Bowen v. Adams, A91A1965

• Decision Date: 05 February 1992
• Docket Number: No. A91A1965,A91A1965
• Citation: 416 S.E.2d 102,203 Ga.App. 123
• Parties: BOWEN v. ADAMS.
• Court: Georgia Court of Appeals

Page 102

416 S.E.2d 102

203 Ga.App. 123

BOWEN v. ADAMS.

No. A91A1965.

Court of Appeals of Georgia.

Feb. 5, 1992.

Reconsideration Denied March 2, 1992.

Certiorari Denied May 27, 1992.

G. Clyde Dekle III, Atlanta, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, Atlanta, for appellee.

CARLEY, Presiding Judge.

Appellant-plaintiff filed the instant medical malpractice action, alleging that appellee-defendant had performed "an unnecessary operative procedure which was not needed or indicated by [her] condition." Appellee answered and subsequently moved to dismiss for failure to state a claim for medical malpractice, urging that the expert affidavits that had been filed with appellant's complaint did not satisfy the requirements of OCGA § 9-11-9.1. The trial court granted appellee's motion to dismiss and appellant appeals.

"In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." OCGA § 9-11-9.1(a). Unlike OCGA § 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action. Robinson v. Starr, 197 Ga.App. 440, 441(2), 398 S.E.2d 714 (1990). Accordingly, an expert affidavit which would be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1. 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga.App. 286(1), 378 S.E.2d 708 (1989). The sufficiency of the expert affidavit determines whether the complaint for malpractice "is subject to dismissal for failure to state a claim...." OCGA § 9-11-9.1(e). When the sufficiency of a plaintiff's complaint to state a claim for relief is questioned by a motion to dismiss, it is to "be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed. [Cit.]" Ghitter v. Edge, 118 Ga.App. 750, 752(1), 165 S.E.2d 598 (1968).

The negligent act "claimed to exist" in the instant case is appellee's performance of "an unnecessary operative procedure" upon appellant. In support of this claim, appellant attached to her complaint the affidavit of a physician whose competency has not been questioned. Nowhere in this affidavit did appellant's expert specifically opine that appellee's performance of the surgical procedure was, as appellant had alleged in her complaint, an act of medical negligence. However, even in the evidentiary context of a motion for summary judgment on the merits, "such explicit conclusory pronouncements out of the mouths of those clothed with the mantle of evidentiary expertise are not essential." Lawrence v. Gardner, 154 Ga.App. 722, 724, 270 S.E.2d 9 (1980). See also Jackson v. Gershon, 251 Ga. 577, 308 S.E.2d 164 (1983). "The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of...