Georgia law requires that a plaintiff in a medical malpractice action provide an expert affidavit that must generally set forth the defendant’s failure to comply with the applicable standard of care. See O.C.G.A. § 9-11-9.1(a). Failure to comply with this requirement renders one incapable of successfully advancing a medical negligence claim. However, there are cases when actual testimony from a medical expert is unnecessary to ultimately succeed on a malpractice claim. For instance, the “pronounced results” exceptions obviates the need for expert testimony when the injury is of such an obvious nature that a jury can appraise the failure to exercise care without the assistance of an expert on the subject. In a recent decision, Zarate-Martinez v. Echemendia, the Georgia Court of Appeals addressed the interesting question of whether the expert affidavit requirement is waived in cases when a pronounced results exception is viable.
The plaintiff in this case alleges that a physician negligently performed an out-patient open laporoscopic tubal ligation procedure on her. The plaintiff had gone home the same day of the surgery without incident but started to experience pain, nausea, and fever over the coming days. She eventually went to the emergency room, where it was discovered that a part of her lower intestine had been perforated. The perforation was repaired, and the plaintiff remained in the hospital for further treatment.
Following this incident, the plaintiff brought a negligence suit against the physician, Atlanta Womens’s Health Group, P.C., and North Crescent Surgery Center, LLC. With her complaint, the plaintiff filed the required expert affidavit. However, the defendants moved for the affidavit to be struck because it failed to comply with the requirement for expert affidavits set forth in O.C.G.A. § 24-7-702 (c). The trial court agreed and struck the affidavit but afforded the plaintiff 45 days to file a compliant affidavit. The plaintiff filed different affidavits, but they too were struck by the trial court for failing to comply with O.C.G.A. § 24-7-702 (c). For failing to provide the required expert affidavit, the trial court dismissed the complaint.
Among the various arguments the plaintiff raised on appeal was whether the expert affidavit requirement should have been excused in this instance because, in her view, the “pronounced results” exception applied. Generally, expert evidence is required in medical malpractice actions because it is assumed that a jury would not have sufficient knowledge about the pertinent medical standard of care and consequently not be able to accurately assess liability, absent guidance from an expert. The pronounced results exception, however, allows for recovery absent expert testimony when “the medical questions presented concern matters which a jury can be credited with knowing by reason of common knowledge or the possibility of actionable medical negligence appears so clearly from the record that the [plaintiff] need not produce expert medical testimony . . .” Killingsworth v. Poon, 167 Ga. App. 653, 656 (1983). However, recourse to the pronounced results exception is limited to “rare cases.” Id. The plaintiff argued that her case should not have been dismissed because her injury falls within this exception. The Court of Appeals disagreed. First, the court noted that the expert affidavit requirement is a pleading requirement that is distinct from a plaintiff’s evidentiary burden on summary judgment or at trial. The court further noted that no cases had held that the need to provide an expert affidavit is waived even if the pronounced results exception would apply at summary judgment or trial, and it declined to do so here.
Second, the court concluded that the injury at issue did not, in any event, present a situation calling for the application of the pronounced results exception. The court noted that perforation was a known risk associated with a tubal ligation procedures and not a “rare case” presenting an obvious act of medical negligence. Compare Killingsworth, 167 Ga. App. at 658 (holding that “expert testimony [was not] necessary to establish a prima facie case of medical malpractice and submission of the case to a jury” when a physician punctured a patient’s lung while administering an paint relief injection in the patient’s shoulder) with Nelson v. Parrott, 175 Ga. App. 307 (1985) (holding that a pregnancy resulting from a botched sterilization procedure was a known risk not subject to the pronounced results exception). Accordingly, the Court of Appeals affirmed the trial court’s ruling.
Although the Court of Appeals’ ruling with respect to whether the pronounced results exception applies is not surprising, it is interesting that the court noted that even in cases in which it may apply, a plaintiff may not be relieved of the obligation to provide an expert affidavit with his or her complaint. Indeed, it likely would not be difficult for a plaintiff to acquire an expert affidavit when the medical malpractice is obvious, but it is interesting that the court would not consider the affidavit requirement superfluous even when the negligence is obvious. In any event, this decision shows that many evidentiary complexities exist in medical malpractice litigation. Given the bevy of particular requirements associated with medical malpractice cases, one who has been injured in a possible case of medical negligence should consider enlisting the aid of experienced counsel prior to undertaking legal action. The Atlanta medical negligence and wrongful death attorneys at the Simon Law Firm have represented many injured Georgians and are prepared to assist you with a possible case. Feel free to contact us if you believe you have a possible claim and are interested in knowing more about your legal options.