CASE FACTS: On August 5, 1999, Kenneth Shirley was admitted to the South Georgia medical hospital for surgery on his left leg. The hospital was run by the Hospital Authority of Valdosta/Lowndes County. After surgery, the patient and his wife sued the hospital, alleging that hospital nurses applied a solution to the patient's p***s and testicles, which caused the patient severe pain and suffering. This was done contrary to any orders, rules, policies, or procedures of the hospital. The hospital filed a motion to dismiss based on the plaintiff's failure to file an expert witness affidavit required under Georgia law. The plaintiffs filed an amendment to their complaint, which added a count for professional malpractice and included an expert's affidavit supporting an additional count. The amendment was filed on November 14, 2002. The hospital filed a motion to dismiss the amended complaint on the grounds that any claim for professional malpractice was barred by the state's two-year statute of limitations. The trial court granted the defendant's motion to dismiss. The plaintiffs appealed.
COURT'S OPINION: The Court of Appeals of Georgia affirmed the judgment of the trial court. The court held, inter alia, that the plaintiffs' amended complaint was filed outside the two-year statute of limitations. The court rejected the plaintiffs' contention that the statute of limitations "related back" to the date of the plaintiffs' original complaint. Editor's Note: The plaintiffs correctly pointed out that not every suit which calls into question the conduct of nurses is, de facto, a medical malpractice suit. However, the appellate court concluded that the trial court correctly determined that the plaintiffs' original complaint required a medical expert's affidavit because the plaintiffs' allegations were based on professional malpractice rather than on simple negligence. To decide whether an expert's affidavit is required in a particular case, the court must determine whether a case involves a "medical question. "If the issue of the type of negligence involved is a medical question, Georgia law applies, and the plaintiff is required to attach an http://legal-dictionary.thefreedictionary.com/medical+practitioner expert's affidavit to his complaint. "Medical questions" have been defined as those "concerning highly specialized expert Medical Malpractice Cases knowledge with respect to which a layman can be expected to have no knowledge, and the jury must depend on expert evidence." The court opined that examples of "medical questions" include cases, where a plaintiff alleges the use of inappropriate medication, wrongful medication, or the failure to properly assess the degree of support required by a patient." Shirley v. Hospital Authority of Valdosta/ Lowndes County, 587 S.E.2d 873-GA (2003)
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.
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