Thornton v. Ware County Hosp. Authority, A92A0091

• Decision Date: 05 May 1992
• Docket Number: No. A92A0091,A92A0091
• Citation: 421 S.E.2d 713,205 Ga.App. 202
• Parties: THORNTON et al. v. WARE COUNTY HOSPITAL AUTHORITY.
• Court: Georgia Court of Appeals

Page 713

421 S.E.2d 713

205 Ga.App. 202

THORNTON et al. v. WARE COUNTY HOSPITAL AUTHORITY.

No. A92A0091.

Court of Appeals of Georgia.

May 5, 1992.

Reconsideration Denied July 28, 1992.

Certiorari Denied Oct. 2, 1992.

Sutton & Slocumb, Berrien L. Sutton, Homerville, Hallman & Associates, Ronald W. Hallman, Claxton, for appellants.

Dillard, Landers & Bower, Terry A. Dillard, Bryant H. Bower, Jr., Waycross, for appellee.

COOPER, Judge.

As a result of injuries Rosemary Thornton suffered during surgery, Mrs. Thornton and her husband, appellants herein, brought an action for personal injuries and loss of consortium against appellee d/b/a Memorial Hospital (hereinafter referred to as the "hospital"), Dr. Charles Whigham and the anesthesia team consisting of an anesthesiologist and a nurse anesthetist. We granted this interlocutory appeal from the trial court's dismissal of appellants' complaint against the hospital. The issue for our determination is whether appellants complied with the affidavit filing requirements of OCGA § 9-11-9.1.

Appellants alleged in their complaint that while Mrs. Thornton was under the care and control of the defendants, collectively, she was improperly and negligently cared for and that the defendants failed to exercise that degree of medical care and diligent skill that is generally employed by physicians, nurses and hospitals. Pursuant to OCGA § 9-11-9.1, appellants filed two affidavits with their complaint, one which set forth the negligent acts of the anesthesia team and another which set forth the negligence of Dr. Whigham. The hospital moved to dismiss the complaint on the grounds that neither of the affidavits filed by appellants set forth any negligent act of the hospital. Appellants subsequently amended their complaint to allege that the hospital was liable for the acts of Dr. Whigham and the anesthesia team under a theory of respondeat superior. Appellant also alleged that nurses employed by the hospital had committed negligent acts during the care and treatment of Mrs. Thornton. "[I]n Gillis v. Goodgame, 262 Ga. 117, 414 S.E.2d 197 (1992), [the Supreme Court of Georgia] held 'that the affidavit requirements of OCGA § 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.' [Cit.]" Lamb v. Candler Gen. Hosp., 262 Ga. 70, 413 S.E.2d 720 (1992). Appellants' complaint against the hospital is not an action against a "professional" as defined in the above cited Code Sections. See Lamb, supra. Nevertheless, the hospital can be liable under a theory of respondeat superior for the negligence of its physicians and nurses. See Doctors Hosp. of Augusta v. Bonner, 195 Ga.App. 152(6), 392 S.E.2d 897 (1990). We conclude that appellants complied with the requirements of § 9-11-9.1 by filing with their complaint affidavits which set forth the negligence of the professionals whose acts form the basis for appellants' claim against the hospital. The hospital, citing OCGA § 9-11-9.1(e), incorrectly characterizes appellants' amendment to their complaint as an attempt to circumvent the filing requirements of § 9-11-9.1. We disagree. OCGA § 9-11-9.1(e) addresses only the attempt to amend a complaint when the plaintiff fails to file an affidavit contemporaneously with the complaint. Appellants'...