- Court
- Court of Appeals of Georgia
- Year
- 2026
- Case
- Lewis v. Emory Healthcare, Inc.
- Citation
- Case No. A25A1838, 2026 Ga. App. LEXIS 189
- Decided
- February 3, 2026
A § 9-11-9.1 affidavit from an OB/GYN with decades of post-operative hospital experience was sufficient at the pleading stage for a claim against a hospitalist who discharged a post-surgical patient after an inconclusive ECG.
The opinion is a useful reminder that an OCGA § 9-11-9.1 affidavit is judged by the relevance of the expert’s experience to the alleged acts and omissions, not by whether the expert’s specialty label matches the defendant’s. The Supreme Court said as much in Nathans v. Diamond, 282 Ga. 804, 806 (1) (2007). The Court of Appeals applied that rule here and reversed.
The procedural posture matters. The estate’s administrator brought a wrongful-death action against Dr. Kany Aziz, the attending hospitalist, and against Emory Healthcare, Inc., Emory University a/k/a Emory Hospital, and The Emory Clinic on a vicarious-liability theory, alleging negligent post-operative care. The defense moved to dismiss on the ground that the plaintiffs’ § 9-11-9.1 affidavit was insufficient. The trial court granted the motion as to Dr. Aziz. The Court of Appeals granted interlocutory review and reversed.
The medical setup is straightforward. A 69-year-old patient had a right hip replacement at Emory Hospital on July 1, 2022. He developed anemia (allegedly untreated for two days) and high blood pressure requiring four medications. Two days post-op, Dr. Aziz ordered an ECG that came back inconclusive — multiple cardiac structures were “not well visualized.” Five days post-op, Dr. Aziz cleared him for discharge. One week later he collapsed at home and died of cardiac arrest. The plaintiffs’ § 9-11-9.1 affiant, Dr. Gerry Farmer, is an OB/GYN with almost forty years of teaching and hospital practice with post-operative patients. He attested that the inconclusive ECG required further evaluation before discharge. The trial court found him insufficient because he was not an orthopedist, a hospitalist, or otherwise specifically experienced with post-operative orthopedic patients.
The doctrinal correction is the heart of the opinion. Under Nathans, “the issue is whether the expert has knowledge and experience in [a] practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiff’s injuries.” 282 Ga. at 806 (1). § 9-11-9.1 “imposes a pleading requirement, not an evidentiary requirement,” and “plaintiffs are given a wide berth to conform to the statutory requirements, and in ruling on a motion to dismiss based on an allegedly defective affidavit, a court should construe the affidavit most favorably to the plaintiff and all doubts should be resolved in the plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible.” Cantrell v. AU Med. Center, 358 Ga. App. 41, 44 (2) (2020). And “[s]tanding alone, [an expert’s] conclusory statements in her affidavit were legally sufficient to establish competency at the motion to dismiss stage.” Houston v. Phoebe Putney Mem. Hosp., 295 Ga. App. 674, 679 (1) (2009); accord Hewett v. Kalish, 264 Ga. 183, 186 (2) (1994). Dr. Farmer’s affirmative competence statement, paired with decades of hospital-based post-operative care, was enough.
The frame to carry forward is simple. Specialty labels do not control. The acts and omissions at issue do. The decision to discharge a patient on an inconclusive ECG is a hospital-based clinical task, and a clinician with forty years of inpatient post-operative experience has knowledge relevant to that task whether the diploma reads orthopedics, hospital medicine, or obstetrics. Asking which specialty the expert practices in — instead of asking what the relevant task is — is a category error.
The opinion also restates the pleading-evidentiary line worth keeping in view. § 9-11-9.1 is a pleading hurdle. Daubert-style qualification fights belong on a motion in limine or at trial, not on a motion to dismiss. A trial court that demands trial-grade proof of specialty match at the pleading stage has, as the Court of Appeals put it, abused its discretion.
