Case Information
*1 law, thus entitling the Government to UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA summary judgment. ECF No. 50 at 19.
STATESBORO DIVISION
For the reasons set forth below, the Court agrees with the Government and EDNA R. DUTTON, as Administrator of GRANTS the Government's Motion to the Estate of Bartow C. Dutton, Exclude Expert Testimony and for Summary Plaintiff, Judgment and DENIES Plaintiff's Motion to Allow Additional Expert. 6:13-cv-58 V. (cid:9) II. BACKGROUND UNITED STATES OF AMERICA, In the early morning hours of May 24, 2010, Mr. Dutton was admitted to VAMC Defendant. after complaining of abdominal pain and several episodes of vomiting and loose stool.
ORDER ECF Nos. 50-1 at 4; 50-2 at 869; 56-1 at 5. I. INTRODUCTION On May 28, 2010, a CTA of Mr. Dutton's Before the Court are the United States of abdomen revealed "[fjindings concerning America's Motion to Exclude Expert for mesenteric ischemia," a potentially life- Testimony and for Summary Judgment, ECF threatening condition. ECF Nos. 50-1 at 4; No. 50, and Edna R. Dutton's Motion to 50-3 at 662; 50-9 at 33-34; 56-1 at 5. Allow Additional Expert, ECF No. 52. Subsequent colonoscopy and endoscopy results were consistent with the CIA
Edna R. Dutton ("Plaintiff'), as findings. ECF Nos. 50-1 at 5; 50-2 at 701, administrator of the estate of her deceased 706-07; 56-1 at 5-6. husband, Bartow C. Dutton ("Mr. Dutton"), seeks damages from the United States of
After Mr. Dutton continued to America ("Government") under the Federal experience symptoms overnight on June 1- Tort Claims Act ("FTCA"), 28 U.S.C. § 2, 2010, interventional radiologist Dr. David 1346(b), 2671-80, alleging that the Riggans unsuccessfully attempted to stent negligence of the doctors and staff of the Mr. Dutton's superior mesenteric artery. Charlie Norwood Veterans Administration ECF Nos. 50-1 at 5; 50-2 at 703; 50-3 at Medical Center ("VAMC") caused Mr. 1549-56; 56-1 at 6. On the night of June 2, Dutton "serious personal injuries which 2010, after Dr. Riggans's unsuccessful caused permanent impairment, loss of his attempt to treat Mr. Dutton's mesenteric entire right leg, and disfigurement." ECF ischemia, Mr. Dutton began to feel as No. 1 at 10. The Government argues that though he was losing blood flow to his right Plaintiff's proffered expert is not competent leg. See ECF 50-1 at 5; 50-2 at 683; 56-1 at to testify under O.C.G.A. § 24-7-702(c) and 6. Nurses reported that Mr. Dutton's leg that, therefore, Plaintiff cannot make out a was cool to the touch, and Mr. Dutton claim of medical malpractice under Georgia reported loss of sensation and a burning *2 feeling in his right leg. ECF No. 50-1 at 5; 8. This amputation occurred on June 6, 2010. ECF Nos. 50-1 at 7; 56-1 at 8. 50-2 at 683-84; 56-1 at 6-7. On May 22, 2013, Plaintiff and Mr. Vascular surgery was then called to Dutton filed the complaint in this case, evaluate Mr. Dutton's condition. ECF Nos. alleging that that the negligence of VAMC 50-1 at 6; 56-1 at 7. The assessment was physicians and staff in failing to treat the that Mr. Dutton had developed a blood clot in a bypass graft in his right leg. See ECF emergent ischemia in Mr. Dutton's right leg 50-2 at 679. However, in light of Mr. caused the eventual amputation of that leg. Dutton's active issues with mesenteric ECF No. 1 at 9-10. On August 19, 2013, ischemia, the vascular surgery team, led by Mr. Dutton died, see ECF No. 17, and Dr. Manuel F. Ramirez, elected to treat Mr. Plaintiff is now party to the case individually and as administrator of Mr. Dutton's clotted bypass graft conservatively and instructed him to hang his leg off the Dutton's estate. See ECF No. 31. side of the bed. Id. at 679. The medical
The Court previously found that Dr. staff at VAMC continued to monitor Mr. Riggans was an independent contractor and, Dutton's leg overnight. ECF Nos. 50-1 at 6; therefore, Plaintiff may not recover from the 56-1 at 7. Government for his actions. ECF No. 49. On the morning of June 3, 2010, Mr. Accordingly, the remaining basis for Dutton's right leg remained pulseless and Plaintiffs medical malpractice claim is cold to the touch. ECF Nos. 50-1 at 6; 50-2 VAMC's delay in treating Mr. Dutton's at 676; 56-1 at 7-8. At that point, the ischemic right leg on June 2, 2010, which "general consensus was to proceed with a Plaintiff believes was unreasonable. See repeat aortogram with the intent to ECF Nos. 1 at 9-10; ECF No. 45 at 8; 50-1 revascularize the celiac trunk and proceed at2;56-1 at 3. with lytic therapy of [Mr. Dutton's]
III. STANDARD OF REVIEW
thrombosed [right leg]." ECF Nos. 50-1 at "The court shall grant summary 6-7; 50-2 at 669. Then, after placement of a judgment if the movant shows that there is catheter for lytic infusion, Dr. Ramirez no genuine dispute as to any material fact transferred Mr. Dutton to the Medical and the movant is entitled to judgment as a College of Georgia ("MCG") to continue matter of law." Fed. R. Civ. P. 56(a). In lytic therapy under ICU supervision. ECF ruling on summary judgment, the Court Nos. 50-1 at 7; 50-2 at 662; 56-1 at 8. After views the facts and inferences from the anticoagulation therapy was unsuccessful, record in the light most favorable to the non- physicians at MCG made the decision to moving party. See Matsushita Elec. Indus. amputate Mr. Dutton's right leg "[un light Co. v. Zenith Radio Corp., 475 U.S. 574, of [Mr. Dutton's] mesenteric ischemia and 587 (1986); Reese v. Herbert, 527 F.3d risk of having acute dead bowel presentation 1253, 1271 (11th Cir. 2008). Courts, masked by the right lower extremity moreover, may consider all materials in the problems." ECF 50-1 at 7; 50-6 at 3; 56-1 at *3 Gonzalez-Jiminez De Ruiz v. United States, record, not just those cited by the parties 378 F.3d 1229, 1230n.1 (11th Cir. 2004). Fed. R. Civ. P. 56(c)(3). In medical malpractice cases under
The moving party "bears the initial Georgia law, plaintiffs must prove: "(1) the responsibility of informing the district court duty inherent in the doctor-patient of the basis for its motion, and identifying relationship; (2) the breach of that duty by those portions of the pleadings, depositions, failing to exercise the requisite degree of answers to interrogatories, and admissions skill and care; and (3) that this failure be the on file, together with the affidavits, if any, proximate cause of the injury sustained." which it believes demonstrate the absence of Zwiren v. Thompson, 578 S.E.2d 862, 864 a genuine issue of material fact." Reese, 527 (Ga. 2003) (quotation omitted). In order to F.3d at 1268 (internal quotation marks prove "a violation of the applicable medical omitted) (quoting Celotex Corp. v. Catrett, standard of care [and] also that the purported 477 U.S. 317, 323 (1986)).
violation [of] or deviation from the proper The nonmoving party then "may not rest standard of care is the proximate cause of upon the mere allegations or denials of [its] the injury sustained," Plaintiff must provide pleading[s], but . . . must set forth specific expert testimony. Porter v. Quill, 681 facts showing that there is a genuine issue S.E.2d 230, 235 (Ga. Ct. App. 2009) for trial." Young v. City of Palm Bay, Fla. , (quoting MCG Health, Inc. v. Barton, 647 358 F.3d 859, 860 (11th Cir. 2004). "A S.E.2d 81, 86 (Ga. Ct. App. 2009)). genuine issue of material fact exists if 'the evidence is such that a reasonable jury could Thus, to withstand the Government's return a verdict for the nonmoving party." motion for summary judgment, Plaintiff Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 must produce expert medical testimony that establishes, to a "reasonable degree of (11th Cir. 2011) (quoting Anderson v. medical certainty," that the Government's Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material only if it might "purported violation or deviation is the affect the outcome of the suit under proximate cause of' Mr. Dutton's injuries. governing law. See Anderson, 477 U.S. at See Beasley v. Northside Hosp., Inc., 658 248. S.E.2d 233, 236-37 (Ga. Ct. App. 2008). In
the absence of such testimony, there is no
IV.
ANALYSIS issue of material fact and Plaintiff cannot "Liability in an FTCA action is weather a motion for summary judgment. determined in accordance with the law of Id. the place where the government's act or A. Expert Testimony, Federal Rules omission occurred, which in this case is of Evidence, and O.C.G.A. § 24-7- [Georgia]." See Stevens v. Battelle Mem. 702 Inst., 488 F.3d 896, 899 n.3 (11th Cir. 2007). Thus, the FTCA requires that the Where, as here, state law governs the whole law of Georgia be applied to substantive issues of the case, federal law Plaintiff's medical malpractice claim. See still governs procedural matters in federal *4 court. McDowell v. Brown, 392 F.3d 1283, Though the Eleventh Circuit has not 1294 (11th Cir. 2004) (citing Erie R. R. Co. considered whether the same is true in cases v. Tompkins, 304 U.S. 64 (1938)). "Rules arising under the FTCA, the Court finds that the rationale in McDowell applies equally to of procedure encompass rules of evidence, and therefore, the Federal Rules of FTCA cases. In doing so, the Court Evidence, not state evidentiary laws, apply." concludes that this finding comports with Id. In general, "the admissibility of expert Federal Rule of Evidence 601's mandate testimony is a matter of federal, rather than that "in a civil case, state law governs the state procedure." See Id. at 1294-95. witness's competency regarding a claim or
defense for which state law applies the rule Plaintiff argues that, because this case of decision," while not offending Federal arises under federal law, O.C.G.A. § 24-7- Rule of Evidence 702's governance of the 702, governing qualifications of experts in admissibility of expert testimony. See 27 Georgia civil proceedings, does not apply Charles Alan Wright & Victor James Gold, and the Court need only apply Federal Rules Federal Practice & Procedure § 6003, at 32 of Evidence in determining the admissibility (2d ed. 2007) ("[O]ne key to establishing the of expert testimony. See ECF No. 56 at 3. scope of Rule 601 is to distinguish between But in McDowell v. Brown, the Eleventh competency and admissibility. . . . [A] Circuit held that Georgia's expert witness might be able to offer testimony that competency rules apply where a federal is admissible, but that witness still is court exercises supplemental jurisdiction prevented from taking the stand if [she is not over a state law claim. McDowell, 392 F.3d competent to testify]."); see also Liesback v. at 1294-95. There, the Eleventh Circuit United States, 731 F.3d 850, 855-57 & n.4 found that Georgia's expert competency rule (9th Cir. 2013) (citing McDowell, 392 F.3d is really "substantive in nature, and at 1294-96) (applying state statute governing transcend{s} the substance-procedure expert competency in medical malpractice boundary creating a potential Erie conflict." cases in an FTCA case). Id. at 1295. Relying on the Sixth Circuit's Therefore, the Court finds that, through decision in Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002), the Eleventh Circuit Federal Rule of Evidence 601, O.C.G.A. § 24-7-702 applies in FTCA actions where concluded that "state witness competency rules are often intimately intertwined with a Georgia's substantive law provides the rule state substantive rule [and that] [t]his is of decision. especially true with medical malpractice
Under the McDowell v. Brown statutes, because expert testimony is usually framework, admissibility of expert required to establish the standard of care." testimony in medical malpractice cases Id (quoting Legg, 286 F.3d at 290). under Georgia law brought in federal court Therefore, a determination of expert is a two-step inquiry. First, the Court must competency under Georgia law was required determine whether Plaintiff's expert is as a prerequisite to expert screening under competent to testify as an expert in a Federal Rule of Evidence 702. Id. medical malpractice case under O.C.G.A. § *5 24-7-702(c). McDowell, 392 F.3d at 1295. complaint, not the apparent expertise of the [defendant] physician." Id.; see also Spacht Second, Plaintiffs proffered expert v. Troyer, 655 S.E.2d 656, 659 (Ga. Ct. App. testimony must "meet[] the strictures of 2007) ("To determine 'the area of practice Rule 702." Id Because the Court finds that Plaintiffs proffered expert does not meet or specialty in which the opinion is to be O.C.G.A. § 24-7-702(c)' s competency given,' we look to the allegations of the plaintiffs complaint. .. ." (quoting Barton, requirements, it does not reach the question of whether the proffered testimony passes 647 S.E.2d at 86)). muster under Rule 702.
Thus, while it is not necessary that the proffered expert practice the same specialty B. Expert (cid:9) Competency (cid:9) Under as the defendant physician, it is essential that O.C.G.A. § 24-7-702(c) the expert actively practice the procedures To be competent to testify as an expert and treatments alleged to have been in a medical malpractice action under See Aguilar v. performed negligently. O.C.G.A. § 24-7-702(c), "the witness must Children's Healthcare of Atlanta, Inc., 739 (1) have actual knowledge and experience in S.E.2d 392, 394-95 (Ga. Ct. App. 2013). the relevant area through either 'active practice' or 'teaching' and (2) either be in 1. (cid:9) Specialty at Issue and Treatment Alleged to Have the 'same profession' as the defendant Been Negligently whose conduct is at issue or qualify for the Performed exception to the 'same profession' requirement." Hankla v. Postell, 749 S.E.2d
Based on the allegations contained in 726, 729 (Ga. 2013). The statute also Plaintiffs Complaint, the Court finds that requires that a proffered expert's "active the relevant area of specialty at issue is practice" or "teaching" experience be "for at managing the treatment of a patient least three of the last five years." O.C.G.A. suffering from critical ischemia. While § 24-7-702(c)(2)(A)-(B). vascular procedures, including vascular As a preliminary matter, in order to surgery, are at issue in the periphery, the accurately assess whether or not a proffered primary treatment at issue is the management of an emergent leg ischemia in expert is competent to testify as to a breach a patient with critical mesenteric ischemia. of the standard of care, "it is necessary Specifically, the alleged negligence at issue to accurately state both the area of specialty is failing "to implement emergent medical at issue and what procedure or treatment [is] care and treatment" when the vascular alleged to have been negligently surgery team "noted that an acute performed." Toombs v. Acute Care Consultants, Inc., 756 S.E.2d 589, 593 (Ga. thromboembolic event had occurred in Mr. Ct. App. 2014) (quoting Anderson v. Dutton's right leg." See ECF No. 1 at 9. Mountain Mgmt. Servs,, 702 S.E.2d 462, 465 (Ga. Ct. App. 2010)). "[T]he area of specialty is dictated by the allegations in the [0] *6 Bettmann currently is a consultant on issues Dr. Michael A. Bettmann's
2. (cid:9) of clinical decision support but is not Qualifications and Opinion actively seeing patients. ECF No. 50-9 at Plaintiffs proffered expert is Michael A. 24. Previously, he worked at Wake Forest Bettmarin, M.D. He "is listed as an expert in from 2005 to 2012 as an interventional the field of Vascular and Interventional radiologist and as head of Cardiovascular Radiology." ECF No. 45 at 1. He states Id. at 25-26. Interventional Radiology. that he is "familiar with the standard of care During that time, Dr. Bettmann performed which physicians, nurses, physicians interventional procedures daily, estimating assistants and other medical practitioners that an average day consisted of ten to must exercise in the care of patients twelve such procedures. Id. at 26. He saw generally, and when providing operative and both scheduled patients and emergent post-operative care for patients who have patients. Id. at 27. He also consulted with undergone Interventional Radiological emergency room physicians, inpatient procedures." Id. at 4. physicians, and vascular surgeons. Id. at 27- Dr. Bettmann is licensed to practice 30. medicine in North Carolina, as well as in After review of Mr. Dutton's VAMC other states. Id. at 3. As for certifications, medical records and diagnostic tests, Dr. he is "Board Certified in Vascular and Bettmann concluded that there was an Interventional Radiology" and he has "unreasonable delay in treating Mr. Dutton's "extensive knowledge and experience" in emergent thrombosed right fem-popliteal that field. Id. He is not board certified in artery" and expressed his medical opinion vascular surgery and has not had any direct "that the [VAMC] and those in its employ, training in vascular surgery. ECF No. 50-9 their staff and physicians failed to conform at 20. Rather, Dr. Bettman's training to the standard of care ordinarily employed focused heavily on interventional radiology. by comparable health care providers under He graduated medical school in 1969, the same or similar circumstances in their completed a year-long internship in diagnosis and treatment of [Mr. Dutton]." pediatrics in 1970, was a resident in ECF No. 45 at 8-9. diagnostic radiology from July 1972 to 1975, and finally completed a three-year 3. (cid:9) Dr. Michael A. Bettmann's fellowship in cardiovascular and Competency as an Expert interventional radiology in 1978. ECF Nos. Dr. Bettmann Is Not
a. (cid:9) 45 at 13; 50-9 at 20-22. Competent to Testify as to Non-Physician Dr. Bettmann is currently a Professor Emeritus at Wake Forest University School Conduct of Medicine, see ECF No. 50-9 at 9, and
As an initial matter, Dr. Bettmann is not previously was a full-time professor competent to testify as to the conduct of teaching Radiologic Sciences. ECF No. 45 non-physician VAMC employees. As was at 13. As far as recent clinical work, Dr. previously explained, under Georgia law *7 trial court's determination that a doctor was experts in medical malpractice suits not competent to testify as to the conduct of generally must be "in the 'same profession' nurses where there was no "information in as the defendant whose conduct is at issue." Hankla, 749 S.E.2d at 729. While there is the record to show that for three of the five years prior to [the alleged occurrence, the an exception to this general rule that allows doctor] 'supervised, taught, or instructed expert physicians to testify as to non- nurses . . . . " (second alteration in physician conduct, the exception applies original)). "only if [the proffered expert] has knowledge regarding the relevant standard
b. (cid:9) Dr. Bettmann Is Not of care as a result of having. . . supervised, Competent to Testify taught, or instructed such non-physician as to the VAMC Id. (alteration in health care providers." Physicians' Conduct original) (internal quotation marks omitted). Plaintiff argues that Dr. Bettmann is But Plaintiff has offered no evidence qualified to testify as to the VAMC tending to show that the exception applies physicians' conduct under O.C.G.A. § 24-7- here. There is nothing in the record showing 702 "because he has the same profession as that Dr. Bettmann taught, supervised, or the VA physicians, i.e. a medical doctor." instructed non-physician health care ECF No. 56 at 4. But whether or not Dr. providers. Rather, Dr. Bettmann merely Bettmann is a member of the same asserts that he is familiar with the standard profession as the defendants is but one of of care of those non-physician health care O.C.G.A. § 24-7-702(c)' s requirements. providers generally. See ECF No. 45 at 4. It A proffered expert must also have actual is true that Dr. Bettmann was the head of knowledge and experience in the relevant Cardiovascular Interventional Radiology at area of practice at issue. Only doctors with Wake Forest, see ECF No. 50-9 at 25-26, the requisite knowledge and experience in but there is no indication in his deposition the relevant area of practice are "authorized testimony or in his curriculum vitae whether to judge another doctor's performance in or not he supervised or instructed non- that area of practice," because to permit physician health care providers. While it is otherwise "would eviscerate [O.C.G.A. § possible that he did supervise or instruct 24-7-702(c)]'s purpose of assuring that a non-physician staff during his time as a medical professional is not held negligent in department head, Dr. Bettmann makes no the absence of evidence that he violated a reference to it, let alone reference to such standard of care established by his peers." supervision during O.C.G.A. § 24-7- Hope v. Kranc, 696 S.E.2d 128,131 (Ga. Ct. 702(c)'s relevant five-year time period. App. 2010); see also Emory-Adventist, Inc. In the absence of such evidence, the v. Hunter, 687 S.E.2d 267, 270 (Ga. Ct. Court cannot find that Dr. Bettmann is App. 2009) (finding it "clear that the words competent to testify as to the conduct of 'active practice' . . . relate to practice in an non-physician VAMC staff members. See area of medical specialty showing expertise Anderson, 702 S.E.2d at 466 (upholding a *8 testimony, Bettmann's (cid:9) deposition (cid:9) therein not licensure to practice medicine interventional radiologists, unlike vascular generally"). Here, the relevant area of specialty at issue is managing the care of a surgeons who receive training in both interventional radiology and vascular patient suffering from critical ischemia.
surgery, are not trained to perform open According to Dr. Bettmann's deposition surgeries. See Id at 23-24. testimony, he is certified in vascular and This lack of training in vascular surgery interventional radiology, but has not received any formal training in vascular is important, because Dr. Bettmann alleges surgery. ECF No. 50-9 at 18, 20. Thus, that the VAMC physicians' care fell below the standard of care when the physicians while Dr. Bettmann is familiar generally failed to treat the emergent ischemia that with the standard of care physicians must developed in Mr. Dutton's right leg after the exercise "when providing operative and failed attempt to stent his superior post-operative care for patients who have mesenteric artery. See Id at 86. Dr. undergone Interventional Radiological procedures," see ECF No. 45 at 4, Plaintiff Bettmann testified that, at that point, the VAMC physicians had the opportunity to has not provided any evidence tending to show that Dr. Bettmann is familiar with perform a procedure to save Mr. Dutton's leg. Id. This is significant, because while managing the treatment of critically ill Dr. Bettmann testifies as to his experience in vascular patients. See ECF Nos. 50-9 at 20; interventional radiology procedures, see Id. 56-1 at 11, 160. To be sure, Dr. Bettmann at 20-26, he does not testify as to any testified only that he had experience consulting with vascular surgeons regarding experience in managing the course of treatment for critically ill patients. Again, specific procedures, not that he actually the extent of Dr. Bettmann's testimony managed the care of those patients himself. regarding such decisions is that he has See ECF No. 50-9 at 27-30.
consulted with vascular surgeons regarding Further, Dr. Bettmann testified that he specific procedures, not about general has never performed open surgeries for deep courses of treatment. See id. at 27-30. vein thrombosis or arterial occlusion. ECF No. 50-9 at 40.' According to Dr. In Mr. Dutton's case, according to a
progress note dated June 2, 2010, at 11:35 PM, the VAMC vascular surgery team
Later in Dr. Bettmann's deposition, he testified that assessed the worsening condition of Mr. he had performed open thrombectomy surgeries. See Dutton's right leg and concluded that, ECF No. 50-9 at 110. Plaintiff seizes on this inconsistency to refute the Government's contention
"[g]iven[] patient's active issues with that Dr. Bettmann never performed open vascular mesenteric ischemia and GI bleed, he has a surgeries. See ECF No. 56-I at 8. However, even if Dr. Bettmann's testimony is accepted as true, it is strong contraindication to anticoagulation." irrelevant to the Court's inquiry here. He testified
ECF No. 50-2 at 679. Therefore, the that the open surgeries he allegedly performed were VAMC physicians opted to treat Mr. Dutton during his fellowship. See ECF No. 50-9 at 110. Dr. Bettmann's fellowship ended in 1978, ECF No. 45 at with "conservative measures." Id. 13, far and away outside of O.C.G.A. § 24-7-702(c)'s five-year window for relevant experience. *9 "up to the surgeon" and Dr. Bettmann
Dr. Bettmann does not disagree with the acknowledges he is "not a surgeon." See Id. VAMC physicians' conclusion regarding Mr. Dutton's contraindication to
Thus, while agreeing that starting lytic anticoagulation. See ECF No. 50-9 at 86 ("I therapy was not necessarily something that think you could make a good point about the the VAMC physicians should have done due contraindication . . . ."). However, his to Mr. Dutton's contraindication to opinion is that, given the worsening anticoagulation treatments, Dr. Bettmann condition of Mr. Dutton's leg, something asserts that conducting a surgical had to be done within four to six hours in thrombectomy was "definitely a procedure order to avoid amputation. See id. that [was] within the standard of care in [Mr. Id. at 89. But, in Dr. Bettmann testified that, in his Dutton's situation]." opinion, the VAMC physicians had two reality, Dr. Bettmann has no knowledge as to "how hard or easy it would have been in interventional options at their disposal: 1) Mr. Dutton." See ECF No. 50-9 at 89. lytic therapy—a procedure Dr. Bettmann has experience with—and 2) surgical
To summarize Plaintiff's proffered Id. Although Plaintiff thrombectomy. expert testimony: Dr. Bettmann's opinion is argues, without citation to the deposition that VAMC physicians were negligent in transcript, that "Dr. Bettmann testified that failing to intervene within four to six hours the lytic therapy for the thrombosis should of the development of critical ischemia in have been performed . . . ," see ECF No. 56 Mr. Dutton's right leg, despite the fact that at 6-7, Dr. Bettmann's deposition belies this he has no knowledge or experience in argument. Dr. Bettmann believes that conducting the type of procedure he offers although lytic therapy was something that as an alternative to administering could be considered, he did "not say[] that anticoagulation therapy, which he agrees [it was] something that should be done." should not necessarily have been undertaken See ECF No. 50-9 at 87. in Mr. Dutton's situation. But, flatly, Dr. Bettmann's opinion either fails to appreciate As an alternative to lytic therapy, Dr. or ignores the clinical context in which the Bettmann testified that the VAMC VAMC physicians made decisions as to Mr. physicians could have done "a surgical thrombectomy" on Mr. Dutton's leg. Id. at Dutton's treatment. 88. But Dr. Bettmann has never done a
According to Jacob G. Robison, M.D., thrombectomy surgery on a patient like Mr. the Government's proffered expert and a Dutton, see id. at 111, and does not know vascular surgeon, Mr. Dutton "had a very how difficult or complicated such a surgery difficult and challenging problem from the would be on a patient with Mr. Dutton's beginning" due to the "simultaneous history. See id. at 88-89. Indeed, Dr. compromise of circulation both to the right Bettmann admits that he is not in a position leg and the intestine." ECF No. 46 at 2. Dr. to determine how complicated or difficult a Ramirez, the vascular surgeon handling Mr. thrombectomy surgery would have been in Dutton's treatment, testified that he Mr. Dutton's case, because that decision is *10 Dutton's ischemic leg, Dr. Bettmann opines diagnosed Mr. Dutton's right leg as "critical" and "ischemic." ECF No. 65 at that the limb ischemia was "an emergency that [had] to be dealt with in no more than 85. Dr. Bettmann does not dispute that the four to six hours" or else "you c[ould] VAMC physicians' made the proper diagnosis. See ECF No. 50-9 at 101. Thus, essentially guarantee that" Mr. Dutton would lose his leg. See ECF No. 50-9 at 86. this is not a case where the VAMC Dr. Ramirez does not disagree with this physicians simply failed to recognize that "general dictum[]" that "everybody knows." Mr. Dutton's critically ischemic leg could be ECF No. 65 at 63. But in a patient like Mr. lost.
Dutton, presenting with both mesenteric Rather, despite the diagnosis of a ischemia and limb ischemia, the general critically ischemic leg, Dr. Ramirez testified dictums must be put into context. Id. The that he had essentially two options: 1) to fact that procedures were available to save aggressively treat Mr. Dutton's leg through Mr. Dutton's leg does not necessarily mean surgery or blood thinners; or 2) to that failing to act was negligent. Rather, conservatively treat Mr. Dutton and hope focusing only on the leg shows that Dr. that he could hold on to his leg until such Bettmann is approaching the standard of time that more aggressive treatment was care at issue here as an interventional safe. See ECF No. 65 at 85. After opting radiologist rather than as a clinician, like a not to engage in lytic therapy due to the vascular surgeon would. As Dr. Ramirez risks of a massive bleed, Id at 86, Dr. testified, "[t]here's a big divide between Ramirez ruled out thrombectomy surgery interventional radiologist and a vascular due to the unique complications that Mr. surgeon. They're very technical. [Vascular Dutton's extensive history of vascular surgeons] are not only technical, but. . . are surgeries and revascularizations presented. also the patient's doctor. [Vascular Id. at 86-87, 94. Instead, in light of Mr. surgeons are] the clinician[s]." Id at 63. Dutton's ability to withstand ischemic episodes in his leg in the past, Dr. Ramirez Thus, the Court finds the fact that Dr. Bettmarin is not a vascular surgeon is fatal to opted for conservative treatment as the best his competency to testify as to the standard means to preserve both Mr. Dutton's life and of care at issue in this case. To be sure, as limb. See id at 85. Dr. Robison's Plaintiff correctly points out, "O.C.G.A. § assessment tracks with Dr. Ramirez's in that 24-7-702 does not require the expert to have "bleeding may have been exacerbated by the clot-dissolving therapy" and "concerns the same specialty as the defendant." ECF No. 56 at 4; see also Spacht, 655 S.E.2d at about the bowel preempted any attempt to 657 ("An expert testifying about the save the leg with a long, complex surgery." See ECF No. 46 at 3. standard of care in a medical malpractice
case need not actively practice in the same Dr. Bettmann's use of generalities specialty or practice area as the defendant betrays his lack of understanding of the doctor."). But what is necessary is that the clinical situation Mr. Dutton's case proffered expert has actual professional presented. Focusing on symptoms of Mr. *11 complex arterial problem in the context knowledge and experience in the practice or specialty he is to testify to. See Aguilar, 739 of a life threatening situation. S.E.2d at 394-95. Thus,
ECF No. 46 at 4. the legislature has allowed for an Plaintiff therefore misses the mark by overlap in specialties, whereby an focusing on what procedures were or were otherwise qualified medical doctor not done. See ECF No. 56 at 6-7. The fact belonging to "Specialty A" can render that Dr. Bettmann, as an interventional an opinion about the acts or omissions radiologist, is competent to testify as to the of another medical doctor belonging to performance of one of the procedures "Specialty B"—so long as the opinion available to potentially treat Mr. Dutton of the expert witness belonging to really is of no moment. In order to testify as "Specialty A" pertains to Specialty A. to the standard of care at issue here, Dr. Bettmann would have to be competent not Gotten v. Phillips, 633 S.E.2d 655, 657 (Ga. as to the procedures available, but as to the Ct. App. 2006).
clinical decision-making at issue. And to be According to this principle, Dr. competent to testify as to the decision- Bettmann, as an interventional radiologist, making at issue, Dr. Bettmann would have could testify as to Dr. Ramirez's conduct in to have knowledge of the risks and performing an interventional radiology difficulties involved with all available procedure—e.g., lytic therapy. However, procedures. what Dr. Bettmann is not competent to Dr. Bettmann admits that he does not testify to is Dr. Ramirez's conduct in know the full extent of the difficulties of or making clinical decisions in how to proceed the risks involved with the options available with treatment, especially when Dr. Bettmann has no knowledge or experience to Dr. Ramirez on the evening of June 2, See ECF No. 50-9 at 85-89. regarding one of two procedures that were 2010. available. Nonetheless, his opinion is that Dr. Ramirez
was negligent in not intervening, to save Mr. As Dr. Robison explains: Dutton's leg simply because there were Dr. Bettmann is an interventional procedures available that could have saved radiologist. Although there is some the limb. ECF No. 45 9-11. This is the kind overlap with vascular surgeons in the of half-baked opinion that O.C.G.A. § 24-7- use of catheters, wires, stents, and 702 seeks to prohibit by "requir[ing] a intravascular medication such as lytic plaintiff to obtain an expert who has agents in management of some arterial significant familiarity with the area of problems, in general, interventional practice in which the expert opinion is to be radiologists are not trained as vascular given." Nathans v. Diamond, 654 S.E.2d surgeons and have no experience with 121, 123 (Ga. 2007). the surgical judgment and techniques While it is true, as Plaintiff points out, required to manage patients with a that "it does not take a vascular surgeon to *12 order "only for good cause and with the know that a blood clot which prevents flow to a leg will cause that limb to die," ECF judge's consent." Fed. R. Civ. P. 16(b)(4). No. 56 at 7, what is dispositive here is that it Rule 16's "good cause standard precludes takes a vascular surgeon to know when modification unless the schedule cannot 'be met despite the diligence of the party intervention to save the limb of a critically seeking the extension." Sosa v. Airport ill patient will not kill the patient in the Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. process. Dr. Bettmann is not a vascular 1998) (per curiam) (quoting Fed R. Civ. P. surgeon and he therefore is not competent to 16 advisory committee's note at Subdivision testify as to the clinical decisions that the (b)). Thus, ` [a] finding of lack of diligence VAMC physicians made regarding the on the part of the party seeking modification course of Mr. Dutton's treatment. To permit ends the good cause inquiry." Sanchez v. an interventional radiologist to judge the H&R Maint., L.C., 294 F.R.D. 677, 679 clinical decisions of a vascular surgeon in (S.D. Fla. 2013) (alteration omitted) this situation would "eviscerate" O.C.G.A. § (quoting Lord v. Fairway Elec. Corp., 223 24-7-702(c)'s requirement that medical F. Supp. 2d 1270, 1277 (M.D. Fla. 2002)). professionals be held negligent only when a peer, with significant familiarity with the
Here, Plaintiff does not show any good defendant's area of practice, testifies that the cause warranting a modification of the defendant breached the established standard Scheduling Order. At best, Plaintiff appears of care in that practice area. See Hope, 696 to allege undue surprise as Defendants had S.E.2dat 131. not previously objected to Dr. Bettmann's qualifications. See ECF No. 52 at 1. But C. Plaintiff's Motion to Allow Defendants' objection to Dr. Bettmann's Additional Expert Witness proffered testimony, filed on September 23, Perhaps recognizing the vulnerabilities 2014, was timely under the Court's of Dr. Bettmann's competency to testify Scheduling Order. See ECF No. 44 at 1 under O.C.G.A. § 24-7-702(c), Plaintiff has (setting a September 30, 2014, deadline for filed a motion to allow an additional expert filing civil motions, including Daubert witness. ECF No. 52. However, under the motions). Plaintiff does not explain why a Court's Scheduling Order, the last day for diligent investigation regarding Dr. Plaintiff to furnish an expert witness report Bettmann's competency to testify as to the was June 15, 2014, and discovery closed on VAMC Physicians' conduct did not alert her August 30, 2014. ECF No. 44 at 1. Thus, to the weaknesses raised in the the Court will construe this late motion to Government's motion to exclude his allow an additional expert "as a request to testimony. modify the scheduling order." See Andretti v. Borla Performance Indus., Inc., 426 F.3d Plaintiff's counsel knew testimony from 824, 830 (6th Cir. 2005). a competent expert was necessary to sustain
a claim under Georgia medical malpractice Federal Rule of Civil Procedure 16 law and knew that the deadline for allows for modification of a scheduling producing such an expert was June 15, 2014. *13 n grounds that she has failed to produce a If the Court's order granting summary judgment to the Government on the issue of competent expert "would render [the] Dr. Riggans's status as an independent scheduling order[] meaningless and contractor, entered on July 30, 2014, effectively would read Rule 16(b) and its good cause requirement out of the Federal affected Plaintiff's counsel's decisions Rules of Civil Procedure." Sosa, 133 F.3d regarding experts, counsel should have moved to secure an alternate expert, or for at 1419. The Court will not allow such a additional time to do so, prior to the close of result. discovery on August 30, 2014. However,
D. The Government is Entitled to absent an explanation regarding Plaintiff's Summary Judgment failure to act sooner, the Court cannot grant Under Georgia law, "fflo recover in a Plaintiff's request to modify the Court's medical malpractice case, a plaintiff must scheduling order. See Argo v. Woods, 399 demonstrate, by expert testimony, 'a F. App'x 1, 3 (5th Cir. 2010) ("Rule 16's violation of the applicable medical standard fairly stringent 'good cause' standard of care [and] also that the purported requires . . . a persuasive reason why the violation [of] or deviation from the proper dates originally set by the scheduling order. standard of care is the proximate cause of could not 'reasonably be met despite the the injury sustained." Porter, 681 S.E.2d at diligence of the party seeking extension." 235 (alteration in original) (quoting MCG (quoting Fed. R. Civ. P. 16 advisory Health, Inc., 647 S.E.2d at 86). Because the committee's note at Subdivision (b)). Court has found that Plaintiff's expert is not Indeed, competent to testify as to the applicable [s]trict enforcement of the good medical standard of care in this case, the cause requirement of Rule 16 may Government is entitled to summary seem like unnecessarily strong judgment. See Bregman-Rodoski v. Rozas, medicine. But if the courts do not 616 S.E.2d 171, 173 (Ga. Ct. App. 2005) take seriously their own scheduling (upholding a trial court's grant of summary orders who will? The court cannot judgment where plaintiff failed to present in good conscience ignore the clear competent expert testimony). authority applying the good cause E. Plaintiff's Request for Oral requirement, particularly in a case, as Argument here, where the party requesting relief offers no . . . persuasive reason On November 10, 2014, Plaintiff to do so. requested oral argument regarding the
Government's Motion for Summary Carnite v. Granada Hosp. Grp., Inc., 175 Judgment arguing that the Government "has
F.R.D. 439,448 (W.D.N.Y. 1997).
raised novel arguments regarding To allow Plaintiff to avoid these application of OCGA § 24-7-702 (Medical deadlines merely because a motion for Expert Testimony) contrary to Nathan [sic] summary judgment has been filed on the v. Diamond, 282 Ga. 804, 654 S.E.2d 121 *14 However, this is not an instance in which the (2007) that holds that OCGA § 24-7-702 is a Court's resources are well-spent in 'procedural law." ECF No. 67. As such, entertaining oral argument from the parties Plaintiff argues that application of O.C.G.A. as the Court needs no aid in reaching its § 24-7-702 here is clear error. See id. In Nat hans, the Supreme Court of Georgia conclusion based on Eleventh Circuit determined that because O.C.G.A. § 24-7- precedent and the text of the Federal Rules of Evidence. Therefore, the Court denies 702(c) "does not affect . . . substantive right[s] of action, as it does not change the Plaintiff's request for oral argument. standard of care to be applied or the measure
V.
CONCLUSION of. . . recovery," the statute is procedural in The Court finds that under O.C.G.A. § nature and could therefore be applied 24-7-702(c), Plaintiff's proffered expert is retroactively. 654 S.E.2d at 125. not competent to testify as to the applicable But as more fully explained above, the standard of care at issue in this case and Eleventh Circuit in McDowell found that GRANTS the Government's Motion to Georgia's medical malpractice expert Exclude Expert Testimony, ECF No. 50. testimony rule was, in reality, an expert Accordingly, Plaintiff's request for oral competency rule which Federal Rule of argument on this issue, ECF No. 67, is Evidence 601 expressly incorporates into the DENIED. Further, because Plaintiff has federal rules in cases where, as here, "State failed to show good cause warranting law supplies the rule of decision . . . ." See modification of the scheduling order, the McDowell, 392 F.3d at 1295 (quoting Legg, Court DENIES Plaintiffs Motion to Allow 286 F.3d at 290 (quoting Fed. R. Evid. Additional Expert, ECF No. 52. 601)). The fact that the Supreme Court of Because a claim of medical malpractice Georgia concluded that O.C.G.A. § 24-7- under Georgia law requires expert testimony 702(c) is procedural for purposes of to establish the applicable standard of care retroactivity, does not change the Eleventh and causation, Plaintiff's failure to produce Circuit's calculus in determining that the competent expert testimony entitles the statute is so intimately intertwined with Government to summary judgment. Georgia's medical malpractice laws so as to Therefore, the Court GRANTS the create an Erie conflict requiring its Government's Motion for Summary application in federal court where state law Judgment, ECF No. 50. provides the rule of decision. Thus, this application of O.C.G.A. § 24-7-702 is
Thisy of November 2014. neither novel nor clearly erroneous, but rather follows Eleventh Circuit precedent.
The Court is not opposed to granting B. AVX T EDENFTELD, JUDGE UNITED STATES DIST1CT COURT requests for oral arguments and welcomes
SOUTHERN DISTRICT OF GEORGIA
discussion with counsel when it finds that such conversation on the issues is fruitful towards aiding its decision-making.