In its decision filed on February 13, 2017, the Court of Appeals of Georgia (“Appellate Court”) revived parts of a Georgia medical malpractice complaint that had been dismissed by the trial court because it was not accompanied by an affidavit of a medical expert. The Georgia medical malpractice complaint had been filed by the plaintiff pro se (without an attorney) and alleged that he had been injured by the defendants performing an unnecessary lung biopsy on him for their financial gain.
Pursuant to OCGA § 9-11-9.1 (a), a claim alleging medical malpractice in Georgia must be accompanied by “an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Failure to comply with the affidavit requirement subjects a medical malpractice claim to dismissal.
The Appellate Court stated that not every suit which calls into question the conduct of one who happens to be a medical professional is a medical malpractice action. The key factor in deciding whether OCGA § 9-11-9.1 (a) applies is the existence or absence of allegations that the defendant-professional has rendered negligent professional services (the determinative factor is whether the task in question requires the exercise of professional judgment and skill). When the failure to do a thing, or the negligent doing of it, is proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service, it is a ‘professional’ act or practice.
The affidavit requirement in OCGA § 9-11-9.1 applies to professional negligence allegations but does not apply to claims for intentional misconduct or acts against a professional, including claims for fraud and misrepresentation.
The Appellate Court stated that three of the counts in the plaintiff’s medical malpractice complaint alleged intentional wrongdoing by certain defendants (one count alleged that one or more defendants intentionally made false and misleading representations to the plaintiff regarding his health care providers’ qualifications to perform the biopsy and the safety of that procedure; another count alleged RICO violations stemming from these purported falsehoods, as well as other intentional and coercive conduct; and, the third count alleged intentional infliction of emotional distress relating to the defendants’ allegedly “outrageous conduct” before and after the biopsy).
The Appellate Court therefore reversed the trial court’s dismissal of the plaintiff’s medical malpractice counts that alleged intentional misconduct because those counts did not require compliance with the affidavit requirements of OCGA § 9-11-9.1 (a), but affirmed the dismissal of the counts that required an expert affidavit.
The Appellate Court also vacated the trial court’s order dismissing the defendants for want of prosecution, and remanded for further consideration of whether the pro se plaintiff received the required written notice of the calendar call at which he failed to appear (the record contained evidence that the trial court did not send the notice to the proper post office box for the plaintiff).
Source Oduok v. Fulton Dekalb Hospital Authority, A16A1582.
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