Georgia Appeals Panel Reverses Exclusion of Plaintiff’s Standard Of Care Expert Witness

Michael Morgenstern

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— Updated on June 22, 2020

Standard Of Care Expert WitnessCase:

Jacqueline Toombs v. Acute Care Consultants, Inc., No. A13A2316, Georgia Court of Appeals; March 19, 2014


Jacqueline Toombs filed a medical malpractice case against Dr. Bruce Friedman, nurse practitioner Gena Markwalter and Acute Care Consultants, Inc. alleging that they were negligent in her husband’s post-surgical care. Charles Toombs, Jr. suffered a chemical burn to his left foot while at work in 2006. He underwent surgery at Doctor’s Hospital in Augusta, Ga., to excise his wound and to apply a skin graft. Following surgery, Toombs was prescribed Lovenox to prevent blood clotting because he was at high risk for deep vein thrombosis (DVT). After a second skin-graft surgery a few weeks later, Friedman and Markwalter examined Toombs. Friedman’s post-surgery instructions included increased mobilization to prevent DVT. He did not prescribe Lovenox. Two days after his surgery, Toombs died from a DVT blood clot that traveled to his lungs and caused a pulmonary embolism (PE).

Nursing and Physician Standard of Care Expert:

Plaintiff expert Dr. Michael S. Oleksyk opined that Toombs was at significant risk for DVT and PE because he was over forty-years-old and significantly obese, he had undergone surgery lasting more than 30-minutes under general anesthesia, he was bed-bound for more than 40-hours, and his leg was immobilized with an Ace wrap which restricted the venous blood flow in the leg. He said that the defendants’ failure to evaluate Charles’s increased risk of DVT and failure to take measures to decrease that risk constituted substandard care.

The Richmond County Superior Court granted the defendants’ motion to exclude Oleksyk on the ground that he was not qualified under Official Code of Georgia Annotated § 24–7–702(c) to testify regarding the standard of care applicable to Friedman and Markwalter for the treatment of a post-surgical burn care patient who had undergone skin graft surgery. The trial court then granted the defendants’ summary judgment motion.

Jacqueline Toombs appealed.

Admissibility of Standard of Care Expert:

In an opinion by Judge Miller, the Georgia Court of Appeals panel noted that in order to qualify as an expert under OCGA § 24–7–702(c), the expert must: (1) have actual knowledge and experience in the relevant area through either active practice or teaching and (2) either be in the same profession as the defendant whose conduct is at issue or qualify for the exception for testifying about a non-physician healthcare provider by having the knowledge regarding the relevant standard of care as a result of having supervised, taught, or instructed such non-physician health care providers (such as nurses, nurse practitioners, physical therapists and others).

Moreover, the appeals court said the expert must have regularly engaged in the active practice of the area of specialty in which the opinion is to be given. They must have done so with sufficient frequency to establish an appropriate level of knowledge in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.

The area of specialty in this case concerns the standard of care applicable to DVT prophylaxis in a hospitalized patient who is at increased risk for DVT and PE. Oleksyk had 22 consecutive years of experience. He also treated hundreds of people in the hospital who were at risk for DVT and PE. He has been an assistant clinical professor at the Florida State University College of Medicine for three consecutive years, he has given over 450 lectures on DVT and PE during the past 10 consecutive years, and he was one of the co-developers of the first DVT protocol in the United States. This evidence was more than sufficient to find that Oleksyk possessed the requisite knowledge and experience under OCGA § 24–7–702(c) to offer an opinion on the area of specialty in this issue.

Therefore, the appeals court held that the trial court abused its discretion in granting the defendants’ motion to disqualify Oleksyk as an expert and erred in granting summary judgment.


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