Last week, we announced that the Georgia Court of Appeals ruled in favor of a $13.9 million medical malpractice verdict in a case where the plaintiff was represented by Tyrone Law Firm at trial. The complaint, brought by Melissa Dempsey for injuries that her daughter, Kailey, sustained during her birth in 2002, alleged that Kailey suffers from permanent mental and physical disabilities including cerebral palsy and mental retardation due to traumatic brain injury at birth, caused directly by the attending nurses’ negligence during the birth. This week, we delve a little deeper into the Court’s ruling and the reasoning behind its conclusion.

Tyrone Law Firm asserted that the nurses had failed to properly read or interpret data from a fetal monitor, thereby deviating from the appropriate standard of care for nurses. This, Tyrone Law Firm stated, led to the failure of doctors to intervene in the birth when Kailey began to suffer from oxygen deprivation. In proving this assertion, Tyrone Law Firm presented the expert testimony of a certified nurse midwife, who testified that the defendant nurses’ behavior did indeed deviate from the standard of care. The jury awarded Dempsey $13.9 million, but the judge ultimately granted a new trial, based on the defendants’ assertion that the nurse midwife was not qualified to testify on the nurses’ compliance with the standard of care.
Presiding Judge John Ellington wrote the majority opinion, emphasizing that the expert witness had testified in the relevant area, labor and delivery for almost twenty years, and that she had started her career as a registered nurse. She only became a certified nurse midwife later in her career in addition to being a registered nurse. Additionally, Judge Ellington stated that while the relevant statute, O.C.G.A. § 24-7-702(c)(2)(C)(i), requires medical malpractice experts to be a member “of the same profession” as the professional whose conduct is at issue, it does not define what “of the same profession” means, and previous cases have done little to shed light on the meaning as well.
Thus, in absence of guiding case law or statutory language, Judge Ellington noted that Georgia’s licensing system considers a certified nurse midwife to be a registered nurse who has advanced training in a specialized area. Finally, he noted that the court has referenced a Georgia statute on expert affidavits before in determining what falls under the “of the same profession” category, and that this statute does not separate nurses and nurse midwives.
The Court was split 4-3 in its ruling, with Judge Carla Wong McMillian writing the dissent.
If your loved one suffers from cerebral palsy, call us for help. We will talk to you and review your case for free. The Tyrone Law Firm specializes in representing those who have suffered a devastating injury, such as birth injuries or traumatic brain injury resulting from the negligence of another. Our personal injury firm here in Atlanta has a very successful record of trying such cases.
Nelson Tyrone handles Brain Injury, Spine Injury and RSD/CRPS cases throughout the United States. He involves only the top medical, rehabilitation and life-care plan experts in the field. His results on behalf of clients include several of the largest settlements and verdicts on record.
You can reach us at 404-377-0017 or via email at If we can’t help you, we will do our best to put you into the hands of lawyers who can.
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