Carter v. Cornwell, A16A0925
| Decision Date | 21 September 2016 |
| Docket Number | A16A0925 |
| Citation | 791 S.E.2d 447,338 Ga.App. 662 |
| Parties | Carter v. Cornwell et al. |
| Court | Georgia Court of Appeals |
Stuart Fawcett James, for Appellant.
Cara Elizabeth Weiner, for Appellee.
, Judge.
Following her arrest for altering a prescription to illegally obtain a controlled substance, Tami Carter filed a complaint against William O. Cornwell, M. D., and his practice TCFPA Family Medical Centers, P.C.1 alleging that her arrest was due to Cornwell and TCFPA's negligence. Cornwell and TCFPA filed a motion to dismiss on the basis that Carter failed to file an expert affidavit with her complaint as required by OCGA § 9–11–9.1
. The trial court granted the motion and dismissed the complaint and Carter appeals that order, contending that the trial court erred by granting the motion to dismiss because her claims sounded in simple negligence rather than professional malpractice and thus an expert affidavit was not required. For the following reasons, we affirm in part and reverse in part.
“We review a trial court's ruling on a motion to dismiss de novo, viewing all well-pled allegations in the complaint as true.” (Citation omitted.) Hobbs v. Great Expressions Dental Centers of Ga., P.C. , 337 Ga.App. 248, 786 S.E.2d 897 (2016)
.
So viewed, the record shows that Cornwell had been Carter's physician since 1998 and he treated her for chronic pain. On a visit in August 2014, Cornwell wrote Carter a prescription for 120 pills of hydrocodone
. Before Carter left his office, Cornwell decided to change the quantity of pills on the prescription from 120 to 180 and altered the prescription to reflect that change.
Carter took the prescription to Walgreens and dropped it off. Assuming the prescription had been altered by Carter, a Walgreens employee called TCFPA and spoke to Cornwell's partner who was the on-call physician at the time. The on-call physician was not aware that Cornwell had altered the prescription and did not call Cornwell to verify if he had done so. When Carter arrived back at Walgreens to pick up her pills she was arrested for altering a prescription to illegally obtain a controlled substance.
Carter contends that the trial court erred by granting the motion to dismiss because her claims against Cornwell and TCFPA sounded in simple negligence rather than professional malpractice and thus an expert affidavit was not required. We disagree that Carter's claim against Cornwell for altering her prescription for hydrocodone instead of writing a new prescription is a claim for simple negligence. However, we agree that Carter's claim against TCFPA for failing “to exercise ordinary care in handling on call responsibilities for its patients” was for simple negligence and not professional malpractice and thus an expert affidavit was not required.
(Citations and punctuation omitted.) James v. Hosp. Auth. of City of Bainbridge , 278 Ga.App. 657, 659, 629 S.E.2d 472 (2006)
.
In this case, Carter concedes that when Cornwell decided which controlled substance to prescribe and the dose needed to treat Carter's pain he was acting in his professional capacity. However, Carter argues that when Cornwell changed the quantity of pills from 120 to 180 he was no longer using his professional judgment because he was only carrying out his decision to prescribe Carter hydrocodone and thus would be liable for simple negligence not professional malpractice.
Administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence. We have previously held that a nurse's failure to activate an alarm, as a doctor ordered, was ordinary negligence. Likewise, claims that employees failed to carry out instructions and that hospitals failed to have appropriate equipment alleged ordinary negligence. However, if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.
(Footnotes omitted.) Upson County Hosp., Inc. v. Head , 246 Ga.App. 386, 389, 540 S.E.2d 626 (2000)
.
Pursuant to OCGA § 16–13–41 (a)
, (b) :
[n]o controlled substance in Schedule II may be dispensed without the written prescription of a registered practitioner.... When a practitioner writes a prescription drug order to cause the dispensing of a Schedule II substance, he or she shall include the name and address of the person for whom it is prescribed, the kind and quantity of such Schedule II controlled substance, the directions for taking, the signature, and the name, address, telephone number, and DEA registration number of the prescribing practitioner. Such prescription shall be signed and dated by the practitioner on the date when issued, and the nature of such signature shall be defined in regulations promulgated by the State Board of Pharmacy.2
Carter's claim against Cornwell calls into question his professional judgment in altering the quantity of pills on the prescription that he wrote. Regardless of the reason Cornwell altered the quantity of pills on the prescription, we will not make a distinction between writing the dose of a controlled substance and the quantity of the same. In Georgia, only a registered practitioner may write a prescription for hydrocodone
and, on the prescription, the practitioner must write the kind and quantity of hydrocodone.
[I]t is the duty of the prescribing physician to know the characteristics of the drug he is prescribing, to know how much of the drug he can give his patient, to elicit from the patient what other drugs the patient is taking, to properly prescribe various combinations of drugs, to warn the patient of any dangers associated with taking the drug, to monitor the patient's dependence on the drug, and to tell the patient when and how to take...
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