By Maxwell K. Thelen and Kurt G. Kastorf
STARTING WITH THE BIG PICTURE
Recognizing that professionals provide important services to our communities, our laws seek to balance the need to provide a legal remedy for breaches of professional standards with the need to protect professionals from liability for bad outcomes that are not the professional’s fault. But that balance is not always perfect. Georgia law includes stout rules to protect professionals, which can operate to bar a claim even before discovery can be had. Specifically, O.C.G.A. § 9-11-9.1 requires an affidavit from an expert in the same profession to be filed with the complaint. That affidavit must set out what the defendant professional did wrong and why it was a breach of the standard applicable to that professional. While intended to deter frivolous claims, those rules can have the unintended effect of making claims which are meritorious – but not fully developed because of limited information – difficult to bring successfully.
To safely navigate this obstacle, it is often best to start planning by looking to the end and working backwards or – in other words – a trial lawyer builds a case based on what needs to be proven to a jury. So to begin: we must prove that the defendant professional fell short of the professional standard of care causing harm to our client. Of course, every word of that sentence is loaded with detail that needs to be unpacked. At the risk of repeating the obvious law-school fundamentals, we need to establish (1) what the professional standard is, (2) that it was breached, and (3) that the breach caused or contributed to (4) the specific harm our client suffered. The first two components will always need expert testimony in a professional negligence case, and causation likely will require testimony whenever the concepts are out of the knowledge of the average lay person – as is the case in most medical malpractice cases. Proving damages, or the extent of damages, will also require (or at least benefit from) expert testimony, such as life care planning or having an economist calculate the present value of future earnings.
Translating the big picture into requirements, we know we need three general types of experts: (1) standard of care experts who can say what the standard was and that the defendant’s actions (or inactions) violated the standard of care, (2) causation experts to link the violation to the damages, and (3) damages experts to help the jury comprehend the extent of damages and calculate the amounts correctly. With the end-state visualized, we can start building the case.
The obvious first step is gathering the facts. Whether that be architectural drawings, engineering specifications, or medical records, we need the raw material that tells the story to begin evaluating the case. While our clients’ version of events will likely give us a general idea of what happened and where to start looking, building a case that will stick requires consulting an expert early and providing the expert with the materials the professionals rely upon to reach their opinions. Earlier is better. Consulting an expert is an expensive step, but ought to be done before even taking the case. It is far better to spend a little money and discover a case is no good early than to go full bore and lose a lot of money later. Indeed, it is sometimes appropriate to walk away from a case solely because a potential client has brought it to you too close to the statute of limitations, with inadequate time to discuss the matter with an expert. And it is also necessary to even get in the courtroom door.
CROSSING THE THRESHOLD INTO THE COURTROOM – O.C.G.A. § 9-11-9.1
Georgia imposes – as a threshold requirement – 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). The statute contains a safety valve if you are retained at the last minute, O.C.G.A. § 9-11-9.1(b), but that provision is no help if your client retained you more than 90 days before the statute of limitations runs. The affidavit requirement applies to a particular list of professionals identified in the statute, O.C.G.A. § 9-11-9.1(g)(1)-(26), which includes the most frequent professional negligence defendants. And the affiant expert cannot be just anyone. The affiant must be qualified as an expert by knowledge, skill, experience, training, or education, O.C.G.A. § 24-7-702(b), (e), must be licensed to practice the profession in which he is an expert, O.C.G.A. § 24-7-702(c)(1), and – if the case is one of medical malpractice – have actively practiced or taught in the profession for at least three of the last five years before the time of the alleged negligence. O.C.G.A. § 24-7-702(c)(2).
It is worth pausing for a moment to discuss the “active practice” requirement a bit more. While § 24-7-702(c)(2) should be an important part of your Daubert toolkit, it merits clarifying that the active practice requirement is not so myopic or hyper-narrowly interpreted as some would like. Rather, the experience from active practice must “establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.” O.C.G.A. § 24-7-702(c)(2)(A)-(B). Accordingly, the Court of Appeals routinely rejects attempts to construe this requirement too narrowly. Houston v. Phoebe Putney Mem. Hosp., Inc., 295 Ga. App. 674, 679 (2009) (“[T]he plaintiff’s expert does not have to have knowledge and experience in the same area of practice/specialty as the defendant. Instead, the issue is whether the expert has knowledge and experience in the practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiff’s injuries.” (sic)); Nathans v. Diamond, 282 Ga. 804, 806 (2007) (practice within same subspecialty irrelevant); Cotten v. Phillips, 280 Ga. App. 280, 283-84 (2006) (vascular surgeon can testify against orthopedist, as long as area of criticism is familiar through teaching or practice); see also Mays v. Ellis, 283 Ga. App. 195, 203-05 (2007) (allowing gastroenterologist’s testimony against OB/GYN, as familiarity with area of practice is the relevant question, not subspecialty).
As these requirements perhaps make obvious, finding the right kind of expert early is not just a good idea – it is required. But what if you have incomplete information? It is not uncommon for multiple professionals to be involved in the underlying facts so that sorting out who is responsible for what is possible pre-suit. Often you need information from the professionals who will be defendants and cannot get it without discovery tools. The practical answer to this dilemma is often an affidavit in the disjunctive – and multiple affidavits if different professions are involved – based on information believed to be true at the present. Employing this strategy carries with it some risks and pitfalls worth exploring.
First, when pleading in the alternative or disjunctively, there is a tendency to provide more detail about some professionals and less about others. This should not be a problem under Georgia’s liberal notice pleading standards, but can sometime trip judges up when they are evaluating allegations against the less thoroughly pleaded professionals. Accordingly, it is helpful to balance the allegations in the complaint and affidavit so that there is not a great disparity of detail concerning the different defendant professionals. If you include several lengthy paragraphs about one professional, and a conclusory sentence about another, you run the risk of a bad ruling, even if that sentence ought survive Georgia’s liberal pleading standards.
Second, if you plan to use your affiant expert as an expert at trial, putting too much detail in the affidavit can create fodder for impeachment of the expert if discovery brings new facts to light or sheds new light on old facts. It is still important to provide enough detail in the expert affidavit to meet the standard in order to “set forth specifically at least one negligent act or omission [of each defendant professional] claimed to exist and the factual basis for each such claim.” O.C.G.A. § 9-11-9.1(a). Accordingly, if you have doubts about whether your current understanding of the facts will remain the same after discovery, it may be best to provide what detail you have now to meet the affidavit standard but plan for a different expert to testify at trial. Relatedly, where you have affidavits from multiple experts, each expert should stick to their assigned lane. On first blush, it seems helpful if your standard of care expert wants to bolster your causation expert. But a safer approach is to make sure your affidavits satisfy the statutory requirements and then flesh out a single, consistent theory of liability during discovery.
Third, because professional malpractice cases often target a corporate entity on the theory it is vicariously liable for the acts or omissions of its employees or agents, leave room to adjust the pleadings. For instance, if someone at a hospital dropped the ball in diagnosing a patient, it is helpful to name nurses, technologists, physicians, and other staff and personnel at the facility who were employees or agents of the facility. That way, if it turns out the physician is an independent contractor and the hospital apprises itself of the protections of O.C.G.A. § 51-2-5.1 so the physician is not an agent, you still have other agents to keep the hospital on the hook.
But despite best efforts, there are still times when you find out you should have named someone else for something else. Then what?
AMENDING PLEADINGS AND AFFIDAVITS TO CONFORM TO EVIDENCE
The good news is that amending pleadings and affidavits to conform to the evidence has just become easier. For over a decade, the law has been unclear at best on the circumstances under which plaintiffs can amend their complaints after the statute of limitations to assert claims borne out in discovery.
The problem began in a case called Thomas v. Medical Center, decided in 2007, in which the Georgia Court of Appeals considered the circumstance of a plaintiff who initially claimed that a hospital was vicariously liable for the negligence of its physicians and then, outside of the statute of limitations, added claims that the hospital was vicariously liable for the negligence of its nurses, supported by a new affidavit. 286 Ga. App. at 147-48. In doing so, the Court, without any analysis of O.C.G.A. § 9-11-15(c), depended on the reasoning that “we can find no case law, and [plaintiff] cites no case law, permitting her to add new claims of vicarious liability and allowing them to relate back to the filing of the original complaint.” Id. at 149.
Plaintiffs have, for years, had to rely on the argument that Thomas is a narrow decision, with reasoning that should be restricted to its facts. And more recently, the Court of Appeals had added heft to that argument, by impliedly undermining the reasoning of Thomas. For instance, in Oller v. Rockdale Hosp., LLC, decided in 2017, the Court of Appeals went out of its way to correct the stray dicta in Thomas v. Medical Center by noting, contrary to that opinion that, under O.C.G.A. § 9-11-15 (c), “[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Oller, 342 Ga. App. at 596 (Dillard, C.J., concurring joined by Ray, P.J. and Self, J.). And that “while [defendant] attempts to characterize the vicarious liability claim involving [one physician] as a separate time-barred claim, it is simply another theory of vicarious liability against [defendant] for medical malpractice that may be raised, upon remand, in any manner authorized by O.C.G.A. § 9-11-15.” Id. at 597. Although the reasoning in Thomas has never been sound, trial courts are understandably reluctant to ignore a holding of the Court of Appeals, even one that has been criticized by that same court.
It is only in the last few months that the Georgia Supreme Court has definitively put its thumb on the scale, limiting the holding in Thomas. In Tenet HealthSystem GB, Inc. v. Thomas, 304 Ga. 86 (2018), the Court clarified in footnote five that to the extent that Thomas, “which never cited O.C.G.A. § 9-11-15, much less analyzed that statute, is inconsistent with our specific holding in this case, it is hereby disapproved.” The footnote is best read as a confirmation that Judge Dillard’s concurrence in Oller, and not the opinion in Thomas, got it right: the requirement of a professional affidavit does not somehow prevent plaintiffs from availing themselves of § 9-11-15, where amendment is available under that provision.
Even with this clarification that relation back is possible, Thomas serves as a reminder that it is often quite difficult to identify in the early stages the correct claims to bring against particular potential defendants. Smart plaintiffs should be exploring multiple theories of liability against institutional defendants from the very beginning. Do not count on the notion, for example, that a hospital will have failed to avail itself of O.C.G.A. § 51-2-5.1. Instead consider whether there are available claims against nurses or other hospital personnel, whether ordinary negligence is a viable theory, and whether you have standalone claims against the institution, such as for negligent credentialing. ●
ABOUT THE AUTHORS
Maxwell K. Thelen and Kurt G. Kastorf are attorneys at The Summerville Firm, a litigation boutique that combines the skill, quality, and attention to detail that you would expect from a large national firm, but with the efficiency, flexibility, and agility of a small firm. They can provide an additional set of eyes on your complaint and expert affidavit before you file.