Legum v. Crouch

• Decision Date: 08 March 1993
• Docket Number: A92A2059 and A92A2060,A92A2058,Nos. A92A2057,s. A92A2057
• Citation: 430 S.E.2d 360,208 Ga.App. 185
• Parties: LEGUM et al. v. CROUCH et al. DESAI v. CROUCH et al. GWINNETT COUNTY HOSPITAL AUTHORITY v. CROUCH et al. PARIKH v. CROUCH et al.
• Court: Georgia Court of Appeals

Page 360

430 S.E.2d 360

208 Ga.App. 185

LEGUM et al. v. CROUCH et al.

DESAI v. CROUCH et al.

GWINNETT COUNTY HOSPITAL AUTHORITY v. CROUCH et al.

PARIKH v. CROUCH et al.

Nos. A92A2057, A92A2058, A92A2059 and A92A2060.

Court of Appeals of Georgia.

March 8, 1993.

Reconsideration Denied March 25, 1993.

Certiorari Denied May 6, 1993.

Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, J. Ralph Beaird, Milton F. Eisenberg II, Athens, for appellants (case no. A92A2057).

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., A. Spencer McManes, Jr., Atlanta, for appellant (case no. A92A2058).

Long, Weinberg, Ansley & Wheeler, J.M. Hudgins IV, David A. Sapp, Glenn E. Kushel, Atlanta, for appellant (case no. A92A2059).

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Rolfe M. Martin, Robert J. Higdon, Jr., Atlanta, for appellant (case no. A92A2060).

David W. Boone, Leigh M. Smith, Atlanta, Margaret A. McDermott, Richard T. Alexander, Jr., Norcross, Dover & Sexton, Jonathan P. Sexton, Smyrna, Davis, Gregory & Christy, Hardy Gregory, Jr., Vienna, for appellees.

BIRDSONG, Presiding Judge.

This is an interlocutory review of the order of the trial court denying various motions of appellant/defendants to dismiss the complaint, and motions for summary judgment, based upon appellee/plaintiffs' failure to comply with the affidavit requirements of OCGA § 9-11-9.1(a).

On July 22, 1991, appellee Marie Crouch filed a complaint averring a wrongful death claim as the widow of the deceased husband and averring a medical malpractice claim as the administratrix of the deceased's estate. It was averred, inter alia that the various appellant doctors were negligent in failing to timely diagnose deceased's lung cancer. Mr. Crouch died on March 6, 1991; on June 3, 1991, appellee was appointed as administratrix of Mr. Crouch's estate; until that time the estate was without representation. The claims against appellant Gwinnett Medical Center (hospital authority) provided adequate CPA notice solely as to claims of liability based upon the doctrine of respondeat superior for the averred medical negligence (malpractice) of two radiologists. No expert affidavit was filed contemporaneously with this complaint; however, in the complaint, it was averred that the claims were within ten days of the applicable statute of limitation and, accordingly, appellees attempted to invoke therein the 45-day filing delay provisions of OCGA § 9-11-9.1(b). Appellants filed motions to dismiss and/or motions for summary judgment asserting noncompliance with the affidavit requirements of OCGA § 9-11-9.1(a). Appellees filed an amended complaint within the 45-day delay period by filing an expert's affidavit with attached medical records. The trial court denied appellants' motions to dismiss and motions for summary judgment.

Held:

1. Appellant hospital authority asserts that because the claims averred against it are based solely on its liability under the doctrine of respondeat superior for acts of malpractice committed by two doctors performing duties as radiologists, therefore medical affidavits were required to be filed in support of these claims pursuant to OCGA § 9-11-9.1, notwithstanding the hospital authority is not a professional within the meaning of said statute. 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." 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. In the case at bar it appears that all of the claims adequately averred against the hospital authority were grounded upon the authority's liability for the acts and omissions of its agents and employees under the doctrine of respondeat superior. Moreover, 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 two agents or employees concerned who were, at that time, medical doctors. (Additionally, no claim based on simple negligence, which per se would not require a supporting affidavit, has been averred in the complaint against any of the appellants.)

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 at 72(2), 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 at 72, "[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. However, as the hospital authority is not classified as such 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 regarding tort claims filed against a hospital not only when averred liability is based upon the doctrine of respondeat superior but when it is further grounded upon the additional 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), or 43-1-24. Compare Thornton v. Ware County Hosp. Auth., supra, with Greene County Hosp. Auth. v. Turner, supra. See Lamb, supra 262 Ga. at 72(2).

Thus, to the extent that a complaint avers claims of hospital 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, is required under OCGA § 9-11-9.1. Greene County Hosp. Auth., supra. However, to the extent that a 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 could not be dismissed or summary judgment granted for want of an affidavit. (Compare Greene County Hosp. Auth., supra 205 Ga.App. at 214.) As, in this case, the authority's liability under respondeat superior is based solely on averments of acts or omissions of medical malpractice by agents or employees thereof who are shown to be "professionals," as above defined, an appropriate medical affidavit was required to be filed, in accordance with OCGA § 9-11-9.1, in support of the claims against the authority. Compare Dozier v. Clayton County Hosp. Auth., 206 Ga.App. 62, 424 S.E.2d 632. However, the question remains as to when the affidavit was required to be filed regarding the claims against appellants.

2. Pursuant to the provisions of OCGA § 9-3-71, the two-year statute of limitation for wrongful death cases emanating from medical malpractice, such as the wrongful death averments in this case, begins to run from the date of death, not from the negligent act or omission of the practitioner. See generally Hart v. Eldridge, 250 Ga. 526, 299 S.E.2d 560; Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484. Thus, the statute of limitation as to all wrongful death claims averred in the complaint would not expire until March 6, 1993, and appellant could not invoke the 45-day grace period of OCGA § 9-11-9.1(b) based on the averments of these claims on behalf of the deceased's widow. Accordingly, we must next examine whether the 45-day grace period nevertheless could be invoked as to this case based on the medical malpractice claims averred on behalf of the estate (see generally OCGA § 9-11-9.1(b)).

3. Assuming without deciding that the statute of limitation applicable to every medical malpractice claim averred on behalf of the estate normally would have expired within ten days of the filing of the complaint, the question remains whether in the case at bar the statute of limitation was tolled by operation of law by OCGA § 9-3-92 for a period of 89 days, so that in legal effect the complaint was filed more than ten days before the expiration of any applicable statute of limitation (OCGA § 9-3-73). If the statute of limitation was so tolled, appellees could not then avail themselves of the 45-day delay provision of OCGA § 9-11-9.1(b).

OCGA § 9-3-92 pertinently provides that: "The time between the death of a person and the commencement of representation upon his estate ... shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years." "This court has generally held that, unless the context clearly indicates otherwise, the word 'shall' is to be read as a word of command." Dept. of Medical Assistance v. Llewellyn, 197...