In a recent case, a state appellate court reversed a Georgia trial court’s ruling and found that a plaintiff did not need to present an expert affidavit in her lawsuit against a health clinic. According to the opinion, the plaintiff filed a personal injury lawsuit against a health clinic after she sustained injuries because of a botched blood draw. The woman alleged that the blood draw was performed negligently and without her permission. The clinic filed a motion to dismiss the lawsuit, claiming that the plaintiff needed to file an expert affidavit. In response, the plaintiff argued that the blood draw was non-consensual. However, the trial court granted the clinic’s motion to dismiss, and the plaintiff appealed.
The appellate court reviewed Georgia Code § 9-11-9.1, which addresses the requirement of affidavits in professional malpractice lawsuits. Generally, when a plaintiff files a lawsuit against a Georgia health-care facility based on vicariously liability and professional malpractice, they must submit an expert affidavit. Expert affidavits are used to determine whether a defendant has complied with the professional standard of care required of them. Generally, a plaintiff must establish that the medical professional owed them a duty, the defendant breached a generally accepted professional standard of care, that this breach caused the plaintiff harm, and that the plaintiff suffered a compensable injury.
Typically, to establish the standard of care, the plaintiff must present an affidavit from a qualified expert and this affidavit must be filed with the lawsuit. This expert must be able to testify to their qualifications and be able to establish at least one negligent act or omission by the defendant. However, this is not applicable when professional skills or judgment are not involved. The court found that a technician does not fall into any of the enumerated categories in the statute, and thus, an expert affidavit was not necessary.