Dempsey v. Gwinnett Hospital System, Inc.
330 Ga. App. 469
Ga. Ct. App.2014Background
- Plaintiff Melissa Dempsey sued Gwinnett Hospital System alleging RNs attending her labor negligently misread fetal monitoring, causing her child Kailey’s permanent injuries from birth-related oxygen deprivation.
- At trial Dempsey presented two experts on the nurses’ standard of care: an obstetrician and Colleen Mannering, a certified nurse midwife (CNM) who is also licensed as a registered nurse (RN) and previously practiced as an RN.
- The jury returned a verdict for Dempsey; the hospital moved for a new trial or JNOV, arguing among other things that Mannering was not qualified to testify about RN care because she was not a member of “the same profession” as the RNs under OCGA § 24-7-702(c)(2)(C)(i).
- The trial court granted a new trial solely on the legal question that a CNM is not the same profession as an RN for purposes of that statute.
- On interlocutory appeal, the Georgia Court of Appeals reviewed de novo whether Mannering qualified as a member of the same profession and whether the trial court erred in excluding her testimony; it reversed the trial court, finding Mannering was in the same profession as the RNs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a CNM who is licensed as an RN is a "member of the same profession" as hospital RNs under OCGA § 24-7-702(c)(2)(C)(i) | Mannering is both an RN and a CNM, regulated by the Georgia Board of Nursing; CNMs are advanced practice RNs and thus the same profession | CNM is a separate profession from RNs; statute’s requirement excludes testimony by members of a different profession | Court held CNM licensed as an RN is a member of the same profession as RNs; trial court erred in excluding her testimony |
| Whether exclusion of Mannering’s testimony was harmless because her testimony was cumulative of the obstetrician | Mannering’s testimony need not be excluded; but if excluded it would be cumulative and non-prejudicial | Exclusion required because she was not same profession; hospital argued any error was harmless due to obstetrician’s testimony | Moot after reversal on qualification issue (court did not reach harmlessness) |
| Whether Mannering met the statute’s "actual professional knowledge and experience" (active practice) requirement | Mannering practiced in L&D nearly two decades, began as RN, supervised and worked with RNs in the five years before the birth | Hospital argued she lacked required recent active practice as an RN for three of last five years | Not decided on appeal; trial court had not ruled on that ground so issue not ripe for review |
| Whether appellate court should address other grounds in hospital’s cross-appeal (e.g., directed verdict/JNOV) | N/A (plaintiff argued trial court erred in granting new trial only on the same-profession ground) | Hospital sought review of remaining unresolved grounds from its motion for new trial/JNOV | Cross-appeal dismissed without prejudice because trial court had not ruled on those other grounds; issues left for remand |
Key Cases Cited
- Hankla v. Postell, 293 Ga. 692 (Georgia 2013) (interpreting OCGA § 24-7-702(c) and requiring experts be in the same profession and have recent practice/teaching experience)
- Smith v. Harris, 294 Ga. App. 333 (Ga. Ct. App. 2008) (pharmacist could not testify against physician because professions are distinct)
- Ball v. Jones, 301 Ga. App. 340 (Ga. Ct. App. 2009) (nurse could not testify against physical therapist where statute distinguishes professions)
- Bacon County Hosp. & Health Sys. v. Whitley, 319 Ga. App. 545 (Ga. Ct. App. 2013) (chiropractor could not testify against physical therapist where licensing/regulatory schemes differ)
- Cochran v. Levitz Furniture Co., 249 Ga. 504 (Ga. 1982) (appellate practice disfavors piecemeal appeals)