Sinkfield v. Oh

Birdsong, Presiding Judge,

dissenting.

As I cannot agree Sinkfield established through competent evidence that any negligence of the appellees caused her miscarriage, I must respectfully dissent.

Pretermitting whether appellees were negligent, even giving Sinkfield the benefit of all reasonable doubt, and construing the evidence and all inferences and conclusions therefrom in her favor

(Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843)), her evidence was not sufficient to withstand the grant of summary judgment. Although Dr. Thornton’s testimony and affidavit expressed disagreement with the treatment rendered by appellees, she never stated that the appellees’ actions caused the miscarriage. This is significant because Dr. Thornton was the physician who treated Sinkfield when she had this miscarriage. As a consequence, even though she examined both Sinkfield and the aborted fetus at that time, she could not attribute the cause of the miscarriage to any negligence of the appellees.

When asked specifically, “Could you believe that any different management of Ms. Sinkfield by Dr. Oh and Dr. Farmer up through and including January 7th of 1993, to a reasonable degree of certainty, could have prevented the miscarriage January 19th,” Dr. Thornton responded, “I cannot say with a hundred percent degree of accuracy that anything — that anything I’ve mentioned that could have been done would have been — would have prevented her miscarriage, no.” She was then asked, “The question is: With reasonable degree of medical certainty, understanding medicine is generally not a hundred percent situation?” Dr. Thornton responded, “No.”

Thus, the sole issue in this appeal is whether the trial court *892erred by finding that Dr. Proctor “is not a medical doctor and the court finds that his affidavit, which solely addresses the issue of Motrin prescribed for and used by the plaintiff, is not competent evidence which can be relied upon by the plaintiff to establish proximate cause.” “Whether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court, and such discretion will not be disturbed unless manifestly abused.” (Punctuation omitted.) McDonald v. Glynn-Brunswick Mem. Hosp., 204 Ga. App. 7 (418 SE2d 393). As the record does not support a conclusion that the trial court abused its discretion, I find no basis to reverse its decision.

“In this state in cases involving misfeasance by a professional, it has been the rule that the causal connection between tort and injury must result from the negligence of the professional and as the procedure is of a professional nature, the characterization of the professional conduct must be by one possessing sufficient expertise in that discipline.” Turner v. Malone, 176 Ga. App. 132, 134 (4) (335 SE2d 404). Consequently, the affidavit of Dr. Proctor, a toxicologist and pharmacologist, does not save Sinkfield’s case. “The diagnosis and potential continuance of a disease are medical questions to be established by physicians as expert witnesses and not by lay persons. [Cits.]” Hunnicutt v. Hunnicutt, 237 Ga. 497 (228 SE2d 881). “The requirement that expert testimony be adduced in a medical malpractice case is premised upon the existence in such a case of ‘medical questions’ which control its resolution. ‘Medical questions’ may be defined as those concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.” (Citation and punctuation omitted.) Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (345 SE2d 904). Accord Eberhart v. Morris Brown College, 181 Ga. App. 516, 518 (352 SE2d 832).

Dr. Proctor did not claim to be a physician or to have been otherwise trained in ascertaining the cause of miscarriages. Instead, he claimed only to have “expert knowledge of the effects that dosages of Motrin-800 (ibuprofen, 800 milligrams) have on pregnant women and their fetuses at various stages of pregnancy.” Dr. Proctor, however, did not state how he gained this expert knowledge or on what it is based. This is not sufficient. “Conclusory statements as to a witness’ ‘knowledge’ or ‘familiarity’ in a particular art, skill or science are not probative in determining the witness’ qualifications as an expert witness. Such determination must be based on evidence of the witness’ education, training or experience in the pertinent field of study.” Goodman v. Lipman, 197 Ga. App. 631, 632-633 (399 SE2d 255). Here, Dr. Proctor claimed to have expert knowledge of this subject, *893but did not say how it was obtained, and the majority and concurring opinion are left to conjure up how that expertise might have been gained. Of course, the majority and the special concurrence might be correct, but then they just as likely could be wrong about what expertise Dr. Proctor might possess.

It is the responsibility of the party proffering the expert witness to establish that the witness is qualified to give his or her expert opinion. In this instance the majority and the special concurrence go from speculation about what Dr. Proctor’s educational course of study might have been, to supposition about his qualifications, and finally to the assumption that his field of training and practice overlap with that of medical, health care providers. This is nice theory, but it is not a basis for concluding that this witness is qualified to give his expert opinion on the medical question of what caused this miscarriage.

Dr. Proctor merely states that based on his reviews of the medical records and relying upon his expertise as a pharmacologist and toxicologist, it was his professional opinion that the Motrin 800 prescribed by appellee “Farmer on December 24, 1992 was the predominant major contributing factor to the demise of the fetus” of Sinkfield and that this demise was “precipitated by Motrin-800 induced Oligohydramnios (deficit in amniotic fluid).”

Dr. Proctor, however, is not qualified and authorized to give an expert opinion on the cause of miscarriages. This is well demonstrated by Judge Eldridge’s special concurrence. In all of the definitions set forth therein, not one states that a pharmacologist or toxicologist is in any way qualified to diagnose the cause of medical conditions either from the review of medical records or otherwise.

This is especially true when those medical records show the following: December 2, 1992, Sinkfield complained of awaking in a puddle of fluid; December 7, 1992, vaginal bleeding; December 15, 1992, pinkish discharge; December 19, 1992, continued vaginal bleeding; December 23, still bleeding vaginally with abdominal pains and pinkish discharge; December 24,1992, abdominal pain, leaking fluid, vaginal bleeding, Motrin prescribed, threatened abortion; December 28, 1992, abdominal pains; January 12, 1993, increased risk for open neural tube defect on elevated MSAFP; January 19, 1993, Sinkfield came to hospital with fetus’ buttocks presented, no amniotic fluid present. The reason stated for admission was “spontaneous abortion probable incompetent cervix.” Sinkfield’s medical records also showed that she had a history of vaginal bleeding, preterm rupture of membrane, preterm uterine contractions, history of multiple (recurrent) spontaneous abortions, spontaneous vaginal delivery, and that she had “three previous spontaneous abortions.” Moreover, Dr. Thornton’s assessment contained in Sinkfield’s medical record *894shows, “intrauterine pregnancy at 22 weeks with a spontaneous abortion, with retained placenta, history of recurrent spontaneous abortions, and an elevated alpha feto protein.”

This is not a case in which a normal, healthy expectant mother is suddenly prescribed Motrin 800 and then a miscarriage results. Although I do not believe that Dr. Proctor would be qualified to diagnose the cause of the miscarriage in any case, he certainly is not qualified to diagnose the cause of the miscarriage in this case considering Sinkfield’s medical history.

“While expert witnesses may give their opinions as to facts, principles, and rules involved in the science in which they are learned, they are not, as to questions lying out of the domain of the science, art, or trade in which they are experts, exempt from the restriction of the rule which requires witnesses to state facts and not opinions.” Chandler Exterminators v. Morris, 262 Ga. 257, 258 (3) (b) (416 SE2d 277). Even though the General Assembly subsequently authorized psychologists to testify about the cause of brain injuries (see OCGA § 43-39-1 (3)), it did not legislatively overrule the principles on which Morris was based. Compare Johnson v. Knebel, 267 Ga. 853, 855, n. 6 (485 SE2d 451), citing Morris favorably.

“The opinions of expert witnesses as to questions of science, skill, trade, or other matters beyond the ken of the average layperson are always admissible, and such opinions may be based upon facts proved by other witnesses. [OCGA § 24-9-67.] However, before being qualified to render an opinion, the expert witness must be qualified as to the relevant area of expertise: ‘While expert witnesses may give their opinions as to facts, principles and rules involved in the science in which they are learned, they are not, as to questions lying outside the domain of the science, art, or trade in which they are experts, exempt from the restriction of the rule which requires witnesses to state facts and not opinions.’ [Morris, 262 Ga. at 258.]” Johnson v. Knebel, supra at 857-858. Here, Dr. Proctor purports to give his opinion on the cause of a miscarriage when nothing in his affidavit shows that he is qualified by training or experience to do so.

Thus, as Sinkfield did not show that Dr. Proctor had any expertise in fields other than pharmacology and toxicology, she did not establish that he was qualified to give an expert opinion on the cause of this miscarriage. “Expert knowledge is required to render an expert opinion.” Johnson v. Knebel, at 859 (3). Further, none of the cases cited by the majority authorizes pharmacologists or toxicologists to testify outside their fields of expertise.

In this case, Dr. Proctor’s affidavit is not limited to the scientific effect of Motrin or to connecting the Motrin to a cause of the miscarriage identified by a competent expert. Instead, his affidavit was offered to establish the cause of the miscarriage to the exclusion of all *895other possible medical conditions, congenital defects, complications, diseases, or injuries — even those identified in Dr. Thornton’s affidavit. Although Dr. Proctor may be qualified to testify about the effects of Motrin and other drugs, he is not qualified to give his opinion on the medical causation in this manner. This is especially true in this case in which no competent medical testimony, and especially that of the treating physician, established the cause of the miscarriage, and Sinkfield’s medical history shows that she had miscarriages on three earlier occasions and this time was threatening a miscarriage before the Motrin was prescribed.

Decided December 5, 1997 Reconsideration denied December 18, 1997. Kenneth Dious & Associates, I. Kenneth Dious, The Kendall Law *896Firm, Lisa R. Roberts, for appellant.

*895The majority’s comment regarding the purported concession in the appellees’ brief, distilled to its essence, says the appellees concede that if Dr. Proctor was not incompetent to render an opinion on causation, he could give competent testimony. Two problems exist with this statement: One, appellees made no such statement and, two, even if such statements were made, it would not be a concession that Dr. Proctor was competent to testify about the causation of the miscarriage, which is the issue here. It is because he was not competent to testify about this subject that his opinion has no probative value. OCGA § 43-34-20 (3) authorizes those practicing medicine to be engaged in the diagnosis of disease, defects, or injuries. No comparable statute authorizes pharmacologists or toxicologists to do so.

With all of his knowledge of drugs and medications, nothing in Dr. Proctor’s affidavit shows that he is even authorized to write a prescription for the dispensation of Motrin 800 in this state. See OCGA § 26-4-2 (20). Further, based upon his affidavit, he is not qualified to state the standard of care in this case (see Chandler v. Koenig, 203 Ga. App. 684, 686-687 (417 SE2d 715)), and he is not qualified to sign a death certificate stating a cause of death.

Although the news that, after suffering three earlier miscarriages, Sinkfield with a different course of treatment successfully delivered a healthy baby is most welcome, that news is not relevant to whether Sinkfield established Dr. Proctor was competent to give an expert opinion in this case.

As the trial court did not abuse its discretion by rejecting Dr. Proctor’s opinion, I would affirm the grant of summary judgment.

I am authorized to state that Chief Judge Andrews and Judge Blackburn join in this dissent.

*896Alston & Bird, Susan B. Devitt, Debra R. Sydnor, for appellees.