Graham v. Reynolds

• Decision Date: 23 October 2017
• Docket Number: A17A0709
• Parties: GRAHAM v. REYNOLDS et al.
• Court: Georgia Court of Appeals

343 Ga.App. 274

807 S.E.2d 39

GRAHAM

v.REYNOLDS et al.

A17A0709

Court of Appeals of Georgia.

October 23, 2017

Insley & Race, Brynda R. Insley, James P. Myers, Philip A. Henderson, for appellant.

Metts Law Firm, Marc G. Metts ; Power-Jaugstetter, Patrick D. Jaugstetter, T. Bruce McFarland, for appellees.

McFadden, Presiding Judge.

This medical malpractice action arose from the death of Lakeither Marie Thomas. Her husband, Curtis Thomas, and the representative of her estate, Anthony Reynolds (collectively "the plaintiffs"), sued Dr. James A. Graham, an emergency room physician, alleging that Graham had negligently misdiagnosed Thomas's cardiac condition, causing her death. Graham moved to dismiss the complaint for failure to state a claim on the ground that the expert affidavit attached to the plaintiffs' complaint pursuant to OCGA § 9-11-9.1 was insufficient. See OCGA § 9-11-9.1 (e) (if expert affidavit accompanying professional malpractice claim is defective, complaint is subject to dismissal for failure to state a claim); Hewett v.Kalish, 264 Ga. 183, 184-185 (1), 442 S.E.2d 233 (1994) (same). Graham challenged the competency of the affiant and the adequacy of the affidavit's contents.

The trial court denied the motion to dismiss and we granted interlocutory appellate review. There is no merit to either of Graham's challenges to the affidavit. So we affirm.

1. Facts and procedural history.

At this stage in the case the evidence has not been developed, and the following factual recitation is taken from the plaintiffs' complaint.

The plaintiffs alleged that Thomas went to the hospital emergency room on May 22, 2011, complaining of chest pains and nausea. She had significant cardiac risk factors, including obesity

, tobacco use, and uncontrolled diabetes. On Graham's orders, Thomas underwent an electrocardiogram, among other procedures. Graham ultimately diagnosed Thomas as having anxiety or panic attacks and discharged her from the hospital. At that time, Thomas was still experiencing dry heaves and chest pains. Her symptoms worsened at home and within a few hours she returned to the hospital in an ambulance. She underwent another electrocardiogram

. At that point, Graham recognized that Thomas was in cardiac distress. She was placed in an ambulance to travel to another hospital 90 miles away for more comprehensive care. En route, Thomas suffered a massive heart attack and died.

The plaintiffs alleged in their complaint that Graham had deviated from the standard of care applicable to "physicians generally under similar conditions and like surrounding circumstances," that this deviation from the standard of care was both negligent and grossly negligent, and that as a direct and proximate result Thomas was misdiagnosed and died of a heart attack

. The plaintiffs attached to their complaint the affidavit of Dr. Frank A. Cuoco, a licensed medical doctor specializing in cardiology, including cardiac electrophysiology. Cuoco opined that Graham's care and treatment of Thomas at the hospital "did not satisfy the standard of care exercised by the medical profession generally under similar conditions and like surrounding circumstances." Specifically, he opined that Graham had misdiagnosed Thomas with a panic attack and discharged her inappropriately "during an episode of Acute Coronary Syndrome"; that, based on Thomas's electrocardiogram and other symptoms, Graham "should have, but failed to, diagnose [her] with an acute inferior wall myocardial infarction and/or an acute ST-segment mycardial infarction"; that upon such diagnosis, "appropriate intervention to restore coronary flow should have been undertaken immediately"; that appropriate intervention would have included specific actions and procedures described by Cuoco in the affidavit; that Graham's deviations from the standard of care proximately caused Thomas's death; and that, had Graham properly diagnosed Thomas, she "would have survived the episode of Acute Coronary Syndrome she suffered on May 22, 2011."

Graham moved to dismiss the action on the ground that Cuoco's affidavit did not meet the requirements of OCGA §§ 9-11-9.1 and 24-7-702. OCGA § 9-11-9.1 (a) provides:

In any action for damages alleging professional malpractice against [specified licensed professionals] 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.

And OCGA § 24-7-702 (c) sets forth specific competency requirements for experts in professional malpractice actions. "An affiant shall meet the requirements of [ OCGA § 24-7-702 ] in order to be deemed qualified to testify as an expert by means of the affidavit required under [ OCGA §] 9-11-9.1." OCGA § 24-7-702 (e).

Graham challenged the plaintiffs' expert affidavit in two respects. He argued that Cuoco was not competent to testify and he argued that the affidavit did not address gross negligence. At Graham's request, the trial court held a hearing on Graham's motion, at which both sides gave argument but neither side presented evidence. See generally OCGA § 24-7-702 (d) (trial court may hold hearing on expert witness's qualifications). Subsequently, the trial court entered an order rejecting both of Graham's challenges to the affidavit and denying his motion to dismiss. We granted interlocutory review.

2. Competency of affiant.

Graham argues that the trial court should have dismissed the action because the plaintiffs' expert affiant, Cuoco, did not meet the competency requirements set out at OCGA § 24-7-702 (c). "An affiant shall meet the requirements of [ OCGA § 24-7-702 ] in order to be deemed qualified to testify as an expert by means of the affidavit required under [ OCGA §] 9-11-9.1." OCGA § 24-7-702 (e).

"[T]he qualification of an expert witness under Rule 702 is generally a matter committed to the sound discretion of the trial court." Dubois v. Brantley, 297 Ga. 575, 578-579 (1), 775 S.E.2d 512 (2015) (citation omitted). See also Zarate-Martinez v. Echemendia, 299 Ga. 301, 311 (3), 788 S.E.2d 405 (2016) ; Aguilar v. Children's Healthcare of Atlanta, 320 Ga. App. 663, 664, 739 S.E.2d 392 (2013). Although an appellate court usually reviews a trial court's order on a motion to dismiss de novo, when the trial court has held a hearing on the competency of a witness to give affidavit testimony in compliance with OCGA § 9-11-9.1, "our review determines only whether the trial court has abused [his] discretion." Bacon County Hosp. & Health System v. Whitley, 319 Ga. App. 545, 546, 737 S.E.2d 328 (2013) (citations and punctuation omitted). Contrary to Graham's argument on appeal, "[i]t is irrelevant whether or not evidence was offered at the hearing." Craigo v. Azizi, 301 Ga. App. 181, 183 (1), 687 S.E.2d 198 (2009). As detailed below, the trial court did not abuse his discretion in finding Cuoco competent to testify.

In a medical malpractice action, OCGA § 24-7-702 (c) requires, among other things, that at the time the act or omission is alleged to have occurred, the expert "had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given...." OCGA § 24-7-702 (c) (2). Such knowledge and experience must result from the expert having been regularly engaged in either

[t]he active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue[,]

OCGA § 24-7-702 (c) (2) (A), or

[t]he teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue[.]

OCGA § 24-7-702 (c) (2) (B).

The statute also requires, with certain exceptions not applicable here, that the expert be a "member of the same profession" as the defendant. OCGA § 24-7-702 (c) (2) (C) (i).

And it contains a provision specifying the preconditions for a physician's testimony about the negligence of other, non-physician medical professionals. OCGA § 24-7-702 (c) (2) (D). That provision is not applicable here.

In his appellate briefs, Graham argues that Cuoco did not satisfy these requirements because he "is not a member of the same profession as [Graham]" and he "does not meet the knowledge and experience requirement by virtue of having recently practiced the profession ... or recently taught it." Neither of those arguments provide grounds for reversal.

(a) Same profession.

We find no merit in Graham's argument that he and Cuoco are not members of the same profession. Both are licensed medical doctors. See OCGA § 9-11-9.1 (g) (11) (listing "medical doctor" as a "profession" to which the affidavit requirement applied). Graham and Cuoco have different specialties. But Graham offers no authority whatsoever for the proposition that licensed medical doctors must have the same specialty to be considered members of the same profession. To the contrary, we have held that a medical doctor in one specialty may have the requisite knowledge and experience under OCGA § 24-7-702 (c) (2) to give expert opinion testimony regarding the acts or omissions of a medical doctor in another specialty. See MCG Health v. Barton, 285 Ga. App. 577, 581-582 (1), 647 S.E.2d 81 (2007) (construing predecessor to OCGA § 24-7-702 ); Cotten v....