Aguilar v. Children's Healthcare of Atlanta, Inc.
320 Ga. App. 663
| Ga. Ct. App. | 2013Background
- Aguilar appeals after dismissal of her medical malpractice suit against CHOA and Dr. Schultz.
- Plaintiff alleged improper intubation: tube not secured, slid into right mainstem bronchus for about 23 minutes.
- Death of Jonathon attributed to acute myocarditis; claims include failure to provide proper emergency treatment and improper airway management.
- Dr. Chou submitted the expert affidavit; defendants moved to dismiss arguing Chou was not qualified due to lack of active practice in emergency pediatric medicine for three of the last five years.
- Trial court held Chou lacked the required fresh, regular engagement in the relevant specialty; dismissal affirmed on appeal.
- Court relies on OCGA § 24-9-67.1 (now § 24-7-702) standard requiring actual knowledge from regularly engaged practitioners for the last three of five years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chou is qualified to opine on the standard of care. | Aguilar argues overlap allows cross-specialty testimony if within general area. | CHI argues Chou lacks active engagement in emergency pediatric medicine for three of five years. | No; trial court did not abuse discretion; Chou not actively engaged in the specialty. |
| Whether the expert must practice in the exact same specialty as the defendant to qualify. | Plaintiff claims some overlap permits a qualified opinion. | Defendant asserts need for substantial engagement in the area of practice in which the opinion is given. | Not met here; lack of regular engagement proved. |
| Whether the trial court properly applied the three-of-five-year active practice requirement. | Plaintiff relies on Emory-Adventist and other authorities for flexibility. | Defendant emphasizes residency and urgent care work did not satisfy frequency in the relevant area. | No abuse of discretion; Chou failed to meet the requirement. |
Key Cases Cited
- Cotten v. Phillips, 280 Ga. App. 280 (2006) (overlap allowed when opinion pertains to its own area of specialty)
- Nathans v. Diamond, 282 Ga. 804 (2007) (requires regular active practice in area for knowledge to be sufficient)
- Hope v. Kranc, 304 Ga. App. 367 (2010) (regular engagement essential; not satisfied by minimal experience)
- Dawson v. Leder, 294 Ga. App. 717 (2008) (teacher/teacher-expertise does not establish sufficient practice in area)
- Emory-Adventist v. Hunter, 301 Ga. App. 215 (2009) (resident engaged in repeated relevant acts may suffice in some contexts)
- Vaughan v. WellStar Health System, 304 Ga. App. 596 (2010) ( OCGA 24-9-67.1 interpretation for expert competence in malpractice actions)