Georgia Court of Appeals Holds Expert Statute Does Not Apply to Ordinary Negligence Case

The Georgia Court of Appeals reversed summary judgment based on the spontaneous (“sua sponte”) exclusion of an expert witness in an ordinary negligence case. Plaintiff’s son was a day resident at a rehabilitation facility. Plaintiff’s son wandered off and was found on the ground unresponsive. The non-medical personnel at the facility called 911 and started to administer CPR. Emergency response personnel arrived and transported Plaintiff’s son to the hospital, where he was pronounced dead.

Plaintiff sued the day rehabilitation facility for simple negligence, ordinary negligence, and other claims, but not medical malpractice. The facility moved for summary judgment on causation. Plaintiff responded by pointing to the testimony of an expert witness. The trial court ruled that the expert’s testimony created a fact dispute on causation, but then excluded the witness’s testimony because Plaintiff did not prove that the expert was qualified under O.C.G.A. §24-7-702. That Code Section requires proof of an expert’s qualifications before the expert can testify as to standard of care in a medical malpractice case.

The Court of Appeals reversed, holding the trial court erred in applying Section 24-7-702 because it was not a medical malpractice case. The day rehabilitation facility is not one of the entities listed in O.C.G.A. §9-11-9.1 as an entity against whom an affidavit must be filed to institute a claim for professional negligence. Similarly, Plaintiff’s pled the claims as ordinary negligence, not professional malpractice.

The case is Blake v. KES, Inc., ___ S.E.2d ___ (March 2, 2016).

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