 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bhansali v. Moncada8/4/2005
in Porquez v. Washington, OCGA § 9-11-9.1 clearly permits a Plaintiff in a medical malpractice case to amend, or substitute a new affidavit, to present additional evidence of deviation from the standard of care, when the expert affidavit as required by § 9-11-9.1 is initially filed with the complaint. Id. at 651.
Defendants in oral arguments asserted that the holding in Porquez has been "overruled" by the 1997 Legislative Amendment to OCGA § 9-11-9.1. However, this Court has reached a different conclusion and offers in support of its position the 1998 case of Phoebe Putney Mem. Hosp. v. Skipper, in which the Court of Appeals explored the applicability of Porquez in light of the 1997 Legislative Amendment.
In Phoebe, the Court of Appeals held that the original expert affidavit in a medical malpractice claim could be amended or a new valid affidavit substituted for it. The Supreme Court on writ of certiorari remanded the case back to the Court of Appeals so that it could issue a ruling in line with Porquez and Hewett v. Kalish. Id. at 534.
The Court of Appeals on remand concluded that the 1997 Amendment according to OCGA § 9-11-9.1 (e) is only designed to preclude amendment under OCGA § 9-11-15, when the Plaintiff completely fails to file an affidavit. Id. at 535.
In the case sub judice, pursuant to the Trial Court's Order, and in accordance with OCGA § 9-11-9.1 (b), Plaintiffs on December 17, 1999, filed their first amended complaint adding the expert affidavit of Dr. Bussey approximately forty- five (45) days after the complaint was filed. The affidavit of Dr. Bussey contained at least one allegation that the patient suffered an injury which was proximately caused by the surgical procedure performed on Plaintiff Paulette Moncada.
In filing the expert affidavit on December 17, 2000, Plaintiffs met the minimum requirements in order to sustain a claim for medical malpractice. On February 4, 2000, twenty- eight (28) days after Defendants' Teodoro F. Dagi, M.D. and Peachtree Neurosurgery, P.C., Motion to Dismiss Plaintiffs' Lack of Informed Consent Claim, Plaintiffs filed the second amended complaint supplementing the affidavit of Dr. Bussey adding a claim for Lack of Informed Consent. On March 31, 2000, sixty (60) days before the Court heard oral arguments on Defendants' Motion to Dismiss, Plaintiffs filed their third amended complaint [with] an affidavit from Dr. Korowser, which also stated a claim for Lack of Informed Consent.
The Court finds pursuant to the holdings of Porquez and Phoebe, that Plaintiffs having timely filed their initial expert affidavit, effectively supplemented the initial affidavit of Dr. Bussey so that the complaint did state a claim for Lack of Informed Consent, supported by affidavits filed February 4, 2000 and March 31, 2000.
The Court of Appeals has previously held that permitting the Plaintiff to amend the expert affidavit in order to meet the requirements of OCGA § 9-11-9.1 does not defeat the purpose of the statute but helps to insure that the complaint is not frivolous. Porquez at 652 (1).
For these reasons, we hold the trial court did not err in denying Dr. Bhansali's motion to dismiss under OCGA § 9-11-9.1. Judgments affirmed. Miller and Bernes, JJ., concur.
Page 1 2 3 4 5 Georgia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|