In the overwhelming majority of medical malpractice cases, a plaintiff will need to provide expert testimony in order to succeed on his or her claim. Expert testimony is necessary, since a typical juror cannot make a determination regarding whether a physician has breached his duty of care without the aid of an expert who can provide testimony regarding what the applicable standard of care is. Although the need for expert testimony is common knowledge among legal practitioners, a recent decision from the Georgia Court of Appeals, Davis v. Osinuga, examines the peculiar situation when the desired expert is unavailable at the time of a trial and the plaintiff seeks a continuance in order to have time to make the expert available.
This medical malpractice wrongful death case was brought by the children of a man who died while receiving treatment from one of the defendants, a physician at East Point Primary Care Center in Dekalb County, Georgia. When the plaintiffs filed this action in April 2009, they included an affidavit from Dr. Kelly Thrasher, as is required by O.C.G.A. § 9-11-9.1. However, in January 2013, Dr. Thrasher was arrested on felony and misdemeanor charges, resulting in the Georgia Composite Medical Board suspending Dr. Thrasher’s medical license. At this time, counsel for the defendant inquired into whether the plaintiff still intended to call Dr. Thrasher as an expert witness and noted that they would oppose any motion for a continuance based on difficulties posed by Dr. Thrasher’s legal troubles.
In fact, this case had been included on the court’s trial calendar on three earlier occasions since 2011, but the case had either not been reached or continued in every instance. On January 1, 2014, the trial court issued a notice indicating that the case had been placed on the jury trial calendar for the week of February 10, 2014. Unfortunately, Dr. Thrasher was arrested on January 14, 2014 for practicing medicine without a license. Dr. Thrasher was released on bail, but one of the conditions of his release was that he was not to give his medical opinion on any matter, which included testifying in legal proceedings. On the day of the trial, February 10, 2014, the plaintiffs made a motion for a continuance, which the trial court denied.
At a hearing on this issue, the trial court judge noted that the plaintiffs had been aware of their planned expert’s legal issues for over a year but nonetheless failed to either secure an alternate expert witness or to preserve Dr. Thrasher’s expert testimony through an evidentiary deposition. Since the plaintiff could not succeed without the expert testimony, the case was dismissed for want of prosecution. The plaintiffs then brought this appeal, which argued that the trial court erred in denying their motion for a continuance.
When determining whether a trial court was improper in denying a motion for a continuance, an appeals court applies an abuse of discretion standard of review. In re Estate of Jackson, 241 Ga. App. 392, 393-394 (1) (526 SE2d 884) (1999) (“A motion for continuance of a trial is [in] the sound legal discretion of a trial judge … exercise of that discretion will not be disturbed […] unless the discretion is manifestly abused”).
Pursuant to O.C.G.A. § 9-10-160, an application for a continuance based on the absence of a witness must set forth eight different elements, including when “the applicant expects he will be able to procure the testimony of the witness.” In this case, the plaintiff failed to provide information regarding when the witness would be able to testify at the term of court. If an application fails to adhere to the requirements of § 9-10-160, “there is no abuse of the trial court’s discretion to deny a continuance.” Carter v. Murphey, 241 Ga. App. 340, 342-344 (1) (526 SE2d 149) (1999). Since the continuance was permissibly denied and the plaintiff could not move forward with the case without expert testimony, it was thus proper for the trial court to dismiss the action for want of prosecution.
It goes without saying, but one should always be cautious about the witnesses he or she chooses. Indeed, expert testimony is often critical to making an adequate legal showing, and one should be certain the expert he or she has chosen is not only credible but also available. When determining what evidence, including expert testimony, is necessary to make the strongest showing at trial, the assistance of experienced legal counsel can go a long way. The medical malpractice attorneys at the Law Office of Terrence R. Bethune have litigated medical malpractice cases in both state and federal courts for many years and can offer you with the sort of competent legal guidance your may need. If you’ve recently been harmed as a result of possible medical negligence and are curious about the options you may have for recovery, feel free to contact us for a free case evaluation.