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Zarate-Martinez v. Echemendia

Court of Appeals of Georgia

May 20, 2015

ZARATE-MARTINEZ
v.
ECHEMENDIA et al

Page 827

Cert. applied for.

Malpractice affidavit. DeKalb Superior Court. Before Judge Jackson.

Beverly B. Bates, for appellant.

Huff, Powell & Bailey, Daniel J. Huff, Taylor C. Tribble, for appellees.

OPINION

Page 828

Doyle, Presiding Judge.

Olga Zarate-Martinez filed a medical malpractice complaint against Dr. Michael Echemendia and related health care entities (" the Defendants" ) seeking damages for injuries she sustained as a result of an allegedly negligent tubal ligation. The trial court granted the Defendants' motion to strike Zarate-Martinez's expert affidavit and dismissed her complaint on the ground that she failed to comply with OCGA § 9-11-9.1 because the expert affiant did not qualify under OCGA § 24-7-702 (c). Zarate-Martinez appeals, contending that the trial court erred because (1) affiant Nancy Hendrix, M.D., met the requirements of OCGA § 24-7-702, (2) witness Charles Ward, M.D., also met the requirements of OCGA § 24-7-702, (3) other evidence in the record created fact questions and established the " pronounced results" exception to the requirement for expert testimony, and (4) OCGA § 24-7-702 (c) (2) (A) and (B) are unconstitutional. Finding no reversible error, we affirm.

The complaint alleged that Dr. Echemendia was Zarate-Martinez's physician for several years, and on April 24, 2006, Dr. Echemendia performed an outpatient open laparoscopic tubal ligation [332 Ga.App. 382] procedure on Zarate-Martinez. Zarate-Martinez went home on the same day of the surgery. Over the next few days, Zarate-Martinez developed increasing pain, nausea, and fever. On April 28, 2006, Zarate-Martinez went to the emergency room, was admitted to the hospital, and underwent an exploratory laparotomy, which determined that the lower portion of Zarate-Martinez's small intestine was perforated. The perforation was surgically repaired, and she remained in the hospital for further treatment until May 6, 2006.

On March 31, 2008, Zarate-Martinez sued Dr. Echemendia, Atlanta Women's Health Group, P.C., (and LLC), and North Crescent Surgery Center, LLC, alleging that Dr. Echemendia negligently performed the tubal ligation and perforated her small intestine. Along with the complaint, Zarate-Martinez filed an affidavit from Errol Jacobi, M.D., purporting to comply with the expert affidavit requirement in OCGA § 9-11-9.1 (a).[1] On December 14, 2010, the Defendants moved to strike the testimony of Dr. Jacobi and Dr. Ward, another expert identified by Zarate-Martinez, and for summary judgment. Following a response and supplemental response by Zarate-Martinez, the trial court granted the motion to strike both experts' testimony on the ground that they did not qualify under OCGA § 24-7-702 (c). Instead of dismissing the case or entering judgment in favor of the Defendants, the trial court allowed Zarate-Martinez an additional 45 days to identify a competent expert witness.[2] That order was signed on January 28, 2013, and filed February 21, 2013.

On April 2, 2013, Zarate-Martinez filed an affidavit of Nancy Hendrix, M.D., and after the Defendants moved to strike that affidavit, Zarate-Martinez filed a supplemental affidavit of Dr. Hendrix on May 24, 2013. Following a hearing, on July 17, 2014, the trial court granted the motion to strike both of Dr. Hendrix's affidavits on the ground that they did not demonstrate adequate qualifications under OCGA § 24-7-702 (c). In light of Zarate-Martinez's failure to fulfill the expert affidavit requirement in OCGA § 9-11-9.1 (a), the trial court dismissed her complaint. She now appeals.

1. Zarate-Martinez contends that the trial court erred because Dr. Hendrix's affidavit and supplemental affidavit demonstrate that [332 Ga.App. 383] she met the requirements of OCGA § 24-7-702 (c).[3] We disagree.[4]

Page 829

OCGA § 24-7-702 (c) provides, in relevant part:

Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be ...

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