Georgia Court of Appeals Denies Motion to Dismiss in Gross Negligence Case – Blog Posting by Eric Frisch
Blog Posting by Eric Frisch.
The Georgia Court of Appeals has affirmed the trial court’s denial of a motion to dismiss a complaint against an emergency physician in the case of Graham v. Reynolds. Plaintiffs claimed Dr. Graham, an emergency physician, failed to diagnose an acute coronary syndrome on presentation to an emergency department. Dr. Graham discharged the patient, who then suffered a massive heart attack and died.
Plaintiffs attached to their complaint the affidavit of a cardiologist specializing in electrophysiology. Dr. Graham moved to dismiss on the grounds that the affidavit expert was not qualified and because the affidavit did not opine on gross negligence. The trial court denied the motion.
The Court of Appeals affirmed, holding that plaintiff’s affidavit expert was not disqualified solely because he is a cardiologist and not an emergency physician. The Court held that the affiant demonstrated sufficient knowledge in the area of diagnosing a heart attack on EKG to survive a motion to dismiss.
The Court also rejected the contention that the affidavit was deficient because it did not contain facts showing gross negligence. The Court held that Section 9-11-9.1 only requires the affidavit set forth a negligent act or omission, which is a pleading required. Section 51-1-29.5, on the other hand, sets forth an evidentiary requirement, not a pleading requirement.
The take-home message is that it remains difficult to challenge an expert affidavit at the motion to dismiss phase.
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