Johnson v. Brueckner, A94A2428
| Decision Date | 16 December 1994 |
| Docket Number | No. A94A2428,A94A2428 |
| Citation | 216 Ga.App. 52,453 S.E.2d 76 |
| Parties | JOHNSON v. BRUECKNER et al. |
| Court | Georgia Court of Appeals |
Richardson & Chenggis, George G. Chenggis, Atlanta, for appellant.
Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, T. Andrew Graham, Atlanta, for appellees.
The appellant, Sara Johnson, filed the instant action for damages against the appellees, Dr. Lawrence T. Brueckner and Gwinnett Orthopedic Surgery, P.C. (hereinafter referred to as Gwinnett Orthopedic), alleging that Dr. Brueckner was negligent in performing surgery on her right wrist and negligent in failing to advise her of all of the risks involved with the surgery. Johnson did not file an expert affidavit contemporaneously with the filing of the complaint as required under OCGA § 9-11-9.1, but attached to her complaint a medical record in which Dr. Brueckner acknowledged that he inadvertently severed the median nerve of her right hand during surgery. Johnson averred in her complaint that this statement was an admission of negligence and hence eliminated the need for compliance with OCGA § 9-11-9.1.
Dr. Breuckner and Gwinnett Orthopedic raised this lack of an expert's affidavit as a defense in their answer, and thereafter, moved to dismiss the complaint, or in the alternative, for summary judgment in their favor, based upon Johnson's failure to comply with the statute. Following a hearing, the trial court dismissed the complaint, concluding that the acts and omissions of negligence alleged therein required the exercise of some medical skill and judgment on the part of the physician, and therefore an expert affidavit was required. This appeal followed.
1. OCGA § 9-11-9.1 specifically requires the contemporaneous filing of an expert affidavit in any action for damages involving professional negligence. (Citations and punctuation omitted.) Gillis v. Goodgame, 199 Ga.App. 413, 416-417, 404 S.E.2d 815 (1991), rev'd on other grounds, 262 Ga. 117, 414 S.E.2d 197 (1992).
While the medical records attached to the complaint demonstrate that Johnson's claim is not frivolous and therefore satisfies the purpose for which the statute was enacted, that is, to eliminate the filing of frivolous actions challenging the reputation of professionals, Barr v. Johnson, 189 Ga.App. 136, 138, 375 S.E.2d 51 (1988).
Dr. Breuckner's admission of inadvertence in the attached medical records does not excuse plaintiff's failure to comply with OCGA § 9-11-9.1. While such an admission against interest is admissible as evidence and may be sufficient to present an issue of fact for jury resolution in response to a motion for summary judgment, see OCGA § 24-3-31; Bruce Tile Co. v. Copelan, 185 Ga.App. 469(3), 364 S.E.2d 603 (1988), OCGA § 9-11-9.1 imposes an initial pleading requirement on a plaintiff which must be complied with prior to the...
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