Cantrell v. AU Med. Ctr., Inc.

• Decision Date: 28 December 2020
• Docket Number: A20A2101
• Citation: 853 S.E.2d 137,358 Ga.App. 41
• Parties: Barbara CANTRELL et al. v. AU MEDICAL CENTER, INC. et al.
• Court: Georgia Court of Appeals

358 Ga.App. 41

853 S.E.2d 137

Barbara CANTRELL et al.

v.AU MEDICAL CENTER, INC. et al.

A20A2101

Court of Appeals of Georgia.

December 28, 2020

George DeVallon Bush, Augusta, Anna Green Cross, Darren Summerville, Atlanta, for Appellant.

Floyd Michael Taylor, James Vance Painter, Amanda DiOrio Lynde, Augusta, for Appellee

Rickman, Judge.

Barbara Cantrell, individually and as Administratrix of the Estate of Kenneth Cantrell, appeals the trial court's order dismissing her complaint against AU Medical Center, Inc., AU Health System, Inc., AU Medical Associates, Inc., and AU Health Professions Associates, Inc. (collectively, AU Medical). Cantrell contends that the trial court erred by granting AU Medical's motion to dismiss because it misread the requirements of OCGA § 9-11-9.1 and OCGA § 24-7-702. For reasons that follow, we reverse.

Cantrell sued AU Medical, among other defendants, for professional negligence and simple negligence, and alleged that AU Medical was directly and vicariously liable for injuries suffered by Kenneth Cantrell while he was a patient at Augusta University Medical Center. Cantrell alleged that AU Medical was liable for the negligent acts and/or omissions of the nurses, nursing aides, and other staff who were agents and/or employees of AU Medical pursuant to the doctrine of respondeat superior. With her complaint, Cantrell submitted the affidavit of a registered nurse, who opined that the hospital staff, including the nurses and nursing assistants caring for Kenneth Cantrell at Augusta University Medical Center, were professionally negligent in providing or failing to provide care for Mr. Cantrell.

In response, the four AU Medical defendants filed separate answers and a joint motion to dismiss. In the motion to dismiss, filed on September 23, 2019, AU Medical asserted that Cantrell had failed to meet the pleading requirements of OCGA § 9-11-9.1 because the nurse's affidavit was incomplete in that it was missing a page and otherwise failed to set forth with any identifying information or specificity at least one negligent act or omission. AU Medical also asserted that the affidavit was deficient because it failed to name specific healthcare providers, failed to provide specific citations to the medical records at issue, and failed to allege that any of the individual healthcare providers were agents or employees of any of the defendants. AU Medical sought dismissal of Cantrell's complaint for failure to file an expert affidavit that satisfied the requirements of OCGA § 9-11-9.1 and OCGA § 24-7-702.

Cantrell responded to the motion to dismiss and, on October 15, 2019, filed an amended complaint for the purpose of including the page of the nurse's affidavit that AU Medical claimed was missing.¹ After conducting a hearing in December 2019, the trial court ruled that the nurse's affidavit failed to sufficiently establish her qualifications as required by OCGA § 24-7-702. The trial court also ruled that the nurse's affidavit failed to set forth with sufficient particularity negligent acts or omissions that would support a claim against AU Medical, as required by OCGA § 9-11-9.1. Based on both rulings, the trial court granted AU Medical's motion to dismiss.

1. Cantrell contends that the trial court erred by granting AU Medical's motion to dismiss on a ground not raised with specificity in the motion. At issue is the trial court's ruling that there was no evidence that the nurse was qualified to render opinions against AU Medical, particularly during the relevant time period.

When a plaintiff in a medical malpractice case has filed an expert affidavit with her complaint, but the affidavit is inadequate in some respect, OCGA § 9-11-9.1 (e) governs the procedure by which the case can be dismissed for want of an adequate affidavit:

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.

"The statute quite clearly, we think, permits dismissal only when the plaintiff fails to cure an inadequacy within 30 days of the filing of a motion to dismiss that identifies the same inadequacy ‘with specificity.’ " Ndlovu v. Pham , 314 Ga. App. 337, 341, 723 S.E.2d 729 (2012).

Here, the only portion of the motion to dismiss that could be deemed relevant to a challenge to the nurse's qualifications is the statement that Cantrell failed to file an affidavit that met the requirements of OCGA § 9-11-9.1 and OCGA § 24-7-702.² The mere mention of the relevant statutes, without any description of the alleged deficiency, is not sufficient to identify an inadequacy in an expert affidavit "with specificity." See Tenet Healthcare Corp. v. Gilbert , 277 Ga. App. 895, 901 (3), 627 S.E.2d 821 (2006), overruled on other grounds, Giles v. State Farm Mut. Ins. Co. , 330 Ga. App. 314, 319 (2), n.2, 765 S.E.2d 413 (2014) (failure to allege in motion to dismiss that expert was incompetent to testify because he had failed to set forth any expertise in the field of nursing waived issue below and precluded raising argument on appeal). And the fact that AU Medical argued during the motion to dismiss hearing that the expert affidavit was inadequate because the affidavit did not properly set out the nurse's qualifications or experience during the relevant time period did not obviate the requirement that they assert such argument in their motion to dismiss. See Dove v. Ty Cobb Healthcare Systems , 316 Ga. App. 7, 11 (2), 729 S.E.2d 58 (2012) ; see also Ndlovu, 314 Ga. App. at 342-343, 723 S.E.2d 729 ("[T]o ascertain whether something is alleged, with specificity, by motion to dismiss, we need look no further than the motion to dismiss itself.") (punctuation omitted).³ Because AU Medical's motion to dismiss did not allege, with specificity, that the nurse was not qualified to give the expert affidavit attached to Cantrell's complaint, the trial court erred in granting AU Medical's motion to dismiss on that basis. See Ndlovu , 314 Ga. App. at 342, 723 S.E.2d 729.

2. Cantrell contends that the trial court erred in granting AU Medical's motion to dismiss based on the alleged failure of the nurse's affidavit to sufficiently identify "one negligent act or omission" as required by OCGA § 9-11-9.1 (a).⁴ She argues that the nurse's affidavit sets out the negligent omissions that support the professional malpractice claims against AU Medical.

" OCGA § 9-11-9.1 imposes a pleading requirement, not an evidentiary requirement." Graham v. Reynolds , 343 Ga. App. 274, 280 (3), 807 S.E.2d 39 (2017). And "[b]ecause OCGA § 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it is to be construed in a manner consistent with the liberality of the Act so long as such a construction does not detract from the purpose of OCGA § 9-11-9.1, which is to reduce the filing of frivolous malpractice suits." (Citation and punctuation omitted.) Gala v. Fisher , 296 Ga. 870, 875, 770 S.E.2d 879 (2015). Accordingly, "[p]laintiffs are given a wide berth to conform to the statutory requirements, and in ruling on a motion to dismiss based on an allegedly defective affidavit, a court should construe the affidavit most favorably to the plaintiff and all doubts should be resolved in the plaintiff's favor, even if an unfavorable construction of the affidavit may be possible." (Citations and punctuation omitted.) Graham , 343 Ga. App. at 280 (3), 807 S.E.2d 39. We review de novo the trial court's ruling on whether the nurse's affidavit met the OCGA § 9-11-9.1 pleading requirements. See id.

To comply with OCGA § 9-11-9.1, an expert affidavit must include at least one specific negligent act or omission giving rise to a malpractice claim and the factual basis for such claim. In its motion to dismiss, AU Medical argued that the nurse's affidavit did not meet this requirement because it failed to name specific healthcare providers, failed to allege that any of the individual healthcare providers were agents or employees of any of the defendants, failed to allege how the defendants were negligent, and failed to provide specific citations to the medical records at issue.

The nurse was not required to specifically name in her affidavit each medical professional-employee whose acts or omissions form a basis for Cantrell's claim of vicarious liability against AU Medical; the nurse's reference to the nursing staff at Augusta University Medical Center d/b/a August University Health, which she stated "includ[ed] any and all agents, employees, and nurses or persons working at that facility who provided care or had an obligation or duty to provide care for Mr. Cantrell including any and all agents, employees, and nurses of [AU Medical]," was sufficient to link any alleged malpractice to AU Medical at this stage of the proceedings. See Howard v. City of Columbus , 219 Ga. App. 569, 574-575 (3) (a), (c), 466 S.E.2d 51 (1995) (physical precedent only) (expert's general identification of defendants as "jail clinic departmental personnel and staff" sufficient to satisfy pleading requirements of OCGA § 9-11-9.1 ; no requirement that affidavit make specific reference to particular defendant so long as it links alleged malpractice to defendants).⁵ Although it is possible that the discovery process will dispel liability on the part of some or all of the defendants, 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...