Abramson v. Williams

Mary Williams and her husband filed this medical malpractice action against Robert Abramson, M.D. and his professional corporation, Neurological Associates of Augusta, P. C., alleging that Dr. Abramson negligently failed to diagnose Mrs. Williams’s broken hip during a neurosurgical consultation. Abramson and Neurological Associates moved to dismiss the complaint on the ground that the affidavit attached to it was from an orthopedist, Joseph C. Tatum, M. D., and that the affidavit was therefore insufficient as a matter of law under OCGA § 24-9-67.1. The trial court denied the motion to dismiss, and this appeal followed. We find no error and affirm. The undisputed facts are as follows. On March 10, 2005, the Williamses filed a complaint alleging that Mrs. Williams’s primary care physician called on Dr. Abramson, a neurologist, to perform a consultation concerning her complaints of pain in her back and left thigh. Dr. Abramson saw her first on March 20, 2003, and last on April 8, 2003. When Mrs. Williams’s pain continued, she consulted a chiropractor, who diagnosed her on June 16, 2003 as having a fractured left hip. The Williamses’ complaint alleged that Dr. Abramson and Neurological Associates negligently failed to diagnose the hip fracture. The Williamses attached to the complaint an affidavit from Dr. Tatum, a licensed orthopedist, in which he asserted that Dr. Abramson “failed to timely recognize and diagnose that Mrs. Williams was suffering from a fracture of the femur of her left hip.” Dr. Tatum also avowed that Dr. Abramson’s failure to examine Mrs. Williams adequately and failure to order x-rays “deviated from the standards of the medical profession generally under like or similar circumstances,” “resulting in increased pain in the left hip and leg, and contributing to the requirement for a total hip replacement.”

Abramson and Neurological Associates moved to dismiss the complaint as defective under OCGA § 9-11-9.1 because Dr. Tatum’s affidavit failed to comply with the expert testimony requirement of OCGA § 24-9-67.1.1 The trial court ruled that the statute “does not . . . require that the plaintiff’s expert be a member of the same specialty as the defendant doctor,” and that Dr. Tatum’s affidavit showed he had the requisite knowledge and experience to give his opinion on the alleged failure to diagnose. The trial court therefore denied the motion and certified the case for immediate review. We granted the Williamses’ application for an interlocutory appeal.