Houston Hospitals, Inc. v. Reeves et al. Case No. A20A0459 (2019)
Facts
Mr. Alvin Blount, the injured party, was admitted to Houston Medical Center (HMC) with severe cardiovascular conditions for treatment and diagnosis. Defendant Bilal Khan, M.D., was responsible for treating Mr. Blount at HMC, although he was a non-employee at the facility. Dr. Khan performed a cardiac catheterization procedure, a treatment procedure employed to diagnose cardiovascular conditions. However, after diagnosis, Mr. Blount died. Ms. Amanda Reeves, the Plaintiff, filed a lawsuit against the Defendant, Dr. Khan, alleging that he acted negligently when treating Mr. Blount because he was not qualified to perform the cardiac catheterization procedure. She asserted that HMC negligently permitted Dr. Khan, a non-employee staff, to conduct a procedure he was not qualified at on Mr. Blount in its facility.
Reeves did not provide specific factual allegations of Dr. Khan’s negligence that could be associated with any HMC’s agent or employee involved in Mr. Blount’s treatment. The only claims in Ms. Reeves’ Complaint against the Defendant HMC alleged that the hospital “was negligent in credentialing and granting privileges to Defendant Khan” (Houston Hospitals, Inc. v. Reeves et al., 2019). In her effort to be compliance with O.C.GA. § 9-11-9.1, Ms. Reeves included an expert affidavit to the Complaint, affidavit of a cardiologist Richard P. Konstance, M.D., who criticized Dr. Khan’s method in performing cardiac catheterization in Mr. Blount’s treatment. However, no other criticisms were included in the affidavit. HMC filed a motion to dismiss in the Trial Court, arguing that HMC’s credentialing decision on whether a physician was qualified to perform the procedure required professional judgment’s exercise. The trial court denied the motion to dismiss, and HMC received a Certificate of Immediate Review. The Court of Appeal granted HMC’s Application for Interlocutory Appeal.
Legal Issue
The question at issue in the Court of Appeal is whether negligent credentialing allegations challenging hospital’s decisions constitute a claim for professional negligence under the provisions of O.C.G.A. § 9-11-9.1. At the trial court, HMC’s motion to dismiss the negligent credentialing allegations argued that HMC’s credentialing decision on whether a doctor qualifies to perform the medical procedure required the exercise of professional judgments. This is the question of the fact that the trial court was supposed to consider. However, the Court of Appeal will focus on the matter of law; whether the claims challenging this decision amounts to allegation for professional negligence under provisions of O.C.G.A. § 9-11-9.1.
Possible Courts Decision
The Court of Appeal is likely to find that the Plaintiff’s claims challenging HMC’s decision constituted allegation for professional negligence under O.C.G.A. § 9-11-9.1. Therefore, the Court will dismiss the Plaintiff’s Complaint about the failure to comply with the requirements stipulated under provisions of O.C.G.A. § 9-11-9.1 to have at least one expert affidavit (Tenet Healthcare Corp. v. Gilbert, 2006). Given the facts that Ms. Reeves’ Compliant was so unspecific and general that the allegation could be construed to claim that HMC was vicariously liable for professional negligence of a licensed physician, as opposed to the ordinary negligence, she was required to file an expert affidavit under O.C.G.A. § 9-11-9.1 (McKuhen v. TransformHealthRX, Inc., 2016; Tenet Healthcare Corp. v. Gilbert, 2006). The Court will find that under Georgia law, the expert affidavit requirement stipulated by the provision is applicable only to professional malpractice actions on professional negligence allegations.
The Court analyzes the provisions of O.C.G.A. § 9-11-9.1 and determines that the plaintiff is supposed to file with Compliant an expert affidavit. The affidavit must be of an expert who is competent to testify and should set forth, “specifically at least one negligent act, or omission claimed to exist and the factual basis for each such claim” (Bray v. DOT, 2013; (Craigo v. Azizi, 2009). The Court is likely to find that cases alleging medical malpractices constitute professional negligence, and additional pleadings are required in the Plaintiff’s Complaint. In her Complaint, Ms. Reeves argued that the non-employee physician, Defendant Bilal Khan, M.D., at HMC, was not qualified to conduct cardiac catheterization procedures. She added that the Appellant HMC negligently allowed the physician to perform that procedure in its facility. The medical malpractice subsequently resulted in the death of Mr. Alvin Blount, who is the injured party in this case. Dr. Khan was the only individual Ms. Reeves claimed acted negligently during the treatment of Mr. Blount. According to Ms. Reeves’ allegations, Dr. Khan’s negligence caused Mr. Blount’s death. The Appellee argued that Dr. Khan was not qualified to conduct cardiac catheterizations, mainly because he had not performed adequate numbers of such procedures to get credentials of practicing in that field.
The Court will further assess Ms. Reeves Complaint and satisfaction of the expert affidavit requirement under O.C.G.A. § 9-11-9.1. The Court will find that Ms. Reeves included only one expert affidavit in her effort to be compliance with O.C.G.A. § 9-11-9.1 to the Complaint. The Court will assess the expert affidavit to find whether it satisfies all the requirements. Dr. Konstance’s affidavit is insufficient, even though he is a cardiologist (expert in the field of practice), mainly because it does not set forth expressly at least one negligent act or omission claimed by Ms. Reeves to exist and does not provide the factual basis for his criticism on Dr. Khan’s technique when performing the cardiac catheterization procedure on Mr. Blount (Craigo v. Azizi, 2009).
The affidavit only criticized Dr. Khan for his method of performing the procedure on Mr. Blount and have no other criticisms of anyone else involved in the patient’s treatment and care at HMC. Georgia law requires an expert affidavit to explicitly state at least one negligent claim alleged by the Plaintiff. However, Dr. Konstance’s affidavit does not mention or address the credentialing of Dr. Khan. It does not identify any alleged deficiencies in Dr. Khan’s qualifications to conduct the cardiac catheterization procedures (Craigo v. Azizi, 2009; Tenet Healthcare Corp. v. Gilbert, 2006). Therefore, the Court will find Dr. Konstance’s affidavit insufficient and assume that Ms. Reeves did not submit an expert affidavit together with her Complaints to support her negligent credentialing claim against the hospital. It will be found that since Ms. Reeves did not satisfy the requirement under O.C.G.A. § 9-11-9.1, the trial court erred in its decision to deny HMC’s motion to dismiss. The Court will reverse the trial Court’s judgment on the ground that the Plaintiff failed to satisfy the expert affidavit requirement under O.C.G.A. § 9-11-9.1. As a result, HMC will win the case.
References
Bray v. DOT, 324 Ga. App. 315, (2013).
Craigo v. Azizi, 301 Ga. App. 181, 687 S.E.2d 198 (2009).
McKuhen v. TransformHealthRX, Inc., 338 Ga. App. 354, 790 S.E.2d 122 (2016).
Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 627 S.E.2d 821 (2006).