*1 253 judgment 8, state entered on March 1991.
Judgment Beasley, J., Andrews, reversed with P. direction. J., concur. — 18, Decided March 30, denied
Reconsideration March Daugherty, Daugherty, Greer, Klosik & F. Robert John J. Mc- appellant. Cune, for
England, Kytle, England, appellee. & Melvin for Weaver J. TYE
A92A2128. v. WILSON et al. Judge.
Pope, Chief plaintiff/appellee individually 1991, 9, Wilson, On October J. T. complaint wife, of his administrator the estate filed malpractice against including hospital several plaintiff’s physicians, treating treated, where decedent was her registered ing surgery appellant Kay Tye. Plaintiff’s decedent died follow- performed May 2,
which was on 1989 at the defendant hospital hysterectomy repair. complaint, for a In the and anterior plaintiff alleges began internally following his wife to bleed her sur- gery causing hypovolemic suffer her to shock. Plaintiff contends the suffering hypovolemic combination of delay wife’s his shock and the ligate hypogastric of certain defendant doctors to his ar- wife’s stop bleeding suffering teries to the internal resulted in his wife’s organ damage. alleges acute renal and other failure Plaintiff further continually because that his wife was not she sedated while was recov- ering, May accidentally dislodged 1989, 14, on she an endotracheal ultimately causing tube, her death. ‘ Tye ground filed a motion dismiss that the affidavit complaint filed OCGA insufficient meet the (a), provides: any damages “In action for al- leging professional malpractice, required file shall be complaint expert testify, with the an affidavit specifically which affidavit set forth exist shall least one act omission claimed to basis factual for each such claim.” (Emphasis supplied.) Tye’s The trial denied motion to dismiss granted Tye’s interlocutory appeal. and we complaint Plaintiff filed Dr. L. Howard affidavit College Cohn, a board certified member of American of Obstetrics Gynecology. Tye argues & that affidavit is insufficient under (a) expert, doctor, OCGA 9-11-9.1 because not com-
petent testify Tye, negligent. nurse, was plaintiff’s expert “Through disagree. In states: training experience, I education, am familiar with the standard of profession generally. Particularly, I am care to the medical apply performing care as same with such standards of familiar of a hysterectomy repair, surgical manage- vaginal and anterior *2 hemorrhaging patient, care and treatment an ment of the of patient.” (Emphasis supplied.) affidavit, Later the he intubated states Nurse closely Tye adequately restrain and monitor “failed patient place.” the the tube endotracheal expert’s profession.
Nursing
a
Therefore the
statement
is medical
that
with the standard of care
to the medi-
he is “familiar
profession generally,”
encompass
nursing pro-
cal
is
the
sufficient
consistently
held
members of the medical
fession. This court
profession
that
competent
opinion
about the
of
are
to render
standard
profession
long
opin-
members of the medical
as their
care of other
ion
expertise.
common
concerns a
area of
by
Doctors
is
our decision in 0-1
Mem. Hold-
This case
controlled
(378
708) (1989).
App.
Moore,
Moore,
Co. v.
190
286
SE2d
Ga.
stating
held the
medical
that it
his
affidavit of a
doctor
was
opinion
injury
by
negligent
was caused
the
surgical tourniquet during plaintiff’s operation
control of a
and that
operating per-
this failure of reasonable care was attributable to the
requirements
including
sonnel,
nurse,
a
was sufficient meet the
of
including
§
OCGA
as to
nurse.
9-11-9.1
all
the
(267
759),
App.
Avret,
aff’d,
v.
McCormick
Ga.
178
SE2d
246
154
(271
832) (1980)
controlling authority
Ga.
SE2d
also
offers
expert’s
holding the
in this case
to meet
re-
affidavit
is sufficient
the
quirements
regard
Tye.
§
of OCGA
McCor-
9-11-9.1
to Nurse
only
malpractice
mick
a
case
was
was a
which the
defendant
Supreme
case,
medical doctor.
that
this court held and our
Court
agreed
qualify
it was error for the trial court not to
a nurse as an
expert
keeping
concerning
witness
what constitutes reasonable care
patient
used
from
sterilized a needle
to draw blood
a
because there
drawing
was
that
blood
no evidence
the
of
is a medical treatment ex-
professional
clusively
v.
within the
skills of
Avret
medical doctors.
(271
832) (1980).
McCormick,
sion
from this
stands for the
is
case. That case
proposition
malpractice
that when
is made
a
a medical
claim
nurse,
by
requirements
the
affidavit
doctor is insufficient to meet
it simply
of
9-11-9.1
states the nurse did not follow the
if
applicable
directions and does not
the
doctor’s
discuss
standard of
Milton,
by
and set
at least one
act
nurse. In
care
forth
the
plaintiff
the
who
surgeon
the
submitted
affidavit
had treated
affidavit,
plaintiff. In
surgeon simply
the
the
stated that he had
nursing
plaintiff
supine
instructed
staff
remain
that the
was to
day
fell
plaintiff
being
while
assisted to the bathroom
he
anticipate
plaintiff
not
in walking
did
would have been assisted
Id.
given
instructions.
at 563-564.
held that affidavit was in-
sufficient
to show the affiant
“an
testify”
because he did not state he was familiar with the
standard
care the
caring
plaintiff
they
staff should have utilized in
and how
requisite
not following
deviated
care
treating physician’s post-operative
Clearly,
instructions.
Id.
564.
this decision should not be
hold that
alleging
read to
mal-
nurse
practice against
only
can
meet
of OCGA
by submitting
nurse,
no matter what acts
negligence
alleged
though plaintiff may
are
and even
have the affi-
of a
davit
doctor who
familiar with the standard
care for all
med-
personnel
ical
named as
including
defendants
*3
by
and can state at
one
act or
least
omission
the nurse.
Milligan Manno,
The defendant’s reliance on
v.
medical doctor. to that medical doctors and nurses are to patients differently. trained treat intubated Further- more, nothing there is on the face of the affidavit make it clear that plaintiff’s expert would not be familiar with the applicable standard therefore, provided plaintiff Tye; of care to be by Nurse we cannot disregard his averment that he is familiar. purpose “The OCGA be- malpractice suits of frivolous the number is to reduce § entitling prima facie case prove a filed, require not to summary motion for withstanding a capable recover and Moore, 190 Ga. need file his answer.” the defendant before
judgment and the of OCGA 9-11-9.1 288. Because the App. § at affidavit, we are fulfilled that statute purpose behind Tye’s motion to dismiss. denial of Nurse the trial court’s affirm J., J., Birdsong, Carley, P. McMurray, P. Judgment affirmed: Blackburn, J., Andrews, JJ., con- concur. J., Beasley, Cooper and P. Johnson, J., dissents. specially. curs specially. concurring Judge,
Blackburn, opinion majority fully analysis and result I concur history of cases concern for the Judge I share Johnson’s this case. certainty and and the lack of to OCGA 9-11-9.1 pursuant decided § to mal- upon parties the courts and it has visited litigation increased encouraging legislature join Judge I Johnson practice litigation. and return attempt limiting litigation failure of this accept by repealing OCGA 9-11-9.1. reasonableness us to an arena of Judge, dissenting. Johnson, be I find the affidavit this case to respectfully
I dissent. would from a member of the it did not come insufficient because profession. lawyers, trial trial proved have more vexatious to
Few issues
proper applica-
of this state than the
appellate
courts
judges,
prevent
litigation
frivolous
9-11-9.1. Intended to
tion of OCGA §
courts,
rule
litigants and
inherent
therein for both
all the costs
dealing at the sum-
litigation.
more
Rather than
has instead caused
solve,
legislature
issues the
intended
mary judgment stage with the
stage.
layer
litigation at the motion to dismiss
a new
we have added
1987,
approximately 90
there have been
Since its enactment
Supreme
wrestling
Court
from this court and the
decisions
predictability to this
Sadly,
bring
effort to
some order and
rule.
Perhaps
law,
appears that we have made matters worse.
it
area
9-11-9.1, and to
legislature
for the
to reconsider
it is time
*4
that,
end,
more,
in the
than a noble effort
it was little
conclude
goals
enacted.
miserably
accomplish
to
the
for which it was
failed
applica-
example
difficulty
the
case is a clear
The instant
it. We
presented
to all who are concerned
tion of this rule
exper-
overlapping
again
question
the
of
required
are
to address once
and re-
a nurse
professional negligence
against
claim of
is
tise. The
relates to
care;
physician and
nursing
the affidavit is from a
lates to
care,
though
even
profession generally,”
not to
“the medical
of
of care
he
familiar with the standard
asserts that
is
physician
the
patients. The effect of
qualify
intubated
this statement would be to
every
profession
my
as
connected to medicine. In
view,
his affidavit is insufficient
make him
to
on the stan-
nursing profession.
previous
dard of care
the
Consistent
our
decisions,
go
way
sufficiency
this
could
either
on the
of
affi-
the
davit,
and thus on
of
the
OCGA 9-11-9.1 to the facts
presented,
complete
and take either
good
view
faith. That
is the
problem.
all,”
our
to
the
struggles
decide
matter “once and for
we
assure,
can,
have done little more than
best
that justice
as
we
is done
case-by-case
on a
process,
basis.
the
we have so muddied
wa-
the
to
put
ters as what is
and
have
sufficient that we
ourselves
position
having
in the
of
to decide even more cases on that same
basis.
practitioners
flawed
We have thus
the
robbed
trial courts and
any
which,
which to
gauge
analogy,
matter save
decisions,
given
previous
any
our
guidance
amounts to little if
all.
This
presents
perfect
case
us with
opportunity
provide
a
to
meaningful guidance
Georgia
to the bench and bar of
as well as to
significantly
litigation
reduce the amount of
over the rule.
Su-
The
Court,
preme
Goodgame,
in Gillis v.
Decided 30, denied March Reconsideration S. Handley, Matthew Russell, David A. Smith, & Gambrell Coles, appellant. for Burnside, Jr., B. James Daniel, Thomas R. Burnside, &Wall Allen, Wall, E. appellees. Richard THE STATE.
A92A2227. GILBERT (430 SE2d Judge. Andrews, in- possession of cocaine with tried and convicted
Gilbert was police officer. of a and obstruction tent to distribute 2, 1989, Bryant, a Officer on November at trial was that Evidence transac- drug observed a Department Blakely Police member of observing the activity After drug in is common. in which tion an area on the roof of a police officer hid transaction, Bryant another Bry- in activity the area. observing the to continue building order and talk to a a truck up drive to a business Gilbert ant observed got Gilbert out of the business. standing was outside man who can, was located be- city trash which green behind a truck and went bag, which was paper into a brown Gilbert reached the business. hind then walked back to trash can. Gilbert ground behind the on the money handed the man man, and Gilbert man handed Gilbert Bryant heard the unidenti- vehicle. got back rock cocaine Bryant then saw an- was small. that the substance fied man comment Gilbert approached A second man pull up to the area. other vehicle truck, can over to the trash out of the walked again got Gilbert rocks of cocaine paper bag, sorted some picked up the brown again, gave the substance hand, to the second man walked back Gilbert Bryant in the truck. stated that got then back him. Gilbert vehicle The other two men men in the truck. was one of three Lester, who Robinson, of the business and John the owner were Jeff driving. Middleton, He officer, trial. also testified Another Officer Bryant. Middleton when called he came to the area stated that had can, paper Gilbert bag looked went behind the trash appeared bag to, in the and determined that the substance going been informed up walked to Gilbert and Middleton then to be cocaine. Upon hear- possession of crack cocaine. under arrest that he was this, attempted to flee. turned and Gilbert testified County Department Early Sheriff’s Suggs Officer