Hewett v. Kalish

• Court: Georgia Supreme Court
• Writing for the Court: SEARS-COLLINS
• Citation: Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (Ga. 1994)
• Decision Date: 25 April 1994
• Docket Number: No. S94G0201,S94G0201
• Parties: HEWETT v. KALISH.

Page 233

442 S.E.2d 233

264 Ga. 183

HEWETT v. KALISH.

No. S94G0201.

Supreme Court of Georgia.

April 25, 1994.

Reconsideration Denied May 16, 1994.

Michael G. Kam, Rosenzweig, Kam, Jones & MacNabb, Newnan, Edward H. Kellogg, Jr., Atlanta, for Hewett.

Robert L. Goldstucker, Nall, Miller, Owens, Hocutt & Howard, Atlanta, for Kalish.

SEARS-COLLINS, Justice.

The appellant, Linda Hewett, brought this action against the appellee, Stanley Kalish, a podiatrist, alleging negligent treatment of her tarsal tunnel syndrome condition. Hewett filed the affidavit of an orthopedic surgeon with her complaint. The trial court dismissed the complaint on the ground that the affidavit was insufficient to satisfy OCGA § 9-11-9.1. The Court of Appeals affirmed. The Court held that § 9-11-9.1 established an evidentiary standard that had to be satisfied at the pleading stage. It then ruled that because the orthopedist was from a different professional school than Kalish, the orthopedist had to state in the affidavit that the two schools overlapped in their treatment of Hewett's condition in order to be an expert competent to testify against Kalish. Hewett v. Kalish, 210 Ga.App. 584, 585-86, 436 S.E.2d 710 (1993). We then granted certiorari to consider this ruling. Although we agree that the overlap test is the proper test to determine whether a plaintiff's expert from one professional school is competent to testify against a defendant from a different professional school, we hold that the Court of Appeals erred by evaluating Hewett's § 9-11-9.1 affidavit pursuant to an evidentiary standard.

1. The Court of Appeals has ruled that § 9-11-9.1 "merely imposes an initial pleading requirement on the plaintiff"; that the sufficiency of the affidavit determines whether a plaintiff's action is subject to dismissal under OCGA § 9-11-12(b)(6); and that for a complaint to be subject to dismissal for failure to state a claim, the affidavit must " 'disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.' " Bowen v. Adams, 203 Ga.App. 123, 123-24, 416 S.E.2d 102 (1992). (Emphasis in original.) Moreover, relying on Bowen, we have followed these pleading rules, holding that "[a] Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff's favor, even if an unfavorable construction of the affidavit may be possible" so long as such construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits. Gadd v. Wilson & Co., 262 Ga. 234, 235, 416 S.E.2d 285 (1992). Although neither Bowen nor Gadd dealt with the competency prong of § 9-11-9.1 (Bowen dealt with whether the affidavit adequately set forth a negligent act and Gadd dealt with whether the affidavit adequately attributed the negligent act in question to the defendant), we can discern no reason why a stricter, evidentiary requirement should obtain with regard to competency. Moreover, because § 9-11-9.1 merely imposes a pleading requirement, the rule that pleadings may contain conclusions, see Ledford v. Meyer, 249 Ga. 407, 408-409, 290 S.E.2d 908 (1982), would apply equally to a § 9-11-9.1 affidavit as to any other pleading.

Significantly, the application of pleading rules to the competency determination will not defeat the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits being filed. Gadd, 262 Ga. at 235, 416 S.E.2d 285. First, if a plaintiff's complaint would not be subject to dismissal after the application of pleading rules, then there is a reasonable likelihood that the complaint is not frivolous. Second, if a defendant believes that the application of pleading rules would not lead to the conclusion that the plaintiff's expert is incompetent to testify but the defendant nevertheless believes that the plaintiff's expert is in fact incompetent, the defendant may attempt to resolve this discrepancy at a hearing under OCGA § 9-11-12(d). ¹ The procedure would be as follows: The defendant must raise his or her 12(b)(6) defense by motion or in his or her answer, § 9-11-12(b), and then apply for the necessary hearing under § 9-11-12(d), see Prudential Timber, etc. Co. v. Collins, 144 Ga.App. 849, 851(2)(a), 243 S.E.2d 80 (1978). At that hearing, the defendant may present evidence that the defendant contends shows that the plaintiff's expert is not in fact competent to testify, see OCGA § 9-11-43; Sherwood Memorial Park, Inc. v. Bryan, 142 Ga.App. 664, 236 S.E.2d 903 (1977). By presenting matters outside the pleadings, the 12(d) hearing must be treated as one for summary judgment. OCGA § 9-11-12(b); Blasingame v. Blasingame, 249 Ga. 791, 792, 294 S.E.2d 519 (1982). Accordingly, summary judgment rules of notice must be met, see Gregory, Georgia Civil Practice, § 3-6(j) (1990), and the plaintiff "shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56," § 9-11-12(b). If the defendant pierces the plaintiff's pleading affidavit on the issue of competency by offering evidence that the defendant's professional school and the plaintiff's school do not overlap with regard to the method of treatment in question, and the plaintiff offers no further evidence that his or her expert is competent to testify, the trial court would be authorized to grant summary judgment to the defendant.

We find nothing in § 9-11-9.1 that precludes a resolution of competency pursuant to the foregoing procedures. As a motion to dismiss for an insufficient affidavit under § 9-11-9.1 is a motion to dismiss for failure to state a claim under § 9-11-12(b)(6), Bowen, 203 Ga.App. at 123, 416 S.E.2d 102; Hewett, 210 Ga.App. at 585, 436 S.E.2d 710, and as § 9-11-9.1 does not provide that § 9-11-12 is inapplicable, such a hearing is a permissible method by which to challenge the sufficiency of an affidavit. Although it could be contended that § 9-11-9.1(e) precludes a plaintiff from offering evidence at a 12(d) hearing to establish his or her expert's competency, a close inspection of § 9-11-9.1(e) reveals that it presents no such impediment. That section provides that "[e]xcept as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section," the complaint is subject to dismissal and cannot be cured by amendment under OCGA § 9-11-15 "unless ... the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake." By referencing subsection (b), which sets forth one exception when a plaintiff need not file an expert affidavit with the complaint, and by providing that the complaint can be amended if the plaintiff had the affidavit before filing the complaint but by mistake failed to file it, subsection (e) is only designed to preclude amendment under § 9-11-15 when the plaintiff completely fails to file an affidavit. See Kneip v. Southern Engineering, 260 Ga. 409, 395 S.E.2d 809 (1990), in which we stated that § 9-11-9.1(e) applies to "a complaint alleging professional malpractice filed without an affidavit." Kneip at 411 (4), 395 S.E.2d 809 (emphasis added). Section 9-11-9.1(e) thus does not preclude a plaintiff from presenting evidence of his or her expert's competency at a 12(d) hearing when that expert's affidavit was initially filed with the complaint. To the extent Cheeley v. Henderson, 261 Ga. 498, 405 S.E.2d 865 (1991), is in conflict with this interpretation of § 9-11-9.1(e), it is overruled.

For these reasons, we find that the Court of Appeals erred by holding that § 9-11-9.1 establishes an evidentiary standard regarding the affiant's competency that must be proven at the pleading stage. Hewett, 210 Ga.App. at 585-86, 436 S.E.2d 710. See also Milligan v. Manno, 197 Ga.App. 171, 172, 397 S.E.2d 713 (1990). Moreover, because Hewett's complaint was dismissed at the pleading stage, the Court of Appeals should have applied the pleading rules set forth in Bo...