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04 LC 29 1327S
The House Committee on Judiciary offers the
following substitute to HB 1399:
A BILL TO BE
ENTITLED
AN ACT
AN ACT
To amend Article 5 of Chapter 11 of Title 9 of the Official
Code of Georgia Annotated, relating to depositions and discovery, and Article 3
of Chapter 9 of Title 24 of the Official Code of Georgia Annotated, relating to
examination of witnesses, so as to change certain provisions relating to medical
malpractice civil actions; to create provisions regarding expert opinions in
medical malpractice civil actions; to change provisions relating to opinions of
experts; to create provisions concerning discovery, scheduling of matters and
trials, and attorney fees and expenses in medical malpractice civil actions; to
provide for related matters; to provide for an effective date and applicability;
to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF
GEORGIA:
SECTION 1.
Article 5 of Chapter 11 of Title 9 of the Official Code of
Georgia Annotated, relating to depositions and discovery, is amended by adding a
new Code section to read as
follows:
"9-11-37.1.
(a) The provisions of this Code section and this article shall apply to any civil action in which the plaintiff alleges medical malpractice as defined in Code Section 9-3-70; provided, however, where there is any conflict between the provisions of this Code section and other provisions of this article, the provisions of this Code section shall control the proceedings.
(b) Within 30 days of the filing of the last answer in the civil action, the parties shall submit a joint scheduling order specifically setting forth the time period in which discovery, including the designation and depositions of all expert witnesses, shall be completed and setting a date certain for the filing of a consolidated pretrial order. Said scheduling order may be amended by agreement of the parties or order of the court. If the parties are unable to agree to a joint scheduling order, each party may file, within 30 days of the filing of the last answer in the civil action, a proposed scheduling order. Thereafter, the trial court shall enter a scheduling order for the completion of discovery, including the designation and depositions of all expert witnesses, and the filing of a consolidated pretrial order. Nothing contained in this Code section shall prohibit any party from conducting any discovery authorized by Georgia law prior to the entry of the scheduling order required by this subsection.
(c) If any party requests a special setting for trial, and the trial court determines that a special setting is justified, then the trial court shall specially set the civil action for a date certain for trial. The civil action shall be set for trial no later than two years after the filing of the last answer in the civil action unless otherwise ordered by the court.
(d) All parties shall be given a minimum of 45 days´ notice of the special setting of any civil action for trial pursuant to subsection (c) of this Code section.
(e) If any party files a notice of appeal as allowed by law, the time periods set forth in this Code section shall be stayed and shall recommence running on the date that the record is returned from any appellate court to the trial court following any such appeal."
"9-11-37.1.
(a) The provisions of this Code section and this article shall apply to any civil action in which the plaintiff alleges medical malpractice as defined in Code Section 9-3-70; provided, however, where there is any conflict between the provisions of this Code section and other provisions of this article, the provisions of this Code section shall control the proceedings.
(b) Within 30 days of the filing of the last answer in the civil action, the parties shall submit a joint scheduling order specifically setting forth the time period in which discovery, including the designation and depositions of all expert witnesses, shall be completed and setting a date certain for the filing of a consolidated pretrial order. Said scheduling order may be amended by agreement of the parties or order of the court. If the parties are unable to agree to a joint scheduling order, each party may file, within 30 days of the filing of the last answer in the civil action, a proposed scheduling order. Thereafter, the trial court shall enter a scheduling order for the completion of discovery, including the designation and depositions of all expert witnesses, and the filing of a consolidated pretrial order. Nothing contained in this Code section shall prohibit any party from conducting any discovery authorized by Georgia law prior to the entry of the scheduling order required by this subsection.
(c) If any party requests a special setting for trial, and the trial court determines that a special setting is justified, then the trial court shall specially set the civil action for a date certain for trial. The civil action shall be set for trial no later than two years after the filing of the last answer in the civil action unless otherwise ordered by the court.
(d) All parties shall be given a minimum of 45 days´ notice of the special setting of any civil action for trial pursuant to subsection (c) of this Code section.
(e) If any party files a notice of appeal as allowed by law, the time periods set forth in this Code section shall be stayed and shall recommence running on the date that the record is returned from any appellate court to the trial court following any such appeal."
SECTION 2.
Article 3 of Chapter 9 of Title 24 of the Official Code of
Georgia Annotated, relating to examination of witnesses, is amended by striking
Code Section 24-9-67, relating to opinions of experts, and inserting in lieu
thereof the
following:
"24-9-67.
Except as provided in Code Section 24-9-67.1, theThe opinions of
experts on any question of science, skill, trade, or like questions shall always
be admissible; and such opinions may be given on the facts as proved by other
witnesses."
"24-9-67.
Except as provided in Code Section 24-9-67.1, the
SECTION 3.
Said article is further amended by adding a new Code section
to read as
follows:
"24-9-67.1.
(a) In a civil action for medical malpractice as defined in Code Section 9-3-70, the opinions of an expert as to the standard of care of the defendant whose conduct is at issue shall be admissible only if, at the time the act or omission is alleged to have occurred or at the time the witness testifies, the expert witness:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession and was practicing or teaching or some combination thereof his or her profession for at least three of the last five years immediately preceding such time; and
(2) Meets at least one of the following criteria:
(A) The expert shares at least one specialty certification with the defendant;
(B) The expert has experience in the diagnosis or treatment of the condition at issue, the performance of the procedure or procedures at issue, or the provision of the services at issue; or
(C) The expert has experience in an area of practice or specialty that diagnoses, treats, or cares for patients under similar conditions or circumstances as are at issue.
(b) Any objection to the qualification of the expert witness to provide such testimony shall:
(1) Be made no later than 30 days after the completion of the witness´s deposition or prior to the date of any pretrial hearing, whichever is earlier;
(2) Be made by written motion; and
(3) Set forth with specificity the factual and legal basis of the objection.
(c) Nothing in this Code section shall prohibit a health care provider from testifying as to the standard of care of another health care provider with different licensure or certification if the individual meets the criteria set forth in subsection (a) of this Code section. As used in this subsection, the term 'health care provider' means a professional who is licensed under Chapter 4 of Title 26 or Chapter 9, 11, 11A, 26, 30, 33, 34, or 44 of Title 34.
(d) This Code section shall not apply to Code Section 9-11-9.1 and shall not be construed to alter the competency requirements of any expert testifying by affidavit for purposes of Code Section 9-11-9.1.
(e) For each defendant whose conduct is at issue, the plaintiff shall identify at least one expert who meets the requirements of subsection (a) of this Code section no later than six months after the filing of the last defendant´s answer; provided, however, that the court shall be authorized to extend the time for the identification of an expert witness upon good cause shown.
(f) Nothing in this Code section shall be construed to prohibit the plaintiff from identifying additional expert witnesses as to the standard of care of any defendant beyond the six-month period set forth in subsection (e) of this Code section.
(g) If the plaintiff fails to designate an expert as required by subsection (e) of this Code section, then the civil action as to that defendant shall be dismissed without prejudice by the trial court.
(h) Any objection to the qualifications of an expert witness designated by the plaintiff as required by subsection (e) of this Code section shall be asserted pursuant to the requirements of subsection (b) of this Code section. If the court rules that the expert does not meet the criteria of subsection (a) of this Code section, then the court shall issue an order requiring the plaintiff to identify an expert meeting the requirements of subsection (a) of this Code section within a time period determined by the court which shall not be less than 45 days. If the plaintiff fails to do so, the civil action as to that defendant shall be dismissed without prejudice.
(i) An order dismissing any defendant or the entire civil action pursuant to subsection (g) or (h) of this Code section shall be subject to review by direct appeal pursuant to Code Section 5-6-34 upon the filing of a timely notice of appeal following the entry of the order. If such an order is appealed, the statute of limitations, the statute of repose, and the six-month renewal period shall be tolled until the civil action is remitted to the trial court."
"24-9-67.1.
(a) In a civil action for medical malpractice as defined in Code Section 9-3-70, the opinions of an expert as to the standard of care of the defendant whose conduct is at issue shall be admissible only if, at the time the act or omission is alleged to have occurred or at the time the witness testifies, the expert witness:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession and was practicing or teaching or some combination thereof his or her profession for at least three of the last five years immediately preceding such time; and
(2) Meets at least one of the following criteria:
(A) The expert shares at least one specialty certification with the defendant;
(B) The expert has experience in the diagnosis or treatment of the condition at issue, the performance of the procedure or procedures at issue, or the provision of the services at issue; or
(C) The expert has experience in an area of practice or specialty that diagnoses, treats, or cares for patients under similar conditions or circumstances as are at issue.
(b) Any objection to the qualification of the expert witness to provide such testimony shall:
(1) Be made no later than 30 days after the completion of the witness´s deposition or prior to the date of any pretrial hearing, whichever is earlier;
(2) Be made by written motion; and
(3) Set forth with specificity the factual and legal basis of the objection.
(c) Nothing in this Code section shall prohibit a health care provider from testifying as to the standard of care of another health care provider with different licensure or certification if the individual meets the criteria set forth in subsection (a) of this Code section. As used in this subsection, the term 'health care provider' means a professional who is licensed under Chapter 4 of Title 26 or Chapter 9, 11, 11A, 26, 30, 33, 34, or 44 of Title 34.
(d) This Code section shall not apply to Code Section 9-11-9.1 and shall not be construed to alter the competency requirements of any expert testifying by affidavit for purposes of Code Section 9-11-9.1.
(e) For each defendant whose conduct is at issue, the plaintiff shall identify at least one expert who meets the requirements of subsection (a) of this Code section no later than six months after the filing of the last defendant´s answer; provided, however, that the court shall be authorized to extend the time for the identification of an expert witness upon good cause shown.
(f) Nothing in this Code section shall be construed to prohibit the plaintiff from identifying additional expert witnesses as to the standard of care of any defendant beyond the six-month period set forth in subsection (e) of this Code section.
(g) If the plaintiff fails to designate an expert as required by subsection (e) of this Code section, then the civil action as to that defendant shall be dismissed without prejudice by the trial court.
(h) Any objection to the qualifications of an expert witness designated by the plaintiff as required by subsection (e) of this Code section shall be asserted pursuant to the requirements of subsection (b) of this Code section. If the court rules that the expert does not meet the criteria of subsection (a) of this Code section, then the court shall issue an order requiring the plaintiff to identify an expert meeting the requirements of subsection (a) of this Code section within a time period determined by the court which shall not be less than 45 days. If the plaintiff fails to do so, the civil action as to that defendant shall be dismissed without prejudice.
(i) An order dismissing any defendant or the entire civil action pursuant to subsection (g) or (h) of this Code section shall be subject to review by direct appeal pursuant to Code Section 5-6-34 upon the filing of a timely notice of appeal following the entry of the order. If such an order is appealed, the statute of limitations, the statute of repose, and the six-month renewal period shall be tolled until the civil action is remitted to the trial court."
SECTION 4.
This Act shall become effective on July 1, 2004, and shall
apply to any civil action arising on or after July 1, 2004.
SECTION 5.
All laws and parts of laws in conflict with this Act are
repealed.