Pran Sood, M.D., brings this discretionary appeal from the denial of his motion to dismiss this medical malpractice case against him for failure to timely attach a valid affidavit of an expert witness stating that he had been professionally negligent in some fashion and that any attempt to cure any defects in plaintiff Sonya Smeigh’s expert’s affidavit failed. Finding that the trial judge was right for the wrong reasons, because in this case OCGA § 9-11-9.1 does not apply, we affirm.
*491 On January 10, 2002, the plaintiff filed her medical malpractice action against the defendant, which alleged that the affidavit of Dr. David A. Krant was attached. Attached to the complaint, captioned “Expert Affidavit” and executed by David A. Krant, M.D., was an unsworn and unnotarized affidavit, which stated:
Re: Sonya Smeigh
I am a board certified orthopedic surgeon practicing in Florida. I graduated from Harvard Medical School in 1966 and have practiced orthopedic surgery since 1973. I took a hand surgery fellowship at Jackson Memorial Hospital in 1975. I have been Chief of Orthopedics, Chief of Surgery, and Chief of Staff at various hospitals in my area.
I have reviewed extensive medical records on Sonya Smeigh, including those from Piedmont Hospital, the Peach-tree Orthopedic Clinic, the Hughston Clinic, and Southern Regional Medical Center. Included in these records are notes by Dr. Pran Sood and Dr. Stephen W. Smith. She had a left total knee replacement by Dr. Sood on October 19th, 1999.
She continued to have left knee pain, which despite large doses of pain medication, persisted and worsened. Ultimately on November 16th, 2000, she underwent a revision arthroplasty of the knee. At that surgery it was discovered by Dr. Smith that the patella component inserted on October 19th, 1999 was “backwards, and that the medial portion was lateral, and the lateral portion was medial on the patella.”
In my opinion Dr. Sood deviated from the standard of care. Appropriate attention was not paid to the alignment or orientation of the components during the original total knee replacement. The factual basis for this claim is the clear description in Dr. Smith’s operative note dated Nov. 16th, 2000, and the fact that the patient improved following the revision surgery.
The disassociation of the plastic from the metal backed patella noted on the revision surgery does not necessarily represent a deviation from the standard of care.
Records may be reviewed at a later date that could provide further information in the case. For now, however, within a reasonable degree of medical certainty, there has been a deviation from the standard of care that resulted in an injury.
The signature of David A. Krant, M.D., followed his typed name and November 30, 2001.
*492 On February 11, 2002, the defendant answered, filed a motion to dismiss for failure to attach an affidavit, and filed a motion for summary judgment attacking the sufficiency of the affidavit of Dr. Krañt. On February 26, 2002, plaintiff filed an identical amended complaint with the identical affidavit of Dr. Krant, but the signature of Marlene B. Achom was affixed with the Florida notary seal. Defendant filed a supplemental brief in support of the motion to dismiss attacking the effort to cure the affidavit. On March 22, 2002, Achom by an affidavit executed before Daphney D. Whyms on March 19, 2002, in Broward County, Florida, swore as follows: “[t]he affidavit of David A. Krant, M.D. was acknowledged before me, Marlene B. Achom, on February 20, 2002. Said affidavit was notarized in Broward County, State of Florida.” Achom never, either on Dr. Krant’s affidavit or in her own affidavit, swore that before her Dr. Krant had ever been sworn by her as to the truth of the facts stated in his affidavit; her affidavit simply stated that Dr. Krant acknowledged to her that it was his signature on the affidavit.
In his numerous enumerations of error, the defendant attacks the fact that no valid affidavit was filed contemporaneously with the filing of the medical malpractice action; that there was no valid affidavit in existence at the time of filing because the affidavit signed by the expert had not been sworn to before a notary; and that since the affidavit had not been sworn to by the expert, then there was nothing to amend as a “defective affidavit,” i.e., an affidavit sworn in the presence of a notary public by the expert but otherwise substantially satisfying the requirements of OCGA § 9-11-9.1. To be an amendable affidavit when filed with the complaint under OCGA § 9-11-9.1 (e), the affidavit must have been sworn to before a notary public, even if it is otherwise defective; otherwise, it does not constitute a valid affidavit. See
Sambor v.
Kelley,
1. This case is not a case which comes within OCGA § 9-11-9.1. OCGA § 9-11-9.1 was intended to eliminate frivolous actions; however, in this case, there exists clear evidence of simple negligence, and plaintiff has demonstrated her ability to prove such simple negligence. “The legislative purpose behind the section 9-11-9.1 affidavit requirement is to reduce the number of frivolous malpractice claims that are filed. That purpose is fulfilled when, before filing a com
*493
plaint, a plaintiff investigates his or her claim sufficiently to secure an expert’s affidavit.”
Thompson v. Ezor,
The original complaint and the attached unsworn affidavit signed by the expert contended that in the total knee replacement the defendant installed the prosthetic patella backward, causing injury to the plaintiff. “No expert testimony was necessary to get these claims before a jury because the claims do not require proof of a professional standard of care[,]” and thus, no affidavit was required; such conduct constituted simple negligence committed by one who happened to also be a professional.
Bowling v. Foster,
Not every claim which calls into question the conduct of one who happens to be a professional is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit. It is only where the claim is based upon the failure of the professional to meet the requisite standards of the *494 subject profession that the necessity to establish such standards and the violation thereof by expert testimony for the guidance of the jury arises.
(Citation and punctuation omitted.)
Boggs v. Bosley Med. Institute,
2. Further, for purposes of OCGA § 9-11-9.1, the installation of the prosthetic patella in a backward position contrary to the instruction and design of the device would constitute an unconsented-to battery on the plaintiff by the defendant, because such action was contrary to any informed consent granted to do a total knee replacement; because the risk of reassembling the prosthetic patella backward is a risk of negligence, about which a patient is not advised regarding any informed consent. See generally
Ketchup v. Howard,
An action for battery arises from “any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery.” (Citation and punctuation omitted.)
Harris v. Leader,
If the plaintiff executed an informed consent, which is not in the record, then the plaintiff in executing an informed consent would not have consented to, nor was she advised, that a risk of a total knee replacement included the installation and reassembly of the prosthetic patella negligently in a backward position. Thus, the defendant would receive no consent, and therefore, such act causing such backward installation would constitute an unconsented-to battery upon her by the defendant, which does not require a valid sworn-to affidavit. See Labovitz v. Hopkinson, supra at 337; Ketchup v. Howard, supra. Whether or not plaintiff executed an informed consent *496 constitutes an affirmative defense raised on summary judgment or trial. See Bowling v. Foster, supra at 379.
Judgment affirmed.