Lutz v. Foran

• Decision Date: 08 March 1993
• Docket Number: S92X1069,Nos. S92A1068,s. S92A1068
• Citation: 427 S.E.2d 248,262 Ga. 819
• Parties: LUTZ, et al. v. FORAN. FORAN v. LUTZ, et al.
• Court: Georgia Supreme Court

Page 248

427 S.E.2d 248

262 Ga. 819

LUTZ, et al. v. FORAN.

FORAN v. LUTZ, et al.

Nos. S92A1068, S92X1069.

Supreme Court of Georgia.

March 8, 1993.

Joseph J. Berrigan and Wayne L. Durden, Brannen, Searcy & Smith, Savannah, for Lutz, et al.

James B. Blackburn, Jr., Douglas M. Robinson, Wiseman, Blackburn & Futrell, and James L. Pannell, Oliver, Maner & Gray, Savannah, for Foran.

G. Conley Ingram, Robert D. McCallum, Jr., Daniel A. Kent, Alston & Bird, Robert P. Constantine, Jr., Everett W. Gee, III, Parker, Johnson, Cook & Dunlevie, Richard L. Greene, Medical Ass'n of Georgia; and Betty R. Smulian, Chairperson, Georgia Liability Fairness Coalition, Parker, Johnson, Cook & Dunlevie, Atlanta, amici curiae.

FLETCHER, Justice.

This appeal challenges the constitutionality of the affidavit requirement in professional malpractice actions. We hold that OCGA § 9-11-9.1 does not violate the constitutional prohibition against the inclusion of more than one subject matter in a bill or a matter in the body different from the title. Because the law was unsettled on the act's coverage of professionals when the complaint was filed, we reverse and remand to enable the plaintiffs to file an appropriate affidavit.

Reid Lutz owned a shrimp boat that sunk in the Savannah River. The boat was salvageable, and Lutz marked it with buoys. ¹ He had raised it within five feet of the surface when a ship piloted by Michael Foran, a licensed harbor pilot, hit and damaged it beyond repair. Lutz and the owner of the salvage equipment sued Foran for negligence in failing to control his vessel and causing the collision of boats. Foran denied that a collision occurred and moved to dismiss for Lutz's failure to attach an expert affidavit in compliance with OCGA § 9-11-9.1. Lutz appeals from the trial court's order dismissing the complaint. In the cross appeal, Foran argues that the dismissal was an adjudication on the merits and should have been with prejudice.

1. The expert affidavit requirement provides:

In 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.

OCGA § 9-11-9.1(a) (1982 & Supp.1992). This court relied on the plain language of the statute to hold in Housing Auth. v. Greene, 259 Ga. 435, 437, 383 S.E.2d 867 (1989), that it "applies to 'any action for damages alleging professional malpractice' on the part of an architect or other professional." Subsequently, we held that affidavits are required only in lawsuits filed against a professional in one of the occupations enumerated in OCGA § 14-7-2(2) or subject to licensing and regulation under OCGA §§ 14-10-2(2) and 43-1-24. Gillis v. Goodgame, 262 Ga. 117, 414 S.E.2d 197 (1992). A harbor pilot is a member of a profession listed in § 14-7-2. Therefore, Lutz must file an affidavit with his complaint if the allegations involve professional malpractice.

2. "A professional malpractice action is merely a professional negligence action and calls into question the conduct of a professional in his area of expertise."

Candler Gen. Hosp. v. McNorrill, 182 Ga.App. 107, 110, 354 S.E.2d 872 (1987) (emphasis deleted). In malpractice actions, a plaintiff must present expert testimony "to establish the parameters of acceptable professional conduct." Self v. Executive Comm., 245 Ga. 548, 549, 266 S.E.2d 168 (1980). Not every act that a professional performs, however, is a professional act that requires expert testimony. Kneip v. Southern Eng'g Co., 260 Ga. 409, 410, 395 S.E.2d 809 (1990). If the professional's alleged negligence does not require the exercise of professional judgment and skill, the cause of action is based on a simple negligence theory. Candler, 182 Ga.App. at 111, 354 S.E.2d 872. For example, expert testimony on the appropriate standard of care is not needed when a patient falls as a result of a hospital's failure to repair a leaking bathroom fixture. Self, 245 Ga. at 548-49, 266 S.E.2d 168; see also Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499, 500, 397 S.E.2d 294 (1990) (no affidavit required when a financial planner transmits the wrong payment plan for an annuity).

The allegations in the complaint establish that Lutz filed a claim for professional, rather than simple, negligence. Lutz's complaint alleges that Foran acted negligently by failing to have a person acting as a lookout on the ship, failing to steer the ship away from the submerged boat's markers, and failing to prevent the ship from hitting the shrimp boat. Unlike the simple negligence case where the professional performs an administrative, clerical, or routine act demanding no special expertise, Foran was executing a task that required his expert judgment and skill. He was navigating an ocean-going ship through the narrow channel of the Savannah River. Only a licensed harbor pilot is qualified to direct the movement of a ship as it travels into and out from the state's ports and rivers. See OCGA § 52-6-30. Because conducting an ocean-going ship in the Savannah River calls for the professional skill of a harbor pilot, Lutz must file an expert affidavit with his complaint.

3. Lutz alleges that the affidavit requirement in OCGA § 9-11-9.1 should be struck down as unconstitutional because it is part of an act that contains more than one subject matter and a subject different from the matter expressed in the title. Specifically, he argues that the Medical Malpractice Reform Act of 1987 cannot apply to professions other than medicine without violating Article III, Section V, Paragraph III of the Georgia Constitution.

This constitutional provision provides that "[n]o bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof." Ga. Const. Art. III, Sec. V, Par. III. The legislature enacted this paragraph to prevent surreptitious legislation such as the "Yazoo Fraud" and omnibus bills that combine several adverse matters to secure their passage. Camp v. Metropolitan Atlanta Rapid Transit Auth., 229 Ga. 35, 38, 189 S.E.2d 56 (1972). Requiring the act's title to "alert the reader to the matters contained in its body is to protect against surprise legislation." Mead Corp. v. Collins, 258 Ga. 239, 367 S.E.2d 790 (1988); see also Cady v. Jardine, 185 Ga. 9, 10, 193 S.E. 869 (1937) (recalling the event that caused the provision's enactment in the 1798 Constitution); Central of Ga. Ry. Co. v. State, 104 Ga. 831, 846, 31 S.E. 531 (1898) (describing rationale for prohibition against multiple subject matters in same act).

(a) The provision requiring the title to express what is in the act must be given a reasonable interpretation. ² Cady, 185 Ga. at 10, 193 S.E. 869.

It was never intended that the substance of the entire act should be set forth in the caption. It was not contemplated that every detail stated in the body should be mentioned in the caption. If what follows after the enacting clause is definitely related to what is expressed in the title, has a natural connection, and relates to the main object of legislation, ... there is no infringement of the constitutional [provision].... Any provision in the body which is germane to [the act's] general purpose as embraced in the title [does not violate] the [Constitution].

Id. at 10-11, 193 S.E. 869; accord Mead Corp., 258 Ga. at 240, 367 S.E.2d 790. The caption must indicate only the general object to be dealt with in the act to protect the people against covert legislation. State v. Resolute Ins. Co., 221 Ga. 815, 817, 147 S.E.2d 433 (1966).

Applying a reasonable interpretation of the statute, we hold that the title of the act gives the reader sufficient notice that the affidavit requirement will apply in professional malpractice actions. The caption states that the act is "to provide that in any case in which professional malpractice is alleged, an affidavit of an expert competent to testify setting forth the particulars of the claim shall be filed with the complaint." Ga.L. 1987, p. 887 (emphasis supplied). The language in section three of the act tracks the words in the caption. Id. at 889. Section three is one of only three substantive provisions of the four-page act and receives its proportionate share of the lines in the caption. ^{3 3} Thus, despite the short title of "Medical Malpractice Reform Act of 1987," the caption gives the General Assembly and the public adequate notice that the act contains matter relating to malpractice actions against professionals.

The act's legislative history supports this conclusion. The Governor's Advisory Committee on Tort Reform in its final report in 1986 recommended the affidavit requirement in "medical malpractice and other professional liability cases." A conference committee composed of three leaders of both the house and senate added the affidavit provision to Senate Bill 2. 1 S.Jour. at 957; 1 H.Jour. at 1189. The bill was passed as part of an intensely debated effort to reform the state's tort laws. Presumably, members of the General Assembly looked beyond the short title and read the caption of the bill to determine its contents before voting.

Although no one has previously challenged the constitutionality of OCGA § 9-11-9.1, we have previously considered the arguments on which the dissenting opinion relies. See Housing Auth., 259 Ga. at 437-38, 383 S.E.2d 867. We rejected the argument that the affidavit requirement applies solely to medical malpractice actions, despite the reference in the 1989 amendment to medical malpractice, because of the presumption that the General Assembly enacts statutes with full knowledge of the existing condition of the law and that statutes are to be interpreted with reference to prior decisions of the courts. Housing Auth., 259 Ga. at 438, 383 S.E.2d...