Pomerantz v. Atlanta Dermatology & Surgery
| Decision Date | 10 June 2002 |
| Docket Number | No. A02A0237.,A02A0237. |
| Citation | 255 Ga. App. 698,566 S.E.2d 425 |
| Parties | POMERANTZ v. ATLANTA DERMATOLOGY & SURGERY, P.A. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Harry Rand, Atlanta, for appellant.
Carlock, Copeland, Semler & Stair, Dennis G. Lovell, Jr., Ashley E. Taylor, Atlanta, for appellant.
A plaintiff is required to file an expert affidavit with a complaint under OCGA § 9-11-9.1 for a claim of professional negligence but not for a claim of ordinary negligence. Holloway v. Northside Hosp., 230 Ga.App. 371-372, 496 S.E.2d 510 (1998). In this case, David Pomerantz argues that the trial court improperly determined that his suit against Atlanta Dermatology & Surgery, P.A., was a claim for professional negligence and, accordingly, dismissed the suit.
Pomerantz alleged that during a procedure to have stitches removed following an earlier mole biopsy, These are the only relevant factual allegations in the complaint. There is no allegation that it was apparent that Pomerantz might lose consciousness, or that he warned anyone that he might.
In response to a motion by Atlanta Dermatology, the trial court dismissed the case on the ground that Pomerantz failed to file an expert affidavit in compliance with OCGA § 9-11-9.1. The court found "that the removal of stitches involved special expertise, and that the decision to have the patient sit upright on the examining table instead of having him lie down or otherwise restrained during this procedure involved professional judgment."
In cases involving a person's fall while in the care of medical professionals, it can be difficult to distinguish professional negligence from ordinary negligence. Compare Holloway, 230 Ga.App. at 372, 496 S.E.2d 510, with Brown v. Durden, 195 Ga. App. 340, 393 S.E.2d 450 (1990). This distinction is a question of law for the court. Drawdy v. Dept. of Transp., 228 Ga.App. 338, 339, 491 S.E.2d 521 (1997).
In this case, Pomerantz's sole allegation of negligence addresses "the decision as to whether or not to support an upright patient who is having stitches removed and to prevent him from falling." Without any indication that Pomerantz was going to lose consciousness or any warning by Pomerantz, the only possible negligence was the decision to seat Pomerantz on the table during the...
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...ordinary negligence. This distinction is a question of law for the court." (Citations omitted.) Pomerantz v. Atlanta Dermatology & Surgery, P.A., 255 Ga.App. 698, 699, 566 S.E.2d 425 (2002). Compare Bardo v. Liss, 273 Ga.App. 103, 103-104(1), 614 S.E.2d 101 (2005); Holloway v. Northside Hos......
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