Background Facts
Stacy McGhee filed a complaint for negligence and professional malpractice against Publix, Neighborhood Medical Associates, Inc., Nurse Practitioner Onyirmba, and Dr. Oluwole. In her complaint, McGhee alleged that she sought treatment at Neighborhood Medical on January 14, 2020 and was seen by Onyirimba, an advanced practice registered nurse. Upon arrival at Neighborhood Medical, McGhee filled out an intake form and listed the substances to which she was allergic, including sulfa drugs.
McGhee was examined by Onyirimba, who prescribed some medications for McGhee, including Bactrim, a sulfa drug. McGhee’s complaint alleged that Neighborhood Medical did not use a computer-based system that would alert a prescribing provider if a patient was prescribed a contraindicated drug. Although Dr. Oluwole is the supervising physician for Onyirimba, the complaint did not allege that he ever met or individually treated McGhee.
The complaint alleged that McGhee then went to a Publix Pharmacy and that the pharmacy dispensed the Bactrim to her without performing any type of investigation regarding allergic reactions. Soon after she began to take the medication, McGhee began experiencing an allergic reaction, and she reported to the emergency room where doctors determined that she had a severe allergic reaction to Bactrim, which resulted in an extended hospitalization of thirteen days.
McGhee settled the lawsuit against Neighborhood Medical, its agents, and nurse practitioner Onyirimba in exchange for $325,000 and a “Release of all claims.”
McGhee argued that the trial court erred by granting Publix’s motion to dismiss for failure to provide an expert affidavit of a pharmacist or pharmacologist in compliance with OCGA§ 9-11-9.1 and OCGA§ 24-7-702 (c). McGhee argued that she was not required to file an expert affidavit pursuant to OCGA§ 9-11-9.1(a) because her claims against Publix sounded in simple negligence and not professional negligence, and she did not sue a pharmacist directly.
The Court of Appeals of Georgia stated in its February 28, 2024 opinion that in order to prove that Publix’s actions in this case were inadequate, McGhee must rely on the knowledge of experts with regard to what the applicable standard of care is, and whether that standard was breached because such knowledge is beyond the ken of a layman. “Based upon the above, the trial court did not err by concluding that McGhee was required to comply with the expert affidavit requirements of OCGA§ 9-11-9.1(a) and dismissing the claims against Publix for her failure to provide an adequate expert affidavit regarding the standards of care applicable to pharmacies and pharmacists.”
The Court of Appeals of Georgia further held: “Although Dr. Oluwole argues that Dr. Syed’s affidavit was inadequate under OCGA§ 9-11-9.1(a) (3) because it did not specifically mention that Dr. Oluwole should have created a computerized protocol to prevent nurse practitioners from prescribing contraindicated drugs, we are not persuaded. Dr. Syed’s affidavit clearly states that a supervising physician should have created a protocol or checklist to minimize the risk of a nurse practitioner prescribing a contraindicated drug. The fact that McGhee’s complaint narrowed the claim by asserting that this protocol or checklist should have been computerized does not make Dr. Syed’s affidavit fatally defective.”
McGhee v. Public Super Markets, Inc., A23A1291. McGhee v. Oluwole, A23A1292.
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the emergency roomwhere “doctors determinedthat [she] hada severe allergicreaction toBactrim, which resultedin an extendedhospitalization ofthirteen days
