Dorian Fisher filed this medical malpractice action in the Superior Court of Fulton County against Vishal Gala, M.D., Regis Haid, M.D., and Atlanta Brain and Spine Care, PC. (collectively, “the neurosurgeons”).
The following facts are relevant to this appeal. On July 10, 2012, Fisher filed his comрlaint against the neurosurgeons. Fisher claimed that he sought treatment after he sustained a back injury in March 2010. After diagnostic testing, Fisher’s initial treating physicians diagnosed a possible intradural spinal cord tumor. Fisher sought-a second opinion with Dr. Gala, who also diagnosed an intradural
With his initial complaint, Fisher filed the affidavit of James Rogan, M.D., who opined that the neurosurgeons violated the standard of care in failing to provide a proper diagnosis of Fisher’s condition and in performing an unnecessary and suboptimal surgery which revealed nо intradural tumor and which caused post-surgical complications and permanent disabilities. With regard to the basis of his knowledge in performing the procedures, diagnosing the conditions, or rendering the treatments at issue, Dr. Rogan averred that he is board-certified by the American Board of Family Practice, that at least 80 percent of his general practice is devoted to the care of disabled patients and those with neurological disabilities, and that he is familiar with and has personal knowledge of the standard of skill exercised by physicians generally under the same conditions and like surrounding circumstances as those presented by Fisher.
On August 9, 2012, the neurosurgeons filed a motion to dismiss, challenging Dr. Rogan’s competency to testify concerning the neurosurgical care at issue. Fisher filed his amended complaint, with the affidavit of Michael Dogali, M.D., on September 7, 2012. Dr. Dogаli opined that, during the July 13, 2010 surgery, the neurosurgeons were negligent in failing to protect the nerves of the cauda equina sufficiently and that, as a result, irreversible nerve injuries occurred during the surgery. Dr. Dogali’s affidavit showed that he was a board-certified neurosurgeon and that, at the time of the neurosurgeons’ alleged negligence, he had been regularly engaged in the active practice of neurosurgery for at least three of the preceding five years, including performing lumbar intradural surgical procedures and otherwise providing the type of care at issue.
As noted above, in granting the neurosurgeons’ motion to dismiss, the trial court ruled that a plaintiff cannot comply with OCGA § 9-11-9.1
Because Fisher’s complaint raised a claim for professional malpractice against medical doctors and against a licensed health care facility alleged to be liable based upon the doctors’ actions, OCGA § 9-11-9.1 (a) required him “to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” See Jensen v. Engler,
alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff’s complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective.
OCGA § 9-11-9.1 (e). Under this provision,
[i]f the plaintiff files an expert affidavit that is inadequate for some reason, the defendant can move to dismiss the case, but . . . dismissal is warranted in such a case only if the motion identifies with specificity the respects in which the affidavit is inadequate, and only if the plaintiff fails within 30 days to cure these inadequacies by amendment.
(Punctuation and footnote omitted.) Ndlovu v. Pham,
As in this case, the trial court in Piscitelli “was called upon to determine whether dismissal was warranted under OCGA § 9-11-9.1 for failure to satisfy the requirements set forth by OCGA § 24-9-67.1 (c) (2) and (e)” regarding an affiant’s competency to testify in a medical malpractice action.
given [the new affiant’s] admittedly wholly unchallenged affidavit, which was submitted in support of [the plaintiff’s] professional malpractice action against the [defendant], dismissal of that action based upon a competency determination cоncerning only [the original affiant] . . . was error.
(Footnote omitted.) Id. at 753. We therefore reversed the dismissal of the plaintiff’s complaint. Id.
We discern no meaningful basis for distinguishing the instant case from Piscitelli. Furthermore, we are mindful that, although OCGA § 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it nevertheless must be construed in a manner consistent with the liberality of the Act, so long as such a construction does not detract from the gatekeeping function of OCGA § 9-11-9.1’s pleading requirement, which is to reduce the number of frivolous malpractice suits. Porquez v. Washington,
Judgment reversed.
Notes
In the same action, Fisher’s wife, Michelle, asserted a claim for loss of consortium. The trial court’s order applied to her claim as well, and she joins in this appeal.
See Hewett v. Kalish,
Former OCGA§ 24-9-67.1 (c) (2) provided that, in a medical malpractice action, the opinions of an expert shall be admissible
only if, at the time the act or omission is alleged to have occurred, such expert.. . had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the rеsult of having been regularly engaged in... [t]he active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing thе procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or . . . [t]he teaching of his or her profession [as specified].
Former OCGA § 24-9-67.1 (e) provided, “[a]n affiant must meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1.” We note that former OCGA § 24-9-67.1 was repealed, effective January 1,2013; OCGA § 24-7-702 (c), which became effective on that date, contains the same standard for determining an expert’s competence to testify as former OCGA § 24-9-67.1. See Ga. L. 2011, pp. 99,124-125, § 2 (Act 52); City of Atlanta v. Bennett,
As noted above, Dr. Rogan opined that the neurosurgeons failed to diagnose Fisher’s condition of arachnoiditis, instead diagnosed his condition as an intradural schwannoma, and performed аn unnecessary and suboptimal surgery (lumbar laminectomy, durotomy, and intradural exploration). Dr. Rogan failed to aver, however, that, at the time the neurosurgeons diagnosed Fisher’s spinal condition and performed the surgery, he (Dr. Rogan) had for at least three of the preceding five years regularly engaged in the active practice (or teaching) of neurosurgery or in any overlapping area of practice or specialty that involves knowledge of the diagnosis of intradural spinal tumors and related neurosurgical treatment.
See also Walker v. Cromartie,
WenotethatthebreadthoftherightofaplaintifftoamendisreflectedinOCGA § 9-11-9.1 (e)’s provision that a plaintiff may cure deficiencies “by amendment pursuant to Code Section 9-ll-15[,]” although the liberality of amendments otherwise allowed under that Code Section istemperedby OCGA § 9-11-9.1 (e)’s time limitations. See Jensen v. Engler,