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Bacon Cnty. Hosp. & Health Sys. v. Whitley

The trial court abused its discretion in concluding that the medical malpractice plaintiff's expert chiropractor was qualified to testify about the standard of care of the defendant physical therapists.

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Following our grant of an interlocutory appeal, Bacon County Hospital & Health System, Bacon County Health Services, Inc., Bacon County Rehabilitation Center, Susan Byrd, and Jane Doe1 collectively “the Bacon County Defendants” appeal the trial court’s denial of their motion to dismiss Whitley’s medical malpractice complaint. The Bacon County defendants contend the trial court erred by denying their motion to dismiss the complaint because the qualifications of Whitley’s expert did not satisfy the criteria of OCGA § 9-11-9.1 and OCGA § 24-9-67.1 c. Because we find that the trial court abused its discretion by concluding that a chiropractor was qualified to testify about the standard of care of a physical therapist, we reverse the trial court and remand the case to the trial court with direction to grant the motion and dismiss the complaint.

We usually review a trial court’s order on a motion to dismiss de novo. Akers v. Elsey, 294 Ga. App. 359, 361 1 670 SE2d 142 2008. “But the interplay of OCGA § 24-9-67.1 and 9-11-9.1 means that, when the trial court has had a hearing . . . as in this case, our review determines only whether the trial court has abused its discretion.” Punctuation omitted. Id.; see also Vaughan v. WellStar Health System, 304 Ga. App. 596, 600-601 2 696 SE2d 506 2010. “The penalty for failure to supply a proper affidavit per OCGA § 9-11-9.1 is dismissal.” Akers v. Elsey, supra, 294 Ga. App. at 361 1.

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