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Georgia Supreme Court Says Malpractice Plaintiff Can Substitute Experts

On March 27, the Georgia Supreme Court issued a ruling that should benefit all patients who bring medical malpractice claims in the state. The high court unanimously affirmed a lower court’s decision allowing a malpractice plaintiff to amend his complaint after a trial court found it defective. The defect arose from a dispute over the plaintiff’s decision to substitute one expert witness for another.

Fisher v. Gala

The plaintiff received treatment for back pain from a group of neurosurgeons in 2010. According to the plaintiff, the neurosurgeons misdiagnosed him and performed unnecessary surgical procedures, leading to “serious complications and permanent disabilities.” In July 2012, the plaintiff sued the neurosurgeons for negligence.

Under Georgia law, any complaint for medical malpractice must include “an affidavit of an expert competent to testify” as to the standard of care allegedly breached by the defendant physicians. If a judge determines the affidavit is “defective,” the plaintiff may file an amended affidavit “within 30 days of service of the motion alleging the affidavit is defective.” Absent a proper expert affidavit, the malpractice lawsuit must be dismissed.

In this case, the plaintiff’s complaint included an affidavit from a family physician, not an expert in neurosurgery. The defendant physicians accordingly filed a motion to dismiss due to a “defective” affidavit. Within the 30-day period, the plaintiff filed an amended complaint, this time including an affidavit from a second doctor who was a neurosurgeon.

The defendants argued, and the trial judge agreed, the substitution of experts was not enough to cure the defect in the original complaint. As they saw it, the law only allowed a plaintiff to cure a defect by having the same physician file an amended affidavit, not getting a second doctor to file one. The trial court therefore dismissed the lawsuit.

But in February 2014, the Georgia Court of Appeals reversed the trial judge, holding the plaintiff could substitute experts and thereby preserve his complaint. The Georgia Supreme Court agreed to review this decision, and unanimously agreed with the Court of Appeals this was a proper amendment.

Presiding Justice P. Harris Hines, writing for the Supreme Court, said nothing in the law required the narrow reading suggested by the defendants and imposed by the trial court. In general, Justice Hines explained, a complaint is supposed to be construed liberally, subject to the legislative exception requiring an affidavit in order to “reduce the filing of frivolous lawsuits.” Here, he said, the plaintiff “exercised his right to amend his complaint as a matter of course…and produced an affidavit of an expert who opines that professional malpractice occurred.” That is all the affidavit rule required.

Keep in mind, the Supreme Court only ruled the plaintiff could proceed with his lawsuit. This was not a ruling on the merits of his malpractice claims. The expert affidavit only has to specify “at least one negligent act or omission” on the part of the defendant. As noted by the Supreme Court, this requirement is designed to simply filter out malpractice lawsuits with no factual basis; it is not a substitute for having to prove negligence at trial.