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GA Court: New Expert Can Be Substituted In, Even at Late Date
In recent years, as affidavit-of-merit statutes have proliferated, the number of medical malpractice plaintiffs who have been prevented from pursuing their claims has multiplied. These laws generally require that, in order to maintain an action for medical malpractice, plaintiffs must first obtain the opinion of a medical expert to the effect that they may have suffered harm due to a medical practitioner's failure to adhere to the standard of care. These laws were promulgated in an effort to curb the filing of frivolous lawsuits, and they have worked for that purpose. But sometimes, legitimate claims are also thwarted by circumstances that may not seem fair to plaintiffs, particularly as many states have tightened the requirements for qualification of experts in med-mal cases.
Where once many types of medical professionals might have been deemed qualified to offer an opinion concerning the care a plaintiff received, many states now require a more precise overlap of a defendant's and expert's qualifications. Disputes often arise concerning whether a plaintiff's chosen “expert” is in fact qualified to offer an opinion on the defendant care provider's treatment of the patient. Some states are quite strict on the issue of qualifications, requiring that the expert practice in the exact sub-specialty of medicine as the defendant, while others are more lenient.
So, what happens to the plaintiff who, through lack of knowledge, laziness or unfortunate accident, learns late in the lawsuit process that his expert is not up to snuff? Is the case dead in the water, or can it be salvaged? The Supreme Court of Georgia recently clarified the answer to this question for one set of plaintiffs whose originally proferred expert was deemed ineligible to offer a valid opinion. A new expert was produced, but not before the statute of limitations for bringing the claim had run. Would the plaintiffs be out of luck?
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