Gala v. Fisher

• Citation: 296 Ga. 870,770 S.E.2d 879
• Decision Date: 27 March 2015
• Docket Number: No. S14G0919.,S14G0919.
• Parties: GALA et al. v. FISHER et al.
• Court: Georgia Supreme Court

296 Ga. 870

770 S.E.2d 879

GALA et al.

v.FISHER et al.

No. S14G0919.

Supreme Court of Georgia.

March 27, 2015.

Paul E. Weathington, Weathington Smith, PC, Joseph Paul Mitchell, Charles Matthew Smith, Atlanta, for apellants.

Douglas J. Davis, Belli, Weil, Grozbean & Davis, LLC, Stacey Allen Carroll, Atlanta, for appellees.

Steven Paul Bristol, Brunswick, Mark W. Wortham, Hall Booth Smith, P.C., Columbus, Laura M. Shamp, Lucy R. Atkinson, amici curiae.

Opinion

HINES, Presiding Justice.

This Court granted a writ of certiorari to the Court of Appeals in Fisher v. Gala, 325 Ga.App. 800, 754 S.E.2d 160 (2014), to determine if that Court properly held that, in a professional malpractice action, when a plaintiff files a complaint accompanied by an affidavit from a person not competent to testify as an expert in the action, OCGA § 9–11–9.1(e) permits the plaintiff to cure this defect by filing an amended complaint with the affidavit of a second, competent expert. Finding that the Court of Appeals was correct in holding that the pleading could be so amended, we affirm that Court's judgment.

After he received treatment for a back injury, Dorian Fisher and his wife (collectively “Fisher”) sued Vishal C. Gala, M.D., Regis Haid, Jr., M.D., and Atlanta Brain and Spine Care, P.C. (collectively “the neurosurgeons”). The opinion of the Court of Appeals sets forth the following facts of the litigation.

Fisher['s complaint] claimed that he sought treatment after he sustained a back injury in March 2010. After diagnostic testing, Fisher's initial treating physicians diagnosed a possible intradural spinal cord tumor

. Fisher sought a second opinion with Dr. Gala, who also diagnosed an intradural spinal cord tumor, specifically, a schwannoma. Dr. Gala recommended a laminectomy at the L5–S1 level of Fisher's spine and removal of the suspected schwannoma. Dr. Gala and Dr. Haid performed the surgery on July 13, 2010. According to Fisher, the surgery revealed no schwannoma at L5–S1, although the neurosurgeons found a bundle of clumping nerve roots consistent with arachnoiditis, and

they then explored the S1–S2–S3 level. Still finding no schwannoma

, the neurosurgeons explored the dura and, finding no lesion, patched the dura and ended the surgery. In his claim for medical malpractice, Fisher alleged that the neurosurgeons were negligent in diagnosing him with a schwannoma rather than arachnoiditis, that they performed unnecessary and suboptimal neurosurgical procedures (lumbar laminectomy, durotomy, and intradural exploration), and that, as a result of their negligence, he suffered serious complications and permanent disabilities.

With his initial complaint, Fisher filed the affidavit of James Rogan, M.D., who opined that the neurosurgeons violated the standard of care in failing to provide a proper diagnosis of Fisher's condition and in performing an unnecessary and suboptimal surgery which revealed no intradural tumor and which caused post-surgical complications and permanent disabilities. With regard to the basis of his knowledge in performing the procedures, diagnosing the conditions, or rendering the treatments at issue, Dr. Rogan averred that he is board-certified by the American Board of Family Practice, that at least 80 percent of his general practice is devoted to the care of disabled patients and those with neurological disabilities, and that he is familiar with and has personal knowledge of the standard of skill exercised by physicians generally under the same conditions and like surrounding circumstances as those presented by Fisher.

On August 9, 2012, the neurosurgeons filed a motion to dismiss, challenging Dr. Rogan's competency to testify concerning the neurosurgical care at issue. Fisher filed his amended complaint, with the affidavit of Michael Dogali, M.D., on September 7, 2012. Dr. Dogali opined that, during the July 13, 2010 surgery, the neurosurgeons were negligent in failing to protect the nerves of the cauda equina

sufficiently and that, as a result, irreversible nerve injuries occurred during the surgery. Dr. Dogali's affidavit showed that he was a board-certified neurosurgeon and that, at the time of the neurosurgeons' alleged negligence, he had been regularly engaged in the active practice of neurosurgery for at least three of the preceding five years, including performing lumbar intradural surgical procedures and otherwise providing the type of care at issue.

Fisher, supra at 800–801, 754 S.E.2d 160.

The trial court granted the neurosurgeons' motion to dismiss, ruling that Fisher did not show that Dr. Rogan was competent to testify as to the professional malpractice alleged, and that this pleading defect was not cured by the filing of the amended complaint with the accompanying affidavit of Dr. Dogali, as such was filed after the expiration of the statute of limitations. The Court of Appeals reversed, holding that the new affidavit was authorized under OCGA § 9–11–9.1(e). Fisher, supra. Further facts can be found in the opinion of the Court of Appeals. Id.

Fisher's complaint alleged medical malpractice, and OCGA § 9–11–9.1(a)¹ states that in such a case, 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.” And, it is uncontroverted that Dr. Rogan's affidavit did not demonstrate that he was competent to testify as to the neurosurgical care at issue in the malpractice claim. See Fisher, supra at 802–803, n. 3 and 4, 754 S.E.2d 160 (n. 3 and 4).

Nonetheless, Fisher asserts that this situation falls under OCGA § 9–11–9.1(e), which provides:

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....

OCGA § 9–11–9.1(e) (Emphasis supplied.) Thus, Fisher argues, as the affidavit of Dr. Dogali and the amended complaint were filed within 30 days of the neurosurgeons' motion to dismiss, the amendment cured the alleged defect in Dr. Rogan's affidavit.

The Court of Appeals correctly held that OCGA § 9–11–9.1(e) operates in this manner. Although the neurosurgeons contend that the only amendment that can satisfy OCGA § 9–11–9.1(e) is an amendment to the original affidavit, made by the same affiant whose affidavit originally accompanied the complaint, there is no such provision in either OCGA § 9–11–9.1(e) or OCGA § 9–11–15² , to which OCGA § 9–11–9.1(e) refers.

As this Court has previously noted, the cure provision now found in OCGA § 9–11–9.1(e) contains “ no express limitation on the nature of the alleged defect subject to remedy.” Porquez v. Washington, 268 Ga. 649, 652 (fn. 3), 492 S.E.2d 665 (1997). And, not only do the relevant Code sections not contain the restriction that the neurosurgeons wish to be imposed,

[b]ecause OCGA § 9–11–9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, 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. [Cit.]

Id. at 652(1), 492 S.E.2d 665. And nothing in our reading of the statute detracts from that purpose; Fisher has exercised his right to amend his complaint as a matter of course under OCGA § 9–11–15(a), and produced an affidavit of an expert who opines that professional malpractice occurred. Accordingly, the Court of Appeals did not err in holding that Fisher's amendment to his complaint was permissible under OCGA § 9–11–9.1(e), and that the ruling of the trial court should be reversed.

Judgment affirmed.

All the Justices concur.

1 OCGA § 9–11–9.1 reads:

(a) In any action for damages alleging professional malpractice against:

(1) A professional licensed by the State of Georgia and listed in subsection (g) of this Code section;

(2) A domestic or foreign partnership, corporation, professional corporation, business trust, general partnership, limited partnership, limited liability company, limited liability partnership, association, or any other legal entity alleged to be liable based upon the action or inaction of a professional licensed by the State of Georgia and listed in subsection (g) of this Code section; or

(3) Any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (g) of this Code section,

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.

(b) The contemporaneous affidavit filing requirement pursuant to subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it

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