The myth of frivolous medical malpractice lawsuits being a nationwide epidemic has led many states to enact laws to try to keep unnecessary lawsuits out of court. Georgia is no exception. Two Georgia laws that represent an attempt to keep frivolous medical malpractice lawsuits out of court are O.C.G.A. § 9-11-9.1 and O.C.G.A. § 24-9-67.1. Under O.C.G.A. § 9-11-9.1, an affidavit from an appropriately qualified expert that identifies at least one negligent act of each defendant has to be filed with any medical malpractice lawsuit. O.C.G.A. § 24-9-67.1 contains the qualification requirements for the expert giving the affidavit. Without a proper expert affidavit, a malpractice lawsuit will be dismissed for failing to state a claim.
What is an Affidavit?
An affidavit is a formal written statement made under oath and sworn (or affirmed) to be true by the person making the statement. An affidavit is essentially the equivalent of witness testimony. The affidavit that a qualified expert executes in a medical malpractice case includes:
- statements about the expert’s education, knowledge, and professional qualifications;
- statements about what the standard of care a professional in the field where malpractice allegedly occurred owed the patient; and,
- statements about how the defendant healthcare provider’s actions were negligence.
Who Qualifies as an Expert?
To qualify as an expert and provide testimony in a medical malpractice lawsuit, a proposed expert must meet several requirements. The judge of the court assigned to hear the lawsuit decides if the proposed expert is qualified to testify.
- Licensed. The proposed expert must have been licensed to practice in his her profession. The expert does not have to be licensed in Georgia, so long as the expert is properly licensed in the state where the expert regularly practices or teaches.
- Experienced. The proposed expert must have relevant experience and knowledge. This experience can come from performing the procedure, diagnosing the condition, or rendering the treatment that is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue. The experience requirement can also be satisfied by teaching others at an accredited educational institution to performe the procedure, diagnose the condition, or render the treatment that is at issue.
- Active. The proposed expert’s practice or teaching experience has to be active and recent. In particular, the relevant experience has to at least been within three of the five years prior to the date of the negligent act that is the subject of the lawsuit. A doctor may testify to the standard of care for other medical staff, such as nurses, physicians assistants, physical therapists, and other medical support staff, if the doctor actively supervised, taught, or instructed such providers during three of the prior five years. The opposite is not true, though. A nurse practitioner, for example, could not testify to the standard of care a doctor owed a patient.
An expert determines if a medical provider was negligent. The standard of care is the negligence standard in medical malpractice cases. The standard of care is simply what an ordinarily prudent medical provider would do in the same or similar circumstances. An expert reviewing a potential malpractice case evaluates the case by looking at the patient’s relevant medical records and other relevant evidence. After reviewing the records, the expert determines if the doctor, nurse, or other medical provider failed to follow the standard of care. If the medical expert determines that the provider’s actions or omissions fell below the standard of care a reasonable provider would follow, then the patient can show negligence. Georgia requires the expert affidavit so that only those cases that involve a legitimate accusation of negligent care are heard by the court.
Employing a qualified, knowledgeable expert for your case is critical. Without a qualified expert, a medical malpractice suit in Georgia is over before it begins. Our experienced medical malpractice team at The Champion Firm will find the best expert for your case and will protect your chance to hold a negligent healthcare provider accountable for your injury. Contact us today to see how we can help you.