Dozier v. Clayton County Hosp. Authority

• Decision Date: 08 October 1992
• Docket Number: No. A92A0413,A92A0413
• Citation: 424 S.E.2d 632,206 Ga.App. 62
• Parties: DOZIER et al. v. CLAYTON COUNTY HOSPITAL AUTHORITY et al.
• Court: Georgia Court of Appeals

Page 632

424 S.E.2d 632

206 Ga.App. 62

DOZIER et al. v. CLAYTON COUNTY HOSPITAL AUTHORITY et al.

No. A92A0413.

Court of Appeals of Georgia.

Oct. 8, 1992.

Reconsideration Denied Oct. 30, 1992.

Certiorari Denied Jan. 7, 1993.

Franklin, Taulbee, Rushing & Bunce, James B. Franklin, Keith A. McIntyre, Statesboro, for appellants.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Love & Willingham, Daryll Love, Alston & Bird, Judson Graves, Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., Robert J. Higdon, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

This is an appeal from the order of the superior court granting Clayton County Hospital Authority's (authority) motion for partial summary judgment on the issue of sovereign immunity, and the motions of all appellees to strike and dismiss the complaint for failure to attach a legally sufficient affidavit thereto in this medical malpractice suit.

On February 14, 1991, appellants filed a medical malpractice action alleging the February 19, 1989 wrongful death of Gregory A. Dozier. Attached to the complaint was a document entitled "Affidavit of George Podgorny, M.D." At least one negligent act or omission on the part of each defendant was set forth in the document, and the document appears to assert therein the factual basis for each medical malpractice claim. However, the document reveals that the opinions of Dr. Podgorny were based at least in part upon his review of a variety of medical and hospital records, none of which was attached to the complaint. Appellees asserted an affirmative defense in their answers that the affidavit failed to comply with the requirements of OCGA § 9-11-9.1, and asserted a failure of the complaint to state a claim upon which relief could be granted. Appellees filed motions to strike and to dismiss the complaint, and appellee hospital also filed a motion for partial summary judgment on the issue of sovereign immunity. Appellants thereafter filed an amended complaint with medical records attached. The trial court found that appellants had not attached the medical records to the affidavit; that appellants possessed the medical records before the complaint was filed; that appellants' expert had reviewed those records before giving his opinion; that the affidavit failed to meet the requirements of OCGA § 9-11-9.1(a); and that the failure to attach the medical records was not a "mistake." The trial court granted the appellees' motions to dismiss, and also granted appellee authority's motion for partial summary judgment on the issue of sovereign immunity. Held:

1. Pursuant to Court of Appeals Rule 13, the motion of the Georgia Trial Lawyers Association for the consideration of their "Brief of Amicus Curiae" is granted.

2. Appellants assert the trial court erred in granting appellee authority's motion for partial summary judgment on the issue of sovereign immunity. We agree. The trial court relied on the authority of Hospital Auth., etc., v. Litterilla, 199 Ga.App. 345, 404 S.E.2d 796. The authority consistently asserted before the trial court and initially on appeal that Litterilla was controlling. The trust agreements reveal on their face that the authority elected to create a self-insurance program, which inter alia contemplated the payment of expenses related to malpractice and comprehensive general liability losses not otherwise covered by commercial malpractice or comprehensive general liability insurance. To the extent provided, the authority's self-insurance trust funds, coupled with any existing commercial insurance, "constitutes 'liability insurance protection' within the meaning of the constitutional provision [Art. I, Sec. II, Par. IX, Ga. Const. of 1983] and therefore acts as a waiver of sovereign immunity." Litterilla v. Hosp. Auth., etc., 262 Ga. 34, 36, 413 S.E.2d 718, reversing Hospital Auth., etc. v. Litterilla, 199 Ga.App. 345, 404 S.E.2d 796, supra.

Further, the ratification of the 1991 amendment to Art. I, Sec. II, Par. IX of the Ga. Constitution of 1983 "must have prospective effect only and does not act to withdraw any waiver of sovereign immunity for actions pending on January 1, 1991, the amendment's effective date." Donaldson v. Dept. of Transp., 262 Ga. 49, 54, 414 S.E.2d 638. "Under Georgia law, a waiver of sovereign immunity occurs at the time that the cause of action arises. Donaldson, supra. Therefore, sovereign immunity [is] waived to the extent of available insurance coverage as to any cause of action that accrued before the effective date of the constitutional amendment. The waiver was not withdrawn by the passage of the constitutional amendment and remains effective regardless of whether the action was filed before or after the effective date of the amendment." Curtis v. Bd. of Regents, etc., 262 Ga. 226, 228, 416 S.E.2d 510. In the case at bar, although the complaint was filed after the effective date of the statute, it has not been controverted that the cause of action accrued before January 1, 1991. Accordingly, the waiver of any existing defense of sovereign immunity has not been withdrawn in this case.

In view of the above, we need not determine whether the authority currently is entitled to claim the defense of sovereign immunity. Compare Litterilla v. Hosp. Auth., etc., 262 Ga. 34, supra at note 1 with Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga.App. 347(1a), 411 S.E.2d 75, citing Hospital Auth., etc., v. Litterilla, 199 Ga.App. 345, 404 S.E.2d 796, supra.

3. The trial court granted appellee authority's motion to dismiss for noncompliance with the requirements of OCGA § 9-11-9.1. The authority asserts that appellants' affidavit attached to its complaint was deficient in that it failed to attach timely the hospital and medical records referred to in the affidavit.

We must first consider whether appellants were required to attach a supporting expert affidavit to their complaint against the hospital authority, based inter alia on medical malpractice claims stemming from alleged acts of negligence by the authority's agents and employees.

OCGA § 9-11-9.1(a) pertinently provides that "[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert." (Emphasis supplied.) In Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71(1), 413 S.E.2d 720, it was held that where professional skill and judgment are not involved, an affidavit under OCGA § 9-11-9.1 is not necessary. However, in the case at bar it appears that all of the claims averred against the authority (with sufficient particularity so as to provide reasonable notice under Code pleading requirements) were grounded upon the authority's liability for the acts and omissions of its agents and employees under the doctrine of respondeat superior. These acts or omissions, as averred in the complaint, required the exercise of some form of medical skill and judgment on the part of the agents or employees concerned. In Gillis v. Goodgame, 262 Ga. 117, 118, 414 S.E.2d 197, it was concluded that "the legislature intended for the term 'professional' as used in OCGA § 9-11-9.1 to be defined by OCGA §§ 14-7-2(2); 14-10-2(2), and 43-1-24.... [T]herefore ... the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2(2); 14-10-2(2), and 43-1-24." This holding was further clarified in Lamb, supra, 262 Ga. at 72(2), 413 S.E.2d 720, which recognized that Gillis, supra, held that the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2(2); 14-10-2(2), and 43-1-24. Thereafter, the Supreme Court concluded in Lamb, supra, 262 Ga. at 72, 413 S.E.2d 720, "[i]nsofar as [appellant's] complaint alleges negligence against the hospital for supplying defective equipment for use in treating its patients, the case is not one against a 'professional' or involving 'professional malpractice.' Therefore, OCGA § 9-11-9.1 is inapplicable and no affidavit is required." (Emphasis supplied.) The essence of this holding appears to be that an appropriate affidavit is required not only when a particular claim is against a "professional" but also when a particular claim is grounded upon "professional malpractice," that is, an act or omission caused by a "professional" which constitutes malpractice. The hospital authority not being a "professional," the affidavit requirement does not apply automatically as to any claim asserted against it. Greene County Hosp. Auth. v. Turner, 205 Ga.App. 213, 421 S.E.2d 715 and Thornton v. Ware County Hosp. Auth., 205 Ga.App. 202, 421 S.E.2d 713. Rather, the affidavit requirement applies against a hospital not only when liability is based upon the doctrine of respondeat superior but when it is further grounded upon the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as "professionals" under OCGA §§ 14-7-2(2); 14-10-2(2), and 43-1-24. Compare Thornton v. Hospital Auth., supra, with Greene County Hosp. Auth. v. Turner, supra. See Lamb, supra, 262 Ga. at 72(2), 413 S.E.2d 720. Thus, to the extent that the complaint avers claims of liability, based on the doctrine of respondeat superior, arising from acts or omissions constituting malpractice by doctors, registered professional nurses, or other "professionals," as recognized by said statutes, an appropriate affidavit, as defined in Thornton, supra, 205 Ga.App. at 203, 421 S.E.2d 713, was required under OCGA § 9-11-9.1. However, to the extent that the complaint avers claims based on the acts or omissions of agents or staff employees who are not "established" by the movant hospital as qualifying as professionals under Gillis, supra, no supporting affidavit would be required, and those claims accordingly could not be dismissed. (Compare Greene County Hosp. Auth., supra, 205 Ga.App. at 213-14, 421 S.E.2d...