowledge, experience, and familiarity with the nursing standard of care.

Take Home Message from Smaha v. Medical Center of Central Georgia

This doctor was likely more than qualified to speak to what a nurse should do. But the way the Georgia law is written, it is hard for the court to rule other than it did, particularly in light of the standard, which is whether the trial court abused its discretion in ruling as it did. So the court didn’t even have to be right, just reasonable.

Medical malpractice lawyers know that marshaling the evidence in a medical malpractice case can be expensive. So the temptation is to try to overextend your expert to testify beyond where they can and should testify. Maybe the doctor is a better, stronger expert to speak to the issue. Fine. Use the doctor. But naming a nurse as a backup expert witness in a case involving the standard of care in nursing can provide essential protection against exactly what happened here where the court concludes that a physician is not qualified to provide such opinions.

In this case, the plaintiff’s malpractice lawyer pushed the expert’s role as the chair of a medical center’s quality control council, an administrative position that involved evaluating certain nursing metrics and recommending changes to comply with care standards. The attorneys also highlighted several lectures he had given to nurses.

Should this be enough?  I think so.  But I cannot tell you how many times in my career a judge has done the opposite of what I thought the judge would or should do.  So you must protect against that risk by naming an expert you are sure can make it past the judge.  Nurses are generally cheaper to use as experts and often make great witnesses. Juries often appreciate that nurses have a hands-on perspective that can provide invaluable insights into the realities of care delivery that doctors often miss that are critical in a given case.

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