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Jason R. Schultz P.C

Expert Medical Witness Affidavit Needed to Accompany Medical Malpractice Claims

Ideally, a patient should leave the doctor healthier than when he or she arrived. However, this is not always the case. Doctors are human. Sometimes they make mistakes. That is why doctors carry medical malpractice insurance. If you were injured by a negligent doctor, you deserve compensation.

But before you file a lawsuit, keep in mind that there is an extra step you must take when bringing a lawsuit against a negligent doctor in Georgia.  If you want to bring a lawsuit against a doctor or hospital for medical malpractice, you must file an expert medical witness affidavit in addition to the normal legal paperwork.

If you file a complaint against a doctor without this special affidavit, the judge will dismiss your case and you will lose your right to recover compensation for your injuries.

Under Georgia Code §9-11-9.1, this special affidavit is known as an expert witness affidavit and:

  • Must be completed by an expert witness under oath.
  • Must include a claim that the doctor you are suing provided you with negligent healthcare, meaning that he or she performed at least one negligent act or omission during your procedure or treatment. 
  • Must include a factual basis for your claim.  

Why does Georgia require an expert witness affidavit?

Georgia requires medical malpractice expert witness affidavits for two reasons. First, the expert testimony is necessary to determine whether or not there was malpractice. If the defendant doctor performed the procedure according to standard safety rules, then medical malpractice did not occur.

For malpractice, the doctor must have breached the agreed-upon standard of care for the treatment or procedure delivered. Usually malpractice is accomplished through negligence or omission. The expert witness affidavit establishes what the agreed-upon safety rules are among doctors for the medical treatment or procedure in question. Then, the court can determine whether or not the defendant doctor strayed from these rules, and thus if there is a claim for medical malpractice. 

The second purpose of the expert witness affidavit law is closely related. Not only must the expert’s testimony establish that the defendant doctor breached duty of care to the patient, but the expert must also provide a factual basis for the claim by explaining how this breach led to the patient’s injury. This requirement reduces the numbers of frivolous malpractice suits and lessens the strain on Georgia courts.

Which types of cases require an expert witness affidavit?

Georgia requires expert witness affidavits for all claims against a doctor or health care facility alleging medical malpractice or negligence. You do not need to file an expert witness affidavit for claims involving intentional injuries or torts, even if the defendant is a doctor.

The affidavit rule applies to a wide variety of defendants including medical professionals licensed by the State of Georgia, legal entities potentially liable for the acts of omissions of the professional (medical malpractice insurance companies), and any licensed health care facility.

In addition to medical doctors, other professionals included under the rule are:

Who qualifies a witness as a medical malpractice expert?

Your expert witness must be “competent to testify.” This means that the expert witness must be an expert in the same medical field as the doctor accused of medical malpractice. A dentist cannot serve as the expert witness in a case against a psychologist.

When determining whether or not your witness is an expert, the court will look at the witness’s years of experience and professional knowledge. Typically, the witness can prove that they meet the experience and knowledge requirements if they have been actively practicing or teaching in their medical field for three of the last five years. If the witness is a teacher, they must be employed by an accredited education institution in order to be considered a medical malpractice expert.

What if I do not have enough time to find an expert witness?

The expert witness affidavit must be filed at the same time as the complaint against the doctor or health care facility. If not, your complaint will be dismissed for failure to state a claim. However, there is a special exception rule in place for certain cases with time constraints.

Your attorney can request a special 45-day extension to complete the affidavit if:

  • You were forced to file your complaint because the deadline to file (known as the statute of limitations) was ending.
  • There was not enough time to complete the expert witness affidavit before the deadline.
  • You hired your attorney with 90 days or less remaining in your deadline to file your medical malpractice case.

If you meet these three requirements, the court may grant you an additional 45 days to complete the affidavit and add it to your complaint. However, this extension will extend the timeline of your case and delay the trial because the defendant doctor will not have to file an answer to your complaint and discovery cannot begin until you have added the affidavit.

There is also a special rule in place in case the court rules that your expert witness affidavit is defective. If this happens, you will be granted 30 days to “cure” your affidavit so that the case can move forward.

How the Law Office of Jason R. Schultz Can Help

The Law Offices of Jason R. Schultz, PC can assist you with your medical malpractice claim against a doctor, medical malpractice insurance company, or health care facility after a treatment or procedure gone wrong. If a doctor negligently injured you during a visit to the hospital, you deserve compensation and our attorneys will fight to get it for you.

The medical malpractice attorneys at the Law Office of Jason R. Schultz can help you find an expert witness and complete the expert witness affidavit. With strong testimony from a respected expert, you will be in the best position to prove your malpractice claim.

You can recover compensation for:

  • Medical expenses
  • Past and future medical care related to the malpractice
  • Lost wages and earning capacity
  • Pain and suffering
  • Mental anguish
  • Scarring 

Contact the Law Office of Jason R. Schultz today for help with a medical malpractice claim. Call 404-474-0804.


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