Bacon County Hospital & Health System v. Whitley
319 Ga. App. 545
Ga. Ct. App.2013Background
- Following an interlocutory appeal, Bacon County defendants challenge denial of dismissal of Wanda Whitley’s medical malpractice complaint.
- Whitley alleged negligence in electrostimulation therapy by physical therapists Byrd and Jane Doe for a severe ankle injury.
- Whitley submitted an affidavit from Dr. Michael Siefman, a Florida-licensed chiropractor, claiming deviation from physical therapy standard of care.
- Defendants moved to dismiss arguing Dr. Siefman is not qualified under OCGA § 9-11-9.1 and 24-9-67.1 because he is not a physical therapist.
- Trial court denied dismissal after a hearing, prompting immediate-review by the Bacon County defendants.
- Court held the trial court abused its discretion by allowing a chiropractor to testify on a physical therapist’s standard of care; reversed and remanded with direction to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether chiropractor qualifies as expert under 24-9-67.1 (c)(2) (D) to testify on PT standard of care | Whitley contends physician supervision exception applies | Siefman is not same profession as physical therapist; not qualified | No; chiropractor not qualified under (D) unless physician-exception applies |
| Whether the expert must be of the same profession as the defendant provider | Florida practice treats chiropractic as PT-equivalent; meets same profession | Georgia law requires same profession; Florida overlap not enough | Need same profession unless (D) exception applies; not met here |
| Whether Florida law recognizing overlap affects Georgia expert qualification | Florida statutes permit chiropractors to practice physiotherapy; supports qualification | Georgia law controls; chiropractors not same profession; not qualified | Florida provisions do not override Georgia requirements; not sufficient |
Key Cases Cited
- Akers v. Elsey, 294 Ga. App. 359 (Ga. App. 2008) (affidavit requirements; abuse of discretion standard of review)
- Smith v. Harris, 294 Ga. App. 333 (Ga. App. 2008) (active practice or teaching requires same profession)
- Postell v. Hankla, 317 Ga. App. 86 (Ga. App. 2012) (physician cannot testify about nurse midwife standard unless exception)
- Ball v. Jones, 301 Ga. App. 340 (Ga. App. 2009) (nurse not qualified to testify about physical therapist standard)