A defense motion to exclude the plaintiff’s standard-of-care expert can take a year of trial preparation off the table on the day the order is signed. The motion typically comes after the expert has been deposed, after the records have been mapped against the affidavit, after summary judgment has been briefed. The defense argument is rarely about whether the expert is intelligent, well-credentialed, or knowledgeable. The argument is about whether the expert meets the specific statutory qualifications in O.C.G.A. § 24-7-702(c) for this particular defendant in this particular specialty for the conduct at issue. A no on any one of those questions excludes the testimony, and excluded testimony usually ends the case.
The qualifications under § 24-7-702(c) #
O.C.G.A. § 24-7-702(c) provides the qualifications standard for expert testimony in Georgia professional malpractice cases. The statute imposes several requirements that operate together rather than in the alternative.
The expert must be licensed by an appropriate regulatory agency to practice the affiant’s profession at the time the testimony is given (or at the time of the act or omission alleged to constitute negligence, depending on the subsection). The expert must be a member of the same profession as the defendant: a physician for a physician defendant, a nurse for a nursing defendant, a dentist for a dentistry claim. And the expert must have actively practiced or taught the area of medicine at issue for at least three of the last five years preceding the date of the act or omission alleged to constitute negligence.
The “three of the last five years” requirement is measured against the date of the alleged negligence, not the date of trial or the date of the expert’s retention. An expert testifying in 2026 about a 2022 surgical decision must have actively practiced or taught the relevant area during three of the years 2017 through 2022. An expert who retired in 2020 may be excluded from testifying about a 2022 case even though her career may have spanned several decades.
For testimony against a specialist, an additional layer applies. Under § 24-7-702(c)(2)(C), the expert must have been engaged in the same specialty or a closely related specialty at the time of the alleged negligence. The provision tightens the qualifications when the defendant is a board-certified specialist; the expert must come from substantially the same field.
Same-specialty and closely-related-specialty issues #
The same-specialty requirement produces some of the most contested qualifications litigation in Georgia medical malpractice practice. The statute does not provide a list of related specialties; the analysis is conducted case by case based on the substance of the testimony and the substance of the expert’s practice.
A board-certified emergency physician from Nashville who has worked 36-hour weekend shifts in a Level I trauma center for the past four years carries a missed-stroke case in an Atlanta ED through cross-examination on qualifications. A retired internist who left clinical practice in 2018 does not survive the same qualifications motion in the same case. The difference is not about general medical knowledge; it is about whether the expert has been engaged in the same specialty (emergency medicine) during the relevant period.
Cross-specialty testimony is sometimes permitted when the underlying clinical issue is one on which a related specialty has substantial expertise. A pulmonologist may sometimes opine on critical care decisions because critical care medicine substantially overlaps with pulmonology in clinical practice. An emergency physician may sometimes opine on initial diagnostic workup in primary care because the differential-diagnosis approach is similar in both settings. The analysis is fact-specific and turns on the substance of what the expert is being asked to opine about, not on the formal specialty label.
Hospital practice settings can also affect the analysis. An internist who has spent the last five years as a hospitalist managing inpatient care may be qualified to opine on hospital-based internal medicine decisions even though her formal training was in general internal medicine without subspecialty certification. The active practice in the relevant area is what the statute requires, not necessarily fellowship training in a specific subspecialty.
Active practice versus teaching #
The statute permits either active practice or teaching of the relevant area. Either path can satisfy the qualifications requirement, though each comes with practical considerations.
Active-practice experts have direct credibility with juries. A physician who is still seeing patients in the relevant specialty can speak from current experience, address how the actual standard is implemented in real practice, and respond to defense suggestions that academic understanding diverges from real-world care. A practicing emergency physician describing how chest pain is worked up in a busy community ED carries different weight than an academic physician describing how it should be worked up in principle.
Teaching experts have other advantages. A medical school professor with active teaching responsibility in the relevant area may be highly credentialed, may have published extensively, and may bring scholarly authority to the testimony. The teaching path is recognized by the statute as substantively equivalent to active practice for qualifications purposes.
Mixed practice is also common. Many academic physicians both teach and practice; the relevant question is whether the combined activity reaches the level of active engagement in the area of medicine at issue.
The retired-physician problem #
Retired physicians produce the largest single category of qualifications challenges in Georgia medical malpractice. A retired physician with thirty years of relevant experience may seem ideal: knowledgeable, available, willing to testify, not concerned about offending colleagues who might affect ongoing practice. The statute generally disqualifies these experts.
The three-of-the-last-five-years requirement, measured from the date of the alleged negligence, means a physician who retired in 2019 generally cannot testify about a 2023 negligent act. The retirement removes the expert from “active practice” during the relevant years, and the disqualification follows.
Some retired physicians remain qualified through teaching or limited clinical work. A physician who retired from full-time practice but continues to see patients part-time, or who maintains a teaching position with active clinical duties, may still satisfy the statute. The analysis turns on whether the activity rises to “active practice” of the relevant area; occasional consulting work or rare clinical encounters may not.
Counsel evaluating a retired physician as a potential expert should investigate the current activity level carefully before engagement. The decision to retain an expert who later proves to be disqualified can produce expert-shopping problems at the deposition stage and substantial procedural exposure.
How qualifications challenges are litigated #
Defense counsel typically test qualifications in stages. The first is the affidavit-stage motion to dismiss under O.C.G.A. § 9-11-9.1, arguing that the affidavit-signing expert does not meet § 24-7-702 qualifications. The motion comes early, often in the first sixty days of the case, and is based on the expert’s CV and the affidavit itself.
Later qualifications challenges may come through motions to exclude the expert at trial. After the expert’s deposition has explored the actual nature of recent practice, the defense may move to exclude the testimony on more specific grounds than were apparent from the CV alone. A deposition that reveals the expert’s recent practice has been administrative rather than clinical, or that the expert has not actually treated patients with the relevant condition in the past five years, can support an exclusion motion.
Cross-specialty challenges typically come at the second stage. The defense allows the expert to be deposed, develops the record on the expert’s specialty engagement and on the substance of what the expert is being asked to opine, then moves to exclude on the ground that the expert’s specialty is not closely enough related to the defendant’s specialty for the testimony at issue.
The motion practice is fact-specific. The court considers the expert’s CV, the expert’s deposition testimony about recent practice, the substance of the proposed opinions, and the specialty of the defendant. Decisions on qualifications challenges are reviewable on appeal but are often difficult to overturn given the discretion afforded to trial courts on evidentiary issues.
Strategic considerations in expert selection #
Experienced plaintiff’s counsel approach expert selection as a substantive decision with implications throughout the case, not as a procedural box to check. Several considerations recur.
Current active practice in the relevant specialty is the safest qualifications posture. A physician currently in active practice in the same specialty as the defendant, working in a clinical setting comparable to where the negligence occurred, with recent experience treating patients with the relevant condition, is the hardest to challenge. The CV may not look as impressive as a retired academic chairman’s, but the qualifications are durable under cross-examination.
The expert’s deposition manner matters as much as the credentials. The expert who answers questions directly, acknowledges limits of opinion, defends positions under pressure without becoming argumentative, and can explain medical concepts to non-physicians in plain language produces favorable depositions. The same expert at trial carries the case. An expert who is brilliant on paper but evasive or hostile at deposition may need to be replaced even after substantial investment.
The expert’s willingness to testify against specific defendants matters in some specialty markets. A surgeon willing to testify against another surgeon in the same city may be hard to find; the practical reality is that some experts limit their testimony to defendants outside their immediate geographic and professional community. This is not an ethical concern in itself, but it constrains the available pool.
The expert’s role evolves through the case #
The expert’s role changes as the case progresses. At the affidavit stage, the expert articulates the negligence theory in a sworn statement. At the discovery stage, the expert reviews additional records produced by the defendant, refines the opinions, and prepares for deposition. At the deposition stage, the expert defends the opinions against cross-examination. At the summary judgment stage, the expert may need to provide supplemental declarations addressing specific defense arguments. At trial, the expert testifies to the jury, often as the principal evidentiary anchor for the plaintiff’s case.
Each stage requires preparation. The expert who reviewed records cursorily for the affidavit and then was not engaged again until deposition may produce poor testimony at deposition. The expert who prepared carefully for deposition but did not study the defense expert reports may produce poor cross-examination of the defense expert at trial. The expert investment in a contested medical malpractice case is substantial and ongoing, not a one-time retainer.
The expert’s communication ability matters as much as the expert’s credentials. A highly qualified expert who cannot communicate effectively with juries may be less valuable than a moderately qualified expert who can explain complex medical issues clearly.
The standard-of-care expert is the case #
In Georgia medical malpractice litigation, the standard-of-care expert is the case in a sense that goes beyond other personal injury practice. The affidavit requires the expert’s identification of the negligent acts under § 9-11-9.1. The discovery is shaped by the expert’s theory. The depositions test the expert’s qualifications and methodology under § 24-7-702. The trial turns on which side’s expert the jury believes. A strong expert can carry a case with difficult facts; a weak expert can undermine a case with strong underlying facts. The expert selection decision, made before the complaint is filed, often determines whether the case survives, settles favorably, or proceeds to a defense verdict.
This article is for informational purposes only and does not constitute legal advice. Personal injury cases turn on specific facts and applicable law that vary by case. If you have been injured in Georgia and want to understand your legal options, consult a licensed Georgia personal injury attorney.