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Court of Appeals of Georgia.

FISHER et al. v. GALA et al.

No. A13A1938.

Decided: February 06, 2014

Douglas J. Davis, Attorney for Appellant. Paul E. Weathington, Joseph Paul Mitchell, Attorney for Appellee.

Dorian Fisher filed this medical malpractice action in the Superior Court of Fulton County against Vishal Gala, M.D., Regis Haid, M.D., and Atlanta Brain and Spine Care, P.C. (collectively, “the neurosurgeons”).1 The neurosurgeons moved to dismiss the complaint, averring that the physician who gave the affidavit submitted with Fisher's complaint was not competent to testify regarding the neurosurgical care at issue and, therefore, that the affidavit was defective under OCGA § 9–11–9.1. Fisher filed an amended complaint along with the affidavit of a board-certified neurosurgeon. After a hearing on the neurosurgeons' motion to dismiss, the trial court ruled that Fisher failed to show that the original affiant-physician was competent to testify and, therefore, that the affidavit was defective. In addition, the trial court held that Georgia law does not authorize a plaintiff to cure such a defect by filing an amended complaint with the affidavit of a different expert. Based on these determinations, the trial court granted the neurosurgeons' motion to dismiss Fisher's complaint. Fisher appeals, and, for the reasons explained below, we reverse.

The following facts are relevant to this appeal. On July 10, 2012, Fisher filed his complaint against the neurosurgeons. Fisher claimed that he sought treatment after he sustained a back injury in March 2010. After diagnostic testing, Fisher's initial treating physicians diagnosed a possible intradural spinal cord tumor. Fisher sought a second opinion with Dr. Gala, who also diagnosed an intradural spinal cord tumor, specifically, a schwannoma. Dr. Gala recommended a laminectomy at the L5–S1 level of Fisher's spine and removal of the suspected schwannoma. Dr. Gala and Dr. Haid performed the surgery on July 13, 2010. According to Fisher, the surgery revealed no schwannoma at L5–S1, although the neurosurgeons found a bundle of clumping nerve roots consistent with arachnoiditis, and they then explored the S1–S2–S3 level. Still finding no schwannoma, the neurosurgeons explored the dura and, finding no lesion, patched the dura and ended the surgery. In his claim for medical malpractice, Fisher alleged that the neurosurgeons were negligent in diagnosing him with a schwannoma rather than arachnoiditis, that they performed unnecessary and suboptimal neurosurgical procedures (lumbar laminectomy, durotomy, and intradural exploration), and that, as a result of their negligence, he suffered serious complications and permanent disabilities.

With his initial complaint, Fisher filed the affidavit of James Rogan, M.D., who opined that the neurosurgeons violated the standard of care in failing to provide a proper diagnosis of Fisher's condition and in performing an unnecessary and suboptimal surgery which revealed no intradural tumor and which caused post-surgical complications and permanent disabilities. With regard to the basis of his knowledge in performing the procedures, diagnosing the conditions, or rendering the treatments at issue, Dr. Rogan averred that he is board-certified by the American Board of Family Practice, that at least 80 percent of his general practice is devoted to the care of disabled patients and those with neurological disabilities, and that he is familiar with and has personal knowledge of the standard of skill exercised by physicians generally under the same conditions and like surrounding circumstances as those presented by Fisher.

On August 9, 2012, the neurosurgeons filed a motion to dismiss, challenging Dr. Rogan's competency to testify concerning the neurosurgical care at issue. Fisher filed his amended complaint, with the affidavit of Michael Dogali, M.D., on September 7, 2012. Dr. Dogali opined that, during the July 13, 2010 surgery, the neurosurgeons were negligent in failing to protect the nerves of the cauda equina sufficiently and that, as a result, irreversible nerve injuries occurred during the surgery. Dr. Dogali's affidavit showed that he was a board-certified neurosurgeon and that, at the time of the neurosurgeons' alleged negligence, he had been regularly engaged in the active practice of neurosurgery for at least three of the preceding five years, including performing lumbar intradural surgical procedures and otherwise providing the type of care at issue.

As noted above, in granting the neurosurgeons' motion to dismiss, the trial court ruled that a plaintiff cannot comply with OCGA § 9–11–9.1 by filing with a medical malpractice complaint an affidavit given by an expert who is not competent to testify under the applicable standard and then cure such a deficiency by filing an amended complaint with an affidavit given by another expert who is competent to testify. Because this issue is a legal question, not one involving an exercise of the trial court's discretion, our review is de novo, and we view the pleadings in the light most favorable to Fisher, resolving any doubts in his favor. See Ndlovu v. Pham, 314 Ga.App. 337, 338, 723 S.E.2d 729 (2012); Craigo v. Azizi, 301 Ga.App. 181, 183–184, 687 S.E.2d 198 (2009) .2

Because Fisher's complaint raised a claim for professional malpractice against medical doctors and against a licensed health care facility alleged to be liable based upon the doctors' actions, OCGA § 9–11–9.1(a) required him “to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” See Jensen v. Yong Ha Engler, 317 Ga.App. 879, 881, 733 S.E.2d 52 (2012); OCGA § 9–11–9.1(a)(1), (a)(3), (g)(11) (effective July 1, 2007). At the relevant time, “[t]he standard for determining an expert's competence to testify [was] governed by [former] OCGA § 24–9–67.1, and the statute applie[d] to affiants under OCGA § 9–11–9 .1.” (Citation, punctuation, and footnote omitted.) Aguilar v. Children's Healthcare of Atlanta, 320 Ga.App. 663, 664, 739 S.E.2d 392 (2013).3

In this case, the neurosurgeons' argument that Dr. Rogan was incompetent to testify regarding the neurosurgical care at issue was well taken.4 If a plaintiff files an affidavit with his or her complaint, and the defendant to whom a claim of malpractice pertains

alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff's complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9–11–15 within 30 days of service of the motion alleging that the affidavit is defective.

OCGA § 9–11–9.1(e). Under this provision,

[i]f the plaintiff files an expert affidavit that is inadequate for some reason, the defendant can move to dismiss the case, but ․ dismissal is warranted in such a case only if the motion identifies with specificity the respects in which the affidavit is inadequate, and only if the plaintiff fails within 30 days to cure these inadequacies by amendment.

(Punctuation and footnote omitted.) Ndlovu v. Pham, 314 Ga.App. at 338, 723 S.E.2d 729. See also Porquez v. Washington, 268 Ga. 649, 651–652(1), 492 S.E.2d 665 (1997) (When an expert affidavit is initially filed with a complaint alleging malpractice, a plaintiff is allowed to supplement the affidavit if the defendant disputes the sufficiency of the affidavit, either as to the expert's competency or as to the sufficiency of the expert's statements regarding negligent acts.); Harris v. Murray, 233 Ga.App. 661, 666(3), 504 S.E.2d 736 (1998) (accord); see also Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga.App. 534, 535–537, 510 S.E.2d 101 (1998) (holding that the original affidavit could be amended or a new valid affidavit substituted for it, and that, because such had been accomplished before the trial court ruled on the motion to dismiss, the suit was no longer subject to dismissal under OCGA § 9–11–9.1).

Fisher contends that, pursuant to the cure provision of OCGA § 9–11–9.1(e), he cured the deficiency in the affidavit filed with his original complaint by filing an amended complaint with a substitute affidavit from a new expert, citing Piscitelli v. Hosp. Auth. of Valdosta, 302 Ga.App. 746, 752, 691 S.E.2d 615 (2010).

As in this case, the trial court in Piscitelli “was called upon to determine whether dismissal was warranted under OCGA § 9–11–9.1 for failure to satisfy the requirements set forth by OCGA § 24–9–67.1(c)(2) and (e)” regarding an affiant's competency to testify in a medical malpractice action. 302 Ga.App. at 751, 691 S.E.2d 615. As in this case, before the trial court in Piscitelli heard and ruled on the defendant's motion to dismiss based on the original affiant's incompetency, the plaintiff filed the affidavit of a new expert. Id. at 747–748, 691 S.E.2d 615. As in this case, the defendant never challenged the new affiant's competency to testify, and the trial court did not consider whether the affidavit of the new expert satisfied OCGA § 9–11–9.1's pleading requirement. We ruled that, “given [the new affiant's] admittedly wholly unchallenged affidavit, which was submitted in support of [the plaintiff's] professional malpractice action against the [defendant], dismissal of that action based upon a competency determination concerning only [the original affiant] ․ was error.” (Punctuation and footnote omitted.) Id. at 753, 691 S.E.2d 615. We therefore reversed the dismissal of the plaintiff's complaint. Id.

We discern no meaningful basis for distinguishing the instant case from Piscitelli. Furthermore, we are mindful that, although OCGA § 9–11–9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it nevertheless must be construed in a manner consistent with the liberality of the Act, so long as such a construction does not detract from the gate keeping function of OCGA § 9–11–9.1's pleading requirement, which is to reduce the number of frivolous malpractice suits. Porquez v. Washington, 268 Ga. at 652(1), 492 S.E.2d 665.5 In particular, allowing a plaintiff a broad right of curing an allegedly defective affidavit by amendment “does not defeat the purpose of the statute, but instead helps to insure that the complaint is not frivolous.” Id. In this case, once the neurosurgeons challenged the sufficiency of the supporting affidavit, Fisher availed himself of the cure provision of OCGA § 9–11–9.1(e),6 and Dr. Dogali's unchallenged affidavit shows that the purpose of OCGA § 9–11–9.1 is satisfied. We conclude that, under the circumstances, the trial court erred in disregarding Dr. Dogali's affidavit and dismissing Fisher's action based upon a competency determination concerning only Dr. Rogan. Piscitelli v. Hosp. Auth. of Valdosta, 302 Ga.App. at 753, 691 S.E.2d 615. See also Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga.App. at 536, 510 S.E.2d 101 (Allowing amendment by substitution with a valid affidavit served the gatekeeper purpose of OCGA § 9–11–9.1 and “at the same time allowed a person with an arguably meritorious complaint against a professional for malpractice to enter the door of the courthouse for an airing of her complaint on its merits.”).

Judgment reversed.

ELLINGTON, Presiding Judge.

PHIPPS, C. J., concurs. BRANCH, J., concurs in the judgment only.

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