Dempsey v. Gwinnett Hospital System, Inc.

McMlLLIAN, Judge,

dissenting.

Because I believe that the trial court correctly found that Man-nering was not a member of the same profession as the hospital’s *476RNs, I must respectfully dissent. OCGA § 24-7-702 (c) (2) specifically governs expert testimony in medical malpractice cases, and subsection (c) (2) (C) (i) requires that a proffered expert be “a member of the same profession” as the defendant whose conduct is at issue. Subsection (c) (2) (D) goes on to provide the sole exception to that requirement. An otherwise qualifying physician may testify as to the standard of care provided by “nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff” that he or she has “supervised, taught, or instructed.” OCGA § 24-7-702 (c) (2) (D). There is no other statutory provision permitting a member of any of the enumerated medical professions to testify as to the standard of care of any other separately enumerated profession, and significantly, nurses and nurse midwives are separately enumerated as medical professionals against whom a physician may testify.

Moreover, the fact that nurses and nurse midwives are not listed separately within the more general OCGA § 9-11-9.1 (g) does not persuade me that the legislature intended for them to be treated the same when deciding whether they are of the “same profession” as that term is used in OCGA § 24-7-702. Rather, OCGA § 9-11-9.1 (g) is prefaced by the clause “[t]he professions to which this Code section [requiring an affidavit to accompany a charge of professional malpractice] shall apply are ...” without defining any of the professions listed therein. Furthermore, OCGA § 24-7-702 (e) modifies OCGA § 9-11-9.1 and specifically requires that all affiants “shall meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1.” As our Supreme Court explained, the “same profession” requirement of OCGA § 24-7-702 (c) (2) (C) (i), which was not previously recognized in Georgia, “was part of the legislature’s effort to impose more exacting requirements on expert witnesses in medical malpractice cases.” Hankla v. Postell, 293 Ga. 692, 696 (749 SE2d 726) (2013).

Thus, I am convinced that the more specific requirements of the Daubert statute control whether a nurse midwife is qualified to testify as to the standard of care of an RN.9 See Hubert Properties, LLP v. Cobb County, 318 Ga. App. 321, 323 (1) (733 SE2d 373) (2012) (“It is well settled that a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them.”) (citation and punctuation *477omitted). Accordingly, I would affirm the trial court’s grant of the hospital’s motion for new trial.

Decided November 21, 2014 Reconsideration denied December 16, 2014 Summerville Moore, Darren J. Summerville, S. Leighton Moore III, Nelson O. Tyrone, for appellants. Hall Booth Smith, John E. Hall, Jr., W. Scott Henwood, Mark W. Wortham, Steven P. Bristol, Heather L. Saum, for appellee.

I am authorized to state that Presiding Judge Andrews and Judge Ray join in this dissent.

I also have concerns as to whether Mannering was qualified under OCGA § 24-7-702 (c) (2) (A) in that she had not been engaged in the active practice as an RN since at least 1996.