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.