¶1dissenting.
¶2I respectfully dissent. I would find the affidavit in this case to be insufficient because it did not come from a member of the nursing profession.
¶3Few issues have proved more vexatious to trial lawyers, trial judges, and the appellate courts of this state than the proper application of OCGA § 9-11-9.1. Intended to prevent frivolous litigation and all the costs inherent therein for both litigants and courts, this rule has instead caused more litigation. Rather than dealing at the summary judgment stage with the issues the legislature intended to solve, we have added a new layer of litigation at the motion to dismiss stage.
¶4Since its enactment in 1987, there have been approximately 90 decisions from this court and the Supreme Court wrestling with this rule. Sadly, in the effort to bring some order and predictability to this area of the law, it appears that we have made matters worse. Perhaps it is time for the legislature to reconsider OCGA § 9-11-9.1, and to conclude that, it was little more, in the end, than a noble effort which failed miserably to accomplish the goals for which it was enacted.
¶5The instant case is a clear example of the difficulty the application of this rule has presented to all who are concerned with it. We are required to address once again the question of overlapping expertise. The claim of professional negligence is against a nurse and relates to nursing care; the affidavit is from a physician and relates to “the medical profession generally,” not to nursing care, even though the physician asserts that he is familiar with the standard of care of *257intubated patients. The effect of this statement would be to qualify him as an expert in every profession connected to medicine. In my view, his affidavit is insufficient to make him an expert on the standard of care in the nursing profession. Consistent with our previous decisions, this court could go either way on the sufficiency of the affidavit, and thus on the application of OCGA § 9-11-9.1 to the facts presented, and take either view in complete good faith. That is the problem. In our struggles to decide the matter “once and for all,” we have done little more than assure, as best we can, that justice is done on a case-by-case basis. In the process, we have so muddied the waters as to what is acceptable and sufficient that we have put ourselves in the position of having to decide even more cases on that same flawed basis. We have thus robbed the trial courts and practitioners of any standard by which to gauge the matter save analogy, which, given our previous decisions, amounts to little if any guidance at all.
¶6This case presents us with a perfect opportunity to provide meaningful guidance to the bench and bar of Georgia as well as to significantly reduce the amount of litigation over the rule. The Supreme Court, in Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992), established a bright-line standard for determining to whom the rule applies. That decision was long overdue, and accomplished in significant measure the goal of providing certainty and predictability to this area of the law for the benefit of practitioners and the trial courts. We should use the instant case to finish the job by establishing another bright-line standard. We should hold that an affidavit, to be deemed sufficient under OCGA § 9-11-9.1, must come from a member of the same profession as the defendant against whom the claim of professional negligence is made. While there is some validity to the notion that we should recognize the reality of overlapping expertise as we consider challenges to the sufficiency of affidavits filed pursuant to the rule, it seems that the time has come for us to recognize that we do more harm than good to the judicial system and to those who use it in these cases when we approach this issue in the way we have. It requires that we examine the question on a case-by-case basis after taking into account the peculiar facts of each case. There is little predictability and little guidance possible under the method of analysis we presently employ. The rule I propose provides clear guidance and absolute predictability while presenting no real hardship to the plaintiffs who must obtain the affidavit. If the claim is against a physician, it would be clear to the plaintiffs, the defendants, and the trial courts that the affidavit must come from a physician. If the claim is against a nurse, as in this case, the affidavit must come from a nurse, and so on down the line as to each profession to whom the rule applies now that Gillishas given us a clear standard.