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Publication Date

7-1995

Document Type

Casenote

Abstract

In Hewett v. Kalish, plaintiff, Hewett, sued Kalish, a podiatrist, for the negligent treatment of her tarsal tunnel syndrome condition. As required by Official Code of Georgia Annotated section 9-11-9.1, plaintiff filed with her complaint the affidavit of an orthopedic surgeon, Dr. Alan D. Davis. The affidavit set forth Dr. Davis' professional credentials, his hospital affiliations, and his curriculum vitae. The relevant portion of the affidavit provided:

I am... competent to testify as an expert on behalf of [plaintiff] in an action for professional malpractice arising out of the diagnosis, care and treatment of [plaintiff] from January 1988 through March 1992. I have personal knowledge of the facts recited in this Affidavit. My opinions in this Affidavit are based upon my education, training and experience in practicing orthopedics, together with my own professional and careful examination of [plaintiff], as well as review of [her] medical records . . .

The affidavit then went on to state that in the affiant's opinion,defendant failed to exercise the proper standard of care in the evaluation and treatment of plaintiff's tarsal tunnel syndrome and in the performance of the posterior tibial nerve resection. The trial court dismissed the complaint because the affidavit failed to meet the "expert competent to testify" requirements of section 9-11-9.1. The court of appeals affirmed. The court of appeals determined the issue of an expert's competency is to be evaluated by an evidentiary standard and must be satisfied at the pleading stage. The court of appeals then declared the affidavit of Dr. Davis to be insufficient because he was from a different professional school than defendant and the affidavit "lacked evidence that [Dr. Davis] employed like methods of treatment as are employed in podiatry, so as to establish the expertise necessary to state an opinion regarding the standard of care to which the podiatrist defendant is held." On appeal, the Georgia Supreme Court reversed. The supreme court held section 9-11-9. simply imposes an initial pleading requirement on the plaintiff. In order for the complaint in a professional malpractice action to be subject to dismissal for failure to state a claim, the affidavit must "disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.'"

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