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Zarate-Martinez v. Echemendia

The Supreme Court vacated the trial court's dismissal of a medical malpractice complaint based on its finding that the plaintiff failed to comply with the expert affidavit requirement and remanded the case to the trial court with direction that it reconsider the admissibility of the expert's testimony in light of Dubois v. Brantley, 297 Ga. 575 2015.

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In March 2008, Olga Zarate Martinez filed a medical malpractice complaint against Dr. Michael D. Echemendia, Atlanta Women’s Health Group, P.C., Atlanta Women’s Health Group, II, LLC, and North Crescent Surgery Center, LLC collectively Echemendia, seeking damages for injuries she sustained during an open laparoscopic tubal ligation that was allegedly negligently performed and which resulted in a perforated bowel. Zarate Martinez attached to her complaint an affidavit from Dr. Errol G. Jacobi. She later identified Dr. Charles J. Ward as an expert for summary judgment purposes, but she never submitted an affidavit from Dr. Ward in support of her complaint. Echemendia deposed Dr. Ward and Dr. Jacobi, moved to strike the testimony from both doctors on the grounds that they did not qualify as experts under OCGA § 24 7 702 c, and sought summary judgment.

Zarate Martinez responded to the merits of Echemendia’s motion and challenged the constitutionality of § 24 7 702 c, asserting that the statute denied her the right to a jury trial and denied her access to the courts, denied her due process and equal protection of the laws, violated separation of powers, was a law that made irrevocable grants of special privileges and immunities, and was a special law not of a general nature. Without any reference to the constitutional issues, on February 21, 2013, the trial court issued an order striking both experts’ testimony, but granted Zarate Martinez 45 days in which to file an affidavit from a competent expert witness.

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