Porquez v. Washington
| Decision Date | 17 November 1997 |
| Docket Number | S97G0525,Nos. S97G0523,S97G0527,s. S97G0523 |
| Citation | 268 Ga. 649,492 S.E.2d 665 |
| Parties | , 97 FCDR 4162 PORQUEZ v. WASHINGTON. CLARK v. WASHINGTON. CROSS v. WASHINGTON. |
| Court | Georgia Supreme Court |
H. Andrew Owen, Jr., Merritt McGarrah Wofford, Harman, Owen, Saunders & Sweeney, Atlanta, for Jose Porquez.
J. Ed Segraves, Zachary & Segraves, Decatur, for D'Arcy Washington et al. in No. S97G0523.
Terrance C. Sullivan, Kevin Patrick Race, Sullivan, Hall, Booth & Smith, Atlanta, for Michael D. Clark.
Charles M. Hardman, Jones & Granger, Atlanta, J. Ed Segraves, Zachary & Segraves, Decatur, for D'Arcy Washington et al. in No. S97G0525.
Michael Glenn Frick, Duvall, McCumber & Doverspike, Decatur, for other interested parties.
Robert Davis McCallum, Jr., Alston & Bird, Atlanta, for George Lee Cross.
Jerry Dennis McCumber, Duvall, McCumber & Doverspike, J. Ed Segraves, Zachary & Segraves, Decatur, for D'Arcy Washington et al. in No. S97G0527.
We granted certiorari to the Court of Appeals to examine questions raised by its decision to reverse the grants of summary judgment to defendant physicians Porquez, Clark, and Cross in this action for medical negligence. See Washington v. Georgia Baptist Medical Center et al., 223 Ga.App. 762, 478 S.E.2d 892 (1996). We consider (1) whether the Court of Appeals correctly interpreted Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994), to allow the plaintiff to amend his expert's affidavit; (2) if the interpretation was correct, whether the Court of Appeals erred when it determined that the amended affidavit was timely filed, in the absence of the trial court having made such a determination; and (3) whether the Court of Appeals erred when it failed to address an alternate ground supporting the entry of summary judgment, when the trial court did not state the basis on which summary judgment was awarded.
The facts are detailed in the opinion of the Court of Appeals. D'Arcy Washington was shot in the chest and shoulder area. Because of the severity of the wound, emergency medical technicians at the scene applied military anti-shock trousers (MAST), which force blood from the legs to the trunk in order to maintain blood flow to the vital organs. Initially Washington was taken to Walton Medical Center where Dr. Jose Porquez and others determined that Washington should be transported by helicopter to the trauma facility at Georgia Baptist Medical Center in Atlanta. The MAST trousers were deflated shortly after Washington's arrival at Georgia Baptist, and he was prepared for surgery. Dr. Michael Clark performed emergency surgery to repair the vasculature in Washington's shoulder and called in orthopedic surgeon Dr. George Lee Cross to perform a fasciotomy, a surgical release of pressure, on Washington's left arm. Washington's life was saved, but approximately ten days later, both of his legs had to be amputated due to renal failure, sepsis, and infection.
Washington contends that he lost his legs because his care providers failed to follow appropriate techniques for using the MAST device and subsequently failed to monitor and record compartment pressures in his legs which would have indicated the need for earlier additional fascial release procedures. He filed suit against 27 defendants, including Drs. Porquez, Cross, and Clark. The three doctors filed various motions to dismiss, or in the alternative, for summary judgment, maintaining that Washington's expert affidavit filed with the complaint in accordance with OCGA § 9-11-9.1 was insufficient for failing to set forth any specific negligent acts or omissions committed by the individual defendants and that the care and treatment given to Washington met or exceeded the standard of care of physicians generally under similar conditions and like surrounding circumstances. Dr. Clark also asserted immunity from liability as a voluntary health care provider under OCGA § 51-1-29.1.
The day before the hearing on the doctors' motions, Washington filed an amendment to his expert affidavit. At the motions hearing, the doctors asked the trial court not to consider the amended affidavit because it was untimely. The trial court granted the doctors summary judgment and final judgment pursuant to OCGA § 9-11-54(b); however, it was not possible to discern from the court's order whether it considered the amended affidavit and on what basis it granted summary judgment. The Court of Appeals reversed the judgments in favor of the three physicians after finding that the amendment to the affidavit was authorized under Hewett v. Kalish, supra, and determining de novo that the amended affidavit was timely filed and was sufficient to satisfy the pleading requirements of OCGA § 9-11-9.1 as well as the evidentiary requirements of OCGA § 9-11-56(e).
1. This Court reiterated in Hewett v. Kalish that a § 9-11-9.1 affidavit should be construed most favorably to the plaintiff with all doubts resolved in plaintiff's favor, even if an unfavorable construction of the affidavit may be possible. Id. at 184(1), 442 S.E.2d 233. Viewed in this manner, plaintiff Washington's initial expert affidavit, without amendment, was sufficient to withstand the threshold challenge that it failed to set forth at least one factually-based act of negligence by Drs. Porquez, Clark, and Cross. 1
Regardless of the need for amendment to withstand the motions to dismiss, the Court of Appeals correctly concluded that Washington's § 9-11-9.1 affidavit could be amended to present additional evidence of deviation from the standard of care. As this Court determined in Hewett, when the expert affidavit is initially filed with the complaint, a plaintiff is allowed to supplement the affidavit if its sufficiency is disputed. Even though Hewett dealt with a challenge to the expert's competency, its analysis is not limited to a contest over competency; the reasoning is extant when the challenge is to the sufficiency of the expert's statements regarding negligent acts.
Because 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 § 9-11-9.1, which is to reduce the filing of frivolous malpractice suits. Gadd v. Wilson, etc., 262 Ga. 234, 235, 416 S.E.2d 285 (1992). Permitting the plaintiff to amend the expert affidavit in order to meet the requirement that it set forth at least one claimed negligent act or omission by each defendant and its factual basis does not defeat the purpose of the statute, but instead helps to insure that the complaint is not frivolous. The recent amendment of OCGA § 9-11-9.1 2 affirms the legislative intent that a plaintiff have a broad right to cure by amendment an allegedly defective affidavit accompanying a charge of professional malpractice. 3
2. The Court of Appeals was also authorized to make a determination regarding the timeliness of the amended affidavit even in the absence of a ruling by the trial court on the issue....
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