In Graham v. Reynolds 2017 WL 4768136, (Ga. App. Oct. 23, 2017), the plaintiff alleged an emergency room provider acted negligently.  The Court held that O.C.G.A. § 9-11-9.1 requires only an allegation of general negligence and does not require a showing of gross negligence.  The Court stated that O.C.G.A. § 9-11-9.1 imposes only a pleading requirement, not an evidentiary requirement.

The Court rejected the argument that O.C.G.A. § 51-1-29.5, which governs medical malpractice claims involving emergency medical treatment, requires a showing of gross negligence in an expert affidavit.  Furthermore, and more troubling, the Court noted that gross negligence is a degree of negligence.  Therefore, the Court denied the motion to dismiss because the expert affidavit could support a claim of gross negligence.  Therefore, the Court held that the Court did not err in denying defendant’s Motion to Dismiss.

Finally, please note that while the decision holds that in an emergency medical malpractice claim the expert affidavit does not have to allege gross negligence, the decision does not change the evidentiary requirements of O.C.G.A. § 51-1-29.5 to prove at trial that defendant was grossly negligent.

By: Richard Tisinger, Jr.