Johnson v. Riverdale Anesthesia Associates

Carley, Justice,

dissenting.

In a one-sentence footnote, the majority overrules Prevost v. Taylor, 196 Ga. App. 368, 369 (4) (396 SE2d 17) (1990), which was not even cited by the Court of Appeals. In my opinion, Prevost was simply overlooked by the Court of Appeals and should not be overruled by this Court because the rationale of that decision is so persuasive:

It is true, as defendant argues, that the issue in a medical *244professional negligence action is whether the treatment met the standard of care of the profession generally and not what any one individual doctor believes is advisable. However, those cases cited by defendant involved instances where the only testimony presented to support plaintiffs claim is the individual view of one doctor and no testimony was presented as to the standard of care generally practiced by the profession. [Cits.] Here, plaintiff did not present the individual opinion of defendant’s expert for the purpose of establishing the acceptable standard of care but offered it to impeach the expert’s opinion that the surgery performed by defendant met the standard of care of the profession generally. “Evidence tendered for iiiipeachment purposes need not be of the kind or quality required for proving the facts.” [Cits.]

Prevost v. Taylor, supra at 369-370 (4).

“The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him.” OCGA § 24-9-64.

Over one hundred years ago, this Court held that it is the [trial] court’s duty to allow a searching and skillful test of the witness’ “intelligence, memory, accuracy and veracity,” [cit.], and that it is better for cross-examination to be “too free than too much restricted. . . .” [Cit.]

Eason v. State, 260 Ga. 445, 446 (396 SE2d 492) (1990), overruled on other grounds, State v. Lucious, 271 Ga. 361, 365 (4) (b) (518 SE2d 677) (1999). “ ‘(W)here the purpose is to impeach or discredit the witness, great latitude should be allowed by the [trial] court in cross-examination. . . [.]’ [Cit.]” Corley v. Harris, 171 Ga. App. 688, 689 (2) (320 SE2d 833) (1984). “Generally, ‘a party may show anything which in the slightest degree affects the credit of an opposing witness.’ [Cit.]” Pound v. Medney, 176 Ga. App. 756, 760 (2) (337 SE2d 772) (1985).

As a general rule, the liability test to be employed by the court and the jury is the “standard of care” that a reasonably prudent physician would exercise under the same or similar circumstances as the defendant. Therefore, the ultimate test is not whether the expert would perform a medical act and/or teach a medical act in the same way or a different way as a particular defendant. However, such a line of inquiry usually is admissible on the issue of credibility. If, for example, the plaintiffs expert testifies that a defendant *245deviated from a certain standard of care, said expert’s credibility certainly would be severely shaken if, in fact, it can be shown that this expert has performed a medical act in the same or similar manner as the defendant. If a defense expert has testified that a defendant’s medical act conformed with a certain acceptable standard of care, the credibility of said testimony certainly would be severely shaken, if said expert conceded on cross-examination that he personally does not perform and/or teach the medical act in the same manner. (Emphasis supplied.)
Decided May 13, 2002 Reconsideration denied June 7, 2002. Hill & Bleiberg, Gary Hill, for appellants. Owen Gleaton Egan Jones & Sweeney, H. Andrew Owen, Jr., Amy Jo Kolczak, Evans & Evans, Larry K. Evans, for appellees. Love Willingham Peters Gilleland, Monyak, Robert P. Monyak, Lucas W. Andrews, Doffermyre Shields Canfield Knowles, Kenneth S. Canfield, Cook, Noell, Tolley, Bates & Michael, J. Vincent Cook, Henry, Spiegel, Fried & Milling, Philip C. Henry, Middleton, Mathis *246Adams & Tate, Charles A. Mathis, Jr., Butler Wooten Overby Fryhofer Daughtery, Joel O. Wooten, Jr., amici curiae.

*2452 Pegalis & Wachsman, American Law of Medical Malpractice 2d § 14:7 (e), p. 492 (1993). The identical circumstances are present in this case. As demonstrated by an offer of proof, the defendants’ medical expert would have testified on cross-examination that he would have pre-oxygenated Mrs. Johnson if she had been his patient. Plaintiffs’ counsel also sought to ask Dr. Caplan how he teaches his medical students to treat patients in similar situations. Such testimony is particularly relevant to credibility here, because Dr. Caplan testified on direct examination that there was nothing that could have been done to make it safer for Mrs. Johnson to have the anesthesia.

‘A material abridgement or denial of the substantial right of cross-examination of opposing witnesses is material error and requires the grant of a new trial. (Cits.)’ ” Hyles v. Cockrill, 169 Ga. App. 132, 140 (312 SE2d 124) (1983) (on motion for rehearing), overruled on other grounds, Ketchup v. Howard, 247 Ga. App. 54, 61 (2) (543 SE2d 371) (2000). Because the trial court did not allow plaintiffs to conduct “a thorough and sifting cross-examination” of the defendants’ medical expert, I dissent to the affirmance of the Court of Appeals’ judgment.

I am authorized to state that Justice Benham and Justice Hun-stein join in this dissent.