HCA Health Services of Georgia, Inc. v. Hampshire

• Decision Date: 14 October 1992
• Docket Number: Nos. A92A1451--A92A1454,s. A92A1451--A92A1454
• Parties: HCA HEALTH SERVICES OF GEORGIA, INC. v. HAMPSHIRE et al. KATZ et al. v. HAMPSHIRE et al. GREEN v. HAMPSHIRE et al. BIELFELT v. HAMPSHIRE et al.
• Court: Georgia Court of Appeals

Page 293

424 S.E.2d 293

206 Ga.App. 108

HCA HEALTH SERVICES OF GEORGIA, INC. v. HAMPSHIRE et al.

KATZ et al. v. HAMPSHIRE et al.

GREEN v. HAMPSHIRE et al.

BIELFELT v. HAMPSHIRE et al.

Nos. A92A1451--A92A1454.

Court of Appeals of Georgia.

Oct. 14, 1992.

Reconsideration Denied Nov. 2, 1992.

Certiorari Denied Jan. 8, 1993.

Alston & Bird, Judson Graves, Daniel A. Kent, Richard R. Hays, Paul J. Quiner, M. Gino Brogdon, Atlanta, for HCA Health Services.

Alston & Bird, Dow N. Kirkpatrick, Atlanta, for Katz.

Gleaton, Scofield & Egan, Frederick N. Gleaton, Charles H. Fails, Atlanta, for Green.

Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., Atlanta, for Bielfelt.

Ford & Haley, James L. Ford, David C. Cole, Atlanta, for Hampshire.

SOGNIER, Chief Judge.

Oliver Hampshire and Katie Hampshire brought a medical malpractice suit against a hospital, one allopathic physician, five osteopathic physicians, and the professional corporation that employs several of the osteopathic physicians, seeking damages for personal injuries and loss of consortium. Two of the osteopath defendants were voluntarily dismissed; upon the death of Mr. Hampshire, Ms. Hampshire, as administrator of his estate, was substituted as plaintiff on the personal injury claim. Except for the allopath defendant, all the defendants moved to dismiss the complaint on the basis, inter alia, that it failed to comply with the requirements in OCGA § 9-11-9.1. The trial court denied the motions to dismiss, and we granted their applications for interlocutory appeal.

For purposes of OCGA § 9-11-9.1(a), appellees submitted the affidavit of H. Harlan Stone, M.D. Dr. Stone set forth his training, qualifications, and employment as an allopathic physician and then stated that he personally reviewed certified copies of Mr. Hampshire's medical records at appellant hospital, HCA Health Services of Georgia, Inc. d/b/a HCA Northlake Regional Medical Center (hereinafter "Northlake"). Dr. Stone's affidavit does not mention by name any appellant except Northlake. Dr. Stone stated the dates, diagnoses, and procedures performed upon Mr. Hampshire, discussed in detail eight x-rays taken of the patient, explained what would appear "obvious" from a review of those x-rays, and averred that "[f]rom what I see in these X-rays, the physician(s) [sic] responsible for this patient's care failed to exercise the degree of care for this patient as is recognized in the medical professional generally under similar conditions and like circumstances." Dr. Stone then faulted the "physician(s) responsible for the patient" for two specified negligent acts or omissions and concluded that in his professional opinion the care provided Mr. Hampshire "fell below the level of care required of general surgeons and other physicians responsible for the patient's care in conjunction with the general surgeon, as is recognized generally in the medical profession under similar conditions and like circumstances. It is my professional opinion that the failure of the attending physician(s) to adhere to applicable standards of care in treating the condition presented by Mr. Hampshire" caused further injury to the patient.

1. Appellants contend that the trial court incorrectly interpreted OCGA § 9-11-9.1. That statute provides in pertinent part 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 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." The trial court held that because OCGA § 9-11-9.1 does not expressly require an expert's averment of a negligent act or omission as to every defendant but instead indicates that only "an affidavit" by "an expert" is required (emphasis supplied), id. at (a), the submission by appellees of Dr. Stone's affidavit, an expert competent to testify as to one alleged negligent act of the allopath defendant, satisfied the requirements of the statute as to the other defendants.

A statute is to be construed in accordance with its real intent and meaning and not so strictly as to defeat the legislative purpose, Johnson v. Housing Auth. of Atlanta, 198 Ga.App. 816-817, 403 S.E.2d 97 (1991), and should be read according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga.App. 523, 524(1), 391 S.E.2d 5 (1990). "The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed." 0-1 Doctors, etc. v. Moore, 190 Ga.App. 286, 288(1), 378 S.E.2d 708 (1989).

We hold that the trial court misconstrued OCGA § 9-11-9.1. In accordance with the legislative purpose of reducing the number of frivolous malpractice suits, we construe OCGA § 9-11-9.1 as requiring a plaintiff in a malpractice suit to submit a valid affidavit by an expert competent to testify in court against each professional defendant named in the complaint, in which is set forth specifically at least one negligent act or omission claimed to exist as to each professional defendant (jointly, where appropriate; otherwise, severally) and the factual basis for the claim against each defendant. To construe the statute in the manner proposed by the trial court would defeat the purpose of the statute by authorizing the naming of professionals as defendants in malpractice suits in which a plaintiff can set forth no one negligent act or omission attributable to that defendant, thus sanctioning the filing of frivolous malpractice suits against professional defendants who are only tangentially related to the legitimate malpractice claim brought against another defendant.

Therefore, under the correct interpretation of OCGA § 9-11-9.1, the filing of an expert's affidavit that satisfies the statute's requirements as to one defendant does not necessarily mean that those requirements have been likewise satisfied as to other defendants. Accordingly, the trial court erred by concluding that appellees' filing of an expert's affidavit sufficient under OCGA § 9-11-9.1 as to the allopath defendant was dispositive of appellants' claims that appellees' affidavit was insufficient and precluded consideration of appellants' objections to the affidavit.

2. In its order on appellants' motion to dismiss, the trial court made "findings of fact" derived from deposition testimony and other evidence adduced during discovery conducted by the parties prior to the ruling on appellants' motions, including a finding that there is no significant difference in the standard of care required of allopaths and osteopaths. We agree with appellants that on a motion to dismiss based upon the insufficiency of an affidavit submitted pursuant to OCGA § 9-11-9.1, consideration of essential evidentiary matters not included in the affidavit is improper. See Cheeley v. Henderson, 261 Ga. 498, 405 S.E.2d 865 (1991) rev'g 197 Ga.App. 543, 398 S.E.2d 787 (1990) (held: expert's affidavit cannot incorporate by reference matters required by OCGA § 9-11-9.1 to be set forth within body of affidavit). Compare Gillis v. Goodgame, 262 Ga. 117, 414 S.E.2d 197 (1992) (evidence extrinsic to the affidavit is admissible to determine whether defendant is "professional" to whom affidavit requirement in OCGA § 9-11-9.1 applies).

3. Appellants contend the trial court erred by denying their motions to dismiss on the basis that Dr. Stone was an expert competent to testify against them.

(a) As to the osteopath appellants and their professional corporation, ^{1 1} we have held that in order for an affiant to be "an expert competent to testify," the expert either must be a member of the same professional school as the defendant or, if from a different professional school, must state the particulars how the methods of treatment are the same for the different schools in order to establish that the affiant possesses the expertise to be able to give an opinion regarding the applicable standard of care to which the defendant is held. Chandler v. Koenig, 203 Ga.App. 684, 685, 417 S.E.2d 715 (1992); Milligan v. Manno, 197 Ga.App. 171, 397 S.E.2d 713 (1990). "[W]here the affidavit 'establishes that the witness is a member of a different school of medicine than that practiced by the defendant but contains no evidence that the methods of treatment of plaintiff's condition are the same so as to bring the witness within the exception to the general rule that he is incompetent to testify(, then) the affidavit is legally insufficient.' [Cit.]" Chandler, supra 203 Ga.App. at 686, 417 S.E.2d 715. Because Dr. Stone's affidavit established that he is a member of a different school of medicine than the osteopath appellants and contained no evidence regarding the methods of treatment so as to establish "a professional overlap of expertise in at least one matter alleged by [appellees] to constitute malpractice," id. at 687, 417 S.E.2d 715, the trial court erred by denying the motions to dismiss made by the osteopath appellants and their professional corporation in Case Nos. A92A1452, A92A1453, and A92A1454.

(b) As to appellees' allegation against appellant Northlake that the hospital was liable for the alleged malpractice of the individual physician-defendants, the pleadings established that the osteopath appellants are professionals within the meaning of OCGA § 9-11-9.1. Gillis, supra 262 Ga. at 118, 414 S.E.2d 197 (see doctors of osteopathy in OCGA §§ 43-34-20(3); 43-34-27; professional corporation for practice of osteopathy in OCGA §§ 14-7-2(2); 14-7-3. Accordingly, Northlake was entitled to assert the insufficiency of the OCGA § 9-11-9.1 affidavit as a defense to its liability for the alleged malpractice of the osteopath appellants. Greene County Hosp. Auth. v. Turner, 205 Ga.App. 213, 421 S.E.2d 715 (1992). Compare ...