concurring in part and dissenting in part.
I agree with Division 2 of the majority opinion that the trial court properly rejected Appellants’ constitutional challenge. In Division 1, however, the majority narrowly and illogically construes OCGA § 24-9-67.1 (c) (2). Citing decisions of the Court of Appeals of Georgia, the majority initially concedes that the statute does not require the plaintiffs medical expert “to have knowledge and experience in the ‘same area of practice/specialty as the defendant doctor.’ [Cits.]” (Maj. op. p. 806.) However, the majority then assumes that the plaintiffs expert must have practiced in the single specialty in which the defendant physician was practicing when the alleged malpractice occurred. In doing so, the majority disregards the analysis of the very Court of Appeals opinions which it cites.
*810The General Assembly chose not to follow the example of many other state legislatures which have, by plain and express language, deemed to be qualified only those experts in the same specialty as that practiced by the defendant physician. Cotten v. Phillips, 280 Ga. App. 280, 284-285 (633 SE2d 655) (2006). OCGA § 24-9-67.1 (c) (2) requires that the expert have “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given____” As the Court of Appeals has held, this plain language allows for an overlap in specialties, whereby an otherwise qualified medical doctor practicing or teaching in a different specialty from the defendant can still testify so long as the opinion pertains to the expert witness’ specialty. Abramson v. Williams, 281 Ga. App. 617, 618-619 (636 SE2d 765) (2006); Cotten v. Phillips, supra at 283-284.
“Under the statute, it is the expert’s qualifications, rather than the defendant doctor’s specialty or area of practice, that controls whether the trial court should allow the expert’s testimony.” [Cits.] In addition, whether a plaintiffs expert has “actual knowledge and experience in the area of practice or specialty in which the opinion is to be given” under subsection (c) (2), is determined “not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning plaintiffs injury.” [Cits.] (Emphasis in original.)
MCG Health v. Barton, 285 Ga. App. 577, 581 (1) (647 SE2d 81) (2007). See also Mays v. Ellis, 283 Ga. App. 195, 198 (1) (b) (641 SE2d 201) (2007); Abramson v. Williams, supra at 619. Thus, where the defendant doctor has allegedly failed to make a timely evaluation or a correct diagnosis of a condition which is ordinarily within the purview of a different specialty from his own, or failed to refer a patient to a different specialist, the testimony of an expert in the different specialty may be pertinent and OCGA § 24-9-67.1 (c) (2) would not require its exclusion in that event. MCG Health v. Barton, supra; Mays v. Ellis, supra; Abramson v. Williams, supra; Cotten v. Phillips, supra.
For purposes of determining the admissibility of an opinion under the statute, the alleged failure of one medical specialist to inform a patient of surgical risks and complications which come within a different specialty is an analogous circumstance. Here, the “complaint does not allege that the [defendant physician] negligently performed the... surgery____” MCG Health v. Barton, supra. See also Mays v. Ellis, supra; Cotten v. Phillips, supra at 287. As the majority itself states, Appellants’ complaint alleges only that Dr. Diamond “failed to adequately inform Mr. Nathans of the potential risks and *811complications of the surgical procedure.” (Maj. op. p. 804.) Dr. Gold-stein stated in his affidavit that Dr. Diamond deviated from the standard of care by failing to inform Mr. Nathans adequately of the surgery’s potential pulmonary risks and complications. The affidavit also addressed the proximate cause of those pulmonary complications which arose after surgery. See MCG Health v. Barton, supra; Mays v. Ellis, supra at 198-199 (1) (b); Abramson v. Williams, supra at 617. Because Dr. Goldstein is a pulmonologist who is qualified to give an opinion on these issues, this testimony would obviously pertain to his specialty, and “ ‘the area of practice or specialty in which the opinion is to be given’ in this case is an area of practice in which [Mr. Nathans’] medical expert possessed the requisite knowledge and experience under OCGA § 24-9-67.1 (c) (2). [Cits.]” MCG Health v. Barton, supra at 581-582 (1). See also Mays v. Ellis, supra; Abramson v. Williams, supra at 619; Cotten v. Phillips, supra. Accordingly, the trial court erred in finding that Dr. Goldstein was not qualified pursuant to that statute and in granting summary judgment on this basis. Therefore, I dissent to the affirmance of the trial court’s judgment.
Decided November 21, 2007 Reconsideration denied December 14, 2007. Eason, Kennedy & Crawford, David S. Crawford, for appellants. Mayfield, Commander & Pound, Scott C. Commander, Sommers, Scrudder & Bass, Susan V. Sommers, Jane C. Taylor, Clarence O. Taylor TV, Huff, Powell & Bailey, Randolph P. Powell, Jr., Erica S. Jansen, for appellees.I am authorized to state that Presiding Justice Hunstein joins in this opinion.