Deep Vein Thrombosis Expert’s Eligibility Questioned Under Georgia’s Malpractice Action Statute

    Court: Court of Appeals of Georgia
    Jurisdiction: Federal
    Case Name: Toombs v. Acute Care Consultants, Inc.
    Citation: 2014 Ga. App. LEXIS 183

    In this medical malpractice lawsuit, the plaintiff asserts the treating physician acted negligently in treating her husband. The physician performed a skin graft following a chemical burn. The husband later died from a deep vein thrombosis incident. The defendants successfully argue under a state statute for malpractice experts that the plaintiff’s DVT expert is not qualified as this was a burn injury case. However, on appeal, the court overturns the decision. The court explains that since the plaintiff’s malpractice claims center on the management of DVT, the expert is qualified to opine.


    The plaintiff’s husband, a 40-year-old morbidly obese chemical technician, suffered a chemical burn at work. The burn required a skin graft. While in the hospital, doctors discovered he was at risk of deep vein thrombosis (DVT). DVT is a serious condition in which a blood clot forms in a vein located deep inside the body. As a result, doctors gave the husband medicine to prevent blood clotting.

    He later required another surgery. Following surgery, the defendant doctor and nurse practitioner examined him. They prescribed physical therapy, but not the blood clot medication. Afterward, the plaintiff’s husband suffered a DVT that caused a pulmonary embolism (PE). He later died. The plaintiff filed a medical malpractice suit against the doctor, his practice consultancy, and the nurse practitioner. The plaintiff hired a DVT expert witness to substantiate her argument that the defendants were negligent. Further, the plaintiff alleged their actions were not up to the standard of care.

    The Plaintiff’s Deep Vein Thrombosis Expert Witness

    The plaintiff’s deep vein thrombosis expert witness was a board-certified internal medicine specialist. The expert had over 20 years of professional experience treating patients at risk of  DVT and PE in a hospital setting. The expert was also a faculty member at the Florida State University College of Medicine. He had delivered more than 450 DVT and PE lectures in this role. Further, the expert had developed some of the very first DVT protocols in the country.

    The expert opined that the plaintiff’s husband was at significant risk of DVT and PE. Moreover, the expert explained that over 30 minutes under general anesthesia increased this risk. In addition, the plaintiff’s husband was harmed by being bedbound for more than 40 hours and having an immobilized leg wrapped in a bandage, further limiting circulation.


    The defendants filed a motion to disqualify the expert. The challenge was on the basis that he was not eligible under section 24-7-702(c) of the Official Code of Georgia Annotated (OCGA). In particular, they argued he wasn’t qualified to opine on the standard of care required for a post-surgical burn patient. The trial court granted the motion. After this, the plaintiff appealed.

    The OCGA Section 24-7-702(c) explains the criteria for admissible expert witness testimony in professional malpractice actions. The court noted that under Daubert, disagreements on the credentials of an expert were adequately examined by cross examination. Further, this only affected the weight of the testimony, not its admissibility.

    As per OCGA S.24-7-702(c), to qualify, an expert must have participated regularly in clinical study in the area of testimony. This is to ensure an acceptable level of knowledge when diagnosing, performing a procedure, or providing treatment for the condition in question. The court noted that in this case, the plaintiff’s allegations determined the required expert specialty —not the treating doctor’s specialty.


    The court held that the trial court had erred in awarding summary judgment to the defendants on the basis that the plaintiff did not have a qualified expert.

    Key Takeaways for Experts

    This case highlights the special expert requirements certain states enforce. Though the expert was extremely qualified as a DVT expert, the opposition was initially able to argue this wasn’t the correct specialty per Georgia’s rules for medical experts. Experts should always be aware of their jurisdiction’s specific expert guidelines or risk similar challenges to their testimony.

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