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Highlighting the Georgia Supreme Court’s first week of its new term is a case that could change the way expert witnesses are questioned in medical malpractice trials. The issue in Johnson v. Riverdale Anesthesia Associates, No. S01G1138 (Sup. Ct. Ga. cert granted, Sept. 17, 2001), is whether medical experts testifying on the appropriate standard of care are subject to cross-examination as to how they would have treated the patient. The case is set for oral argument today. The issue stems from a 1999 Clayton County State Court trial, during which testifying doctors disagreed as to whether Dr. Robert G. Lawhead departed from the accepted medical standard of care as he administered a general anesthetic to a patient undergoing elective sinus surgery. Claire Johnson, then 52, suffered an immediate allergic reaction to the anesthesia, causing irreversible brain damage that led to her death in 1996. A plaintiffs’ expert said Lawhead should have given Johnson pure oxygen before inducing the anesthesia. The procedure provides a patient a three- to five-minute oxygen reserve to help prevent brain damage in case of an emergency, the expert said. But a defense expert, Dr. Robert Caplan, responded that nothing could have made it safer for Johnson to have the anesthetic. Moreover, Caplan declared that the accepted medical standard of care — by which the jury would decide whether Lawhead committed malpractice — did not require Johnson be pre-oxygenated. On cross-examination, plaintiffs’ lawyers wanted to ask Caplan whether he would have pre-oxygenated Johnson, but the defense objected to the question. With the jury out of the courtroom, Caplan said he would have pre-oxygenated Johnson. But Judge Linda S. Cowen refused to let the jury hear that statement, and the jury later ruled for the defense. Last year the Georgia Court of Appeals affirmed the ruling. The panel of Presiding Judge Gary B. Andrews and Judges John H. Ruffin Jr. and John J. Ellington relied on a 1996 appeals court decision holding that “the applicable standard of care is that employed by the medical profession generally and not what one individual doctor thought was advisable or would have done under the circumstances.” Thus, as Ruffin wrote for the panel, “Dr. Caplan’s personal practices and beliefs were irrelevant.” Lawyers for Johnson’s husband and estate, Gary Hill of Atlanta’s Hill & Bleiberg and Lary K. Evans of Griffin, Ga.’s Evans & Evans, came to the Georgia Supreme Court for help. “The testifying defense expert should be required to explain the discrepancy between his words and his actions to the satisfaction of a jury,” they argue in briefs. They cite a 1990 Georgia Court of Appeals opinion. In Prevost v. Taylor, 196 Ga. App. 368, the court allowed plaintiffs’ lawyers to question a defense expert as to whether he would have undergone the surgery at issue in the case. Despite testifying that the surgery would have been within the acceptable standard of care, the defense expert said he would not have undergone the surgery. The Prevost court, now-Presiding Judge Marion T. Pope Jr. and former Judges Braswell D. Deen Jr. and Dorothy Toth Beasley, allowed the plaintiff’s lawyer to use the question to impeach the expert’s opinion that the surgery met the appropriate standard of care. In response, however, H. Andrew Owen and Amy J. Kolczak of Owen Gleaton Egan Jones & Sweeney in Atlanta, argue that the appeals court generally has overruled Prevost in later decisions that have prohibited cross-examination about an expert physician’s personal practices. Owen and Kolczak point out that a doctor’s personal practices may be different than those of the defendant but within the standard of care. Thus, hearing an expert testify about his own personal practices “would unnecessarily inject confusion into the proceedings and greatly prejudice the defendant,” Owen and Kolczak argued. “It could, in effect, change the definition of the standard of care for the jury,” they added. The plaintiffs’ lawyers have a tough fight. Presiding Justice Leah W. Sears and Justices Robert Benham and Hugh P. Thompson voted against granting certiorari. Had one more justice voted with them, the high court would not have agreed to review the matter. JUSTICES TO REVIEW ISSUE OF BLOOD ALCOHOL LEVEL EVIDENCE In another important case, the court will determine whether a bar owner is liable for an employee, who was driving under the influence of alcohol when she struck and killed a 17-year-old girl. The employee’s blood alcohol level was 0.18. Northside Equities, d/b/a Ponytails v. Hulsey, No. S01C1307 (Sup. Ct. Ga. cert granted, Oct. 1, 2002). The victim’s mother, Phyllis G. Hulsey, sued the owner of the adult bar.The employee later pleaded guilty to vehicular homicide and driving under the influence of alcohol. The case involves the question of whether scientific evidence of the driver’s blood alcohol level created a triable issue of fact as to whether the DUI driver was noticeably intoxicated. Eyewitnesses said she was not. State law holds a person or business liable for furnishing alcohol to someone already intoxicated while knowing the drinker soon may drive a car. Chief Judge William E. Woodrum Jr. of the Bulloch County Superior Court granted the bar owner summary judgment. A panel of the Georgia Court of Appeals, including Presiding Judge Edward H. Johnson and Judges M. Yvette Miller and Frank M. Eldridge, disagreed and ruled that the alcohol test created a genuine issue of material fact that should be decided at a trial. Statesboro, Ga., sole practitioner H. Lehman Franklin Jr. and Brent J. Savage of Savannah, Ga.’s Savage, Turner, Pinson & Karsman represent Northside Equity. Charles B. Tanksley of Marietta, Ga.’s Browning & Tanksley represents Hulsey. The case is set for argument Tuesday morning. GOLDEN PEANUT CASE WILL BE ARGUED AGAIN Also up for a Tuesday morning argument is Golden Peanut Company v. Bass, No. S01G1307 (Sup. Ct. Ga. cert granted Sept. 17, 2001) the latest round in a 10-year fight over millions of dollars in peanut contracts. Benjamin F. Easterlin IV of King & Spalding in Atlanta will represent Varner-Bass Enterprises of Leslie, while Emmet J. Bondurant of Bondurant, Mixson & Elmore will represent Alpharetta, Ga.-based peanut sheller Golden Peanut.

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