Category: General Litigation

Medical Malpractice Affidavits

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Sworn affidavit from another doctor required in Georgia

To make sure a lawsuit against a doctor has merit, an injured party must provide an affidavit from an impartial doctor (i.e., an expert doctor) confirming the alleged malpractice of the treating doctor.  Georgia courts have stated that the purpose of this requirement is to “reduce the number of frivolous malpractice suits being filed.” Oller v. Rockdale Hosp., A17A1208 (decided August 14, 2017). From an injured party’s perspective, meeting this requirement isn’t easy. First, getting a doctor to review a case is very expensive. Second, this process requires a doctor to stand in judgment of another doctor, which understandably isn’t something most doctors want to do.

If an expert doctor reviews the facts and medical records, and agrees to sign a malpractice affidavit, the story isn’t over. The affidavit has to be carefully drafted because the courts have dismissed a number of medical malpractice claims due to inadequate affidavits. To overcome a challenge to a medical malpractice affidavit, the expert doctor must allege the following:

  • that the treating doctor failed to satisfy the standard of care for doctors treating a patient under similar conditions and like surrounding circumstances; and
  • that the expert doctor has knowledge and experience in the practice or speciality that is relevant to the acts or omissions alleged against the treating doctor (importantly, a medical doctor does not have to practice in same specialty as defendant medical doctor to be qualified to submit expert affidavit).

Meeting these requirements is a prerequisite for filing a valid lawsuit against a doctor and is a critical part of recovering damages against a doctor in Georgia. Please call us for a free consultation if you been injured due to the negligence of a doctor–we’ll be happy to review your options and discuss how we can help get your claim resolved.

Attorney’s Fees in Georgia: Part One

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Part 1: Contractual Attorney’s Fees

Virtually without fail, one of the first things our clients ask is whether they’ll be able to recover attorney’s fees from the other side. This is a fair question because it seems wrong to have pay an attorney when the other side has acted improperly or has caused the dispute. While not necessarily intuitive, the default rule, with exceptions, is that each side is responsible for their own attorney’s fees. We’re going to discuss some of the statutes and cases contrary to the default rule–these laws allow the winner of a lawsuit to recover reasonable attorney’s fees.

The most clear cut situation in which the winning party can recover attorney’s fees is when parties have signed a contract that provides for the recovery of  attorney’s fees. For example, a typical provision in a contract might say that “the prevailing party is entitled to attorney’s fees incurred to enforce or collect monies due under the contract.” In these situations, a trial court doesn’t have the authority to alter such an arrangement unless it is prohibited by statute, and the winning party is entitled to reasonable attorney’s fees as a matter of law.

Contractual attorney’s fees were discussed by the Georgia Court of Appeals in Summit At Scarborough Homeowners Association, Inc. v. Williams, A17A1289 (decided November, 16, 2017). In that case, the trial court’s decision to deny a homeowner’s association attorney’s fees related to unpaid association dues was reversed because the association documents, which are considered a contract, provided for the collection of attorney’s fees. Thus, in cases where a contract provides for attorney’s fees, the trial court must award attorney’s fees based upon evidence of the reasonable value of the professional services provided by the attorney.

In the next installment, we’ll discuss what happens when there’s no contractual provision for attorney’s fees, but the opposing party has acted in bad faith.

Serving a Lawsuit in Georgia: Understanding the Sheriff’s Entry of Service Form

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In Georgia, with some exceptions, the opposing party a/k/a the defendant must be “personally” served before a lawsuit can go forward. This means the lawsuit must be physically handed to the defendant. If the defendant is a corporation, service is made on the corporation’s registered agent. (Every corporation in Georgia is required to appoint a registered agent—this information can be found on the Georgia Secretary of State’s website.)

Service usually begins by providing the sheriff a copy of the complaint, summons, and sheriff’s entry of service form. Service by the sheriff typically takes two to three weeks, during which time a sheriff’s deputy will complete the form and mail it back to the filing party. What does this form mean? Below is the relevant part of the form and how we address the various types of service in our office:

If the “personal” box is completed (box # 1 above), almost always, the sheriff has handed the paperwork to the opposing party and service is complete. Now we can get to work on the case.

If the “notorious” box is checked (box # 2 above)  this means the sheriff has handed the paperwork to someone over 18 years old who lives the opposing party. Georgia law allows notorious service, but, in our experience, we should be cautious in these situations because notorious service is sometimes unreliable and can challenged. Fortunately, an answer is due from the opposing party 30 days after service. If service isn’t contested in the answer, we no longer need to worry about service. If service is contested in the answer and seems reasonable, we will discuss with you the merits of repeating service. Ultimately, getting proper service is important because if we don’t have proper service, any judgment we obtain might be overturned.

The “corporation” box  (box # 3 above) obviously applies to serving a corporation. If this is checked, generally, this ends up being successful service.

If the “better address” box is checked (box # 5 above)  this means the person living at the address provided has told the sheriff that opposing party has moved.

Finally, the dreaded “non-est” box  box # 5 above): this means the sheriff has gone to the address provided but was unable to serve the defendant. Most importantly, this means the lawsuit can’t continue. At this point, we need to determine if we have a good address for the opposing party. A defendant can be served at home, work, church, etc. If we are confident we have a good address despite the sheriff being unsuccessful, we recommend hiring a private process server. Unlike the sheriff, a private process server will work with us and has a much better chance of successfully serving the defendant. The cost for a private process server is about $100, but goes up depending on difficulty. If we aren’t confident that we have a good address, we recommend hiring an investigator to find a good address for the defendant. This is more expensive and will cost $250 and upwards.

If we still can’t find the defendant or believe the defendant is avoiding service, we’re entitled to ask the court to allow us to serve the opposing party by publication. We’ll address service by publication in a separate blog.

We hope this gives you a better idea regarding service of a lawsuit in Georgia. If you have any questions, please don’t hesitate to call us at 404-382-9994.