Bonner v. Peterson

• Decision Date: 08 December 2009
• Docket Number: No. A09A1644.,A09A1644.
• Citation: 301 Ga. App. 443,687 S.E.2d 676
• Parties: BONNER v. PETERSON, et al.
• Court: Georgia Court of Appeals

687 S.E.2d 676

301 Ga. App. 443

BONNER v. PETERSON, et al.

No. A09A1644.

Court of Appeals of Georgia.

December 8, 2009.

Randolph Frails, Edwin A. Wilson, Augusta, for appellant.

Thurbert E. Baker, Attorney General, Claude M. Sitton, Assistant Attorney General; Rutherford & Christie, Vincent A. Toreno, Atlanta, Parker M. Green, for appellees.

BLACKBURN, Presiding Judge.

In this medical malpractice action, Moswen A. Bonner appeals from the trial court's dismissal of his complaint against Letty Revell Peterson, M.D. and Daniel J. Sheehan, M.D. Bonner asserts that the trial court erred in holding: (1) that he failed to timely assert a medical malpractice claim against Dr. Sheehan; and (2) that Dr. Peterson was entitled to qualified immunity. We agree that the trial court erred in finding that Bonner's complaint and amended expert affidavit failed to assert a timely medical malpractice claim against Dr. Sheehan, and therefore reverse the trial court's dismissal of that claim. We affirm the dismissal of Bonner's claims against Dr. Peterson, however, because we agree with the trial court's conclusion that her status as a state-employed resident physician entitled her to qualified immunity for any liability resulting from her allegedly negligent treatment of Bonner.

We review a trial court's order dismissing a plaintiff's complaint de novo. Lewis v. Ga. Dept. of Human Resources.¹ Where the order of dismissal was based upon the plaintiff's failure to state a claim upon which relief could be granted (see OCGA § 9-11-12(b)(6)), we "will affirm the same only where ... the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted therein. ..." (Punctuation omitted.) Love v. Morehouse College.² A motion to dismiss asserting sovereign immunity, however, is based upon the trial court's lack of subject matter jurisdiction, rather than the merits of the plaintiff's claim. See Dept. of Transp. v. Dupree;³ OCGA § 9-11-12(b)(1). The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court's pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12(b)(1) motion is reviewed on appeal under the any evidence rule. Id.

The record shows that on January 5, 2006, Bonner went to the dermatology clinic at the Medical College of Georgia ("MCG") for treatment of a bump on his chin. He was seen by Dr. Sheehan, an attending physician, and by Dr. Peterson, who was then a third-year resident physician. After examining Bonner, Dr. Sheehan told him the bump was most likely an ingrown hair and that they could attempt to treat the same either with antibiotics or by performing a procedure known as a shave biopsy. Bonner elected the shave biopsy, which involved numbing the site, removing the bump, and sending the same for a laboratory analysis. Dr. Sheehan told Bonner that Dr. Peterson would be performing the procedure, and left the room. Dr. Peterson then requested and received the necessary equipment from the nursing staff and removed the bump from Bonner's face. She then applied a substance she believed to be aluminum chloride to the area. The substance was, in fact, potassium hydrochloride and its application to Bonner's skin resulted in a more severe lesion developing on Bonner's chin.

On January 3, 2008, Bonner filed suit against both physicians, asserting claims against Dr. Peterson for professional negligence, battery, and intentional infliction of emotional distress, and asserting a claim against Dr. Sheehan based upon the theory of respondeat superior. While alleging that Dr. Sheehan was vicariously liable for the negligence of Dr. Peterson, Bonner's complaint also alleged that Dr. Sheehan had failed to properly supervise and train Dr. Peterson. Attached to Bonner's complaint was the expert affidavit required by OCGA § 9-11-9.1, in which the expert opined that Dr. Peterson had failed "to exercise the required degree of skill and care to ensure that the substance that was placed on Mr. Bonner's skin would not harm him." The expert further stated that his affidavit did not contain "a comprehensive list of all deviations from the standard of care" and that he expressly reserved the right "to amend or supplement my opinions in the future after I have seen additional records, deposition testimony, or other evidence."

Dr. Sheehan filed his answer on February 6, 2008 and on April 21, 2008, he moved to dismiss Bonner's claim against him, arguing that (1) because he was not Dr. Peterson's employer, he could not be held liable for her negligence under the theory of respondeat superior; and (2) the allegation that Dr. Sheehan had failed to properly train or supervise Dr. Peterson constituted a claim for medical malpractice and this claim was not supported by the expert affidavit attached to the complaint. In response to this motion, Bonner filed an amended expert affidavit, in which the expert opined that Bonner's injuries "resulted at least in part from a failure by Dr. Sheehan to exercise the required degree of skill and care to ensure that Dr. Peterson was properly supervised. ..."

Dr. Peterson filed a separate motion to dismiss, asserting that, as a state employee, she was entitled to qualified immunity under the Georgia Tort Claims Act ("GTCA") (OCGA § 50-21-20 et seq.). She further asserted that her status as a resident physician entitled her to immunity under OCGA § 51-1-38(a), which provides tort immunity to medical students.

Following a hearing, the trial court granted both motions, and this appeal followed.

1. In granting Dr. Sheehan's motion, the trial court found that (i) the allegations of the complaint asserted a claim for professional negligence against Dr. Sheehan, based upon his failure to properly supervise or train Dr. Peterson; (ii) the expert affidavit attached to the complaint did not satisfy the requirements of OCGA § 9-11-9.1, because it failed to reference any negligent conduct by Dr. Sheehan or state that such conduct breached the applicable standard of care; and (iii) the amended affidavit did not cure this deficiency because it was filed after the statute of limitation had expired and it "essentially add[ed] an entirely new claim to the case, i.e., one of professional negligence against Dr. Sheehan." While we agree with the first two of these findings, we disagree with the third.

None of the parties disputes the trial court's finding that Bonner's original complaint asserted a claim against Dr. Sheehan for professional negligence. Although Bonner's complaint termed his claim against Dr. Sheehan as one for vicarious liability under the doctrine of respondeat superior, it alleged that Bonner's injuries resulted, in part, from "[Dr.] Sheehan's failure to properly supervise and/or train [Dr. Peterson]." As Dr. Sheehan acknowledges in his brief, "[this] allegation[] call[s] into question [Dr.] Sheehan's professional judgment in his area of expertise and, accordingly, the trial court properly ruled that the claim against [Dr.] Sheehan is ... one for professional negligence. ..." See also Upson County Hosp. v. Head.⁴

Nor do the parties dispute that OCGA § 9-11-9.1 required Bonner to support this claim by filing an expert affidavit which set forth at least one alleged negligent act or omission attributable to Dr. Sheehan and the factual basis for that allegation. See OCGA § 9-11-9.1(a)(3); HCA Health Svcs. etc., v. Hampshire⁵ (to satisfy the requirements of OCGA § 9-11-9.1, the expert affidavit must "set forth specifically at least one negligent act or omission claimed to exist as to each professional defendant (jointly, where appropriate; otherwise, severally) and the factual basis for the claim against each defendant"). Although Bonner's original expert affidavit failed to meet this requirement, the amended expert affidavit he filed in response to Dr. Sheehan's motion to dismiss did satisfy OCGA § 9-11-9.1. The trial court, however, found that the amended affidavit did not save Bonner's claim against Sheehan from dismissal, because the amended affidavit asserted a "new" claim for malpractice after the statute of limitation had expired.⁶ We disagree.

As a threshold matter, the trial court's conclusion that the affidavit set forth a new cause of action directly contradicts its finding that Bonner's claim against Dr. Sheehan was, in fact, a claim for medical malpractice, and therefore subject to the expert affidavit requirement of OCGA § 9-11-9.1. Rather than asserting a new claim, therefore, the amended affidavit merely supported the claim set forth in the complaint by alleging that the conduct of Sheehan which injured Bonner (conduct which was specified in the complaint) breached the applicable, professional standard of care — i.e., it constituted medical malpractice.

Moreover, OCGA § 9-11-9.1(e) specifically allowed Bonner to amend his expert affidavit in response to Dr. Sheehan's motion. That statute provides, in relevant part:

If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff's complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective. ...

Thus, subsection (e) allows a plaintiff to amend an allegedly defective expert affidavit to "present[] additional evidence of deviation from the standard of care against defendants sued in the original complaint in order to meet the requirement that the affidavit set forth at least one claimed negligent act or omission by each defendant." (Emphasis supplied.) Thomas v. Med. Center of Central Ga.⁷ See also Porquez v....