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Flawed Medical Malpractice Expert Affidavit Sends Case To The Round File

Last month, the Georgia Court of Appeals issued a written opinion in a medical malpractice case that was brought by a man who developed a stage IV sacral ulcer (bed sore) while under the care of the defendant health care provider. Ultimately, the court dismissed the plaintiff’s complaint because the expert affidavit that is required to be filed with medical malpractice actions was lacking in specificity.

Hospital BedThe Facts of the Case

The plaintiff was admitted to the defendant health care provider while he was unconscious. During his stay, he developed a stage IV sacral ulcer, which he claimed was caused by the negligence of the provider’s staff. The plaintiff filed a lawsuit against the health care provider, alleging that the hospital “had failed to properly assess and treat the ulcer and had failed to appropriately advocate for his care while he was unconscious.”

In support of his claim, the plaintiff submitted the affidavit of a nurse. The affidavit – which is required in all medical malpractice cases – stated that, in the nurse’s opinion, the hospital was negligent because it failed to “properly assess and treat [the plaintiff’s] wounds; and appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required.”

The hospital moved to dismiss the case, arguing that the required expert affidavit was defective because it failed to comply with the requirements. Specifically, the hospital claimed that the affidavit did not allege any specific act of negligence, as is required by statute.

The Court’s Decision

The court began its discussion by explaining that, under Georgia statutory law, any medical malpractice case must contain an expert’s affidavit that “shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The court then considered the language of the expert’s affidavit, noting that it lacked a specific allegation of negligence. As a result, the court determined it was defective.  A properly drafted affidavit would specify the appropriate standard of care required for the patient and then specifically state how that that standard of care was breach.

In response, the plaintiff argued that the case was not actually one of medical malpractice but was a case alleging ordinary negligence. The plaintiff claimed that, if this was the case, no affidavit would be necessary. However, the court rejected that argument, finding that the allegations contained in the plaintiff’s complaint brought into question the professional negligence of the hospital’s medical staff, and thus they were properly considered medical malpractice claims.

Have You Been a Victim of Medical Malpractice?

If you or a loved one has recently been a victim of what you believe to be negligent medical care, you may be entitled to monetary compensation through a Georgia personal injury lawsuit. As the case discussed above indicates, Georgia medical malpractice cases require certain rules to be precisely followed, or a plaintiff risks the dismissal of their case. The skilled injury attorneys at the McAleer Law Firm have extensive experience working with a broad range of medical experts, and we are intimately familiar with the substantive and procedural rules that govern these cases. Call 404-622-5337 to schedule a free consultation with an attorney today.

See More Posts:

Georgia Court Determines Fast-Food Restaurant Did Not Have “Superior Knowledge” of Hazardous Condition that Allegedly Caused Plaintiff’s Fall, Georgia Injury Attorney Blog, June 6, 2017.

Undue Nit-picking by Georgia’s Court of Appeals?, Georgia Injury Attorney Blog, May 23, 2017.