Upson County Hosp., Inc. v. Head

• Court: Georgia Court of Appeals
• Writing for the Court: JOHNSON, Chief.
• Citation: Upson County Hosp., Inc. v. Head, 246 Ga. App. 386, 540 S.E.2d 626 (Ga. App. 2000)
• Decision Date: 13 October 2000
• Docket Number: No. A00A1601.,A00A1601.
• Parties: UPSON COUNTY HOSPITAL, INC. v. HEAD.

540 S.E.2d 626

246 Ga. App. 386

UPSON COUNTY HOSPITAL, INC. v. HEAD.

No. A00A1601.

Court of Appeals of Georgia.

October 13, 2000.

Willis, McKenzie & Long, Edward L. Long, Jr., La Grange, for appellant.

Stephens Shuler, Charles W. Stephens, Gainesville, W. Ashley Hawkins, Forsyth, for appellee. JOHNSON, Chief Judge.

This is an appeal from the trial court's order denying Upson County Hospital's motion to dismiss Carolyn Head's amended complaint. The question presented is two-fold: first, whether Head was required to file an expert affidavit with her original complaint, and second, whether Head's failure to file an expert affidavit with her original complaint bars the claims in her amended complaint. Our decision involves consideration of the interaction between a version of OCGA § 9-11-9.1 as it existed at the time Head filed her original complaint and OCGA § 9-3-71, the applicable statute of limitation. Head filed a suit for damages against doctors Brown and Mameli, Thomaston Obstetrical & Gynecological Associates, and Upson County Hospital. She alleges that she was injured by caudal anesthesia administered by Dr. Brown after she was admitted to the hospital in active, premature labor. The hospital filed a motion for summary judgment contending that it was not liable for any acts or omissions of Drs. Brown and Mameli and that Head had failed to file an OCGA § 9-11-9.1 expert affidavit in support of any allegations of professional negligence against the hospital.¹

The trial court held that Head was not seeking to hold the hospital liable for any negligent acts of Dr. Brown or Dr. Mameli and granted partial summary judgment in favor of the hospital as to that issue. It denied the hospital's motion for summary judgment as to the OCGA § 9-11-9.1 expert affidavit issue, holding that a 9.1 expert affidavit was not required given the nature of the causes of action alleged against the hospital in Head's complaint.

One day before the summary judgment hearing, and nearly three years after the running of the statute of limitation, Head filed an amended complaint adding counts of professional malpractice against the hospital.² An OCGA § 9-11-9.1 expert affidavit was filed contemporaneously with the amended complaint.

The hospital filed a motion to dismiss Head's amended complaint, asserting that the amended complaint is barred by the statute of limitation and that Head had failed to comply with the affidavit requirements of OCGA § 9-11-9.1. In denying the motion to dismiss, the trial court held that initially only negligence claims were asserted against nonprofessional employees of the hospital and thus, no 9.1 affidavit was required. It further held that when the Head filed her amended complaint, medical malpractice allegations were added that required the filing of a 9.1 expert affidavit and, in fact, Head filed such an affidavit in support of the malpractice claims.

1. Upson County Hospital contends that Head's amended complaint is barred by the statute of limitation because the 1995 version of OCGA § 9-11-9.1 is applicable to the case and does not allow her to remedy her failure to attach an expert affidavit by amendment. We first note that the hospital correctly argues that the 1995 version of OCGA § 9-11-9.1 is applicable to this case. That version stated as follows:

(e) Except as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake. ³

However, even under this version, a 9.1 expert affidavit was required only when the plaintiff's complaint alleged professional malpractice.

In order to determine whether the trial court erred in denying the hospital's motion to dismiss Head's amended complaint, we must first determine whether the trial court erred in its legal analysis that the original complaint did not allege any professional malpractice claims requiring the filing of an OCGA § 9-11-9.1 expert affidavit contemporaneously with the complaint.

In her appellate brief, Head admits that her original complaint alleged both nonprofessional negligence and professional negligence as to the hospital and its employees. She further admits that she did not attach an OCGA § 9-11-9.1 affidavit to the complaint relating to the professional negligence allegedly committed by the hospital and its employees. And, she concedes that the hospital raised the affidavit defense in its first responsive pleading.

In an effort to circumvent the statutory language prohibiting her from curing her failure to file the requisite affidavit, Head argues that the hospital did not file a motion to dismiss on this issue until nearly 27 months after the defense was raised in its answer. This argument lacks merit.⁴ The 1995 version of OCGA § 9-11-9.1 did not require the hospital to file a motion to dismiss at any specific time. The 1995 version required Head to file with her complaint an expert affidavit setting forth a negligent act or omission to support any professional malpractice claims and stated that her failure to do so could not be cured by filing an affidavit with an amended complaint.⁵ In this case, the hospital raised an OCGA § 9-11-9.1 defense in response to any allegation of professional negligence in the original complaint, and the record shows that Head never argued that the affidavit was available prior to filing the complaint but was not filed as a result of a mistake or oversight. Consequently, the trial court erred in failing to grant the hospital's motion for summary judgment regarding any claims of professional malpractice based on Head's failure to file a 9.1 expert affidavit with her original complaint. The trial court also erred in failing to grant the hospital's motion to dismiss any claims of professional malpractice based on the untimely affidavit included with Head's amended complaint.⁶

The question to be answered then is which of Head's claims constitute professional malpractice. To the extent that the hospital agents or employees are not "professionals," as defined in OCGA §§ 14-7-2(2), 14-10-2(2), and 43-1-24, the affidavit requirements of OCGA § 9-11-9.1 do not apply.⁷ Thus, Head may maintain her action against the hospital with regard to the negligence of any nonprofessionals. Moreover, to the extent that Head's claims are for simple negligence and not for professional malpractice, then no affidavit is required, even though the action may be against a professional.⁸

"Whether an action alleges professional malpractice or simple negligence depends on whether the professional's alleged negligence required the exercise of professional judgment and skill."⁹ It is a question of law for the court to decide.¹⁰ A professional negligence or professional malpractice claim calls into question the conduct of the professional in his area of expertise.¹¹ Administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence.¹² We have previously held that a nurse's failure to activate an alarm, as a doctor ordered, was ordinary negligence.¹³ Likewise, claims that employees failed to carry out instructions¹⁴ and that hospitals failed to have appropriate equipment¹⁵ alleged ordinary negligence. However, if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.¹⁶

We have carefully reviewed Head's complaint to discern any allegations of simple negligence versus professional negligence. In Head's complaint, she asserts that at no time during the administration of the caudal anesthesia was she told by hospital staff what she was receiving. With regard to the hospital, she alleges that (1) the hospital was negligent in failing to properly train and supervise the staff, physicians, and medical personnel attending patients; (2) employees or agents of the hospital, including but not limited to the labor and delivery nursing staff, negligently failed to provide an adequate and accurate record of the anesthetic drugs administered to Head during her labor and delivery and her responses to those anesthetic drugs; (3) the hospital, through its employees and agents, failed to properly inform her and obtain her consent before administering obstetrical anesthesia; (4) the hospital either failed to follow established anesthesia procedures or protocols or failed to have established protocols in place to be followed during and after the administration of obstetrical anesthesia in the labor and delivery area; and (5) the hospital is liable for any and all acts of negligence on behalf of their employees and agents.

Clearly, Head's claim that the hospital is liable for any and all acts of negligence on behalf of its employees and agents can be construed as a claim for both simple negligence and professional negligence. To the extent that the hospital employees and agents are not professionals, as defined in OCGA §§ 14-7-2(2), 14-10-2(2), and 43-1-24, Head was not required to file an OCGA 9-11-9.1 expert affidavit to maintain her claim. In addition, to the extent that any acts of negligence by professionals do not involve professional malpractice and are merely clerical, administrative, or routine, Head was not required to file a 9.1 expert affidavit to maintain her claim. However, to the extent that Head's allegation asserts a claim against the hospital based upon the...