Ordinary negligence and medical malpractice are not the same thing under Georgia law. A key difference between the two is the requirements for filing a lawsuit. In a malpractice case, the plaintiff must attach an affidavit “of an expert competent to testify” as to at least one specific negligent act by a licensed health care professional. Failure to include such an expert affidavit may lead a judge to dismiss the complaint.
The expert affidavit requirement is designed to prevent frivolous malpractice lawsuits. The affidavit provides a basis for calling into question a physician’s exercise of “professional judgment and skill.” The law presumes a jury composed of non-expert laypersons cannot render a fair judgment without expert guidance. But such expertise is not necessary when the alleged injury is caused by something more routine, like a clerical or administrative error.
For that reason, no affidavit is required when filing a complaint for ordinary negligence. Distinguishing between ordinary negligence and medical malpractice can be tricky. Even trial judges sometimes get it wrong, as a recent decision by the Georgia Court of Appeals explained.
Ambrose v. St. Joseph’s Hospital of Atlanta, Inc.
The plaintiff in this case underwent spinal surgery in 2010. The surgeon used a computer-operated surgical microscope that included an ultraviolet light to “illuminate the operative field.” Unfortunately, the ultraviolet light was so strong that it burned the patient’s skin and back, rendering him unable to return to work after the surgery.
The patient sued the hospital for negligence. The hospital argued that this was a medical malpractice case, and as the plaintiff failed to include an expert affidavit, his complaint should be dismissed. The trial judge agreed with the hospital.
The Court of Appeals reversed. Judge M. Yvette Miller, writing for a three-judge panel, said that taking the plaintiff’s complaint at face value, “we cannot say that the claim is necessary one of medical malpractice.” At this stage of the case, his allegation appears to be one of ordinary negligence, so the district court erred in granting the hospital’s motion to dismiss.
The critical distinction here is that the plaintiff did not allege physician error as the cause of his injuries. Rather, he argues the hospital was at fault for providing the surgeon with inadequate equipment. The complaint alleges the hospital failed to update the software on the microscope and failed to adequately warn its surgeons of the risks in using the device. This would make the plaintiff’s complaint more akin to product liability than medical malpractice.
Similarly, Judge Miller agreed with the plaintiff that the trial judge erred because, under Georgia law, the expert affidavit requirement only applies when a hospital’s liability is based on “the action or inaction of a health care professional,” not the use of defective equipment.
The Court of Appeals decision does not mean the plaintiff will ultimately prevail in his lawsuit against the hospital. It simply means the plaintiff survives the initial motion to dismiss. The case may now proceed to discovery and trial, assuming there is no settlement between the parties.