Crook v. Funk

• Decision Date: 23 June 1994
• Docket Number: No. A94A0888,A94A0888
• Citation: 447 S.E.2d 60,214 Ga. App. 213
• Parties: CROOK et al. v. FUNK et al.
• Court: Georgia Court of Appeals

Page 60

447 S.E.2d 60

214 Ga.App. 213

CROOK et al. v.FUNK et al.

No. A94A0888.

Court of Appeals of Georgia.

June 23, 1994.

Reconsiderations Denied July 28, 1994.

Certiorari Denied Nov. 10, 1994.

Brinkley & Brinkley, Jack T. Brinkley, Jr., Columbus, Simmons & Toliver, A. Leroy Toliver, Atlanta, for appellants.

Layfield, Rothschild & Morgan, W. Donald Morgan, Jr., Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., C. Morris Mullin, Columbus, Tisinger, Tisinger, Vance & Greer, David H. Tisinger, John A. Harris, Carrollton, for appellees.

POPE, Chief Judge.

PlaintiffBarbara Crook brought this medical malpractice action against the Medical Center, an acute care hospital, and Drs. Mark Funk and William Macheski and their respective practices seeking damages for the death of her mother, Betty Smith.Plaintiff's complaint alleged that Smith was admitted to the Medical Center's intensive care unit (ICU) on December 14, 1990, complaining of numbness and tingling beneath her heart.She was moved from the ICU on December 16.Dr. Funk initially ordered a treadmill test for Smith but later advised her the test would be postponed due to her weakened condition.However, the test was administered the next day around 11:30 a.m. by Dr. Macheski, and Smith began to experience chest pains immediately afterward.She called the nursing staff for assistance but no one came until around 1:00 p.m. when she began gasping for air and a friend summoned a nurse.She died at approximately 1:40 p.m.

Plaintiff alleged defendants were negligent in failing to properly evaluate Smith's condition, allowing her to undergo a treadmill test in view of her condition, and failing to diagnose and treat her aneurysm (the ultimate cause of her death).Plaintiff filed her complaint several days before the expiration of the statute of limitation and, pursuant to OCGA § 9-11-9.1(b), timely supplemented her complaint with the affidavit of Dr. Robert Pieroni.Plaintiff also amended her complaint to add other children of the deceased as plaintiffs.Defendants moved to dismiss on the ground Dr. Pieroni's affidavit failed to comply with OCGA § 9-11-9.1.The trial court granted defendants' motions and dismissed the complaint, and plaintiffs appeal.

1.Dr. Pieroni's affidavit stated that a certified copy of Smith's hospital records was attached and incorporated therein.Defendants argue that an expert's affidavit cannot incorporate extrinsic material by reference and that, without such incorporation, Dr. Pieroni's affidavit fails to set forth a sufficient factual basis for plaintiffs' claims of negligence.Plaintiffs, however, contend the affidavit stated a sufficient factual basis even without incorporation of the medical records.

OCGA § 9-11-9.1(a) provides that: "In any action for damages alleging professional malpractice, the plaintiff shall be required 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."As defendants correctly note, the expert's affidavit cannot incorporate by reference matters required by OCGA § 9-11-9.1 to be set forth within the body of the affidavit.Cheeley v. Henderson, 261 Ga. 498, 405 S.E.2d 865(1991), rev'g197 Ga.App. 543, 398 S.E.2d 787(1990)."[C]onsideration of essential evidentiary matters not included in the affidavit is improper.[Cit.]"HCA Health Svcs. of Ga v. Hampshire, 206 Ga.App. 108, 110(2), 424 S.E.2d 293(1992).

Dr. Pieroni's affidavit stated that Smith was removed from the ICU on December 16, that Dr. Funk ordered a treadmill test which she underwent the next day, and that she experienced chest pains afterward and died at approximately 1:40 p.m.Dr. Pieroni testified that Smith had "severely elevated blood pressure" which Dr. Funk had failed to treat properly, that Dr. Funk should not have ordered Smith to undergo a treadmill test since it was contraindicated in view of her elevated blood pressure and poor physical condition, and that Dr. Funk failed to diagnose and treat Smith's aneurysm.As to Dr. Macheski, he stated that Dr. Macheski had failed to examine and evaluate Smith properly and should not have performed a treadmill test given her elevated blood pressure.As to the Medical Center, Dr. Pieroni stated that its agents and employees were negligent in allowing the treadmill test to be performed on Smith when it was contraindicated and in not responding timely to Smith's distress after she underwent the test.In conclusion, he opined that defendants' treatment and care of Smith fell below the level of care generally required of medical practitioners under similar conditions...