Tag: medical malpractice

Medical Malpractice Affidavits: Causation

A recent appellate case provides a cautionary tale for persons making a claim for injuries due to medical malpractice. Edokpolor v. Grady (A16A1031, decided 9/14/2018) is a recent medical malpractice case that was thrown out of court because the injured party’s expert affidavit was deficient.

In Georgia, negligence claims against professionals such as doctors, lawyers, and engineers require  an expert affidavit verifying the wrongdoing. This affidavit is a mandatory requirement in all malpractice claims in Georgia.

For example, in a malpractice claim against a doctor, the affidavit must be from another doctor who practices the same type of medicine and the affidavit must state that culpable doctor’s treatment of the injured patient fell below the standard of care for similar doctors; importantly, the affidavit must also explain how the alleged negligence caused the injury to the patient.

In Edikpolor, the patient reported to Grady Memorial Hospital with cardiac disease and other issues. After spending 30 days in the hospital, the doctors determined the patient needed a colonoscopy. To prepare for the examination, the doctors ordered that bowel preparation medicine be administered to the patient via a feeding tube. Contrary to these instructions, the nurses administered the medication by mouth. The patient allegedly choked on the medication, which caused fluid to enter her lungs, and she died several weeks later as a result.

The patient’s family sued the hospital, which included a malpractice affidavit from another doctor. The affidavit stated that the nurses were negligent in not following the doctor’s order to use a feeding tube, and that the negligence was the cause of the patient’s death.

The problem in this case is that the affidavit was ruled inadequate because it didn’t explain how and why feeding fluid by mouth is more risky than feeding through a tube. On the other hand, the hospital introduced a contradictory expert affidavit, which stated that choking could occur whether taken by mouth or feeding tube because  what happens is the liquid ends up in the stomach and is then regurgitated into the throat; it is at this point when the liquid is inhaled into the lungs. In other words, administering the fluid by mouth was not necessarily the cause of the injuries.

This case shows that “[a] plaintiff must show that the purported violation or deviation [by the medical professional] is the proximate cause of the injuries sustained. He must prove that the injuries complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. There can be no recovery where there is no showing to any reasonable degree of medical certainty that the injuries could have been avoided.”

It’s easy to be critical after the fact, but the case underscores that not only must you show negligence, but you must be able to show with relative certainty that the negligence caused the injuries.

Medical Malpractice Affidavits

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.