Thurman v. Pruitt Corp.
Thurman v. Pruitt Corp.
Opinion of the Court
The executor of the estate of Dentis Thurman, and Mrs. Dentis
Plaintiffs’ decedent died on February 1, 1991, and the complaint was filed on February 1, 1993, a Monday. Although it referenced an attached expert’s affidavit, it was not filed until two days later. The affidavit had been executed and notarized on February 1. In its initial responsive pleading, defendant asserted as a ground for dismissal plaintiffs’ failure to file a contemporaneous affidavit.
In opposition to the motion to dismiss, plaintiffs’ attorney attached her affidavit explaining that the expert’s affidavit had been prepared prior to filing the lawsuit but was filed late by mistake. The trial court permitted it under § 9-11-9.1 (e). Accord St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (1), fn. 3 (377 SE2d 847) (1989) (decided prior to the enactment of subsection (e)).
On March 12, plaintiffs moved to amend their complaint under OCGA § 9-11-9.1 (b) and submitted for filing a second affidavit prepared by the same affiant on March 11. The trial court rejected plaintiffs’ proffer of the second affidavit based on Edwards v. Vanstrom, 206 Ga. App. 21, 22 (1) (424 SE2d 326) (1992), in which we held that a second affidavit which had not been prepared and in plaintiffs’ possession prior to the date the first affidavit was filed failed to satisfy the requirements of OCGA § 9-11-9.1. The court herein considered only the contents of the first affidavit, found it legally insufficient and dismissed the complaint. Appellees did not cross-appeal from the court’s ruling that the affidavit was timely per extension under OCGA § 9-11-9.1 (b), so that issue is not subject to review.
1. Plaintiffs enumerate error only with respect to the trial court’s ruling that the affiant is incompetent as an expert, which rendered the first affidavit insufficient under OCGA § 9-11-9.1 (a). The court’s rejection of the second affidavit under Edwards, supra, is not enumerated as error, so that ruling stands.
The cause of action for professional malpractice was predicated
Affiant is a licensed, registered nurse with specialized training in enterostomal therapy
This is not among those cases in which the affiant is not competent to testify, absent a showing of overlapping expertise, because she is a member of a school of medical practice other than that to which the defendant belongs. See Hewett v. Kalish, 210 Ga. App. 584 (436 SE2d 710) (1993), cert. granted (Case No. S94G0201, January 21, 1994), and cases cited therein.
2. For the same reason, the trial court also erred in dismissing the distinct claim of liability under OCGA § 31-8-126 (a). It provides a cause of action for damages against a long-term care facility for fail
“In the context of a nursing home, over and above the contractual obligation the nursing home assumed to take care of its residents, the State has imposed a statutory obligation for it to exercise ‘reasonable care and skill.’ OCGA § 31-8-108. . . . The general standard of care required of a nursing home is that degree of care, skill, and diligence usually exhibited by such homes generally in the community. ... In order to recover, [plaintiffs] had to show that [defendant] failed to do something which a reasonable person, guided by the above considerations which ordinarily regulated the conduct of affairs of a nursing home, would have done, or ought to have done, and failed to perform such responsibility.” Assoc. Health Systems v. Jones, 185 Ga. App. 798, 801 (1) (366 SE2d 147) (1988). This claim also remains viable.
Judgment reversed.
A statute of limitation defense was also asserted, but was later withdrawn.
Enterostomy is defined in Taber’s Cyclopedic Medical Dictionary (15th ed. 1985) as a “surgical formation of a permanent opening into the intestine through the abdominal wall.”
Dissenting Opinion
dissenting.
I respectfully dissent.
1.1 would find that the affidavit provided by Thurman was insufficient because it failed to provide “the factual basis” for Thurman’s claim, as required by OCGA § 9-11-9.1. The affiant nurse acknowledges that she reviewed no medical records, but instead relied upon “my understanding gained from information given to Attorney Deborah Green by Mr. Thurman’s family.” “The affiant may review the medical records, take the relevant facts therein to be true, and restate those facts in the affidavit to provide the basis for the expert opinion.” (Emphasis supplied.) Ulbrich v. Batts, 206 Ga. App. 74, 75 (424 SE2d 288) (1992). An expert also may state his opinion based upon facts alleged in the complaint, concluding that such facts, if true, would constitute professional malpractice. Id. The complaint here, however, alleges no facts upon which the affiant could have based an opinion; it simply states that defendant failed to meet the required standard of care and refers to the affidavit. Double hearsay which appears nowhere in the record, provided by family members through the medium of the plaintiffs’ attorney, is insufficient to provide a factual basis for an affidavit under OCGA § 9-11-9.1.
2. The Bill of Rights for Residents of Long-Term Care Facilities, OCGA § 31-8-100 et seq., does not negate the professional malpractice affidavit requirements of OCGA § 9-11-9.1. It is intended to provide a cause of action for negligence or breach of duty on the part of long-term care facilities not rising to the level of professional mal
For these reasons, I would affirm the trial court’s dismissal of the complaint.
I am authorized to state that Presiding Judge Birdsong, Judge Andrews and Judge Johnson join in this dissent.
Reference
- Full Case Name
- THURMAN Et Al. v. PRUITT CORPORATION
- Cited By
- 6 cases
- Status
- Published