Facts
In the case of Bryant v. Okafor, the trial court granted the Defendant’s Motion to Dismiss a medical malpractice complaint because the expert affidavit attached to the complaint pursuant to O.C.G.A. § 9-11-9.1 was signed by a registered nurse, while the defendant medical provider was a nurse practitioner. As a result, the trial court determined the expert affiant was not a “member of the same profession” as the defendant nurse practitioner as required under O.C.G.A. § 9-11-9.1 and § 24-7-702, and was therefore not qualified to testify by affidavit. The Court of Appeals reversed the grant of the Defendant’s Motion to Dismiss, holding that both the affiant and defendant provider were members of the same profession because they were both licensed nurses.
In his complaint, the Plaintiff Bryant alleged that he went to the emergency department at Wellstar Spalding Regional Hospital for pain he was experiencing after being involved in a motor vehicle accident. The Defendant Okafor, a nurse practitioner, was the highest-level clinician to see Bryan during his visit. Okafor ordered basic vitals to be taken (revealing high blood pressure), prescribed pain medication, and ordered X-rays. When Bryant returned from radiology, his wife requested to speak to a nurse because she noticed that he began drooling, had slurred speech, the left side of his mouth drooped, and he was cold. Okafor came into the room, assessed his ability to speak, and then left the room. Okafor then ordered that he be discharged. When his symptoms became increasingly worse, Bryant went to a different hospital where he was diagnosed with a stroke later that day.
Bryant's complaint alleged that Okafor deviated from the standard of care, that this deviation from the standard of care was both negligent and professionally negligent, and that, as a direct and proximate result of this negligence, Bryant's stroke was not diagnosed until later in the day. Bryant attached the affidavit of Kujawski, a registered nurse, to his complaint wherein Kujawski opined that Bryant had exhibited classic signs of a stroke and that Okafor had violated the “standard of care for nurses” because she failed to perform a physical examination and report the results to a doctor.
The trial court granted Okafor's motion to dismiss the complaint for failure to comply with the pleading requirements of OCGA § 9-11-9.1. The trial court's order reasoned that the affidavit of a registered nurse did not meet the “same profession” threshold pleading requirements of O.C.G.A. §§ 9-11-9.1 and 24-7-702 necessary to initiate a medical malpractice action against a nurse practitioner. Bryant appealed.
Issues & Holdings
The issues in this case were as follows:
- Was the expert affiant Kujawski, a registered nurse, a “member of the same profession” as the defendant nurse practitioner Okafor as required to testify against her by affidavit?
- Did Kujawaski have the “actual professional knowledge and experience” required by O.C.G.A. § 24-7-702(c)(2) to be able to testify against Okafor?
The court answered these questions as follows:
- Yes.
- The issue was not ripe and so would not be adjudicated.
Reasoning
“Member Of The Same Profession”
The Court relied on prior precedent to hold that a registered nurse and nurse practitioner are “members of the same profession” under the medical malpractice and evidentiary statutes. O.C.G.A. § 24-7-702 (c) sets forth specific competency requirements for experts in professional malpractice actions. It requires, among other things, that the expert be a “member of the same profession” as the defendant. O.C.G.A. § 24-7-702(c)(2)(C)(i).
The Court explained that, similar to the statute's treatment of “medical doctors” as a profession, O.C.G.A. § 9-11-9.1(g)(12) broadly lists “nurses” as a profession and does not recognize nurse practitioners and registered nurses as separate professions. In prior decisions, the Court had held that a certified nurse midwife and a registered nurse are members of the “same profession” under the statute, even though a certified nurse midwife is an advanced practice nurse with advanced training in a specialized area. The Court cited other decisions holding that despite their “different specialties,” a medical doctor specializing in cardiology and an emergency room physician are members of the “same profession,” as were a rheumatologist and a psychiatrist.
Because both Kujawski and Okafor were nurses and members of the nursing profession, the trial court erred in granting Okafor's motion to dismiss on the ground that a registered nurse and a nurse practitioner are not members of the same profession
“Actual Professional Knowledge And Experience”
The court, however, held that the issue of Kujawski’s “actual professional knowledge and experience” was not ripe. O.C.G.A. § 24-7-702(c) also requires that, in medical malpractice actions, an expert have “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in” either the active practice of such area of specialty of his or her profession for at least three of the last five years or the teaching of his or her profession for at least three of the last five years as an employed faculty member of an accredited educational institution. At the trial court, Okafor had argued that Kujawski’s lack of “actual professional knowledge and experience” in the specialty was an additional grounds for dismissal.
The Court held that this issue was not ripe because it was never decided by the trial court, which had instead ruled entirely on the “members of the same profession” issue.
Conclusion
Bryant affirms and bolsters the Court of Appeals’ prior decisions holding an expert affiant need not be in the same specialty as the defendant provider to satisfy the “members of the profession” requirement under O.C.G.A. § 24-7-702(c). Instead, both the affiant expert and the defendant provider must fall under the same profession listed in O.C.G.A. § 9-11-9.1(g)—such as “medical doctor” or “nurse.”
Significantly, however, the Court declined to rule on the issue of whether a nurse is qualified to testify as an expert against a nurse practitioner under O.C.G.A. 24-7-702. A plaintiff’s attorney filing a medical malpractice claim should make sure both requirements are met to avoid pitfalls after filing suit. A best practice in a case involving a nurse practitioner would be to have a nurse practitioner provide the affidavit, rather than a registered nurse. This will reduce the risk that a trial court will find that the expert lacks the actual professional knowledge and experience necessary to render the opinions.
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Citation: Bryant v. Okafor, No. A23A0041 (Ga. Ct. App. May 8, 2023)
