Hewitt v. Kalish: Qualifying as an "expert Competent to Testify" Under O.c.g.a. Section 9-11-9.1 - Richard T. Hills

• Publication year: 1995

Hewitt V. Kalish: Qualifying as an "Expert Competent To Testify" Under O.C.GA. Section 9-11-9.1

In Hewett v. Kalish,¹ plaintiff, Hewett, sued Kalish, a podiatrist, for the negligent treatment of her tarsal tunnel syndrome condition.² As required by Official Code of Georgia Annotated section 9-11-9.1,³ plaintiff filed with her complaint the affidavit of an orthopedic surgeon. Dr. Alan D. Davis.⁴ The affidavit set forth Dr. Davis' professional credentials, his hospital affiliations, and his curriculum vitae.⁵ The relevant portion of the affidavit provided:

I am . . . competent to testify as an expert on behalf of [plaintiff] in an action for professional malpractice arising out of the diagnosis, care and treatment of [plaintiff] from January 1988 through March 1992. I have personal knowledge of the facts recited in this Affidavit. My opinions in this Affidavit are based upon my education, training and experience in practicing orthopedics, together with my own professional and careful examination of [plaintiff], as well as review of [her] medical records . . .

The affidavit then went on to state that in the affiant's opinion, defendant failed to exercise the proper standard of care in the evaluation and treatment of plaintiff's tarsal tunnel syndrome and in the performance of the posterior tibial nerve resection.⁷ The trial court dismissed the complaint because the affidavit failed to meet the "expert competent to testify" requirements of section 9-11-9.1.⁸ The court of appeals affirmed.⁹ The court of appeals determined the issue of an expert's competency is to be evaluated by an evidentiary standard and must be satisfied at the pleading stage.¹⁰ The court of appeals then declared the affidavit of Dr. Davis to be insufficient because he was from a different professional school than defendant and the affidavit "lacked evidence that [Dr. Davis] employed like methods of treatment as are employed in podiatry, so as to establish the expertise necessary to state an opinion regarding the standard of care to which the podiatrist defendant is held."¹¹ On appeal, the Georgia Supreme Court re-versed.¹² The supreme court held section 9-11-9.1 simply imposes an initial pleading requirement on the plaintiff.¹³ In order for the complaint in a professional malpractice action to be subject to dismissal for failure to state a claim, the affidavit must "'disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.'¹⁴

The Georgia General Assembly enacted the requirement of an expert affidavit in a professional malpractice action in 1987.¹⁵ The purpose behind the statute is "to prevent the filing of a professional malpractice action without fact and opinion to support a claim and relying on discovery to produce the necessary fact and opinion to sustain a claim."¹⁶ The goal is "to reduce the number of frivolous malpractice suits being filed."¹⁷ As a result, plaintiffs are required to bring forth their proof at an earlier stage.¹⁸ The statute does not clarify the meaning of the phrase "expert competent to testify."¹⁹ Rather, it has been left to the Georgia appellate courts to give this phrase meaning in light of the underlying purpose and goals of the statute. The traditional rule in Georgia regarding the competency of an expert to testify in a malpractice action when the expert is from a different professional school than the defendant was stated by the Georgia Court of Appeals in Sandford v. Howard.^° The court explained:

The general rule is that a member of a school of practice other than that to which defendant belongs is not competent to testify as an expert in a malpractice case .... [However], [w]here there is proof by competent evidence that the methods of treatment are the same despite the difference in the nomenclature of the schools involved, the witness is competent to testify.²¹

This rule was reaffirmed three years later in Bethea v. Smith.²² In Bethea, plaintiff in a medical malpractice action presented the expert affidavit of a podiatrist in opposing the summary judgment motion of defendant orthopedic surgeon.²³ The court of appeals determined the affidavit was not competent expert medical evidence.²⁴ In order to fall within the exception to Sandford's general rule, the affiant must produce some evidence of education, training or experience demonstrating his or her similar expert qualifications as to the diagnosis and treatment employed by defendant.²⁵ "Whether or not the same treatment would ordinarily be afforded as a matter of general practice by both schools of medicine is ... an evidentiary issue."²⁶ The first case in which the court of appeals interpreted the "expert competent to testify" language of section 9-11-9.1 was Piedmont Hospital, Inc. v. Milton ²⁷ In Milton, plaintiff sued Piedmont Hospital alleging medical malpractice of the nursing staff for injuries suffered in a fall while recovering from surgery.²⁸ Pursuant to section 9-11-9.1, plaintiffs filed with their complaint the affidavit of Dr. William Scaljon, the doctor who performed plaintiffs surgery prior to the fall that led to his injuries.²⁹ The court of appeals held the affidavit failed to satisfy the requirements of section 9-11-9.1 because it failed to demonstrate the affiant was "an expert competent to testify" in the field of nursing.³⁰ While not explicitly referring to the rule established in Sandford, the court's requirement that the affiant produce evidence of his qualifications as an expert in the field of nursing leads to the conclusion that the court adopted Sandford in applying the competency element of section 9-11-9.1.³¹ In Milligan V. Manno,³² the court of appeals expressly applied the rule from Sandford to the expert affidavit requirement.³³ In Milligan, plaintiff filed the affidavit of an osteopathic physician in her medical malpractice action against an allopathic physician.³⁴ The affiant concluded that the defendant failed to exercise the proper standard of care, but provided no evidence as to how the standards of care or methods of treatment of allopaths and osteopaths overlapped.³⁵ The court of appeals held the affidavit to be insufficient imder the requirements of section 9-11-9.1.³⁶ The court of appeals stated:

Now that the law requires the affidavit of a competent expert witness to be filed with a malpractice complaint, the rule set forth in Sandford governing the competence of a member of one school of medical practice to testify against a member of another school applies not only to testimony presented at trial but also to the affidavit required to be filed with the complaint.³⁷

The holding in Milligan, therefore, established that the competency of the expert for purposes of the section 9-11-9.1 affidavit is to be evaluated according to the same evidentiary standards used in summary judgment proceedings and at trial.³⁸ In Chandler v. Koenig,³⁹ the court of appeals set forth in greater detail the requirements for an affiant from a different professional school in order to qualify as an expert for purposes of section 9-11-9.1.⁴⁰ The court of appeals stated:

[C]ompetency as an expert is not demonstrated by mere familiarity. During the course of one's education, training or experience as a [pharmacologist], it is possible to become "familiar" with the standard of care and treatment generally employed by [medical doctors]. Such familiarity would not, however, qualify one as an expert in that regard. An expert witness is one who through education, training, or experi-

ence has peculiar knowledge concerning some matter of science or skill to which his testimony relates.⁴¹

A bare assertion of familiarity with the applicable standard of care is not sufficient to meet the requirements of section 9-11-9.1.⁴² However, in the absence of evidence of the affiant's expertise regarding defendant's standard of care, the affidavit will still be sufficient if evidence is produced demonstrating that the treatment is identical in the two schools.⁴³ In Nowak v. High,⁴⁴ the court of appeals held a registered nurse was competent to testify, for purposes of the section 9-11-9.1 affidavit, in a malpractice action against a doctor who was allegedly negligent in the giving of a phenergan injection.⁴⁵ The affidavit provided that the practice of giving phenergan injections is usually performed by registered nurses, but medical doctors also engage in the practice.⁴⁶ The affiant concluded, "I am familiar with the standard of care exercised in the United States...