Medical malpractice is treated differently than most personal injury claims in Georgia. State law requires a malpractice plaintiff to submit an affidavit from a qualified expert who can attest that there is “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Without such an affidavit, a judge must dismiss the malpractice lawsuit.
To make things even more difficult for malpractice victims, Georgia law imposes specific qualifications on the experts who must submit the affidavits. The expert must have “actual professional knowledge and experience” in the same specialty as the defendant. This experience must include either “active practice” in the specialty “for at least three of the last five years” preceding the filing of the affidavit, or alternatively, teaching in that specialty for “at least three of the last five years as an employed member of the faculty” at a properly accredited educational institution.
Zarate-Martinez v. Echemendia
The Georgia Supreme Court recently had an opportunity to consider the constitutionality of these strict qualification requirements. The underlying case involves a medical malpractice complaint brought by a woman who suffered injuries following an improperly performed tubal ligation procedure. In support of her malpractice claims against multiple defendants, the plaintiff submitted an expert affidavit. The defendants objected on the grounds the expert was not “qualified” under state law. The court agreed and went on to strike not only that expert’s affidavit but subsequent opinions offered by two other doctors retained by the plaintiff.
The plaintiff ultimately asked the Georgia Supreme Court to declare the expert qualification requirements unconstitutional. The court declined to do so. In a unanimous opinion, the court said the state’s “teaching and active practice requirements” for expert witnesses were necessary “to reduce the possibility of frivolous malpractice claims being litigated extensively in court, which could raise the cost of liability insurance for health care providers and jeopardize citizens’ continued access to quality care.” It therefore did not violate the plaintiff’s constitutional rights to “to classify medical malpractice cases differently from other professional malpractice cases.”
Having said all that, the Supreme Court went on to hold the trial court improperly excluded the affidavit of one of the three experts offered by the plaintiff. This particular expert had “regularly practiced for more than five years” prior to the plaintiff’s tubal ligation. However, the trial court still excluded her testimony because the doctor had not personally performed the same specific tubal ligation procedure during that time. The Supreme Court said that was not necessary. Last year the Supreme Court held in a similar case that Georgia law only requires “an appropriate level of knowledge” in performing the procedure in question; that does not necessarily mean the expert must have performed the procedure herself.
Accordingly, the Supreme Court returned the case to the trial court with instructions to reconsider the qualifications of the plaintiff’s expert. The trial judge may still ultimately decide the expert lacks the “appropriate level of knowledge” and dismiss the plaintiff’s malpractice complaint for a second time. However, if the affidavit is accepted, the plaintiff will move one step closer to presenting her case to a jury.