Lamb v. Candler General Hosp., Inc., S91G1432

• Decision Date: 27 February 1992
• Docket Number: No. S91G1432,S91G1432
• Citation: 262 Ga. 70,413 S.E.2d 720
• Parties: LAMB et al. v. CANDLER GENERAL HOSPITAL, INC.
• Court: Georgia Supreme Court

Page 720

413 S.E.2d 720

262 Ga. 70

LAMB et al. v.CANDLER GENERAL HOSPITAL, INC.

No. S91G1432.

Supreme Court of Georgia.

Feb. 27, 1992.

Reconsideration Denied March 19, 1992.

John Wright Jones, Noble L. Boykin, Jr., Jones, Boykin & Associates, Savannah, for Lamb.

Frank W. Seiler, Bouhan, Williams & Levy, H. Sol Clark, Clark & Clark, Savannah, for appellee.

Paul W. Painter, Jr., Painter, Ratterree, Connolly & Bart, Peter D. Muller, Roy E. Paul, Bouhan, Williams & Levy, Savannah, for Candler General Hosp., Inc.

HUNT, Justice.

We granted certiorari to the Court of Appeals to consider the applicability to Lamb's complaint of OCGA § 9-11-9.1(a), requiring an affidavit in professional malpractice cases.The Court of Appeals reversed the trial court's denial of the hospital's motion to dismiss for failing to file an adequate affidavit.Candler General Hospital, Inc. v. Lamb, 200 Ga.App. 314, 408 S.E.2d 416(1991).We reverse.

Plaintiff Lamb filed a tort suit against the defendantappellee, Candler General Hospital, claiming she was injured when hospital employees negligently used disposable replacement parts made by defendantStaar Surgical Co., instead of those made by defendant CooperVision, in a CooperVision instrument used to dissolve cataracts, despite the manufacturer's warnings that only CooperVision disposable parts should be used.The complaint alleges the Staar parts failed, causing the instrument's irrigation system to malfunction and overheat, which resulted in injuries to Lamb's eye.Attached to the complaint was an affidavit from a professional engineer, a vice-president of CooperVision, stating that injury may result from the interruption of the fluid flow to the eye during surgery if the wrong parts are used.

The hospital moved to dismiss because Lamb failed to attach an affidavit from a doctor, as required in professional malpractice cases by OCGA § 9-11-9.1.¹The trial court found that such an affidavit was not necessary because the case did not involve medical malpractice.

The Court of Appeals held that because medical evidence is required to establish Lamb's injuries, the case involved medical malpractice: "If Plaintiff cannot establish negligence and causation without expert testimony, the case is generally a professional malpractice action within the meaning of OCGA § 9-11-9.1."The court concluded the professional engineer's affidavit was inadequate to satisfy the statute.²

1.It is well recognized that a hospital may be liable in ordinary negligence for furnishing defective equipment for use by physicians and surgeons in treating patients.As was said in Emory University v. Porter, 103 Ga.App. 752, 755, 120 S.E.2d 668(1961):

A hospital owes to its patients only the duty of exercising ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use under the same, or similar, circumstances....[Emphasis supplied.]

Accord, Candler General Hospital v. McNorrill, 182 Ga.App. 107, 109, 354 S.E.2d 872(1987);Reed v. Adventist Health Systems/Sunbelt, Inc., 181 Ga.App. 750, 752-753, 353 S.E.2d 523(1987);Smith v. Hospital Authority of Terrell County, 161 Ga.App. 657(1), 288 S.E.2d 715(1982).See generally, Anno., 14 ALR3d 1254(1967).Thus, the breach of a duty requiring ordinary care, albeit in a medical context, is not medical malpractice, for "[m]edical malpractice exists only where the act or omission by [a] professional requires the exercise of expert medical judgment."Jones v. Bates, 261 Ga. 240, 242, 403 S.E.2d 804(1991).

In Candler General Hospital v. McNorrill, supra, 182 Ga.App. at 109-110, 354 S.E.2d 872, the Court of Appeals made clear:

simply because an alleged injury occurs in a hospital setting, a suit to recover for that injury is not necessarily a "medical malpractice" action....If 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."

Accord, Porter v. Patterson, 107 Ga.App. 64, 129 S.E.2d 70(1962).

Here, the failure to replace disposable parts in the instrument involved in this case, as required for its safe performance, creates an issue of simple negligence by hospital employees for which the hospital may be liable.Because professional skill and judgment are not involved, an affidavit under OCGA § 9-11-9.1 is not necessary.Jones v. Bates, supra, 261 Ga. at 242, 403 S.E.2d 804.

2.Furthermore,...