Zarate-Martinez v. EchemendiaAnnotate this Case
In 2008, Olga Zarate-Martinez filed a medical malpractice complaint against Dr. Michael D. Echemendia, Atlanta Women’s Health Group, P.C., Atlanta Women’s Health Group, II, LLC, and North Crescent Surgery Center, LLC (collectively “Echemendia”), for damages for injuries she sustained during an open laparoscopic tubal ligation that was allegedly negligently performed and which resulted in a perforated bowel. Zarate-Martinez attached to her complaint an affidavit from Dr. Errol G. Jacobi. She later identified Dr. Charles J. Ward as an expert for summary judgment purposes, but she never submitted an affidavit from Dr. Ward in support of her complaint. Echemendia deposed Dr. Ward and Dr. Jacobi, moved to strike the testimony from both doctors on the grounds that they did not qualify as experts, and also moved for summary judgment. Without any reference to some constitutional issues raised, on February 21, 2013, the trial court issued an order striking both experts’ testimony, but granted Zarate-Martinez 45 days in which to file an affidavit from a competent expert witness. Zarate-Martinez timely submitted another affidavit, this time from Dr. Nancy Hendrix, and Echemendia again moved to strike. Zarate-Martinez then filed a supplemental affidavit from Hendrix outside of the 45-day time frame, and, in her reply to the motion to strike, reasserted her constitutional challenges to OCGA 24-7-702 (c). Zarate-Martinez also asserted a new constitutional claim, specifically, that the provisions of OCGA 24-7-702 (c) (2) (A) and (B) were unconstitutionally vague. The trial court struck Hendrix's affidavits, and, without any affidavits from qualified medical experts to support her claim, the trial court dismissed Zarate-Martinez's complaint. The Court of Appeals affirmed and did not reach the constitutional issues since the trial court never addressed them. The Supreme Court vacated the Court of Appeals decision and that of the trial court with respect to the application of OCGA 24-7-702 (c) and remanded for the trial court to reconsider the admissibility of Hendrix's testimony.