August 11, 2020

The Court of Appeals of Georgia (“Georgia Appellate Court”) stated in its opinion dated June 29, 2020, “This Court has not addressed whether an expert affidavit regarding negligent credentialing on the part of a hospital is necessary in addition to the expert affidavit filed against an allegedly negligent defendant physician or other professional is required under OCGA § 9-11-9.1 (a) … we disagree with HMC [defendant Houston Hospitals, Inc., d/b/a Houston Medical Center] that in all circumstances a negligent credentialing claim necessarily requires an expert affidavit especially in light of the allegations in the complaint that Khan simply did not have a sufficient number of prior surgeries to qualify for credentialing. Such a decision could have been made summarily by an administrator rather than a medical professional’s judgment. Therefore, based on the record at this stage of the proceedings, we cannot agree that when HMC credentialed Khan it did so via the medical judgment of a professional listed in OCGA § 9-11-9.1 (g). Accordingly, we affirm the trial court’s denial of HMC’s motion to dismiss.”

The Underlying Facts

Following the death of Alvin D. Blount, Jr., Amanda Reeves filed a Georgia medical malpractice lawsuit as next of kin and executor of Blount’s estate. Reeves alleged that Dr. Bilal Khan was negligent in performing a cardiac catheterization on Blount, which led to his death. In addition to asserting claims against Khan and Khan’s employer, Middle Georgia Heart and Vascular Center, LLC, Reeves alleged a claim of negligent credentialing against HMC.

Reeves alleged that HMC was negligent, not vicariously as the employer of Khan, but for credentialing Khan even though HMC knew or should have known that Khan had not performed the requisite numbers of the procedure to be credentialed in that area of practice. Reeves attached the expert affidavit of Dr. Richard Konstance, who had experience in the area of interventional cardiology and cardiac catheterization. Reeves alleged that Blount’s injuries and death were proximately caused by HMC’s failure to perform a diligent inquiry of its physicians, including but not limited to inquiring into Khan’s medical credentials, and its failure to exercise the degree of care, skill, and judgment that is exercised by comparable hospitals in approving an applicant’s request for privileges. Dr. Konstance’s expert affidavit did not opine on the issue of whether Khan should have been credentialed to perform the procedure at issue, and Reeves did not attach any other expert affidavits to the complaint.

HMC filed a motion to dismiss, arguing that an expert affidavit was required to support the negligent credentialing claim at the time Reeves filed her claim. The trial court denied HMC’s motion to dismiss.

Georgia Appellate Court Opinion

Negligent Credentialing Claim

The Georgia Appellate Court stated that a hospital has a direct and independent responsibility to its patients to take reasonable steps to ensure that staff physicians using hospital facilities are qualified for privileges granted. It follows that a cause of action for negligent credentialing of staff physicians and other medical care providers is an independent cause of action that arises out of that responsibility. A negligent credentialing claim is not a derivative claim based on respondeat superior wherein the employer and employee are regarded as a single tortfeasor.

OCGA § 9-11-9.1 (a)

OCGA § 9-11-9.1 (a) states that “[i]n any action for damages alleging professional malpractice against . . . [a]ny licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (g) of this Code section[,] the plaintiff [is] required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

The Georgia Appellate Court stated that because HMC is not classified as such a “professional,” the affidavit requirement does not apply automatically as to any claim asserted against it. Rather, the affidavit requirement applies regarding tort claims filed against a hospital when grounded upon the additional averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as “professionals” listed in OCGA § 9-11-9.1 (g).

HMC contended that based on various statutes and regulations that assign peer review functions to the medical staff of a hospital, the Georgia Court of Appeals should hold as a matter of law that credentialing is a medical question that calls into question the professional judgment of employees of the hospital. The Georgia Appellate Court responded: “[t]he record, however, does not establish at this stage of the proceedings which employees of the hospital were involved in credentialing Khan. Moreover, in other circumstances, the Supreme Court of Georgia has differentiated between work product generated by a hospital’s peer review process and that of a hospital’s “routine credentialing information.””

The Georgia Appellate Court affirmed the trial court’s denial of HMC’s motion to dismiss.

Source Houston Hospitals, Inc./ v. Reeves, A20A0459.

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