Saturday, April 27, 2013

Special pleading requirements | Atlanta DUI lawyer

OCGA 9-11-8 defines an action for medical malpractice as a claim for damages resulting from the death or injury of a person arising out of:

a. Health medical dental or surgical service diagnosis prescription treatment or care rendered by a person authorized by law to perform such services or by any person acting under the supervision and control of a lawfully authorized person: or
b. Care or service rendered by any public or private hospital nursing home clinic, Hospital Authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment. Complaints for medical negligence are governed by the civil practice act and notice pleading is generally sufficient. However special pleading requirements apply to claims for medical negligence. An affidavit of a competent expert allege at least one act of negligence OCGA 9-11-9.2 which. Require the contemporary filing of the medical authorization was held in violation of the Federal hippo rule in Allen v. Wright. When pleading a claim for medical negligence for an amount less than $10,000, a sum certain must be alleged. Nonconforming demands are subject to a motion to strike and authorize the court to impose sanctions, including disciplinary action against counsel directly. When seeking in excess of $10,000 the complaint must allege that the party demands judgment in excess of $10,000 and may not demand any further monetary demand. When faced with a pleading that seeks medical factual admissions, the best practice is to admit generally accepted medical facts with the proviso that each patient is unique in that individual factors can create exceptions to accepted medical facts. The most dangerous response to a medical fact allegation is to allege a lack of knowledge, as such a response by the medical professional can be used to demonstrate a lack of medical knowledge before jury via a skilled cross-examination. In response to the actual complaint, the requirement of an answer in a medical negligence case do not materially differ from that of any other matter. The answer shall allege the defenses and shall admit or deny the allegations of the plaintiff. If a party has no knowledge, she should allege as such. The answer must also raise all affirmative defenses, including the statute of limitations. The failure to deny an allegation that requires a response constitutes an admission, except as to the matter of damages. To avoid a default situation in state court, in answer must be filed in response to a complaint, even if a motion to dismiss is filed. When a medical malpractice case is in default, it is afforded special treatment under OCGA 9-11-54. In cases where the demand is for in excess of $10,000, the default trial on damages may only proceed after defaulting party has been given 3 days notice. Non-medical negligence cases are not afforded the special notice. OCGA 9-11-54 section. In most litigation the complaint is viewed as one of the more critical documents in the case. The requirements of OCGA 911 9.1 are what are critical in a medical negligence case. In all actions alleging professional negligence, an affidavit of a licensed professional competent to testify, which specifically sets forth at least one negligent act or omission claimed to exist and the factual basis for each such claim, shall be attached to the initial pleading. OCGA 9-11-9.1 a 2008 Merk v. St. Joseph’s Hospital of Atlanta 251 Ga. App. 631 (2001). The purpose of OCGA 9-11-9.1 was to reduce the number of frivolous negligence claims filed. The affidavit does not need to make out a prima facie case that is capable of defeating summary judgment prior to an answer. Sawyer v. Dekalb Medical Center to 34 Ga. App. 54 (1998). What originally began as a pleading requirement has become one of the most litigated areas in Georgia law. Several amendments OCGA 9-11-9.1 have attempted to clarify the pleading requirement to avoid the mass of litigation a generated. The current incarnation of OCGA 9-11-9.1 includes a grace period in creates a very narrow exception to the contemporaneous filing requirement. If a good faith basis exist to believe that the statute limitations will expire within 10 days of filing and if due to time constraints the plaintiff cannot prepare an affidavit with a competent expert, the plaintiff may supplement a medical negligence complaint with an affidavit within 45 days of filing. However, for the grace period to apply, the plaintiff’s counsel must file an affidavit with the complaint swearing that counsel or his or her law firm were retained not more than 90 days prior to the expiration of the statute limitation. Failure to file the attorney’s affidavit or evidence that the attorney was retained more than 90 days prior to the expiration of the statute limitation shall subject the complaint to dismissal. OCGA 9-11-9.1 act of the bishop to 94 Ga. App. 132, 2008. Even a pro se defendant is required to file an attorney affidavit in the situation where they previously had counsel and the failure to attach attorney affidavit or the professional negligence affidavit subjects the medical negligence complaint to dismissal.Contact an Atlanta Atty. today with help for your case.

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