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Posted on March 27, 2017 in

Supreme Court of Georgia finds error in exclusion of expert witness: appropriate inquiry is whether expert has “appropriate level of knowledge” in performing or teaching the procedure at issue.

In Zarate-Martinez v. Echemendia, 299 Ga. 301, 788 S.E.2d 405 (July 5, 2016), the Supreme Court of Georgia upheld the constitutionality of O.C.G.A. Section 24-7-702(c) but reversed and remanded the decision of the trial court to strike one of Plaintiff’s experts.

Olga Zarate-Martinez filed a medical malpractice action against Dr. Michael Echemendia, Atlanta Women’s Health Group, P.C., Atlanta Women’s Health Group, II, LLC and North Crescent Surgery Center, LLC (hereinafter “Echemendia”) for personal injuries sustained during an open laparoscopic tubal ligation that resulted in a perforated bowel. Attached to the complaint was an affidavit from Dr. Errol Jacobi. Zarate-Martinez later identified Dr. Charles Ward as an expert for summary judgment purposes, but she never submitted an affidavit from Dr. Ward in support of her complaint. Echemendia deposed Drs. Ward and Jacobi, moved to strike the testimony of both doctors on the grounds that they did not qualify as experts under O.C.G.A. § 24-7-702 (c), and sought summary judgment.

Zarate-Martinez responded to the merits of the motion and challenged the constitutionality of O.C.G.A. § 24-7-702 (c) on the grounds the statute denied her the right to a jury trial, access to the courts, due process and equal protections of the laws, violated separation of powers, was a law that made irrevocable grants of special privileges and immunities, and was a special law not of a general nature. Without addressing the constitutional issues, the trial court issued an order on February 21, 2013 striking both doctors’ testimony but granted Zarate-Martinez 45 days in which to supplement the pleadings with an affidavit from a competent witness.

Zarate-Martinez submitted the an affidavit from Dr. Nancy Hendrix within the 45 days; however, Echemendia moved to strike Hendrix’s affidavit on the grounds that it did not adequately demonstrate Hendrix’s qualifications under O.C.G.A. § 24-7-702 (c). Zarate-Martinez filed a supplemental affidavit from Dr. Hendrix outside the 45 days, reasserted her constitutional challenges, and added that the provisions of the statute were unconstitutionally vague. Despite the challenge, the trial court applied the terms of O.C.G.A. § 24-7-702 (c) to strike both of Hendrix’s affidavits on July 17, 2014, and ultimately dismissed her complaint for failure to file the necessary affidavit required by O.C.G.A. Section 9-11-1.1(e).

The Court of Appeals affirmed the trial court’s ruling on the merits, but did not address the constitutional issues, finding that the trial court had not expressly ruled upon them. The Supreme Court of Georgia granted certiorari and held that the trial court did distinctly rule on Zarate-Martinez’s constitutional issues, but they were without merit, the trial court’s ruling to strike the expert testimony of Drs. Ward and Jacobi were correct, but the decision to strike the expert affidavit of Dr. Hendrix must be reconsidered in light of the Court’s decision in Dubois v. Brantley, 297 Ga. 575 (2015).

The Supreme Court determined that O.C.G.A. § 24-7-702 (c) is not unconstitutional on any of the bases raised by Zarate-Martinez. The Supreme Court also stated that since Zarate-Martinez never submitted an affidavit from Dr. Ward in support of her medical malpractice complaint as required by O.C.G.A. Section 9-11-9.1 (a), the Court did not need to address whether he would have been qualified to submit such an affidavit. Also, since the affidavit submitted from Dr. Jacobi in support of the complaint contains no statement that Jacobi had been in active practice for at least three of the last five years prior to the alleged negligent act, or that he had been employed as a faculty member at an accredited educational institution for at least three of the last five years, the affidavit was defective on its face. Thus, the trial court did not abuse its discretion in striking this testimony.

With regard to Dr. Hendrix, the trial court held that because her affidavit did not show that Dr. Hendrix had performed an open laparoscopic tubal ligation, the type of procedure at issue in the case, she was not a qualified expert under O.C.G.A. § 24-7-702 (c) (2) (A). The Supreme Court, relying on its reasoning in Dubois, supra, held that “the pertinent question is whether an expert has ‘an appropriate level of knowledge…in performing the procedure…[or] teaching others how to perform the procedure,’ not whether the expert himself has actually performed it or taught it.” Thus, in the instant case, “although it could very well be the case that Dr. Hendrix did not demonstrate in her affidavit that she had the ‘appropriate level of knowledge…in performing the procedure’ in question in this case, the trial court was not authorized to reach that conclusion by focusing solely on the fact that Dr. Hendrix did not state in this initial affidavit that she had ‘performed…the very procedure at issue’ here.” The Supreme Court held that the trial court must reconsider its decision under the parameters of Dubois: whether Dr. Hendrix ” ‘has an appropriate level of knowledge…in performing the procedure’ at issue in order to be qualified as an expert under O.C.G.A. § 24-7-702 (c) (2) (A).” The Supreme Court held that the trial court’s decision to strike the untimely filed affidavit of Dr. Hendrix was equally inconsistent with the analysis the Court had set forth in Dubois, and the trial court must reconsider this decision as well.

Court of Appeals expands ordinary negligence in a hospital setting

In Byrom v. Douglas Hospital, 2016 Ga. App. LEXIS 543 (October 4, 2016), the Court of Appeals held that the trial court erred in granting summary judgment to Douglas Hospital, Inc. (hereinafter “Douglas Hospital”) on the basis that Carolyn Byrom had failed to file an expert affidavit along with her complaint for injuries and other damages sustained in a fall while exiting a wheelchair provided by the hospital because Byrom raised ordinary negligence claims against Douglas Hospital.

Byrom went to Douglas Hospital for pre-operative testing on April 16, 2013. Byrom walked slowly and used a cane. Byrom was transported by a nurse in a wheelchair, when they encountered a door which was not wide enough to accommodate the wheelchair. The nurse asked if Byrom could make it on her own, and Byrom answered in the affirmative. The nurse did not come around to assist her. Byrom held her cane in one hand and used the other hand to push up from the arm of the wheelchair. Byrom knew that the foot pedals for the wheelchair were still down; however, as she stepped, her right pant leg got caught on the foot pedal, and she fell, breaking her leg, requiring surgery and three months’ stay at a rehabilitation facility.

Byrom filed suit, alleging Douglas County was negligent for failing to safely transport her, maintain a procedure for safely transporting individuals in wheelchairs, and in the hiring, supervision, and training of its employees and to recover attorney fees and punitive damages.

Douglas moved for summary judgment on the grounds that Byrom raised professional negligence claims and failed to file an expert affidavit pursuant to O.C.G.A. § 9-11-9.1, and even if Byrom’s claims were for ordinary negligence, Byrom could not recover because she had equal or superior knowledge to the risk posed by the wheelchair foot pedals. The trial court granted summary judgment on these grounds.

The Court of Appeals held that Byrom’s claims, although in a hospital setting, were claims for ordinary as opposed to professional negligence: “In determining whether a claim is one for medical negligence and therefore whether it requires expert support at filing is determined on the basis of whether the act or mission was made regarding a medical question. Medical questions have been defined as those concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.”

According to the Court, the record did not indicate that only an individual with medical training could transport the plaintiff in the wheelchair, or that transporting the plaintiff involved the exercise of medical judgment. The Court further stated that use of equipment that is inconsistent with manufacturer’s instructions, without more, does not constitute a medical malpractice claim. Just because a nurse with medical experience pushed the plaintiff around the hospital does not make this a medical malpractice claim because “these acts did not require the nurse to exercise her medical judgment” and an expert is not necessary to help a jury understand the instructions on the wheelchair handles.

Lastly, the Court held that the trial court erred in applying the equal or superior knowledge analysis to Byrom’s claims. Although Byrom cited to O.C.G.A. § 51-3-1, liability for property owners, the facts that support Byrom’s claims do not support a theory of premises liability. Byrom’s claims, which included failure to safely transport, failure to maintain a policy for safe transport, negligent supervising, hiring, and training, and vicarious liability, do not implicate any condition of the premises itself; consequently, the trial court’s analysis of the case as if it involved a static condition was inapposite to the instant situation. The grant of summary judgment was reversed and the case remanded for further proceedings consistent with the opinion.

Supreme Court of Georgia allows personal injury law firm to target a specific defendant in advertisements for prospective clients

In McHugh Fuller Law Group, PLLC v. PruittHealth, Inc., 2016 Ga. LEXIS 752 (Ga. Nov. 21, 2016) the Supreme Court of Georgia reversed a permanent injunction against a law firm entered by the Superior Court of Colquitt County, allowing a personal injury firm to target a specific defendant in advertisements for new clients.

In March 2015, McHugh Fuller, a Mississippi law firm that focuses on suing nursing homes, ran a full page, color advertisement in the Sunday print and online editions of the Moultrie Observer as part of a month long, statewide campaign targeting nursing homes affiliated with PruittHealth, Inc. The ad featured a photo of the nursing home and its sign before it changed its name from UniHealth and contained a headline “Attention!” and copy that indicated the law firm is “currently accepting cases against PruittHealth-Moultrie (formerly known as Uni-Health Post Acute Care-Moultrie) for resident care related issues.”

PruittHealth filed a one-count complaint against McHugh Fuller for trademark dilution, seeking interlocutory and permanent injunctive relief under O.C.G.A. § 10-1-451(b), and requesting a temporary restraining order, which was granted. McHugh Fuller filed an Answer raising, among other defenses, First Amendment fair use. The trial court permanently enjoined McHugh Fuller from running ads concerning PruittHealth that include PruittHealth’s trade names service marks or logos, and entered the order on appeal that McHugh Fuller’s “unauthorized use” of PruittHealth’s “service marks, trademarks and related logos in its advertisements likely tarnish Plaintiff’s and its affiliates’ business reputation… and that Plaintiff is likely to suffer immediate and irreparable harm to its goodwill and contractual relationships….”

According to the Supreme Court of Georgia, the instant case was one of first impression since it addressed the situation where one business (McHugh Fuller) is using the marks of a second business (PruittHealth) not to identify its own goods and services, but to identify the goods and services of the second business. Justice Nahmias, writing for a unanimous Court, discussed the history of trademark law and Georgia’s anti-dilution statute. According to the Court, the instant case involved tarnishment, which O.C.G.A. § 10-1-451(b) describes as subsequent use by another of the same or any similar trademark, “if there exists a likelihood of injury to business reputation …” The theory is successful when the use of the mark is for “clearly unwholesome or degrading goods or services.”

However, according to the Court, “not every unwelcome use of one’s trademark in the advertising of another provides a basis for a tarnishment claim.” In the instant case, McHugh Fuller was advertising its legal services to individuals whose loved ones had been harmed by negligent nursing home services at a specific PruittHealth nursing home. “The ad used PruittHealth’s marks in a descriptive manner to identify the specific PruittHealth facility.” Also, the ad did not link PruittHealth’s marks directly to McHugh Fuller’s own goods or services, since McHugh Fuller was advertising its own legal services, “which are neither unwholesome nor degrading,” under its own trade name, service mark, and logo, which appears in the challenged ad. “In short, the ad very clearly was an ad for a law firm and nothing more.”