Necessary affidavit elements
An affidavit must list the factual basis for each claim made. This may be done by discussing the factual situation and the basis for the affiant’s knowledge. It may summarize the foundational information and indicate that it has been gained from medical records. The affiant may summarize the foundational information and indicate that it is been gained from the medical records. If I am a also based affidavit on factual allegations in the complaint that are presumed to be true and the affidavit can also attach incorporate by reference all the medical records relied upon. The affidavit must contain and set forth at least one specific act of negligence or an omission that constitutes negligence. While no magic words are listed in the statute, the affidavit must typically indicate that in the affiant’s opinion, given the facts and circumstances outlined in the affidavit from the medical records and factual allegations of the complaint assumed to be true, the defendant professional violated the applicable standard of care. Vicknair v. Miller to 23 Ga. App. 692, 1996. The affidavit should also contain information that the violation of the standard of care caused or contributed to the ultimate injury. While OCGA 9-11-9.1 does not specifically require causation the failure to include causation in the affidavit opens the matter to a potential motion for summary judgment on causation grounds which is simply unnecessary in most cases. The affidavit must demonstrate on its face that the expert is qualified. The affidavit must be signed and sworn to in person. The lack of a properly executed notary jurat renders an affidavit insufficient. To qualify as a practicing expert the expert affidavit must demonstrate on its face that the expert not only has the requisite training, but that the expert is specifically familiar with the specific practice alleged to be negligent but actually performing the medical act with a sufficient level of frequency as determined by the court, in the past 3 of 5 years. Spack v. trailer 288 Ga. App. 898, 2007. It is not an abuse of discretion to dismiss medical negligence complaint based upon an affidavit does that does not specifically reference experience in the last 3 of 5 years despite a statement that generally indicates familiarity with the standard of care or even a procedure based on 30 years experience. To qualify as a teaching expert, the witness must be an employed member of the faculty at an educational institution and must have taught others the medical act alleged to be negligent for at least 3 of the past 5 years. Only members of the same profession may testify as experts against one another, although a physician may qualify as an expert against nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician’s assistants, physical therapist, occupational therapist, or medical support staff if the physician can demonstrate the requisite knowledge of the applicable standard of care in at least 3 of the past 5 years prior to the alleged negligence. When a medical doctor or doctor of osteopath is a defendant, only another medical doctor or doctor of osteopathic may qualify as a standard of care witness. To qualify as a practicing expert, the expert affidavit must demonstrate on its face that the expert not only has the requisite training, but that the expert is specifically familiar with the specific practice alleged to be negligent by actually performing the medical act with the sufficient level of frequency, as determined by the court, in the past 3 of 5 years. The expert affidavit must contain the qualifications or credentials of the expert to demonstrate that the expert is competent to testify. This can be accomplished by attaching a copy of the curriculum vitae or actually having the affiant go through the credentials in the affidavit. In light of OCGA 24-9-67.1 ACV may suffice for educational and professional qualifications, but the body of the affidavit should include a statement concerning the level of familiarity with the underlying medical procedure or diagnosis in 3 of the last 5 years to avoid potential attacks and for teaching experts the affidavit should state in addition to the curriculum vitae that the expert is employed by the educational Institute and is not just an unpaid clinical professor. OCGA 24-9-67.1 does not allow a nurse to testify or be an expert against a doctor. It is not enough for an affidavit to state that the standard of care was violated, the affidavit must detail and identify at least one negligent act or omission. Edwards v. Van Straten 206 Ga. App. 21 (1992). Pursuant to OCGA 9-11-15, if the affidavit is challenged the plaintiff may amend the affidavit or cure it within 30 days of service of the motion alleging the defect. A challenged affidavit will be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible. V. Wilson and Company engineers and architects 262 Georgia 234 1992. Bell v. VB v. health Sys. Inc. 272 Ga. App. 856 (2005) section 8: 6 in the medical malpractice book. The Georgia courts have construed affidavits as liberally as possible, as long as such a construction does not detract from the gatekeeper function of OCGA 9-11-9.1 in eliminating frivolous cases. Contact an Atlanta lawyer for a free consultation.