*1 examination). place Compare supra Bowers, for insured’s oral at 229- (1, 2) (summary judgment appropriate for insurer because insurer gave explicit instructions to insured as to how to obtain substitute comply). many records but Moreover, insured refused to since appellee appellant produced documents contends should have be- longed appellant corporations by Gary not to but to other controlled appellant’s rights Sharma, declining officers were within their produce proper production those documents absent document re- quests. Pennsylvania Accord Baker, Millers Mut. Ins. Co. v. (2) 527) (1986) (insured 504, obligated to re- quire spouse insurer). to submit to examination agree appellee’s We do not Halcome, contention that showing controls, at for in that case the insurer made a suspected record that it here the suit, fraud before the insureds filed whereas concerning appellee’s suspicions evidence the record — appellant’s analysis prepared by claim was inflated an in- — dustry expert appellant appellee’s request appellee was submitted to after Moreover, filed suit. the records at issue Halcome were possession they within the control, insureds’ and and offered no ex- refusing produce requested cuse for records. questions reasons, For these we hold that of fact remain concern- ing appellant’s compliance policy prerequisites appel- with the diligence obtaining lee’s State Farm the needed information. See Hines v. (11th 1987). Accordingly, Co., Fire &c. 815 F2d 648 Cir. grant summary judgment appellee. we reverse the Judgment McMurray, Cooper, reversed. J., J., P. concur. Decided March April Reconsideration denied McCullough, Glass, Phillip Harrold, Sherrill & R. III, Shinall E. appellant. Sabiston,
Paul for Clayton Drew, appellee. Farnham, Eckl & Farnham, H. for A91A1485.CHANDLER v. KOENIG et al. Judge.
Sognier, Chief brought Terrie Jo against Chandler suit Koenig, M.D., Ronald logical Kozinn, M.D., Mark and The Atlanta Neuro- (a), Institute, P.C. § Pursuant to she submitted Jerry the affidavit Pharmacology Buccafusco, Ph.D., Professor of Toxicology College Georgia. at the Medical All defendants comply raised as a defense the failure of Chandler with OCGA 9- granted based to dismiss their motion court 11-9.1, the trial appeals. Chandler that defense. damages provides “[i]n action OCGA malpractice, file professional shall be alleging testify, anof an affidavit with the which affidavit specifically at least one set forth shall *2 such claim.” for each factual basis and the to exist claimed omission testify” expert competent appeal to question is “an is who in this The for (a). purposes § 9-11-9.1 of OCGA competent expert to “an constitute affiant to that for an We hold (a), in- must testify” the affiant’s OCGA under applicable knowledge the defendant- the standard of clude physician malpractice plaintiff’s the matters on which to at least one as by language holding the is mandated This claim is based.. by expert must the submitted statute that the of the specifically allegedly act or omission” forth “at least set support defendant-physician. by a claim of To the committed “negligent malpractice, must have been omission” such plain- duty defendant-physician’s of a owed breach result tiff-patient requisite degree by failing and care. of skill to exercise (1) (1) App. County Hosp. Beaver, 200-201 v. Auth. Cherokee (345 (401 Hendrix, Ga. 859 v. See McDaniel SE2d does not en- whose Since an affiant SE2d defendant-physician applicable in compass challenged performance omissions does acts or of one of the the possess malpractice opine knowledge de- existed plaintiff, whether by fendant-physician’s performance, as testify” qualify “expert under as an affiant would not (a). § OCGA 9-11-9.1 opinions holding interpretation that is Our consistent expert his or her school fact an affiant is an mere testify” “competent necessarily expert under is mean does (a). Hosp. Milton, v. § See Piedmont OCGA 9-11-9.1 198) (1988) (rejecting medical doctor’s affidavit 563 against nursing personnel show that the because it did not expert competent “in the field of doctor was an Milligan nursing”); Manno, Ga. (1990) (setting general school of a member of a forth the rule that compe belongs practice defendant is not other than that to which the case). expert also This result is tent to as an Moore, &c. Co. v. in 0-1 Doctors in accord with our App. (1989), interpreted § 9- OCGA which we testify,” “competent there is 11-9.1 to mean that when the affiant of care or in the affidavit the standard is need to set forth no familiarity the re of care to fulfill with the standard affiant’s (a). quirements § Doctors, 0-1 9-11-9.1 of OCGA Milligan, supra, in the this court discussed context of excluding practitioners general § affidavit the rule testifying against medicine from members of other one school of exception rule, as set forth schools and the to that Sandford (5) (288 739) (1982), Howard, that “ proof by competent ‘[w]here is there evidence the methods despite in the treatment are the same the difference nomenclature of testify.’ involved, [Cit.]” the schools the witness is Milligan exception applied court then to the affidavit OCGA 9-11-9.1 held that where the affidavit “establishes that that the witness a member of different school medicine than practiced no defendant contains evidence methods of treatment of condition are the same so toas bring exception general the witness within the rule that he testify[, incompetent legally then] the affidavit is insufficient.” Id. Milligan holding at 172. We no conflict find between and our supra, distinguishable &c., Doctors because 0-1 Doctors &c. is basis that it involved an school of who member affiant was a of the same practiced by defendant-physicians. medicine exception, *3 Milligan, rule and its as discussed in supra, expert applied only involving are addressed to and been have cases professions patients.1 in health witnesses care who treat Like wise, Avret, McCormick (1980), testimony by dissent, cited involved one health care professional (a nurse) (a against doctor), licensed another medical and (though referencing) general thus is consistent with not rule and exception. judice, appel its In the case sub it is uncontroverted that expert, pharmacologist, prac Buccafusco, lant’s Dr. is a not a licensed any practitioner titioner of of school medicine or a licensed of pharmacy. field, However, related as such we not here need determine profes whether affiants as Dr. Buccafusco who are not licensed sionals in the health care field are stan practicing dard care of defendants are who licensed health care of professionals, assuming, arguendo, pharmacolo because even that a gist training can derive education and sufficient expert him render an on the standard of of a appellant’s expert doctor, the as set facts forth in the affidavit of are subject. insufficient to establish his on this pathic physician); dic (osteopathic pediatrician surgeon); supra Sandford, (orthopedist’s Milligan, E.g:, Hicks testified (2) (336 (affidavit Mauldin, against allopathic by osteopathic testimony (1985) (affidavit App. 660, physician submitted in suit general practitioner); against podiatrist). 661-662 by podiatrist against orthope (4) (379 Bethea v. against 806) (1989) Smith, allo specialty, forth his fields set Dr. Buccafusco In his affidavit professional member, he is a and to which societies and scientific regard postgraduates in medical students and he trains averred that properties as of his duties as interactions opined pharmacology professor Dr. also Buccafusco MCG. proper- required and the the] of care [with he “familiar by [appel- [appellee] drugs prescribed to interactions of the ties and “competent to tes- use” and was lants] with their recommended tify regarding of those of care and recommended use” the standards “ expert drugs. [competency However, as an demonstrated training, familiarity. During education, or of one’s mere course possible experience [pharmacologist], ‘familiar’ it is to become as a employed by generally [med- standard of care and treatment qualify familiarity not, however, as an doctors]. ical Such would expert through regard. An witness is one who educa- in that peculiar knowledge concerning training, experience tion, some or has testimony his relates. Absent some science or skill to which matter of training, experience education, to show the affiant’s or evidence [pharmacologist] his as a likewise demonstrate similar would drugs by qualifications prescribing doctor], [the (Citations [Milligan, supra] ‘exception’ in would be shown.” omitted.) punctuation Smith, Bethea v. internationally
Dr. that he is Buccafusco’s establishes pharmacologist possesses expertise recognized that area average probably far exceeds that medical doctor.
other Dr. assertion that he is familiar with the than Buccafusco’sbare applicable nothing care, ex- Dr. Buccafusco’s affidavit standard of plains pharmacological professorial his education his duties how or expert knowledge provided has him the standard of care in ordinarily employed throughout prescribing by physicians years profession from the in- who removed they pharmacological training school and tensive received medical practice. prescribing is but one facet of their whom supra. professional overlap showing Bethea, *4 no Because there is of alleged by appellant of constitute at least' one matter malpractice, compare supra McCormick, 179, Dr. Buccafusco could incompe- exception within to the rule he is come testify. appellant’s Milligan, Therefore, tent at 172. (a), requirement
did and trial not meet of appellees’ granting not err motion to dismiss. court did Birdsong, Carley, Judgment McMurray, J., J., P. P. affirmed. Cooper Pope, Beasley, Andrews, J., Johnson, J., P. and and concur. JJ., dissent. Judge, dissenting. Andrews, phar- doctor, Chandler’s affiant but a
macologist. pleading requirement sets forth a OCGA provides damages alleging professional “In which malpractice, that: action for plaintiff required complaint shall be file with the expert competent testify, an affidavit of which affidavit shall set specifically negligent act or forth at least one omission claimed to ex- ist for each claim.” and the factual basis determining pharmacologist’s
In whether the affidavit satisfied requirement, allegations this must ex- first be complaint alleges given one, that, amined. count Chandler’s physical prior history, mental and condition and the defend- negligently prescribed thereof, ants various and combinations recognize drugs, failed to and warn her of risks associated with the properly drugs. result, failed her and monitor reactions to the As a complaint alleges life-threatening the nating she suffered a and reaction culmi- respiratory coma, and arrest that she suffers con- tinuing physically mentally. alleges effects Count two the same omissions, acts but is characterized im- as breach of plied claim. contract The affidavit of Chandler’s indicates that he doc holds a degree professor pharmacology toxicology
toral Medical sively and is a of at the College Georgia. published He has written and been exten periodicals concerning in various scientific books and his field specialty neuropharmacology pharmacology and the College training abuse. His duties at the Medical include medical stu postgraduates dents and in this area. Judicial notice be taken of general agreement of medical authorities as to the definition of pharmacology. Genesco, Greeson, Inc. v. 786) (1962) (doctrine judicial ruling notice utilized on definition). demurrer where no of Dorland’s Illustrated Medical as to conflict The 25th edition Dictionary pharmacology defines study “the science which deals with the action liv ing systems,” Medical-Legal while the Sloane-Dorland Annotated (1987 ed.) Dictionary defines it as “the science that deals with the origin, chemistry, drugs; phar nature, effects, and uses of it includes macognosy, pharmacokinetics, pharmacodynamcis, pharmacother apeutics, toxicology.” plaintiff’s expert pharmacologist affidavit, In his states properties,
he is familiar with the interactions and recommended use drugs prescribed and with the standard of care required prescription drugs. expressly in of these He states that he is “familiar with . . . ... regard prescription drugs. defendants” in of such He states by reviewing that based on information he obtained
689 opin- it his complaint the was allegations records and the medical of care required standard from the deviated ion the defendants that (1) prescribing plaintiff: to the following drugs the prescribing history of car- patient a to a Midrin in combination Elavil (2) monitoring; prescrib- cardiovascular problems without diovascular mental history abuse and alcohol a with a ing patient Elavil consuming danger of warning patient the problems, without (3) in combina- Elavil; and, prescribing Fiorinal taking alcohol while short, phar- In history. a patient Elavil to a tion with pre- history, that, given the macologist stated appropriate given when without especially inappropriate, were scribed injury. giving this caused the monitoring, and that warnings and personal required demonstrate expert is not affidavit assumption facts, on an but base allegations factual in the record or facts that (401 321, 322 SE2d Ethridge, App. Ga. Druckman v. 198 are true. 336) (1991). address require the affidavit 9-11-9.1 does not
OCGA § testify causation, competent expert that an issue act or omission give factual least one basis Holding 0-1 Doctors Memorial complaint. in the defendant claimed (378 708) (1989); Candler Moore, 286, App. Ga. 288 SE2d &c. v. 190 (1991) (408 416) 314, Lamb, SE2d Hosp. App. v. 200 Ga. 317 Gen. 70 J., grounds, specially), rev’d other (Pope, concurring (413 (1992). if it show is fails to insufficient SE2d testify in as to at least expert the case Milligan v. negligent act or omission of defendants. (397 171, (1990); Manno, Piedmont App. Ga. 198) (1988). Milton, “Gen Hosp. qualify a as an erally speaking, nothing more is witness that, education, training, experience through or than show skill to concerning the of science or special knowledge he has matter McDaniel, Queen testimony his relates.” “[ojrdinarily, only a medical Although necessary provide meaning training experience has the doctor testimony malpractice ful care in medical question on the of due a case,” testify where their non-physician experts may be clearly of care at expertise overlaps physician with a on the standard Avret, McCormick v. issue. McCormick, supra the court concluded example, For at 179 pro case a nurse whose qualified “to overlapped physician, issue with that of a
cedure at hypo keeping of reasonable care sterile as court patient.” dermic needle used to draw blood from beyond on issues emphasized testimony was not offered drawing of a nurse establish the diagnosis injury. of an illness or Id. at or or treatment blood “ experts persons possessing peculiar technical and ‘Medical any person knowledge, physiological or mat- learned medical qualified though thereon, even is not he ters (Punctuation omitted.) practitioner.” and citation Avret v. with re- *6 (271 (1980). course, McCormick, Of Ga. 401 SE2d exclusively professional expertise spect the to within of medi- matters physician compe- doctors, that one is not a is not cal it follows who testify. to tent presented
The issue here is the narrow whether sub- ject to dismissal for failure to a claim the fails state because testify pharmacologist is show that the least one this case to negligent alleged of the at complaint. Milligan, supra omission defendants the competency
at 172. As to the of ex- the pert, underlying acknowledged expertise issue is whether of pharmacologist overlaps drugs action, the this case with the effects of and uses
expertise of medical at a doctor on least one negligent act or omission. professional malpractice claims,
In medical and other a by showing or act from sion under like omission is demonstrated there was a deviation employed by profes others Research, circumstances. Razete Ga. Preferred (397 489) (1990). App. gravamen present 69, 70 ac given neg that, condition, tion is the defendant doctors prescribed ligently drugs. physician diagnoses various After a patient, part medical condition of a least at of the medical treatment applied by physician may prescription pa drugs be the Pharmacologists possess diag tient. do not the medical patients. By pharmacology encompasses definition, nose or treat a body knowledge regarding action, of scientific uses and effects of body. phar on the human The affidavit demonstrates that the macologist expert possessing knowledge is an scientific or technical overlaps specific which in a area with that of medical doctors as body. Accordingly, uses and their effects on human when prescribe patient use, medical doctors for a the standard of applying aspect patient’s medical care to this of arises treatment body from the same pharmacologist’s expertise. of scientific the basis of the exper pharmacologist’s
The fact that the may solely training, tise tend to other render the be based on education and and does not ex
aspects diagnosis patients, treatment does pharmacologist qualified opinion give spe less an in the expertise. cific area of his See Dimambro Northend Assoc. v. Wil may liams, He base his hypothetical regarding on facts medical condition Druckman, supra at 322. prescribed. drugs were when the patient use medical doctors treating patients, diagnosing exclusively employ skills which knowledge, also but their scientific Auth., Hosp. Smith v. expertise. scope of their within the spe- in some cases only a standard of involve medical allegation cific mutually phy- shared an wholly within area lying care (nurse Avret, qualified supra at 401 non-physician. See sicians with standard of malpractice case establish in medical expertise of nurses doctors in keeping needle sterile because Smith, issue); Bethea v. wholly of care overlapped 295) (1985) non-physician’s (discussing specific standard of with medical doctor on overlapping expertise care). be pharmacologist would It follows that the deviated physicians negligently in this case specific care if evidence shows that a stan- standard of medical wholly body of dard based not in on a scientific at issue is pharmacologist’s forms mutual basis knowledge which physicians’ expertise.2 exception has been construed the lib- Doctors, requirements
eral the Civil Act. pleading Practice *7 715) 288; Mintz, App. 662, v. supra Brake 667 at satisfy requirement be given order to the affidavit by expert competent testify” “an must contain allega- to affidavit competent testify tions the affiant to as to at showing is least one 2 competent testify pharmacologist in Whether a or similar is to a medical mal practice physician prescrip in that a deviated from the standard medical care action variously Garvey jurisdictions. tion and has been decided in See v. use of other O’Donoghue, 1141, (D.C. App. (pharmacologist competent testify A2d to 530 1146-1147 malpractice alleging prescription negligent drug); as to care in medical standard of action Carter, 609, (Miss. 1987) Thompson qualified (pharmacologist/toxicologist v. 518 S2d 613-615 testify malpractice respect to medical to medical action as to standard of care use and 1984) (in (A.D. drugs); Bird, Dept. wrong Karasik v. NYS2d 1 administration of 605-608 testify malpractice, pharmacologist competent to ful death based on medical effect of case Stein, (Pa. drugs); Super. qualified testify (pharmacologist Pratt v. 444 A2d care). drug malpractice case that was of medical medical administration of below standard Jackson, (Ariz. Rodriguez competent (pharmacologist But see to v. not P2d 481 testify care); Hart, physician’s deviation medical standard of Bell v. S2d 562 (Ala. 1987) (pharmacist competent malpractice not in medical case that administra care); Young Pharmaceuticals, Key drug v. tion of standard of P2d was below (Wash. 1989) (physician’s regarding prescription of medication not scope competence pharmacist). within the expertise pharmacologist non-physician expert wholly Where the of the or other does overlap physician specific issue, they of care at are not with a standard breached, testimony may state be that the standard was but their nevertheless relevant and purpose. Lipman, admissible for a more limited SE2d See Goodman 631-634 255) (1990); Engineering, Jordan Santa Fe 602-603 Milligan, supra negligent If act or omission. at 172. the affida- upon satisfy non-physician expert require-
vit of a is relied against in a medical ments of OCGA action physician, a affidavit must contain evidence sufficient to show physician is the affiant that the defendant applicable deviated from the standard of medical care to at least one complaint. requires alleged in omission This showing affidavit contain evidence at least placed allegations medical care issue of the wholly expertise mutually based by on an area of shared physicians. the affiant with pharmacologist sufficient under the facts
of this case his as to because conclusions the standard medical care prescribing certain under certain assumed conditions wholly body knowledge mutually based pharmacologists ing requirements mony of scientific shared physicians. plead satisfaction of the §
of OCGA 9-11-9.1 does not mean that the testi
pharmacologist
carry
alone would be sufficient to
the evi
dentiary
physicians actually
at
burden
trial to
establish
deviated
specific
from the
affidavit,
standard of
addressed
alleged injuries.
or to establish that
such deviation caused the
giving
pharma
because, in
affidavit,
This is so
cologist
his
hypothetical
allowed
assume as
certain
true
facts relat
ing
patient
pre
to the medical condition of the
when the
were
supra
Druckman,
scribed. See
at
Proof of these essential facts
involving diag
raise other medical issues and standards of care
beyond
pharmacologist.
nosis and treatment
of a
“The
purpose
of OCGA 9-11-9.1 is to reduce the
number
frivolous mal
practice
being
require
prove prima
filed,
suits
not to
a
entitling
capable withstanding
facie
him
case
to recover and
mo
summary judgment
tion before the defendant need file his an
supra
Doctors,
288;Druckman,
swer.”
at 322. The affida
overlapping
vit contained sufficient evidence of
satisfy
requirements
pleading
relevant standard of medical care to
accomplish
purpose
§ 9-11-9.1,
of OCGA
of the statute to
*8
professional malpractice
by requiring
plain
reduce frivolous
suits
up
by expert testimony
tiff to show front
has
she
some evidence
malpractice.
Goodgame,
Gillis
815) (1991),
grounds,
rev’d on other
Reconsideration appellant. Roger Plichta, C. Smith, Jr., Smith, Michael A.
Sullivan, Hall, Rush S. Booth & appellees. Pannier, for TRUCKING, INC. et al. HAYES v. GARY BURNETT
A91A1507. Judge. Cooper, by Appellant injured in the rear when her car was struck against appellees, subsequently truck, filed a lawsuit and she liability Appellees company and con- denied and the driver. truck tended that the Among appellant’s of a sudden brake failure. accident was the result liability the brakes on the theories of were that appellees good working and the in order were not maintained truck were braking adequately inspect failing and service in jury, brought system trial before a The case was of the truck. appeals appellees. Appellant from the verdict was returned favor jury judgment entered on the verdict. Appellant of error her first three enumerations contends excluding a statement erred from evidence the trial court prior about brake the driver at the scene of the collision
made problems appel- trial, brakes. Prior to and the condition of the truck’s that four to six months limine to exclude evidence lees moved appellant, owned one of the two trucks before the accident with braking system company problem part known had a with a Appellees problem diaphragm had been corrected. as the contended that appellant, problem involving with the accident diaphragm but occurred as a did not involve the the truck’s brakes system. braking The trial court screw result of a broken day granted appellees’ end of the first motion limine. At the appellant appellant proof during trial, stated made an offer of ap- immediately collision, the truck the driver of after problems my proached brakes, I said, “I I her and knew had day my Appellant the acci- testified that the after told boss.” further dent, months earlier called her and said that about three the driver diaphragm problem truck. As of of he had a her blown testimony deposition proof, appellant offer of also offered involving accident stated that other than the the truck driver who prob- appellant, on the truck involved other brake failure rejected appellant’s diaphragm. offer The trial court lem with the