Zephaniah v. Ga. Clinic, P.C.

• Decision Date: 11 June 2019
• Docket Number: A19A0694
• Citation: 350 Ga.App. 408,829 S.E.2d 448
• Parties: ZEPHANIAH v. GEORGIA CLINIC, P.C.
• Court: Georgia Court of Appeals

350 Ga.App. 408

829 S.E.2d 448

ZEPHANIAH

v.GEORGIA CLINIC, P.C.

A19A0694

Court of Appeals of Georgia.

June 11, 2019

Jacob Dennis Rhein, for Appellant.

Terrell William Benton III, Erin Lawson Coia, Atlanta, for Appellee.

Dillard, Chief Judge.

Annie Zephaniah, acting pro se , filed a personal injury action against Georgia Clinic, P.C., alleging that she suffered injuries as a result of an employee’s negligent attempt to draw blood. Georgia Clinic filed a motion to dismiss the complaint, arguing that it failed to include an expert affidavit as required by OCGA § 9-11-9.1. The trial court granted the motion, and Zephaniah, now represented by counsel, appeals, contending that the trial court erred because (1) the employee who injured her is not a licensed professional for whom an expert affidavit is required, and (2) she also alleged claims for intentional misconduct, which likewise do not require a supporting affidavit. For the reasons set forth infra , we reverse.

Although aspects of Zephaniah’s pro se complaint are difficult to decipher, construing it in her favor,¹ the record shows that on May 25, 2016, she went to Georgia Clinic for unspecified reasons. And while there, an employee—identified as a technician named Margaret—attempted a venipuncture in Zephaniah’s right forearm, allegedly without her permission, which resulted in various injuries.

On May 24, 2018, one day before the expiration of the applicable statutes of limitation,² Zephaniah filed her pro se lawsuit, ostensibly under OCGA § 9-11-9.1, alleging that Georgia Clinic "violated the Standard of Care and Professionalism" in negligently causing her injury. And in paragraph 7 of the complaint, Zephaniah asserted: "A worry I pray that I can release: Georgia Clinic, P.C. technician (first name ‘Margaret’ per doctor April 2018) was unknown to me, appeared in my presence without professional presentation or warning injected a sharp instrument (needle) drew my blood, without my permission. ..."

Shortly thereafter, Georgia Clinic filed an answer and, contemporaneously, a motion to dismiss on the ground that Zephaniah failed to file an expert affidavit with her complaint as required by OCGA § 9-11-9.1. Zephaniah subsequently filed an amended complaint, which differed from the original complaint only in that it provided a more detailed account of her alleged damages. And a few days later, she filed a response to Georgia Clinic’s motion to dismiss, arguing that the blood draw was non-consensual but not directly addressing her failure to file an expert affidavit. On June 18, 2018, the trial court issued an order granting Georgia Clinic’s motion to dismiss Zephaniah’s complaint based on her failure to file an expert affidavit as required by OCGA § 9-11-9.1. This appeal follows.

OCGA § 9-11-9.1 imposes an initial pleading requirement on the plaintiff in a professional malpractice action,³ and a motion to dismiss based upon the lack of expert affidavit is one for "failure to state a claim under OCGA § 9-11-12 (b) (6)."⁴ We conduct a de novo review of a trial court’s ruling on a motion to dismiss,⁵ and in doing so construe the pleadings in "the light most favorable to the [plaintiff] with all doubts resolved in [the plaintiff’s] favor."⁶ Indeed, not unless the allegations of the complaint disclose with certainty that "the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed."⁷ With these guiding principles in mind, we turn now to Zephaniah’s contentions.

1. Zephaniah first argues that the trial court erred in granting Georgia Clinic’s motion to dismiss because the employee who injured her is not a licensed professional for whom an expert affidavit under OCGA § 9-11-9.1 is required. We agree.

When a plaintiff files a lawsuit against a licensed health-care facility, as Zephaniah did here, "based on a claim that the facility is vicariously liable for the professional malpractice of a health care professional licensed by the State of Georgia and listed in [ OCGA § 9-11-9.1 (g) ], the plaintiff is required to file an expert affidavit with the complaint in accordance with the requirements of OCGA § 9-11-9.1 (a)."⁸ And the failure to file the required affidavit "subjects the complaint to dismissal."⁹ Consequently, a OCGA § 9-11-9.1 affidavit is required when "the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a OCGA § 9-11-9.1 affidavit is not required."¹⁰

Here, Zephaniah cites to OCGA § 9-11-9.1 in her complaint and alleges a violation of professionalism and the standard of care; but we are not bound by this characterization of her claims, and "instead must review the complaint de novo to discover the nature of [her] claims."¹¹ Moreover, Zephaniah also characterizes the person who performed the venipuncture as a "technician," and a " ‘technician’ does not fall into any of the categories of professionals enumerated within [ OCGA § 9-11-9.1 (g) ]."¹² Nevertheless, Georgia Clinic claims that the trial court was justified in dismissing Zephaniah’s complaint for failure to comply with OCGA § 9-11-9.1 (g) because the only way to avoid doing so is to give an "extremely liberal interpretation" of the complaint’s allegations, which defy "logic and common sense." Georgia Clinic also highlights that the complaint does not (1) provide the last name of the technician who performed the venipuncture; (2) indicate how Zephaniah knows that the person who performed the venipuncture was a technician, as opposed to some other professional who would be covered by OCGA § 9-11-9.1 (g) ; and (3) describe Zephaniah’s "physical or verbal reaction" to the "first attempted venipuncture" or "any other action she took to let the individual drawing her blood know that she was in pain." But as Zephaniah correctly notes in response to these objections, the Georgia Civil Practice Act only requires notice pleading,¹³ and we are required to (1) construe a complaint in the light most favorable to the plaintiff with any doubts resolved in her favor¹⁴ and (2) hold pro se pleadings to less stringent standards than formal pleadings drafted by attorneys.¹⁵ Thus, construing the allegations of the complaint in the light most favorable to Zephaniah, as we must, she was not required to file an expert affidavit in order to state a claim against Georgia Clinic.¹⁶ Accordingly, the trial court erred in granting Georgia Clinic’s motion to dismiss Zephaniah’s complaint for failing to file an affidavit under OCGA § 9-11-9.1.

2. Next, Zephaniah argues that the trial court erred in granting Georgia Clinic’s motion to dismiss because she also alleged claims for intentional misconduct for which an expert affidavit under OCGA § 9-11-9.1 is similarly not required. Again, we agree.

Importantly, the Supreme Court of Georgia has limited the application of OCGA § 9-11-9.1 to "actions for professional negligence."¹⁷ As a result, claims grounded on a professional’s intentional acts, which allegedly result in injury to one with whom the professional had a professional relationship, "are not required to be accompanied by an expert affidavit."¹⁸

Here, Zephaniah alleges in her complaint that the Georgia Clinic technician performed a venipuncture and drew her blood "without [her] permission." And a medical "touching" without consent is "like any other touching without consent: it constitutes the intentional tort of battery for which an action will lie."¹⁹ Again, construing the allegations of the complaint in the light most favorable to Zephaniah, she has alleged an intentional tort for which an expert affidavit was not required.²⁰ Accordingly, for all these reasons, the trial court erred in dismissing Zephaniah’s complaint.

Judgment reversed.

Gobeil and Hodges, JJ., concur.

1 See Dove v. Ty Cobb Healthcare Sys. , 316 Ga. App. 7, 9, 729 S.E.2d 58 (2012) (noting that in reviewing a trial court’s ruling on a motion to dismiss, this Court construes the complaint in the light most favorable to the plaintiff).

2 See OCGA § 9-3-33 ("Except as otherwise provided in this article, actions for injuries to the person shall be brought within two years after the right of action accrues. ..."); OCGA § 9-3-71 (a) ("Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.").

3 See Procter v. Gwinnett Pulmonary Grp., P.C. , 312 Ga. App. 486, 487 (1), 718 S.E.2d 860 (2011) (punctuation omitted); Bowen v. Adams , 203 Ga. App. 123, 123, 416 S.E.2d 102 (1992) ; Robinson v. Starr , 197 Ga. App. 440, 441 (2), 398 S.E.2d 714 (1990).

4 Brown v. Tift Health Care, Inc. , 279 Ga. App. 164, 165, 630 S.E.2d 788 (2006) (punctuation omitted); accord Hewett v. Kalish, 264 Ga. 183, 184 (1), 442 S.E.2d 233 (1994) ; Ziglar v. St. Joseph’s/Candler Health Sys., Inc. , 341 Ga. App. 371, 371, 800 S.E.2d 395 (2017).

5 See Dove , 316 Ga. App. at 9, 729 S.E.2d 58 (punctuation omitted).

6 Procter , 312 Ga. App. at 487 (1), 718 S.E.2d 860 (punctuation omitted).

7 Id. (punctuation omitted).

8 Health Mgmt. Assocs., Inc. v. Bazemore , 286 Ga. App. 285, 286, 648 S.E.2d 749 (2007) ; see OCGA § 9-11-9.1 (a) ("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.").

9 Bazemore , 286 Ga. App. at 286, 648 S.E.2d 749 ; accord MCG Health, Inc. v. Casey , 269 Ga. App. 125, 127, 603 S.E.2d 438 (2004).

10 Bazemore , 286 Ga. App. at 286, 648 S.E.2d 749 (punctuation omitted); accord Lamb v. Candler General Hosp., Inc. , 262 Ga. 70, 71 (2), 413 S.E.2d 720 (1992).

11 Ziglar , 341 Ga. App. at 373, 800 S.E.2d 395.

12 Procter , 312 Ga. App. at 488 (...