Expert’s Affidavit in Georgia Medical Malpractice

OCGA § 9-11-9.1 (a) requires a medical malpractice plaintiff to file his lawsuit with an affidavit from an expert competent to testify on one negligent act or omission and the facts that support the malpractice claim. Who is considered an “expert” under this Georgia law?

In a recent case the plaintiff filed a medical malpractice lawsuit against two neurosurgeons and his practice. It arose the plaintiff suffered a back injury and was diagnosed with a possible intradural spinal cord tumor. The diagnosing doctor recommended a laminectomy and removal of the tumor. A surgery was performed, but no tumor was found. There were clumped nerves. The surgeon went higher up the spine to see if there was a tumor there, but didn’t find anything.

There were later complications and disabilities. The plaintiff claimed he should have been diagnosed with arachnoiditis and that he had been forced to undergo neurosurgical procedures that were inappropriate.
The plaintiff got a doctor to opine that the neurosurgeons had failed to meet the standard of care by offering a correct diagnosis and performing an inappropriate surgery that caused complications and disabilities. The doctor had a board certification by the American Board of Family Practice and 80% of his practice dealt with disabilities.

The neurosurgeons moved to dismiss the lawsuit, claiming the doctor’s affidavit submitted with the complaint wasn’t competent to testify on the neurosurgical care complained about in the complaint in violation of OCGA § 9-11-9.1.

The plaintiff filed an amended complaint along with a board-certified neurosurgeon’s affidavit. The neurosurgeon’s affidavit offered an opinion that the neurosurgeons had negligently failed to protect the nerves of the cauda equina and that the unnecessary surgery led to permanent nerve injuries. The neurosurgeon had been practicing neurosurgery for three of the five prior years.

The trial court found that the plaintiff hadn’t shown the original doctor who had signed the first affidavit was competent. The court held Georgia doesn’t permit a plaintiff to cure a defect by filing an amended complaint with an affidavit by another expert. The trial court granted the neurosurgeons’ motion to dismiss. It ruled a plaintiff can’t meet the requirement of OCGA § 9-11-9.1 by filing an affidavit from someone not competent to testify as to the standard and then cure the deficiency with an amended complaint with a proper expert’s affidavit. The plaintiff appealed.

The appellate court explained that the neurosurgeon defendants’ arguments were well-taken. A plaintiff’s complaint is subject to dismissal if his expert affidavit is defective. A plaintiff can fix the defect by amendment within 30 days of the defendant serving a motion alleging the defect.

The plaintiff argued he cured the defect. In an earlier case, the court had ruled that focusing only on an original affidavit and ignoring a new affidavit was an error. The appellate court explained that a plaintiff has a broad right to fix a defect in an expert’s affidavit in a medical malpractice case. Making sure the affidavit is competent insures the complaint isn’t frivolous. The judgment was reversed.

If you are seriously injured by a doctor’s negligence, you may have grounds for a lawsuit. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at (470) 709-0666 or via our online form.

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