GA Court: New Expert Can Be Substituted In, Even at Late Date

The Case

The patient in Gala v. Fishe, 2015 Ga. LEXIS 198 (3/27/15), Dorian Fisher, was diagnosed by two doctors with a schwannoma, which is an intradural spinal cord tumor. Because of these diagnoses, he underwent surgery to remove the tumor. During surgery, which the two diagnosing doctors performed, it was discovered that Fisher did not have a schwannoma, but instead had a bundle of clumping nerve roots consistent with arachnoiditis.

Fisher and his wife brought suit against the two neurosurgeons, Vishal C. Gala, M.D. and Regis Haid, Jr., M.D., as well as against Atlanta Brain and Spine Care, P.C., asserting that they caused him to have an unnecessary and suboptimal neurosurgical procedure that resulted in complications and permanent disability. With their initial complaint, the plaintiffs filed the affidavit of their medical expert, Dr. James Rogan, a board-certified family medicine practitioner. He averred not only that medical malpractice had caused the plaintiff's injury, but also that at least 80% of his practice was devoted to the care of disabled patients and people with neurological disabilities.

The neurosurgeons moved to dismiss the claims against them on Aug. 9, 2012, arguing that Dr. Rogan was unqualified to testify in the matter because he was not a neurosurgeon. They relied on OCGA ' 9-11-9.1 (a)1, which states that in medical malpractice claims, the plaintiff must 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.” In response, the plaintiffs amended their complaint on Sept. 7, 2012 by offering the affidavit of board-certified neurosurgeon Michael Dogali, M.D. Dr. Dogali opined that Fisher's two neurosurgeons had fallen below the standard of care when treating him, thereby causing him injury.

The trial court granted the defendants' motions to dismiss after finding that family medicine practitioner Dr. Rogan's affidavit did not demonstrate that he was competent to testify concerning Fisher's neurosurgical care, and also finding that the affidavit of Dr. Dogali was filed after the expiration of the statute of limitations, rendering the entire claim untimely.

Mid-Level Appeal: Decision Goes to Plaintiffs

The Georgia affidavit-of-merit statute relied on by the trial court to dismiss Fisher's action was promulgated in the 1980s. At that time, testifying medical experts could and did come from different specialties than the defendants in medical malpractice cases. But in 2005, Georgia's legislature tightened the requirements for expert qualification. After that, there was a much greater likelihood that an expert would be disqualified, and that possibility might not be evident until a court had made a pronouncement on the issue. Getting it exactly right the first time took on new importance.

But in Georgia, amendment to a complaint is allowed under certain circumstances. The OCGA ' 9-11-9.1 (e) relevant subsection states:

If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains 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. The trial court may, in the exercise of its discretion, extend the time for filing said amendment or response to the motion, or both, as it shall determine justice requires.

Because Fisher's amendment adding Dr. Dogali's affidavit was submitted within 30 days of the defendants' motion alleging that the original affidavit was defective, the amendment was not untimely under OCGA ' 9-11-9.1 (e), the court concluded.

The State's High Court Decides

Before the State Supreme Court, the defendant neurosurgeons contended that the Court of Appeals erred by allowing the plaintiff to substitute in an entirely new expert; they asserted that the only amendment authorized by OCGA ' 9-11-9.1 (e) would be an amendment to the original affidavit, made by the same affiant whose affidavit originally accompanied the complaint. Any other interpretation of the subsection that allows amendment would, they claimed, negate the requirement that a malpractice suit be accompanied by an expert's affidavit. (OCGA ' 9-11-9.1 (a) states that in medical malpractice cases, there must be filed “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.”) The defendants' thinking was that, if medical experts could be switched late in the game, then the requirement that a valid expert opinion be filed with the lawsuit in order to make it viable was illusory.

Presiding Justice P. Harris Hines wrote the opinion for the court, which concluded that the Georgia court of Appeals had gotten it right: The plaintiffs' amendment to add the affidavit of a more appropriate medical expert, even at a date when an original claim filing would be deemed untimely, should be allowed. The court reached its decision based on two things. First, there is nothing in OCGA ' 9-11-9.1 (e) (or OCGA ' 9-11-152, to which it refers) limiting the nature of the defects that can be cured by amendment in accordance therewith. And, second, as stated by the court, “OCGA ' 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act,” and, therefore, “it is to be construed in a manner consistent with the liberality of the Act so long as such a construction does not detract from the purpose of [OCGA] ' 9-11-9.1, which is to reduce the filing of frivolous malpractice suits.”

Conclusion

Georgia's Supreme Court essentially found that because no plaintiff would be able to slip a frivolous lawsuit past the gatekeepers by first submitting a weak expert witness and then replacing him with a more appropriate one, there was no harm done to public policy by allowing the Fishers to amend their complaint in this instance. And while it's an unusual move to sub-in an entirely new expert when the one originally proferred is rejected, it is not entirely unheard of. In fact, Stacey Carroll, the Atlanta attorney who won the appeal along with Douglas Davis of Belli, Weil, Grozbean & Davis in Atlanta, says that two other plaintiff attorneys dealing with similar fact patterns have contacted him about the Fishers' case.

“These plaintiffs now have a backstop by bringing in an additional expert rather than going 'all in' on the initial expert's qualifications,” said Carroll. He opined that defendants in Georgia would henceforth think twice about filing motions to dismiss based on challenges to an expert's competence to testify because Georgia's Supreme Court has now confirmed that the state's expert affidavit requirement “is a threshold procedural hurdle ' not a technical trap to be exploited for the dismissal of meritorious cases.”

Janice G. Inman is Editor-in-Chief of this newsletter.

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?

The Case

The patient in Gala v. Fishe, 2015 Ga. LEXIS 198 (3/27/15), Dorian Fisher, was diagnosed by two doctors with a schwannoma, which is an intradural spinal cord tumor. Because of these diagnoses, he underwent surgery to remove the tumor. During surgery, which the two diagnosing doctors performed, it was discovered that Fisher did not have a schwannoma, but instead had a bundle of clumping nerve roots consistent with arachnoiditis.

Fisher and his wife brought suit against the two neurosurgeons, Vishal C. Gala, M.D. and Regis Haid, Jr., M.D., as well as against Atlanta Brain and Spine Care, P.C., asserting that they caused him to have an unnecessary and suboptimal neurosurgical procedure that resulted in complications and permanent disability. With their initial complaint, the plaintiffs filed the affidavit of their medical expert, Dr. James Rogan, a board-certified family medicine practitioner. He averred not only that medical malpractice had caused the plaintiff's injury, but also that at least 80% of his practice was devoted to the care of disabled patients and people with neurological disabilities.

The neurosurgeons moved to dismiss the claims against them on Aug. 9, 2012, arguing that Dr. Rogan was unqualified to testify in the matter because he was not a neurosurgeon. They relied on OCGA ' 9-11-9.1 (a)1, which states that in medical malpractice claims, the plaintiff must 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.” In response, the plaintiffs amended their complaint on Sept. 7, 2012 by offering the affidavit of board-certified neurosurgeon Michael Dogali, M.D. Dr. Dogali opined that Fisher's two neurosurgeons had fallen below the standard of care when treating him, thereby causing him injury.

The trial court granted the defendants' motions to dismiss after finding that family medicine practitioner Dr. Rogan's affidavit did not demonstrate that he was competent to testify concerning Fisher's neurosurgical care, and also finding that the affidavit of Dr. Dogali was filed after the expiration of the statute of limitations, rendering the entire claim untimely.

Mid-Level Appeal: Decision Goes to Plaintiffs

The Georgia affidavit-of-merit statute relied on by the trial court to dismiss Fisher's action was promulgated in the 1980s. At that time, testifying medical experts could and did come from different specialties than the defendants in medical malpractice cases. But in 2005, Georgia's legislature tightened the requirements for expert qualification. After that, there was a much greater likelihood that an expert would be disqualified, and that possibility might not be evident until a court had made a pronouncement on the issue. Getting it exactly right the first time took on new importance.

But in Georgia, amendment to a complaint is allowed under certain circumstances. The OCGA ' 9-11-9.1 (e) relevant subsection states:

If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains 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. The trial court may, in the exercise of its discretion, extend the time for filing said amendment or response to the motion, or both, as it shall determine justice requires.

Because Fisher's amendment adding Dr. Dogali's affidavit was submitted within 30 days of the defendants' motion alleging that the original affidavit was defective, the amendment was not untimely under OCGA ' 9-11-9.1 (e), the court concluded.

The State's High Court Decides

Before the State Supreme Court, the defendant neurosurgeons contended that the Court of Appeals erred by allowing the plaintiff to substitute in an entirely new expert; they asserted that the only amendment authorized by OCGA ' 9-11-9.1 (e) would be an amendment to the original affidavit, made by the same affiant whose affidavit originally accompanied the complaint. Any other interpretation of the subsection that allows amendment would, they claimed, negate the requirement that a malpractice suit be accompanied by an expert's affidavit. (OCGA ' 9-11-9.1 (a) states that in medical malpractice cases, there must be filed “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.”) The defendants' thinking was that, if medical experts could be switched late in the game, then the requirement that a valid expert opinion be filed with the lawsuit in order to make it viable was illusory.

Presiding Justice P. Harris Hines wrote the opinion for the court, which concluded that the Georgia court of Appeals had gotten it right: The plaintiffs' amendment to add the affidavit of a more appropriate medical expert, even at a date when an original claim filing would be deemed untimely, should be allowed. The court reached its decision based on two things. First, there is nothing in OCGA ' 9-11-9.1 (e) (or OCGA ' 9-11-152, to which it refers) limiting the nature of the defects that can be cured by amendment in accordance therewith. And, second, as stated by the court, “OCGA ' 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act,” and, therefore, “it is to be construed in a manner consistent with the liberality of the Act so long as such a construction does not detract from the purpose of [OCGA] ' 9-11-9.1, which is to reduce the filing of frivolous malpractice suits.”

Conclusion

Georgia's Supreme Court essentially found that because no plaintiff would be able to slip a frivolous lawsuit past the gatekeepers by first submitting a weak expert witness and then replacing him with a more appropriate one, there was no harm done to public policy by allowing the Fishers to amend their complaint in this instance. And while it's an unusual move to sub-in an entirely new expert when the one originally proferred is rejected, it is not entirely unheard of. In fact, Stacey Carroll, the Atlanta attorney who won the appeal along with Douglas Davis of Belli, Weil, Grozbean & Davis in Atlanta, says that two other plaintiff attorneys dealing with similar fact patterns have contacted him about the Fishers' case.

“These plaintiffs now have a backstop by bringing in an additional expert rather than going 'all in' on the initial expert's qualifications,” said Carroll. He opined that defendants in Georgia would henceforth think twice about filing motions to dismiss based on challenges to an expert's competence to testify because Georgia's Supreme Court has now confirmed that the state's expert affidavit requirement “is a threshold procedural hurdle ' not a technical trap to be exploited for the dismissal of meritorious cases.”

Janice G. Inman is Editor-in-Chief of this newsletter.