Amending professional negligence claims in Georgia

How precise does the content of a medical malpractice affidavit need to be?

Earlier this month, Kastorf Law posted Kurt Kastorf and Maxwell Thelen’s article from Verdict Magazine on how to amend professional negligence claims in Georgia. But when is an amendment even necessary? A recent Court of Appeals of Georgia case provides some helpful guidance.

What is the implication of Giddens v. Medical Center of Central Georgia for professional affidavits in Georgia?

Giddens v. Medical Center of Central Georgia, decided on February 12, 2020, is an interesting opinion on a number of topics, but this article will focus on just one: it held that an affidavit that was sparse on details as to one set of defendants was still sufficient to survive summary judgment. If you litigate medical malpractice claims or other professional negligence claims in Georgia, you should be aware of the case.

What are the facts of Giddens v. Medical Center of Central Georgia?

As the Daily Report explains:

Following a craniotomy to remove an arachnoid cyst, Kimberly Giddens suffered a brain infection, resulting in permanent neurological injuries. Giddens sued Dr. Hugh F. Smisson, III and The Georgia Neurological Institute, P.C. for professional negligence, and The Medical Center of Central Georgia (MCCG) for professional and ordinary negligence, alleging that MCCG’s nurses and mid-level providers violated accepted medical practices by not following Smisson’s order to administer a pre-operative antibiotic. . . .

The trial court granted summary judgment to MCCG on all claims, concluding that MCCG did not employ the nurse anesthetist and that it was her job to administer the pre-operative antibiotic. Giddens appealed from that order and the Georgia Court of Appeals affirmed the grant of summary judgment to MCCG on Giddens’ ordinary negligence claim. However, the Court reversed the grant of summary judgment to MCCG on Giddens’ professional negligence claim. The Court determined that there is a genuine issue of fact as to what time the antibiotic was administered, and there is some evidence to support a finding that MCCG nurses had a duty to assure that Giddens received the antibiotic before surgery.

Of particular relevance to this article, the opinion notes:

[A]t least some evidence supports a finding that MCCG through its nurses may have provided substandard medical care to Giddens by failing to ensure that Smisson’s order was carried out and that the antibiotic was administered preoperatively. Medical expert Michael D. Hawkins, M. D.’s expert affidavit states that he “regularly supervised nurses and mid-levels who are tasked with carrying out the orders of physicians to administer pre-operative antibiotics to surgical patients” and that he is familiar with the standard of care required of them. He further averred that “[i]t is my opinion that the nurses and mid-levels providing care to Ms. Giddens violated accepted medical practices by not following physician orders to administer preoperative antibiotics to [her, and] that Dr. Smisson violated accepted medical practices by failing to ensure that his orders were followed by hospital personnel. . . .”

How does this case effect the amendment of professional negligence affidavits in Georgia?

If you file professional negligence and medical malpractice claims in Georgia, why should this case be on your radar? The key is this portion of the opinion, described by the Daily Report:

MCCG argued that summary judgment in its favor should be affirmed because the expert affidavit alleges only that Smisson failed to ensure that pre-operative antibiotics were given to Giddens, and no such allegation was made against MCCG or its nurses. However, the Court declined to adopt such a narrow reading of the affidavit in this case. While Hawkins’ affidavit is not precise, a complete and fair reading of it leads to the conclusion that, in his expert opinion, MCCG nurses breached the standard of care by failing to ensure that pre-operative antibiotics were administered to Giddens within one hour prior to her surgery.

As you’re surely aware if you litigate professional negligence claims in Georgia, the state Georgia requires that any complaint alleging professional negligence be accompanied by 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.” O.C.G.A § 9-11-9.1(a).

As Kastorf law covered earlier, the requirement to file an affidavit at the initiation of suit creates a recurring problem: what do you do during discovery when you learn of facts (or a potential claimant or defendant) that your affidavit does not directly address? That’s why recent case law on amending an affidavit is so important, because it addresses how to protect claims where the affidavit both is not and could not have been fully formed at the time of suit.

But Giddens should remind Georgia professional negligence attorneys that there’s another path: you might not need to amend the affidavit at all. Before you decide to amend (or if you fail to identify the problem before you are facing a summary judgment motion), review Giddens and related cases and see if it can help you craft an argument that an amendment was never required to begin with.

Need help on that summary judgment motion?

If you are faced with a summary judgment motion about the sufficiency of an affidavit, Kastorf Law can help. The firm has worked on this issue multiple times before, and regularly assists other attorneys with pre-trial litigation and strategy. And keep in mind that in any case where you may end up needing embedded trial counsel or appellate counsel down the line, bringing on Kastorf Law as early as possible will significantly reduce the effective hourly rate for our services. Contact us here.

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