professional standard in Georgia

1988“To be sufficient to controvert the defendant’s expert opinion and create an issue of fact, the plaintiffs’] expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state the particulars in which the defendant’s treatment of the plaintiff was negligent. . . . [T]he plaintiff [s] cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to *488 the professional standard. [They] must state the particulars. [They] must establish the parameters

1988“To be sufficient to controvert the defendant’s expert opinion and create an issue of fact, the plaintiffs’] expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state the particulars in which the defendant’s treatment of the plaintiff was negligent. . . . [T]he plaintiff [s] cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to *488 the professional standard. [They] must state the particulars. [They] must establish the parameters

1989The hardwood floor creaked loudly, moved up and down, and had numerous wide spaces between the boards; likewise, the jury did not need an expert to tell it that the floor was defective. “[I]t is possible for evidence to establish a known or knowable defect without proof of a professional standard, if the proof is clear and palpable to the jury. [Cit.]” Hudgins v. Bacon, 171 Ga. App. 856, 860 ( 321 SE2d 359 ) (1984). 3.

1989The hardwood floor creaked loudly, moved up and down, and had numerous wide spaces between the boards; likewise, the jury did not need an expert to tell it that the floor was defective. “[I]t is possible for evidence to establish a known or knowable defect without proof of a professional standard, if the proof is clear and palpable to the jury. [Cit.]” Hudgins v. Bacon, 171 Ga. App. 856, 860 ( 321 SE2d 359 ) (1984). 3.

2024See Brown v. Tift Health Care, 279 Ga. App. 164, 166 ( 630 SE2d 788 ) (2006) (noting that “a § 9-11-9.1 affidavit is required when the issue is the defendant’s compliance with a professional standard of conduct”).

2024See Brown v. Tift Health Care, 279 Ga. App. 164, 166 ( 630 SE2d 788 ) (2006) (noting that “a § 9-11-9.1 affidavit is required when the issue is the defendant’s compliance with a professional standard of conduct”).

2012Cf. Doe v. Zwelling, 620 SE2d 750 (Va. 2005) (although a substantial part of plaintiff’s claimed damages against health care provider, who was subject to physicians’ standard of care, arising out of affair with plaintiff’s wife were barred by ban on claims of alienation of affections, some allegations stated a claim for breach of the defendant’s professional standard of care); Figueiredo-Torres v. Nickel, 584 A2d 69 (Md.

2012The court in Gasper then meticulously analyzed each of the plaintiff’s claims to determine whether they were simply “the refitting of the abolished actions into other forms.” Id. at 1360 ; Zwelling, 620 SE2d at 752 (allowing allegations that constituted “breaches of the defendant’s professional standard of care that would be compensable in damages even if the plaintiff were unmarried”).

2010See Murrah v. Fender, 282 Ga. App. 634, 636 (1) *383 ( 639 SE2d 595 ) (2006) (affirming trial court’s denial of motion to dismiss complaint for lack of a § 9-11-9.1 affidavit when the complaint alleged medical fraud); Brown v. Tift Health Care, 279 Ga. App. 164, 166 ( 630 SE2d 788 ) (2006) (“a § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required”); Bowling v. Foster, 254 Ga. App. 374, 380-381 (1) (b) ( 562 SE2d 776 ) (2002) (affirming

2010See Murrah v. Fender, 282 Ga. App. 634, 636 (1) *383 ( 639 SE2d 595 ) (2006) (affirming trial court’s denial of motion to dismiss complaint for lack of a § 9-11-9.1 affidavit when the complaint alleged medical fraud); Brown v. Tift Health Care, 279 Ga. App. 164, 166 ( 630 SE2d 788 ) (2006) (“a § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required”); Bowling v. Foster, 254 Ga. App. 374, 380-381 (1) (b) ( 562 SE2d 776 ) (2002) (affirming

1997The legislative purpose for OCGA § 9-11-9.1 was "to reduce the number of frivolous malpractice suits being filed" where the plaintiff did not have an expert to testify as to a single act of professional negligence in contravention of the professional standard of care. 0-1 Doctors, etc. Co. v. Moore, 190 Ga.App. 286, 288 (1), 378 S.E.2d 708 (1989).

1997The legislative purpose for OCGA § 9-11-9.1 was "to reduce the number of frivolous malpractice suits being filed" where the plaintiff did not have an expert to testify as to a single act of professional negligence in contravention of the professional standard of care. 0-1 Doctors, etc. Co. v. Moore, 190 Ga.App. 286, 288 (1), 378 S.E.2d 708 (1989).

2009Yet, “evidence of negligence [or a violation of professional standards] in some cases may be so ‘clear and palpable’ that it may be understood by a [factfinder] without expert evidence as to a professional standard of care.” Bilt Rite, 221 Ga. App. at 817 .

1997If it is not necessary to establish by experts the parameters of acceptable professional conduct in order to prove negligence or breach of contract for failure to perform the contract in a workmanlike manner, the case may not strictly require expert testimony as to a standard of care applied by experts in like circumstances.” (Citations and emphasis omitted.) Bilt Rite of Augusta v. Gardner, 221 Ga. App. 817, 818 ( 472 SE2d 709 ) (1996).

2024See generally Labovitz v. Hopkinson, 271 Ga. 330, 336 (III) ( 519 SE2d 672 ) (1999) (explaining that OCGA § 9-11-9.1 is limited to claims grounded in professional negligence); Brown, 279 Ga. App. at 166 (explaining that the OCGA § 9-11-9.1 expert affidavit requirement applies in cases centered on “the defendant’s compliance with a professional standard of conduct”).

2024See generally Labovitz v. Hopkinson, 271 Ga. 330, 336 (III) ( 519 SE2d 672 ) (1999) (explaining that OCGA § 9-11-9.1 is limited to claims grounded in professional negligence); Brown, 279 Ga. App. at 166 (explaining that the OCGA § 9-11-9.1 expert affidavit requirement applies in cases centered on “the defendant’s compliance with a professional standard of conduct”).

2018To avoid the requirement of presenting explanatory expert testimony, however, the plaintiff must show that the standards were "authoritative" and "mandatory." Mikell , supra, 229 Ga. App. at 57 (1) (a), 493 S.E.2d 219 .

2018To avoid the requirement of presenting explanatory expert testimony, however, the plaintiff must show that the standards were "authoritative" and "mandatory." Mikell , supra, 229 Ga. App. at 57 (1) (a), 493 S.E.2d 219 .

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2011Miller, P. J., and McFadden, J., concur. 1 McIntyre v. State, 302 Ga. App. 778, 781 (2) ( 691 SE2d 663 ) (2010) (citation omitted); see OCGA § 17-8-22. 2 Carter v. State, 285 Ga. 394, 398 (7) ( 677 SE2d 71 ) (2009); White v. State, 304 Ga. App. 158, 159 (2) ( 695 SE2d 425 ) (2010). 3 Compare Livingston v. State, 266 Ga. 501, 502-503 (1) ( 467 SE2d 886 ) (1996) (where prosecutor failed to comply with defendant’s discovery request, and defendant thus did not obtain discovery to which he was entitled before trial, the trial court erred in denying defendant’s motion for a continuance). 4 See McInt

2010See Murrah v. Fender, 282 Ga. App. 634, 636 (1) *383 ( 639 SE2d 595 ) (2006) (affirming trial court’s denial of motion to dismiss complaint for lack of a § 9-11-9.1 affidavit when the complaint alleged medical fraud); Brown v. Tift Health Care, 279 Ga. App. 164, 166 ( 630 SE2d 788 ) (2006) (“a § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required”); Bowling v. Foster, 254 Ga. App. 374, 380-381 (1) (b) ( 562 SE2d 776 ) (2002) (affirming

2010See Murrah v. Fender, 282 Ga. App. 634, 636 (1) *383 ( 639 SE2d 595 ) (2006) (affirming trial court’s denial of motion to dismiss complaint for lack of a § 9-11-9.1 affidavit when the complaint alleged medical fraud); Brown v. Tift Health Care, 279 Ga. App. 164, 166 ( 630 SE2d 788 ) (2006) (“a § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required”); Bowling v. Foster, 254 Ga. App. 374, 380-381 (1) (b) ( 562 SE2d 776 ) (2002) (affirming

2009Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 715 , 398 S.E.2d 557 (1990).

2009Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 715 , 398 S.E.2d 557 (1990).

2009See generally Kellos, 172 Ga. App. at 264 (1) (holding that expert testimony is necessary to establish the parameters of acceptable professional conduct, except in clear and palpable cases). 2 Accordingly, unless otherwise required as a matter of law, 3 when the issues concerning a professional’s conduct are not of a complicated nature, and a violation is established by clear and palpable proof, expert testimony is not required.

2007MCG Health v. Casey, 269 Ga. App. 125, 127 ( 603 SE2d 438 ) (2004). “[Thus, a] § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required.” (Citations omitted.) Holloway v. Northside Hosp., 230 Ga. App. 371 ( 496 SE2d 510 ) (1998).

2007MCG Health v. Casey, 269 Ga. App. 125, 127 ( 603 SE2d 438 ) (2004). “[Thus, a] § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required.” (Citations omitted.) Holloway v. Northside Hosp., 230 Ga. App. 371 ( 496 SE2d 510 ) (1998).