Brantley v. Dubois, 327 Ga. App. 14

David and Janet Dubois sued surgeon Dr. Damon Brantley and the hospital for malpractice, alleging pancreatic injury during a laparoscopic umbilical hernia repair.
The Duboises filed an affidavit from Dr. Steven E. Swartz (general surgeon) attesting that Brantley deviated from the standard of care and caused traumatic pancreatic injury.
After defendants challenged the affidavit, the Duboises amended and submitted a second affidavit from Dr. Swartz describing the alleged trocar strike and asserting his methods were based on his general surgery experience.
Deposition revealed Dr. Swartz had performed "maybe one" — and possibly no — laparoscopic umbilical hernia repairs in the 3–5 years before the incident and had not assisted in such procedures; he primarily performs open repairs and dislikes the laparoscopic approach.
Defendants moved to dismiss or for summary judgment arguing the affidavit failed OCGA §§ 9-11-9.1 and 24-7-702 requirements; the trial court denied the motion, and defendants obtained interlocutory appellate review.
The Court of Appeals reviewed whether Dr. Swartz met OCGA § 24-7-702(c)(2)(A)’s requirement of active practice (three of five years, with sufficient frequency) and reversed the trial court, finding the affidavit insufficient.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dr. Swartz’s affidavit satisfied OCGA § 9-11-9.1 and § 24-7-702(c)(2)(A) for expert qualification	Swartz is a general surgeon familiar with the standard of care and his affidavit states his opinion is based on his professional knowledge and experience	Swartz lacked "sufficient frequency" performing the specific laparoscopic procedure (maybe one or none in prior 3–5 years) and thus was not qualified under § 24-7-702(c)(2)(A)	Reversed: affidavit insufficient — Swartz did not show the requisite recent, active experience or significant familiarity with the specific procedure, so exclusion/dismissal was required

Nathans v. Diamond, 282 Ga. 804 (Ga. 2007) (expert must satisfy subsection (c)(2) to testify; requires significant familiarity with the practice area)
Akers v. Elsey, 294 Ga. App. 359 (Ga. Ct. App. 2008) (failure to supply a proper OCGA § 9-11-9.1 affidavit may require dismissal)
Nat. Bldg. Maint. Specialists v. Hayes, 288 Ga. App. 25 (Ga. Ct. App. 2007) (standards for reviewing motions to dismiss)
McRae v. Hogan, 317 Ga. App. 813 (Ga. Ct. App. 2012) (standards for reviewing summary judgment)
Hope v. Kranc, 304 Ga. App. 367 (Ga. Ct. App. 2010) (trial court’s qualification decision under OCGA § 24-7-702 reviewed for abuse of discretion)