Fisher v. Gala: O.c.g.a. § 9-11-9.1(e) Keeping Malpractice Claims Afloat
| Publication year | 2015 |
Fisher v. Gala: O.C.G.A. § 9-11-9.1(e) Keeping Malpractice Claims Afloat
Kathryn S. Dunnam
[Page 817]
"If at first you don't succeed, Try, try again."
Thomas H. Palmer1
For over four decades, the Georgia General Assembly has sought to strike a balance between the need for competent medical care and the role of the judiciary in determining relief for those injured by improper medical treatment.2 In its effort, Georgia adopted measures to limit the number of frivolous lawsuits to protect its professionals while giving plaintiffs an efficient avenue for relief. One of these adopted measures is the Official Code of Georgia Annotated's (O.C.G.A.) expert affidavit requirement, section 9-11-9.1 (§ 9.1).3 The use of expert testimony in malpractice cases is "firmly entrenched" in Georgia's policy and crucial to professional malpractice claims.4 Section 9.1 requires plaintiffs to submit an expert affidavit contemporaneously with the complaint in malpractice actions.5 The Georgia Court of Appeals determined in Fisher v. Gala6 that, pursuant to the language of § 9.1(e), a plaintiff has the ability to cure an affidavit that is defective because of the expert's incompetency by amendment with a substitute affidavit.7 Fisher,
[Page 818]
therefore, embodies Thomas Palmer's American maxim8 within the realm of medical malpractice. Georgia plaintiffs: If your first expert affiant is found incompetent, amend and try again with a different one.
Dorian Fisher received medical treatment after he suffered a back injury in March 2010. After initial diagnostic testing, Mr. Fisher's treating physicians found a possible tumor in his spinal cord.9 Mr. Fisher then pursued a second opinion from physician Vishal Gala, M.D. Dr. Gala diagnosed Mr. Fisher with an intradural spinal cord tumor, as had the original treating physicians. Dr. Gala specified that the tumor was a benign one called a schwannoma.10 Dr. Gala then suggested that Mr. Fisher's treatment should include a laminectomy, a surgery to remove the tumor, at the lower level of Mr. Fisher's spine.11 Specifically, the surgery would occur at the L5-S1 level of Mr. Fisher's spine. Mr. Fisher agreed to have the laminectomy surgery to remove the schwannoma. Dr. Gala and Regis Haid, M.D., both neurosurgeons, performed the laminectomy surgery on July 13, 2010.12
After the surgery, Mr. Fisher alleged, the laminectomy showed no schwannoma at the lower level of his spine. Dr. Gala and Dr. Haid did, however, find "a bundle of clumping nerve roots consistent with [the condition] arachnoiditis."13 After this discovery, the neurosurgeons
[Page 819]
explored the S1-S2-S3 level of Mr. Fisher's spine, which is directly below the original surgical location.14 The neurosurgeons could not find the schwannoma and thus explored the dura, which is the covering of the spinal cord.15 Finding no lesion in Mr. Fisher, the neurosurgeons finished the laminectomy.16
On July 10, 2012, Mr. Fisher filed his complaint for medical malpractice against the two neurosurgeons and Atlanta Brain and Spine Care, P.C. (collectively, the neurosurgeons). Mr. Fisher alleged in his complaint that misdiagnosing a schwannoma instead of arachnoiditis was negligent. He further alleged that the neurosurgeons' procedures, including a lumbar laminectomy, durotomy, and intradural exploration, were needless.17 Mr. Fisher's disabilities after the surgery were allegedly because of the negligence of the neurosurgeons.18
Mr. Fisher filed the affidavit of James Rogan, M.D. with his initial complaint.19 Dr. Rogan believed that the neurosurgeons violated the appropriate standard of care20 by misdiagnosing the schwannoma and
[Page 820]
by performing needless surgery. Dr. Rogan opined that the surgery, which did not reveal an intradural tumor, caused Mr. Fisher's disabilities. Dr. Rogan's basis of knowledge regarding Mr. Fisher's procedures, diagnosis, and treatment in this case was based on the following: (1) his certification through the American Board of Family Practice; (2) the fact that eighty percent, at least, of his practice involved the care of disabled patients as well as patients with neurological disabilities; and (3) the fact that he is familiar with the standard of care used in similar cases.21
In response, the neurosurgeons filed a motion to dismiss on August 9, 2012, contesting Dr. Rogan's competency in regards to the standard of care allegedly breached by the neurosurgeons. On September 7, 2012, Mr. Fisher filed his amended complaint with the affidavit of a different doctor, Michael Dogali, M.D. In the new affidavit, Dr. Dogali belived that the neurosurgeons' failure to protect Mr. Fisher's cauda equina nerves during surgery, which led to permanent nerve damage, was negligent.22 Dr. Dogali's affidavit stated that he was a board-certified neurosurgeon and that he was actively practicing neurosurgery for three of the last five years. This active practice of neurosurgery included the type of surgery and treatment involved in this case.23
At the hearing on the neurosurgeon's motion to dismiss, the Superior Court of Fulton County found that Mr. Fisher did not prove Dr. Rogan's competency.24 The court concluded that the affidavit was defective and "that Georgia law does not authorize a plaintiff to cure such a defect by filing an amended complaint with the affidavit of a different expert."25 Thus, the court ruled in favor of the neurosurgeons and granted the motion to dismiss Mr. Fisher's complaint.26
Mr. Fisher then appealed, and the Georgia Court of Appeals reversed the decision.27 The court of appeals disagreed with the trial court on
[Page 821]
the grounds that the cure provision does allow a plaintiff to file an amended complaint with a substituted affidavit.28 Reconsideration was denied on February 24, 2014, and on March 17, 2014, a petition for writ of certiorari was filed. The Georgia Supreme Court granted the petition on June 2, 2014, in a 4-3 vote.29 The supreme court heard oral arguments on September 8, 2014, and the parties filed supplemental and response briefs shortly thereafter.30 Most recently, on October 29, 2014, an amicus brief was filed in support of Mr. Fisher.31 Specifically, the supreme court granted certiorari to resolve the issue of whether a plaintiff, after filing an incompetent expert's affidavit, is permitted to cure this defect by filing an amended complaint with an affidavit by a competent expert.32
A. Statutory Development
Georgia has required, for many years, experts as a necessary tool to establish the "negligent acts or omissions on the part of a professional . . . in malpractice actions."33 The importance that the state places on this expert requirement was embodied by the 1987 Georgia General Assembly when it amended the Civil Practice Act34 to add expert witness requirements.35 Codified as § 9.1, the statute stated that the complaint "in any action for damages alleging professional malpractice" must be accompanied by an expert's affidavit specifically setting forth at least "one negligent act or omission" and the factual basis therefore.36 The General Assembly adopted the affidavit requirement to protect professionals from unwarranted litigation.37
[Page 822]
Notably, the 1987 version of § 9.1 did not include a cure provision, but did include complicated language and unnecessary technicalities.38 The statute was amended again in 1989, but without the addition of a cure provision.39 In interpreting the statute, appellate courts created scores of decisions that struggled to find the appropriate response to deficient affidavits.40 Georgia professionals, scholars, and more importantly, the judiciary, began to speak out against § 9.1.41 In response, the General Assembly extensively amended the statute in 1997.42 The amendments added an explicit cure provision, simplified § 9.1's procedures, and maintained the spirit of its purpose: "to protect professionals from frivolous lawsuits."43 The legislature adopted the judicially accepted doctrine44 that a party may cure "an affidavit which is allegedly defective . . . by amendment . . . within 30 days of service of the motion alleging that the affidavit is defective."45
[Page 824]
When applying section 9.1,46 courts should interpret the affidavit in line with the generally liberal pleading standards of the Civil Practice Act as long as that interpretation does not diminish § 9.1's goal of reducing frivolous lawsuits.47 This generous interpretation must also
[Page 825]
be kept in mind when dealing with O.C.G.A. § 24-7-702(c),48 which provides strict requirements for expert qualification.49 Thus, affidavits should be interpreted in favor of the plaintiff despite the possibility of an unfavorable interpretation.50
An expert is needed when a lay person would have zero knowledge, and the expert has specialized knowledge, of the topic at issue.51 Common instances where expert medical knowledge is needed are "allege[d] . . . use of inappropriate medication, wrongful administration of medication, failure to properly assess the degree of support required by a patient, or failure to follow medical orders."52
Tort reform measures enacted in 200553 affected the construction of § 9.1 by adding more necessary qualifications for experts in malpractice cases.54 O.C.G.A. § 24-7-702(c)(1) provides that the expert must be licensed in the state in which the expert was "practicing or teaching the profession at such time."55 In medical malpractice cases, experts must have been in the active practice of their field for "at least three of the last five years" or have taught in that field for the same amount of time.56 The statute also allows for a physician to serve as an expert if, for "at least three of the last five years," the physician has supervised
[Page 826]
certain enumerated medical professionals and has knowledge of their...
To continue reading
Request your trial