Hendrix v. Fulton DeKalb Hospital Authority
330 Ga. App. 833
| Ga. Ct. App. | 2015Background
- Billy Ray Hendrix Jr. (quadriplegic) was treated at Grady Memorial Hospital for ~4 months after an automobile accident; he later developed decubitus (pressure) ulcers, infection, and died about three months after discharge.
- Parents and estate sued Grady Hospital for wrongful death/medical malpractice alleging failure to prevent, diagnose, and treat pressure ulcers; an expert affidavit by forensic pathologist Adel Shaker, M.D., accompanied the complaint.
- Grady moved to dismiss, arguing Dr. Shaker was not competent under OCGA § 24-7-702(c)(2) and the affidavit failed to specify negligent acts; within 30 days the plaintiffs filed an amended affidavit attempting to cure defects.
- The Hospital later moved for summary judgment asserting the amended affidavit still failed to show Dr. Shaker met the statute’s requirement of ‘‘actual professional knowledge and experience’’ in the relevant area and that the 30‑day cure period had elapsed.
- The trial court held a hearing under OCGA § 24-7-702(d) and concluded Dr. Shaker lacked the requisite recent, active practice in prevention/diagnosis/treatment of decubitus ulcers; it granted summary judgment and dismissed the suit with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert affidavit met OCGA § 9-11-9.1(a) requirement | Shaker (forensic pathologist) had sufficient knowledge in forensic pathology, physiology, and standards of care to identify obvious breach | Shaker lacked relevant, recent, active practice diagnosing/treating pressure ulcers required by § 24-7-702(c)(2) | Held: Affidavit insufficient; Shaker not competent to testify under § 24-7-702(c)(2) |
| Whether amended affidavit cured defect under § 9-11-9.1(e) within 30 days | Amended affidavit (filed within 30 days of motion to dismiss) remedied deficiencies | Amended affidavit still failed to show three of last five years of active practice in the specialty at issue; cure inadequate | Held: Defect not cured; dismissal appropriate |
| Whether dismissal must be with prejudice and bars refiling after statute of limitations | Plaintiffs argued dismissal should not be res judicata if curable | Hospital argued dismissal under § 9-11-9.1(e) is on the merits and bars refiling once limitation expired | Held: Dismissal is on the merits (with prejudice) and suit cannot be renewed after limitations period expired |
| Standard of review for expert competency determination | N/A (plaintiffs challenged trial court’s ruling) | Trial court’s competency finding reviewed for abuse of discretion | Held: No abuse of discretion; trial court properly exercised § 24-7-702(d) authority |
Key Cases Cited
- Aguilar v. Children’s Healthcare of Atlanta, 320 Ga. App. 663 (discussing expert competency standard under predecessor statute)
- Nathans v. Diamond, 282 Ga. 804 (expert must have relevant, recent active practice; minimum knowledge insufficient)
- Craigo v. Azizi, 301 Ga. App. 181 (insufficient § 24-7-702(c) affidavit subjects complaint to dismissal)
- Akers v. Elsey, 294 Ga. App. 359 (expert must show regular active practice in the relevant specialty for at least three of the last five years)
- Ndlovu v. Pham, 314 Ga. App. 337 (§ 9-11-9.1(e) permits dismissal only when plaintiff fails to cure within 30 days of a motion specifying the defect)
- Roberson v. Northrup, 302 Ga. App. 405 (dismissal under § 9-11-9.1(e) is on the merits and bars refiling after limitations period)