Zarate-Martinez v. Echemendia
Decision Date | 20 May 2015 |
Docket Number | No. A15A0501.,A15A0501. |
Citation | 772 S.E.2d 826,332 Ga.App. 381 |
Parties | ZARATE–MARTINEZ v. ECHEMENDIA et al. |
Court | Georgia Court of Appeals |
Beverly B. Bates, Atlanta, for Appellant.
Huff, Powell & Bailey, Daniel James Huff, Taylor Chamberlin Tribble, Atlanta, for appellees.
Olga Zarate–Martinez filed a medical malpractice complaint against Dr. Michael Echemendia and related health care entities (“the Defendants”) seeking damages for injuries she sustained as a result of an allegedly negligent tubal ligation. The trial court granted the Defendants' motion to strike Zarate–Martinez's expert affidavit and dismissed her complaint on the ground that she failed to comply with OCGA § 9–11–9.1 because the expert affiant did not qualify under OCGA § 24–7–702(c). Zarate–Martinez appeals, contending that the trial court erred because (1) affiant Nancy Hendrix, M.D., met the requirements of OCGA § 24–7–702, (2) witness Charles Ward, M.D., also met the requirements of OCGA § 24–7–702, (3) other evidence in the record created fact questions and established the “pronounced results” exception to the requirement for expert testimony, and (4) OCGA § 24–7–702(c) (2)(A) and (B) are unconstitutional. Finding no reversible error, we affirm.
The complaint alleged that Dr. Echemendia was Zarate–Martinez's physician for several years, and on April 24, 2006, Dr. Echemendia performed an out-patient open laparoscopic tubal ligation procedure on Zarate–Martinez. Zarate–Martinez went home on the same day of the surgery. Over the next few days, Zarate–Martinez developed increasing pain, nausea, and fever. On April 28, 2006, Zarate–Martinez went to the emergency room, was admitted to the hospital, and underwent an exploratory laparotomy, which determined that the lower portion of Zarate–Martinez's small intestine was perforated. The perforation was surgically repaired, and she remained in the hospital for further treatment until May 6, 2006.
On March 31, 2008, Zarate–Martinez sued Dr. Echemendia, Atlanta Womens's Health Group, P.C., (and LLC), and North Crescent Surgery Center, LLC, alleging that Dr. Echemendia negligently performed the tubal ligation and perforated her small intestine. Along with the complaint, Zarate–Martinez filed an affidavit from Errol Jacobi, M.D., purporting to comply with the expert affidavit requirement in OCGA § 9–11–9.1(a).1 On December 14, 2010, the Defendants moved to strike the testimony of Dr. Jacobi and Dr. Ward, another expert identified by Zarate–Martinez, Dr. Ward, and for summary judgment. Following a response and supplemental response by Zarate–Martinez, the trial court granted the motion to strike both experts' testimony on the ground that they did not qualify under OCGA § 24–7–702(c). Instead of dismissing the case or entering judgment in favor of the Defendants, the trial court allowed Zarate–Martinez an additional 45 days to identify a competent expert witness.2 That order was signed on January 28, 2013, and filed February 21, 2013.
On April 2, 2013, Zarate–Martinez filed an affidavit of Nancy Hendrix, M.D., and after the Defendants moved to strike that affidavit, Zarate–Martinez filed a supplemental affidavit of Dr. Hendrix on May 24, 2013. Following a hearing, on July 17, 2014, the trial court granted the motion to strike both of Dr. Hendrix's affidavits on the ground that they did not demonstrate adequate qualifications under OCGA § 24–7–702(c). In light of Zarate–Martinez's failure to fulfill the expert affidavit requirement in OCGA § 9–11–9.1(a), the trial court dismissed her complaint. She now appeals.
1. Zarate–Martinez contends that the trial court erred because Dr. Hendrix's affidavit and supplemental affidavit demonstrate that she met the requirements of OCGA § 24–7–702(c).3 We disagree.4
OCGA § 24–7–702(c) provides, in relevant part:
If an expert's affidavit fails to meet the requirements of OCGA § 24–7–702(c), the affidavit is insufficient, and the complaint is subject to dismissal.6 Because the trial court conducted a hearing under OCGA § 24–7–702(d) to determine the expert affiant's competence to testify, the court's determination on this issue is reviewed on appeal for abuse of discretion.7
Here, Dr. Hendrix's initial affidavit purported to satisfy the “active practice” requirement in subsection (c)(2)(A) by including the following statements:
Dr. Hendrix's supplemental affidavit8 stated as follows, in relevant part:
The trial court held that, even after considering the supplemental affidavit, Dr. Hendrix's affidavits did not meet the standard in OCGA § 24–7–702(c)(2)(A). The trial court observed that the original affidavit only stated that Dr. Hendrix “performed open laparoscopies on patients,” without explaining which type of open laparoscopy procedure and without quantifying the number of open laparoscopic tubal ligation procedures she had performed over the relevant time period. The trial court noted that “[o]pen laparoscopy is not a surgery itself—it is a surgical technique ... used for numerous gynecological surgeries, not just tubal ligations, and for other types of abdominal surgeries, including bariatric surgeries.” Based on this record, the trial court did not abuse its discretion by finding that merely stating that a doctor has performed a procedure, without more specificity as to frequency or type, is insufficient under OCGA § 24–7–702.10
With respect to the supplemental affidavit, the trial court held that it did not adequately address the first affidavit's deficiencies. The trial court noted that the supplemental affidavit stated that Dr. Hendrix “performed tubal ligations many times in each of the last five years prior to” Zarate–Martinez's surgery. But the court explained that the term “many” was too vague: “the Court has no idea what the term ‘many’ means and cannot, therefore, assess whether Dr. Hendrix has the ‘appropriate level of knowledge....’ ”
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