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Zarate-Martinez v. Echemendia

The trial court properly dismissed the plaintiff's medical malpractice lawsuit based on its finding that the plaintiff's expert's affidavit did not meet the requirement for expert testimony and that her complaint thus failed to comply with the expert affidavit requirement in O.C.G.A. § 9-11-9.1 subsection a.

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Olga Zarate-Martinez filed a medical malpractice complaint against Dr. Michael Echemendia and related health care entities “the Defendants” seeking damages for injuries she sustained as a result of an allegedly negligent tubal ligation. The trial court granted the Defendants’ motion to strike Zarate-Martinez’s expert affidavit and dismissed her complaint on the ground that she failed to comply with OCGA § 9-11-9.1 because the expert affiant did not qualify under OCGA § 24-7-702 c. Zarate-Martinez appeals, contending that the trial court erred because 1 affiant Nancy Hendrix, M.D., met the requirements of Code section 702, 2 witness Charles Ward, M.D., also met the requirements of Code section 702, 3 other evidence in the record created fact questions and established the “pronounced results” exception to the requirement for expert testimony, and 4 OCGA § 24-7-702 c 2 A and B are unconstitutional. Finding no reversible error, we affirm.

The complaint alleged that Dr. Echemendia was Zarate-Martinez’s physician for several years, and on April 24, 2006, Dr. Echemendia performed an out-patient open laporoscopic tubal ligation procedure on Zarate-Martinez. Zarate-Martinez went home on the same day of the surgery. Over the next few days, Zarate-Martinez developed increasing pain, nausea, and fever. On April 28, 2006, Zarate-Martinez went to the emergency room, was admitted to the hospital, and underwent an exploratory laparotomy, which determined that the lower portion of Zarate-Martinez’s small intestine was perforated. The perforation was surgically repaired, and she remained in the hospital for further treatment until May 6, 2006.

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