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Georgia Court of Appeals Distinguishes Professional and Ordinary Negligence – Recent Blog Posting by Eric Frisch

September 22, 2016

Recent Blog Posting by Eric Frisch.

In the case of Carter v. Cornwell, 2016 Ga.App. LEXIS 523 (September 21, 2016), the Georgia Court of Appeals affirmed the dismissal of a doctor for Plaintiff’s failure to file an expert affidavit, but reversed regarding the doctor’s practice group.  Carter was a longtime patient of Dr. Cornwell and his practice group. Dr. Cornwell wrote a prescription for Ms. Carter for 120 pills of hydrocodone. Before Ms. Carter left the office, Dr. Cornwell changed the number of pills to 180 on the same prescription.

Ms. Carter then went to fill the prescription at the local pharmacy. The pharmacy saw the altered prescription and then called Dr. Cornwell’s office. The on-call doctor covering for Dr. Cornwell did not know that Dr. Cornwell changed the prescription and did not call Dr. Cornwell for guidance. Ms. Carter was then arrested for altering a prescription to obtain a controlled substance.

Ms. Carter sued Dr. Cornwell and the practice group, but did not file an expert affidavit. Dr. Cornwell and the group moved to dismiss and the trial court granted the motion. The Court of Appeals affirmed the dismissal of Dr. Cornwell, holding that he was exercising professional judgment when he decided to change the number of pills and, by extension, the dosage, for Ms. Carter. Plaintiff argued that the decision to change the dosage may have been professional discretion (and therefore requiring an affidavit), but the act of altering the prescription was “administrative,” not professional. The Court of Appeals disagreed, concluding that the entire act fell within the scope of professional duties that require an expert affidavit.

As to the group, however, the Court of Appeals reversed. The Court held that the claims against the practice for failure to handle the on call responsibilities properly was not an act of “professional judgment or skill” because the question was one of simply verifying whether the patient was in possession of a lawful prescription.

Bottom-line – claims or ordinary, simple, and administrative negligence are surfacing frequently in cases and the rules about what is and is not a claim requiring an affidavit sometimes appear to be made on a case-by-case basis.

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