Date: 08-13-2024

Case Style:

Estate of Tomlinson v. Houston Healthcare

Case Number: A24A0704

Judge: Not Available

Court: Superior Court, Houston County, Georgia

Plaintiff's Attorney:

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Defendant's Attorney: Not Available

Description:

Warner-Robins, Georgia personal injury medical malpractice lawyer represented the Plaintiff.

The Estate of Minnie Lee Tomlinson, by and through its executrix, Cynthia Gouge Morrison, (the "Estate") sued Houston Healthcare (the "Hospital"), alleging that when Tomlinson arrived at the Hospital's emergency department in an unstable emergency medical condition resulting from her chronic kidney disease, the Hospital failed to properly screen, stabilize, and admit her as an inpatient or transport her to another medical facility for treatment. The Estate asserted claims against the Hospital for alleged violations of the federal Emergency Medical Treatment and Labor Act ("EMTALA"), 42 USCA § 1395dd, negligence, and failure to maintain medical records. The Hospital filed a motion to dismiss, which the trial court granted. The trial court dismissed the Estate's EMTALA and negligence claims for failure to file an expert affidavit pursuant to OCGA § 9-11-9.1. The trial court dismissed the Estate's claim for failure to maintain medical records on the ground that no such cause of action exists under Georgia law. The Estate now appeals from the dismissal order. For the reasons discussed below, the Estate was not required to support one of its alleged EMTALA claims - a claim for failure to provide an appropriate medical screening examination - with an OCGA § 9-11-9.1 expert affidavit, and we reverse the dismissal of that claim. We affirm the dismissal of the Estate's remaining EMTALA, negligence, and failure-to-maintain-medical-records claims.

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Pursuant to OCGA § 9-11-9.1 (a), a plaintiff who brings a claim alleging professional negligence against a "professional licensed by the State of Georgia and listed in subsection (g) of this Code section . . . [or] [a]ny licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subjection (g) of this Code Section," must file an expert affidavit with his or her complaint.[1] See Minnix v. Dept. of Transp., 272 Ga. 566, 567 (533 S.E.2d 75) (2000) (explaining that the expert affidavit requirement applies to a hospital where its "liability is premised on the action or inaction of a licensed health care professional listed in OCGA § 9-11-9.1 [g]"). Among the professionals listed in OCGA § 9-11-9.1 (g) are medical doctors, physicians' assistants, and nurses. See OCGA § 9-11-9.1 (g) (11), (12), (18). The affidavit submitted with the complaint must be by "an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." OCGA § 9-11-9.1 (a). Failure to comply with the expert affidavit requirement subjects a professional malpractice claim to dismissal. Zephaniah, 350 Ga.App. at 413 (2).

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Estate of Tomlinson v. Hous. Healthcare, A24A0704 (Ga. App. Aug 13, 2024)

Outcome: Affirmed in part and reversed in part.

Plaintiff's Experts:

Defendant's Experts:

Comments: