Chandler v. Opensided Mri of Atlanta, LLC

• Decision Date: 15 July 2009
• Docket Number: No. A09A0445.,A09A0445.
• Parties: CHANDLER et al. v. OPENSIDED MRI OF ATLANTA, LLC et al.
• Court: Georgia Court of Appeals

682 S.E.2d 165

299 Ga. App. 145

CHANDLER et al. v. OPENSIDED MRI OF ATLANTA, LLC et al.

No. A09A0445.

Court of Appeals of Georgia.

July 15, 2009.

Barry L. Zimmerman, Norcross, for Appellants.

Insley & Race, Brynda R. Insley, Atlanta, for Appellees.

ADAMS, Judge.

In this re-filed civil action, plaintiffs Ollie Mae Chandler and Grady Chandler, Sr., sued defendants Opensided MRI of Atlanta, LLC, Opensided Management, LLC, and MMR Holdings, Inc., alleging that they suffered injuries caused by defendants' negligence. The trial court granted defendants' motion to dismiss on the ground that the Chandlers failed to file an expert affidavit with their original complaint in accordance with OCGA § 9-11-9.1(a). On appeal, we hold that there is not enough information in the record to determine whether the original complaint alleged only professional malpractice. And, even if it did, the defendants waived their defense to renewal under OCGA § 9-11-9.1 by not filing a motion to dismiss contemporaneously with their answer to the original complaint.

On appeal, we conduct a de novo review of a trial court's ruling on a motion to dismiss. Penny v. McBride, 282 Ga.App. 590, 639 S.E.2d 561 (2006). Our role is "to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts." Id.

The original complaint shows that on May 18, 2005, Ollie Chandler went to the defendants' outpatient medical imaging facility to undergo a magnetic resonance imaging (MRI) of her right shoulder. Mrs. Chandler was led to the treatment room by an MRI technician, where she lay down on the MRI table. After the procedure had been completed, the technician discussed the results with Chandler and told her that she could get up. In attempting to do so, she fell to the floor and suffered serious injuries. The complaint alleged that the table was lowered when she got on but not lowered when she got off.

On April 11, 2007 (nearly one month before the expiration of the statute of limitations¹), the Chandlers filed a complaint against the defendants. The complaint alleged that the defendants caused Chandler's fall by negligently failing to lower the MRI table and by failing to assist her off the table after the procedure was completed. Mr. Chandler claims loss of consortium. The complaint did not include an expert affidavit as required by OCGA § 9-11-9.1(a) in professional malpractice cases.

On May 24, 2007, after the statute of limitations had run, defendants filed their answers to the complaint, which included defenses that the complaint failed to state a claim upon which relief can be granted and that it did not comply with the affidavit requirement under OCGA § 9-11-9.1. But they did not move to dismiss on this ground at the time of their answer. It was not until five months later that defendants filed a motion to dismiss the complaint based on failure to file an expert affidavit. One month later, the Chandlers voluntarily dismissed their complaint without prejudice.

On December 12, 2007, the Chandlers re-filed their complaint and attached an affidavit of a radiology technician, which alleged that the defendants' failure to lower the MRI table and to assist Mrs. Chandler off the table breached the standard of care for radiological technicians. Shortly thereafter, defendants filed their answers and re-filed their motion to dismiss the complaint. On August 8, 2008, the trial court entered an order granting the defendants' motion to dismiss the re-filed complaint on the grounds that the original complaint alleged professional malpractice but failed to include an expert affidavit as required by OCGA § 9-11-9.1(a) and that the re-filed complaint was barred by the statute of limitation. This appeal followed.

1. The Chandlers contend the trial court erred in dismissing their re-filed complaint, arguing that neither their original nor their re-filed complaint alleged professional negligence, and thus a Section 9.1 affidavit was not required. We conclude that there is not enough information in the record to determine whether the case involves only professional negligence. It could be true that the table was too high for anyone to get off or that the technician simply forgot to lower the table. The facts are not sufficiently developed on this point.

When assessing whether the complaint alleges ordinary negligence, we must liberally construe the allegations of the complaint and only conclude that ordinary negligence has not been alleged if it is foreclosed by the complaint itself:

In determining, as a matter of law, whether the complaint alleged claims based on ordinary negligence, professional negligence, or both, ... we look solely to the allegations of the complaint and liberally construe the allegations to state a claim if, within the framework of the complaint, the plaintiff may introduce evidence which will sustain a grant of relief based on the claim. We will conclude that the complaint does not allege a claim only if the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief on the claim under any state of provable facts.

(Citations and punctuation omitted.) Health Mgmt. Assoc. v. Bazemore, 286 Ga.App. 285, 648 S.E.2d 749 (2007) (evidence might establish either professional or ordinary negligence). See also Peterson v. Columbus Med. Center Foundation, 243 Ga.App. 749, 755(2), 533 S.E.2d 749 (2000).

In falling patient cases, the distinction between ordinary and professional negligence turns on whether the decision on how to monitor, assist or care for the patient was based on a professional assessment of whether the patient, based on the patient's medical condition, required assistance of some sort. See Brown v. Tift County Hosp. Auth., 280 Ga.App. 847, 849-850, 635 S.E.2d 184 (2006). "[I]f the specific information known to the defendant was such that a jury could determine without the help of expert testimony whether the defendant exercised due care in failing to prevent the patient's fall, the claim sounds in ordinary negligence and no expert affidavit is required." Id.

In this case we can only speculate whether the MRI technician had to assess Chandler's medical condition in order to decide whether she could get down from a raised examination table. It could be that no professional judgment was required. Her medical condition, a shoulder problem, could be completely unrelated to the action necessary to get down from a high table. See, e.g., Candler Gen. Hosp. v. McNorrill, 182 Ga.App. 107, 354 S.E.2d 872 (1987) (ordinary negligence where registered nurse dropped patient due to failure to obtain additional assistance or proper equipment to move patient). Like in McNorrill, "there is no evidence indicating that appellee's underlying medical condition was such that only an employee ... with professional medical training would have been authorized to undertake the act," of, in this case, lowering the table, assisting Chandler, or warning her that the table was too high to get down. The dissent concludes that the degree to which Mrs. Chandler needed assistance, given her pre-existing shoulder injury, required the exercise of the MRI technician's expert medical judgment. That certainly could be true, but it is speculation at this point.

Also, "[i]f the alleged negligent act or omission of a hospital employee does not require the exercise of expert medical judgment, the fact that the employee also has expert medical credentials does not make the case one of `medical malpractice.'" McNorrill, 182 Ga.App. at 110, 354 S.E.2d 872. And here, as in Bazemore, the plaintiff could develop evidence showing that her fall resulted from ordinary negligence, such as the table was simply too high for anyone to get down. Because the original complaint does not preclude such a claim, dismissal for failure to provide an expert affidavit was premature.

2. The trial court also erred by dismissing the plaintiffs' renewed complaint because the defendants waived their objection to the plaintiffs renewing their complaint to add the required affidavit. They did so by failing to file a separate motion to dismiss contemporaneously with their answer to the plaintiffs' original action.

(a) The plain language of the current version of OCGA § 9-11-9.1(f) limits a plaintiff's ability to renew an affidavit-less complaint after the running of the statute of limitation, but it provides that a defendant must file a motion to dismiss contemporaneously with the answer in order to enforce that limitation:

If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.

(Emphasis supplied.) In 1997, the legislature specifically added the language "by motion to dismiss filed contemporaneously with" to this rule.² Prior to 1997, the subsection only required the defendant to raise the failure to file an affidavit "in its initial responsive pleading."³ "The purpose of this [new] provision [was] to resolve any questions about the sufficiency of the affidavit early in the litigation."⁴

The legislature was fully aware in 1997 that a responsive pleading (usually an answer) and a motion to dismiss are two separate things.⁵ Also, the legislature specifically added the motion requirement to three subsections of the statute. Later, however, the legislature...