Stacy McGee filed a complaint against Publix Supermarkets and Dr. Olujimi Oluwole for professional malpractice to recover for injuries she sustained after being prescribed a medication that she was allergic to. The trial court granted Publix’s motion to dismiss the complaint for failure to file an affidavit of a pharmacologist or pharmacist, as required by OCGA § 9-11-9.1. The trial court granted Dr. Oluwole’s motion to dismiss on the grounds that the OCGA § 9-11-9.1 expert affidavit failed to specifically state at least one act or omission by Dr. Oluwole and because McGhee released her claims against Dr. Oluwole when she signed a release as part of a settlement agreement with another party.
McGhee appealed from the order dismissing her complaint against Publix, arguing that she did not have to file an expert affidavit under OCGA § 9-11-9.1 because her claims arose in general negligence and not professional negligence. McGhee also appealed from the order dismissing her complaint against Dr. Oluwole, arguing that the expert affidavit was sufficient and that she did not release her claims against Dr. Oluwole.
The Court of Appeals of Georgia stated in its February 28, 2024 opinion: “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. This is so because such knowledge is beyond the ken of a layman.” Epps v. Gwinnett County, 231 Ga. App. 665, 666 (1) (499 SE2d 657) (1998). 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: “McGhee settled her claims against Neighborhood Medical and nurse Oniyirimba for $325,000 … the release identifies that this category of “Released Parties,” does “not include any claims that may exist against the supervising physician in his individual, contractual, and/or statutory capacity, and all others not affiliated or associated with the business of Neighborhood Medical” … .Count One of the complaint seeks to hold Dr. Oluwole individually liable for failing to “provide or have the facility provide him with an acceptable computer-based alert system that would cause documented contraindications to be shown to the practitioner.” Accordingly, under the plain terms of the settlement agreement, McGhee did not release Dr. Oluwole from liability for this claim against him in his individual capacity. Accordingly, we reverse the trial court’s order.”
Source McGhee v. Publix Super Markets, Inc., A23A1291.
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