Brown v

Middle Ga. Hosp., Inc., 211 Ga. App. 884, 440 S.E.2d 687 (1994). Facsimile copy of expert affidavit satisfies the pleading standards of O.C.G.A. § 9-11-9.1 and the original may then be filed as a supplemental pleading without requiring the action to be renewed. Sisk v. Patel, 217 Ga. App. 156, 456 S.E.2d 718 (1995). Facsimiles of affidavits that are available during the statutory grace period of subsection (b) of O.C.G.A. § 9-11-9.1 may be considered and, further, the original affidavit does not have to be in the plaintiff ’s possession, nor is the plaintiff required to demonstrate that failure to file the original during the grace period resulted from some mistake. Roberts v. Faust, 217 Ga. App. 787, 459 S.E.2d 448 (1995). While a facsimile affidavit can satisfy the requirements of O.C.G.A. § 9-11-9.1, in the absence of an attached valid jurat, a writing in the form of an affidavit has no force or validity especially when the facsimile is a near but not exact copy of the original. Allen v. Caldwell, 221 Ga. App. 54, 470 S.E.2d 696 (1996). Failure of plaintiff to file an expert affidavit did not warrant dismissal of a professional malpractice case since the defendant did not assert this defense in the defendant’s initial responsive pleading. Colston v. Fred’s Pest Control, Inc., 210 Ga. App. 362, 436 S.E.2d 23 (1993). Trial court erred by dismissing a couple’s renewed negligence complaint for failing to file an expert affidavit with the couple’s original complaint as required by O.C.G.A. § 9-11-9.1(a) because the record failed to contain sufficient findings showing whether any professional negligence was involved with regard to the wife falling from a testing table as it was merely speculative whether the technician had to 172 9-11-9.1 CIVIL PRACTICE ACT assess the wife’s medical condition in order to decide whether she could get down from a raised table since it could have been that no professional judgment was required. The trial court additionally erred by dismissing the couple’s renewed complaint because the defending medical entities waived their objection to the renewal by failing to file a separate motion to dismiss contemporaneously with their answer to the couple’s original action. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165 (2009), aff ’d, 287 Ga. 406, 696 S.E.2d 640 (2010). Dismissal of action for failure to file an affidavit under O.C.G.A. § 9-11-9.1 was an adjudication on the merits for purposes of res judicata. Hodo v. Basa, 214 Ga. App. 895, 449 S.E.2d 523 (1994). Defense of failure to file affidavit waived. — Judgment for the defendant was reversed when the defense of failure to attach an affidavit required by O.C.G.A. § 9-11-9.1 was not presented, by way of amendment to the answer, until three months after the filing of responsive pleadings, and until the statute of limitations on the underlying claim had run. Glaser v. Meck, 258 Ga. 468, 369 S.E.2d 912 (1988). Renewed complaint specifically incorporating deposition of plaintiff ’s expert. — When a medical malpractice case was filed originally in March 1985, and dismissed in June 1988 without prejudice for failure of counsel for plaintiffs to appear at a peremptory calendar call, since the plaintiffs refiled the action within the six-month period allowed by O.C.G.A. § 9-2-61 with a renewed complaint which specifically incorporated the discovery taken in the previously dismissed action, including the deposition of the plaintiffs’ expert, but failed to attach the required affidavit to the renewed complaint, and since the defendant/appellant moved to dismiss the renewed complaint for failure to file the required affidavit, the plaintiffs complied with the spirit, if not the letter, of O.C.G.A. § 9-11-9.1, and the trial court properly allowed the amendment. Hospital Auth. v. McDaniel, 192 Ga. App. 398, 385 S.E.2d 8 (1989). Failure to attach expert affidavit is affirmative defense that must be as- 9-11-9.1 serted to be effective. — In a patient’s medical malpractice suit against a hospital and a doctor, the trial court erred in dismissing the complaint as against the hospital based on the patient’s failure to attach an expert affidavit to the patient’s complaint as required by O.C.G.A. § 9-11-9.1 as such failure was an affirmative defense which had to be raised to be effective; since the hospital did not assert that defense, the patient’s failure to attach the expert affidavit did not warrant dismissal of the complaint as against the hospital. Frieson v. S. Fulton Med. Ctr., 255 Ga. App. 217, 564 S.E.2d 821 (2002). Amendment of complaint to include statement regarding failure to attach affidavit. — When a medical malpractice complaint, filed within ten days of the expiration of the statute of limitations, stated that an affidavit would be filed within the extended filing time, and the affidavit was filed within that time, the plaintiff could amend the complaint to include the required language that the affidavit could not be prepared because of time constraints. Glisson v. Hospital Auth., 224 Ga. App. 649, 481 S.E.2d 612 (1997). Intent of section prior to 1989 amendment. — Intent of O.C.G.A. § 9-11-9.1, as the statute existed prior to the 1989 amendment adding subsections (e) and (f ), was the same as the legislature has provided in those subsections, which is (except as provided in paragraph (b)) to cause the dismissal of a malpractice suit when an expert affidavit was not filed, unless such an affidavit had been obtained and the plaintiff by mistake or neglect merely failed ‘‘to file it.’’ Auston v. Greenberg Farrow Architects, 201 Ga. App. 448, 411 S.E.2d 346 (1991). Failure of pro se plaintiff to file affidavit. — Pro se plaintiff was allowed to amend the complaint to invoke the protections of subsection (b) (now (e)) of O.C.G.A. § 9-11-9.1, although the plaintiff failed to allege that the plaintiff was relying on that subsection when the plaintiff originally filed the complaint since the plaintiff had filed the cause of action within ten days of the expiration of the applicable statute of limitation for the plaintiff ’s claim. Thompson v. Long, 201 173 9-11-9.1 CIVIL PRACTICE General Consideration (Cont’d) Ga. App. 480, 411 S.E.2d 322, cert. denied, 201 Ga. App. 904, 411 S.E.2d 322 (1991). Challenge to sufficiency of affidavit. — As a motion to dismiss for an insufficient affidavit under O.C.G.A. § 9-11-9.1 is a motion to dismiss for failure to state a claim under O.C.G.A. § 9-11-12(b)(6), and as O.C.G.A. § 9-11-9.1 does not provide that § 9-11-12 is inapplicable, such a hearing is a permissible method by which to challenge the sufficiency of an affidavit. Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994). Plaintiffs were not required to respond with contrary evidence to the defendant’s challenge to the defendant’s expert’s affidavit; thus, since the affidavit of the plaintiff ’s expert sufficiently established that the expert’s expertise overlapped that of the defendant, the plaintiffs were not required to present any further evidence at that point, and summary judgment based on the sufficiency of the affidavit was improperly granted. Stubbs v. Ray, 218 Ga. App. 420, 461 S.E.2d 906 (1995). Trial court erred in granting a hospital’s motion to dismiss a survivor’s wrongful death action based on O.C.G.A. § 9-11-9.1(e) because of a nurse’s affidavit that allegedly failed to comply with former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) and because the trial court did not consider the survivor’s other affidavit submitted, an unchallenged affidavit from a medical doctor. An affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in the plaintiff ’s favor, even if an unfavorable construction of the affidavit may be possible, so long as such construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits. Piscitelli v. Hosp. Auth. of Valdosta & Lowndes County, 302 Ga. App. 746, 691 S.E.2d 615 (2010). Dismissal of the patient’s medical malpractice action was erroneous because the doctors failed to allege ‘‘with specificity’’ in the doctors’ motion to dismiss, as required by O.C.G.A. § 9-11-9.1(e), the ground upon which the trial court dismissed the action, that the affidavits filed with the patient’s complaint were inadequate be- 9-11-9.1 cause the affidavits said nothing of gross negligence. Ndlovu v. Pham, 314 Ga. App. 337, 723 S.E.2d 729 (2012). Insufficient affidavit. — Action for legal malpractice was properly dismissed, since the affidavit submitted by the plaintiff neither stated the qualifications of the affiant nor provided the affiant’s opinion as to the reasonableness or skill of the defendant attorney’s conduct. Padgett v. Crawford, 189 Ga. App. 568, 376 S.E.2d 724 (1988). Physician’s affidavit was insufficient since the affidavit failed to show that the affiant was ‘‘an expert competent to testify’’ in the field of nursing and did not indicate that the defendant hospital’s nursing staff breached the requisite degree of care and skill required of the nursing profession generally by deviating from the treating physician’s post operative instructions. Piedmont Hosp. v. Milton, 189 Ga. App. 563, 377 S.E.2d 198 (1988). Affidavit required by O.C.G.A. § 9-11-9.1 to be filed with a malpractice complaint is insufficient if the affidavit fails to show the affiant is competent to testify as an expert in the case. Milligan v. Manno, 197 Ga. App. 171, 397 S.E.2d 713 (1990). Two ‘‘affidavits’’ of dentists accompanying a complaint for dental malpractice did not meet the requirements of O.C.G.A. § 9-11-9.1 since a jurat was not affixed to either ‘‘affidavit.’’ In the absence of valid jurats, the documents could not be deemed affidavits. Hill-Everett v. Jones, 197 Ga. App. 872, 399 S.E.2d 739 (1990). Trial court did not err in striking affidavits which, in fact, were not originals but were photocopies, since no original, signed affidavits were filed. Gooden v. Georgia Baptist Hosp. & Medical Center, 198 Ga. App. 407, 401 S.E.2d 602 (1991). Affidavits establishing that the doctor did not contact the affiant for or request from the affiant any x-rays, patient chiropractic data, treatment plan, or chiropractic findings before deciding that the plaintiffs had reached maximum medical treatment failed to set forth specifically that the doctor had failed to obtain such information or that the doctor was in fact negligent merely by failing to contact the 174 9-11-9.1 CIVIL PRACTICE ACT affiant or in failing to request from the affiant the information at issue. The affidavits neither individually nor collectively set forth specifically at least one negligent act or omission claimed to exist. Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 424 S.E.2d 338 (1992). When the expert affidavit of a registered nurse lacking executed jurat was received by mail by the plaintiff ’s attorney and was not notarized by the attorney’s secretary, even though the affiant was not present and neither the attorney nor the secretary/notary had witnessed the affiant’s signing, the affidavit was invalid. Harvey v. Kidney Ctr. of Cent. Ga., Inc., 213 Ga. App. 319, 444 S.E.2d 590 (1994). Affidavit containing a partial transcript of an expert’s testimony in a separate criminal action pertaining to the subject of the plaintiff ’s medical malpractice suit did not satisfy the requirement of O.C.G.A. § 9-11-9.1. Raskin v. Wallace, 215 Ga. App. 603, 451 S.E.2d 485 (1994). In a malpractice action against a physicians and hospital, dismissal of the hospital as a defendant was proper because the plaintiff ’s affidavit did not attribute any negligent act to the nursing staff of the hospital. Goins v. Tucker, 227 Ga. App. 524, 489 S.E.2d 857 (1997). Affidavits were not sufficient because the affidavits did not specify any negligent act or omission by agents or employees of the defendant hospital, nor did the affidavits specify any facts upon which the malpractice claim against the hospital was based. Candler Hosp. v. Carter, 224 Ga. App. 425, 480 S.E.2d 876 (1997). Consideration of evidentiary matters not included in affidavit is improper in acting on a motion to dismiss based on insufficiency of the affidavit. HCA Health Servs., of Ga., Inc. v. Hampshire, 206 Ga. App. 108, 424 S.E.2d 293 (1992). Affidavits from earlier action functioned as amendments in later action against same defendants. — Expert affidavits, which the plaintiffs had filed in an earlier action against the defendants for medical malpractice, functioned as an amendment to the plaintiffs’ complaint in a subsequent action against the same defendants since the affidavits were at- 9-11-9.1 tached to the defendants’ motion to dismiss, and the plaintiff thereby complied with O.C.G.A. § 9-11-9.1. Bell v. Figueredo, 259 Ga. 321, 381 S.E.2d 29 (1989). Affiant not ‘‘active participant’’ in litigation for purposes of ‘‘abusive litigation claim.’’ — Attorney, who provided an expert affidavit in support of a legal malpractice claim, was not an ‘‘active participant’’ in the malpractice litigation and, accordingly, was not liable to the attorney charged with professional malpractice on an abusive litigation theory. Kirsch v. Meredith, 211 Ga. App. 823, 440 S.E.2d 702 (1994). Procedure for challenging noncompliance. — Noncompliance with the requirement for an affidavit in a malpractice action is properly challenged in a defensive pleading seeking dismissal of the complaint for failure to state a claim, not by a summary judgment proceeding. Williams v. Hajosy, 210 Ga. App. 637, 436 S.E.2d 716 (1993). Defect in an expert’s affidavit attached to the complaint in a legal malpractice action should be attacked via motion to dismiss and summary judgment on the basis of such defect was inappropriate. Freeman v. Pittman, 220 Ga. App. 672, 469 S.E.2d 543 (1996). Defense of noncompliance with affidavit requirement was not waived because, even though the defendant did not raise the defense in the defendant’s initial responsive pleading, the defendant acted diligently in raising the defense in the first pleading the defendant filed after discovering evidence causing the defendant to challenge the validity of the affidavit. Harris v. Murray, 233 Ga. App. 661, 504 S.E.2d 736 (1998). Affidavit not subject to evidentiary standards for summary judgment. — When the plaintiff brought a medical malpractice suit, did not file an expert’s affidavit with the complaint, but amended the complaint within 45 days to file an expert’s affidavit, the trial court erred by dismissing the plaintiff ’s complaint for failure of the expert’s affidavit to set forth the appropriate standard of care, the expert’s familiarity with that standard of care, and the specific details of how the 175 9-11-9.1 CIVIL PRACTICE General Consideration (Cont’d) defendants deviated from that standard, since the evidentiary standards applicable to evidence supporting a motion for summary judgment pursuant to O.C.G.A. § 9-11-56(e) are not incorporated in subsection (a) of O.C.G.A. § 9-11-9.1. O-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 378 S.E.2d 708 (1989); Ulbrich v. Batts, 206 Ga. App. 74, 424 S.E.2d 288 (1992). Nothing in O.C.G.A. § 9-11-9.1 suggests that the ‘‘factual basis’’ requirement must be verified by attaching documentary evidence to the affidavit. HCA Health Servs., of Ga., Inc. v. Hampshire, 206 Ga. App. 108, 424 S.E.2d 293 (1992); Howard v. City of Columbus, 219 Ga. App. 569, 466 S.E.2d 51 (1995). Conclusory opinion insufficient to withstand summary judgment. — Malpractice plaintiff, as a respondent on summary judgment, cannot prevail on the motion, when the defendant by the content of the defendant’s expert affidavit has carried the defendant’s burden of proof, merely by presenting a conclusory opinion that the defendant was negligent or failed to adhere to professional standards of conduct, without stating the parameters of such conduct and the particulars of the defendant’s deviation therefrom. Turner v. Kitchings, 199 Ga. App. 860, 406 S.E.2d 280 (1991). Affidavit requirement inapplicable to fraud claim. — Plaintiff ’s fraud claim did not appear to call into question professional standards of care applicable to attorneys but instead the claim appeared to be predicated on misrepresentations which would not be misunderstood by even the most uneducated layman and would be actionable against any person; therefore, the fraud claim did not require an affidavit under O.C.G.A. § 9-11-9.1 and dismissal of the claim was error. Hopkinson v. Labovitz, 231 Ga. App. 557, 499 S.E.2d 338 (1998). Motion under sections considered as failure to state claim. — Motion to dismiss for failure to file an expert affidavit under O.C.G.A. § 9-11-9.1 had to be considered as a motion to dismiss for failure to state a claim under O.C.G.A. 9-11-9.1 § 9-11-12(b)(6). Burke v. Paul, 289 Ga. App. 826, 658 S.E.2d 430 (2008). Cited in Freeman v. Van Dyke, 193 Ga. App. 190, 387 S.E.2d 351 (1989); Kalustian v. McDonald, 194 Ga. App. 435, 390 S.E.2d 657 (1990); Smith v. North Fulton Medical Ctr., 200 Ga. App. 464, 408 S.E.2d 468 (1991); Jarallah v. Schwartz, 202 Ga. App. 32, 413 S.E.2d 210 (1991); Jenkins County Hosp. Auth. v. Landrum, 206 Ga. App. 753, 426 S.E.2d 572 (1992); Lyberger v. Robinson, 207 Ga. App. 845, 429 S.E.2d 324 (1993); Howard v. Jonah, 208 Ga. App. 542, 430 S.E.2d 833 (1993); Hailey v. Blalock, 209 Ga. App. 345, 433 S.E.2d 337 (1993); Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 442 S.E.2d 265 (1994); Floyd v. Piedmont Hosp., 213 Ga. App. 749, 445 S.E.2d 844 (1994); French Quarter, Inc. v. Peterson, Young, Self & Asselin, 220 Ga. App. 852, 471 S.E.2d 9 (1996); Davis v. First Healthcare Corp., 234 Ga. App. 744, 507 S.E.2d 563 (1998); In re Carter, 235 Ga. App. 551, 510 S.E.2d 91 (1998); Ga. Dermatology Clinic, P.A. v. Nesmith, 254 Ga. App. 121, 561 S.E.2d 459 (2002); DOT v. Dupree, 256 Ga. App. 668, 570 S.E.2d 1 (2002); Oakes v. Magat, 263 Ga. App. 165, 587 S.E.2d 150 (2003); Lunsford v. DeKalb Med. Ctr., Inc., 263 Ga. App. 394, 587 S.E.2d 859 (2003); Campbell v. McLarnon, 265 Ga. App. 87, 593 S.E.2d 21 (2003); Atl. Rim Equities, LLC v. Slutzky, Wolfe, & Bailey, LLP, No. 1:04-cv-2647-WSD, 2005 U.S. Dist. LEXIS 38262 (N.D. Ga. Dec. 20, 2005); Travick v. Lee, 278 Ga. App. 823, 630 S.E.2d 99 (2006); Chatham Orthopaedic Surgery Ctr., LLC v. White, 283 Ga. App. 10, 640 S.E.2d 633 (2006); Davenport v. Cummins Alabama, Inc., 284 Ga. App. 666, 644 S.E.2d 503 (2007); In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007); UniFund Fin. Corp. v. Donaghue, 288 Ga. App. 81, 653 S.E.2d 513 (2007); Emory Adventist, Inc. v. Hunter, 301 Ga. App. 215, 687 S.E.2d 267 (2009); Postell v. Hankla, 317 Ga. App. 86, 728 S.E.2d 886 (2012); Cope v. Evans, 329 Ga. App. 354, 765 S.E.2d 40 (2014). Notary Requirement De facto notary doctrine. — Pursuant to the de facto notary doctrine, an expert’s affidavit satisfied the require- 176 9-11-9.1 CIVIL PRACTICE ACT ments of O.C.G.A. § 9-11-9.1, despite the fact that the commission of the notary who attested the affidavit had expired. Thomas v. Gastroenterology Assocs. of Gainesville, P.C., 280 Ga. 698, 632 S.E.2d 118 (2006). Expert’s affidavit was invalid when oath was administered by notary public over telephone. Redmond v. Shook, 218 Ga. App. 477, 462 S.E.2d 172 (1995). Expert Qualification Expert despite financial interest. — Lawyer was ‘‘an expert competent to testify’’ despite the lawyer’s previous representation of the plaintiff in this matter and the fact that the lawyer had a financial interest in the outcome of this suit at the time the lawyer submitted the lawyer’s affidavit. Findley v. Davis, 202 Ga. App. 332, 414 S.E.2d 317 (1991). Expert in one’s own behalf. — Attorney, as well as a physician, may make an affidavit as an expert in their own behalf. Findley v. Davis, 202 Ga. App. 332, 414 S.E.2d 317 (1991). Correct standard for legal malpractice expert. — In a legal malpractice claim, whether the expert resides in Georgia or is a licensed member of the bar at the time of the alleged negligence is not indicative of competency. The correct standard is whether at the time of testifying the expert has knowledge of the applicable standard of care on at least one matter on which the claim is based. Morris v. Atlanta Legal Aid Soc’y, Inc., 222 Ga. App. 62, 473 S.E.2d 501 (1996). Section applicable to claims requiring expert witness. — Affidavit was required since it was alleged that the dentist gave inappropriate medication, did not properly monitor the patient’s condition, and did not use proper technique to resuscitate the patient after the patient was in distress; these claims would require an expert witness and were not allegations of simple negligence. Edwards v. Vanstrom, 206 Ga. App. 21, 424 S.E.2d 326 (1992). Self-contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986) does not apply to the testimony of a non-party 9-11-9.1 expert witness who submits an affidavit in support of a claim of professional malpractice. Thompson v. Ezor, 272 Ga. 849, 536 S.E.2d 749 (2000), affirming Ezor v. Thompson, 241 Ga. App. 275, 526 S.E.2d 609 (1999). Competence of affiant. — Resolution of the issue of whether the affiant physician was competent to give testimony with respect to the defendant’s area of speciality was ill-suited to disposition on a motion to strike. Cahela v. Bernard, 155 F.R.D. 221 (N.D. Ga. 1994). Trial court properly denied dismissal of a patient’s widow’s medical malpractice action against assorted medical personnel and entities, based on claims that the widow’s expert affidavit pursuant to O.C.G.A. § 9-11-9.1 was insufficient as the fact that the doctor who acted as the expert was no longer licensed to practice medicine due to revocation for substance abuse issues did not impact the validity of the affidavit, which had no licensure requirement to it; the licensure issue was irrelevant to the validity of the affidavit, although licensure could be relevant for purposes of credibility. Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 627 S.E.2d 821 (2006). In a medical malpractice action, given the relevant past experience of the patient’s expert as a nurse, and the expert’s familiarity with the degree and skills required of nurses and other medical staff in giving intermuscular injections, the expert was sufficiently qualified to render an expert opinion in the case. Allen v. Family Med. Ctr., P.C., 287 Ga. App. 522, 652 S.E.2d 173 (2007). Trial court did not abuse the court’s discretion by dismissing the parents’ medical malpractice action because the court correctly found that the purported expert offered by the parents failed to make even one diagnosis of a vascular ring within five years of the date at issue, and had not taught others for at least three of the last five years to diagnose a vascular ring. Spacht v. Troyer, 288 Ga. App. 898, 655 S.E.2d 656 (2007), cert. denied, 129 S. Ct. 726, 172 L.Ed.2d 726 (2008). Qualification of affiant. — For an affiant to constitute ‘‘an expert competent to testify’’ under subsection (a) of O.C.G.A. 177 9-11-9.1 CIVIL PRACTICE Expert Qualification (Cont’d) § 9-11-9.1, the affiant’s expertise must include knowledge of the standard of care applicable to the defendant-physician as to at least one of the matters on which the plaintiff ’s malpractice claim is based. Chandler v. Koenig, 203 Ga. App. 684, 417 S.E.2d 715 (1992). Toxicologist and pharmacologist, who was not a medical doctor, was competent to give an opinion in a medical malpractice action that a drug prescribed by the defendants caused the plaintiff ’s miscarriage since the affiant’s testimony was not offered to address the applicable standard of care, but to show causation. Sinkfield v. Shi-Han Oh, 229 Ga. App. 883, 495 S.E.2d 94 (1998). When a couple who filed a medical malpractice case did not show that their experts had actual professional knowledge and experience through active practice or by teaching during at least three of the last five years, the trial court properly held under O.C.G.A. § 9-11-9.1 and former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) that the experts were not qualified to give an opinion and dismissed the case. Akers v. Elsey, 294 Ga. App. 359, 670 S.E.2d 142 (2008). Trial court did not err in dismissing a medical malpractice action on the ground that an anesthesiologist’s affidavit in support of the complaint was insufficient under O.C.G.A. § 9-11-9.1 because the anesthesiologist did not meet the licensing requirement for expert witnesses, former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702); although the anesthesiologist’s amended affidavit in support of a medical malpractice complaint indicated that the anesthesiologist held a medical license from Pennsylvania on the date of the alleged negligent act, there was no evidence that the anesthesiologist was practicing in that state. Craigo v. Azizi, 301 Ga. App. 181, 687 S.E.2d 198 (2009). In a deceased patient’s family’s action against a hospital arising out of an alleged failure to properly treat decubitus ulcers (pressure sores), the expert affidavit failed to comply with O.C.G.A. §§ 9-11-9.1(a) and 24-7-702(c)(2); the expert was a coroner with a specialty in forensic pathology 9-11-9.1 and not engaged in the treatment of decubitus ulcers. Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833, 769 S.E.2d 575 (2015). Affiant prima facie qualified as expert. — When the affiant was a licensed, registered nurse with specialized training in enterostomal therapy and was employed by Visiting Nurse Services, Inc. as an employee health nurse when according to the affiant, the affiant’s graduate course qualified the affiant as a specialist in wound treatments, and when the affiant’s opinion concerned the standard of care administered to the decedent by the defendant nursing home through the home’s nursing staff, the affiant was prima facie qualified according to the affiant’s training and experience to give the affiant’s opinion as an expert. Thurman v. Pruitt Corp., 212 Ga. App. 766, 442 S.E.2d 849 (1994). Affidavit need not be based on affiant’s actual personal knowledge. — Expert affidavit filed with a complaint pursuant to O.C.G.A. § 9-11-9.1 need not be based upon the affiant’s actual personal knowledge. To the contrary, the affiant may base the affiant’s expert opinion upon an assumption that the factual allegations of the complaint are true, just as the affiant could base the affiant’s expert opinion at trial upon an assumption of the truth of the evidence adduced to support those allegations. Druckman v. Ethridge, 198 Ga. App. 321, 401 S.E.2d 336 (1991); Ulbrich v. Batts, 206 Ga. App. 74, 424 S.E.2d 288 (1992). Competency of expert providing affidavit. — Rule governing the competence of a member of one school of medical practice to testify against a member of another school applies not only to testimony presented at trial but also to the affidavit required to be filed with the complaint. Milligan v. Manno, 197 Ga. App. 171, 397 S.E.2d 713 (1990). Affidavit indicating that witness in an action against an allopathic physician was a licensed osteopathic physician was insufficient since the affidavit contained no evidence that the methods of treatment of the plaintiff ’s condition were the same so as to bring the witness within the exception to the general rule that rendered the 178 9-11-9.1 CIVIL PRACTICE ACT witness incompetent to testify. Milligan v. Manno, 197 Ga. App. 171, 397 S.E.2d 713 (1990). Mere fact an affiant is an expert in his or her school of knowledge does not necessarily mean the expert is ‘‘competent to testify’’ under subsection (a) of O.C.G.A. § 9-11-9.1. Chandler v.