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FMG Law Blog Line

Medical Malpractice Lawsuit Dismissed Because Expert Not Qualified

Posted on: January 31st, 2013

By: Scott Rees

In Whitley, the Court of Appeals ordered a medical malpractice lawsuit to be dismissed for failure to satisfy Georgia’s expert affidavit requirements.  O.C.G.A 9-11-9.1 requires that in any medical malpractice lawsuit, a plaintiff must file with the complaint an affidavit of an expert competent to testify as to the alleged medical negligence. O.C.G.A. 24-9-67.1, now 24-7-702, sets forth specific requirements an expert must satisfy in order to be qualified.

Generally, the statute requires experience and knowledge regarding the opinion to be given as a result of active practice or teaching, and the expert must be a member of the same profession (with an exception allowing physicians to testify against nurses and other professionals if certain criteria are met).

In Whitley, the court held that a chiropractor was not qualified to testify as to a physical therapist’s purported negligence, because the chiropractor was not a member of the same profession.  The trial court had ruled the chiropractor was a member of the same profession, because he had performed physical therapy treatment for years, had been trained as a physical therapist, and was a licensed physical therapist in other states (but was not actively practicing as a physical therapist in those states).

The Court of Appeals disagreed with the trial court, holding the chiropractor was not of the same profession, because the two professions were treated separately pursuant to state statutes and regulations.  As a result, the trial court was instructed to dismiss the complaint.  Accordingly, this is just one more example of how important it is to address whether the affiant is properly qualified.

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