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Hendrix v. Fulton DeKalb Hosp. Auth.

Court of Appeals of Georgia

March 2, 2015

HENDRIX et al.
v.
FULTON DeKALB HOSPITAL AUTHORITY

Medical malpractice. Fulton State Court. Before Judge Dixon.

Judgment affirmed.

Kenneth L. Gordon, for appellants.

James C. West III, Ayanna J. Jones-Lightsy, for appellee.

ANDREWS, Presiding Judge. McFadden, J., concurs. Ray, J., concurs in judgment only.

OPINION

Page 576

Andrews, Presiding Judge.

The parents and the estate of Billy Ray Hendrix, Jr., deceased, sued the Fulton County Hospital Authority d/b/a Grady Memorial Hospital d/b/a Grady Health System (Grady Hospital or the Hospital) seeking to recover damages for Hendrix's wrongful death and pain and suffering arising from medical malpractice which allegedly occurred during medical treatment Hendrix received at Grady Hospital for injuries he suffered in an automobile accident.[1] The Hospital moved for summary judgment on the basis that: (1) the expert affidavit filed with the complaint pursuant to OCGA § 9-11-9.1 was defective because the expert was not competent to testify; and (2) the Parents/Estate failed to cure the defect pursuant to OCGA § 9-11-9.1 (e). [330 Ga.App. 834] The trial court granted summary judgment in favor of the Hospital, and the Parents/Estate appeal. For the following reasons, we affirm.[2]

The medical malpractice complaint, filed on February 7, 2013, alleged that, while Hendrix was being treated at Grady Hospital (from July 23, 2010 to November 18, 2010) for serious injuries he suffered in an automobile accident, the Hospital negligently failed to comply with the applicable standard of medical care by allowing him to develop multiple decubitus ulcers (pressure sores); that " the decubitus ulcers were not treated properly and [he] developed an infection" ; and that " [a]s a result of the progression and exacerbation of the decubitus ulcers and serious infection, [he] succumbed to death due to the bacterial infection and sepsis on February 9, 2011" about 12 weeks after he was

Page 577

discharged from Grady Hospital to another medical facility. With the complaint, the Parents/Estate filed an expert affidavit from Adel Shaker, M.D., a medical doctor practicing in the specialty of forensic pathology. Grady Hospital filed a motion to dismiss which alleged that the affidavit was defective because it failed to set forth at least one negligent act or omission, and because Dr. Shaker was not an expert competent to testify under the standards set forth in OCGA § 24-7-702 (c) (2) as required by OCGA § 9-11-9.1. Within 30 days of the Hospital's motion, the Parents/Estate filed an amended expert affidavit from Dr. Shaker purporting to cure the alleged defects.

In the amended affidavit, Dr. Shaker stated that he reviewed " the file submitted by [the Parents/Estate's attorney] pertaining to [Hendrix] to determine the cause and manner of death and to evaluate if the standards of medical care were followed." The amended affidavit stated that decubitus ulcers are staged under a " standard of classification" ; that treatment of decubitus ulcers " should follow a specific protocol to avoid serious complications that could ensue into the demise of a patient" ; that it was Dr. Shaker's opinion " within reasonable diagnostic medical certainty that ... Hendrix developed his pressure ulcers during his hospitalization at Grady Memorial Hospital" ; and that the Hospital breached the standard of care by failing to turn or reposition Hendrix in his bed every two hours and by " misevaluation in staging" the ulcers. According to Dr. Shaker, " had the proper medical management been adopted, the pressure ulcers would have been prevented, or treated after their onset," but [330 Ga.App. 835] " [a]s a result of the progression and exacerbation of the decubiti and serious infection, ... Hendrix succumbed to death due to bacterial infection and generalized sepsis." The Parents/Estate's brief in support of the amended affidavit referred to the curriculum vitae attached to Dr. Shaker's affidavit, which showed his specialty in forensic pathology, and asserted that Dr. Shaker was competent to testify under OCGA § 24-7-702 (c) (2) because he has " extensive knowledge in forensic pathology, medical physiology and medical standards of care," and because this case involves an obvious breach of a known standard of care.

After the Parents/Estate filed the amended expert affidavit, the Hospital filed its motion for summary judgment seeking dismissal on the basis that: (1) the amended affidavit was defective because Dr. Shaker, a forensic pathologist, lacked actual professional knowledge and experience sufficient to render him competent to testify under the requirements of OCGA § § 24-7-702 (c) (2) and 9-11-9.1 (a); (2) the 30-day period under OCGA § 9-11-9.1 (e) for curing the defect had expired; and (3) the complaint was subject to being dismissed with prejudice. OCGA § 9-11-9.1 (e). After a hearing on the motion, the trial court entered an order granting summary judgment and dismissing the suit because Dr. Shaker's affidavit failed to satisfy the requirements of OCGA § § 9-11-9.1 (a) and 24-7-702 (c) (2) that the expert affiant have actual professional knowledge and experience with respect to the medical malpractice alleged in the complaint.

The Parents/Estate's complaint set forth a medical malpractice action against Grady Hospital, a licensed healthcare facility, seeking to impose liability on the Hospital based on action or inaction by licensed health care professionals listed in subsection (g) of OCGA § 9-11-9.1. See OCGA § § 9-3-70; 9-11-9.1 (a). Accordingly, OCGA § 9-11-9.1 (a) required the Parents/Estate " to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." The standards for determining whether an expert is competent to testify are set forth in OCGA § 24-7-702. Aguilar v. Children's ...


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