FULLER LIFE CHIROPRACTIC CENTER, P.C. v. JODI MARIE THREADGILL ( 2023 )

FIRST DIVISION
BARNES, P. J.,
LAND and WATKINS, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
December 4, 2023
In the Court of Appeals of Georgia
A23A1225. FULLER LIFE CHIROPRACTIC CENTER, P.C. et al.
v. THREADGILL et al.
BARNES, Presiding Judge.
Following the grant of their application for interlocutory appeal, Fuller Life
Chiropractic Center, P. C., Ronald Dean Fuller, II, D. C., and Christopher W. Odom,
D. C., appeal from the trial court’s order denying their motion for judgment on the
pleadings or, alternatively, motion to dismiss the chiropractic malpractice action
brought against them by Jodi Marie Threadgill and Charles A. Threadgill. The central
question in this appeal is whether a professional negligence action alleging breach of
the standard of care by a chiropractor is subject to the five-year statute of repose
applicable to actions for medical malpractice. For the reasons discussed below, we
answer that question in the affirmative. Because the trial court concluded otherwise,
we reverse.
When, as in this case, the defendants file a motion for judgment
on the pleadings and do not introduce affidavits, depositions or
interrogatories in support of the motion, such motion is the equivalent
of a motion to dismiss the complaint for failure to state a claim upon
which relief can be granted. Such a motion should not be granted unless
the averments in the complaint disclose with certainty that the
plaintiff[s] would not be entitled to relief under any state of facts which
could be proved in support of [their] claim. (Citation and punctuation
omitted.) Montgomery v. Bank of America, 321 Ga. App. 343, 343 (740
SE2d 434) (2013). We review de novo a trial court’s ruling on a motion
for judgment on the pleadings or motion to dismiss, and we construe the
complaint in the light most favorable to the plaintiffs and draw all
reasonable inferences in their favor. Id. See Campbell v. Cirrus Ed., 355
Ga. App. 637, 638 (845 SE2d 384) (2020). “In our de novo review, we
may consider exhibits attached to and incorporated into the complaint
and answer.” (Citation and punctuation omitted.) 110 Hampton Point,
LLC v. Ross, 368 Ga. App. 630, 630 (890 SE2d 33) (2023). See OCGA
§ 9-11-10 (c) (“A copy of any written instrument which is an exhibit to
a pleading is a part thereof for all purposes.”).
So viewed, the plaintiffs’ complaint and expert affidavit attached thereto show
the following. At all times relevant to this lawsuit, Drs. Fuller and Odom were
chiropractors licensed to practice in Georgia. Dr. Fuller was the principal owner of
2
the Fuller Life Chiropractic Center (“Fuller Life”), and Drs. Fuller and Odom
provided chiropractic treatment to Fuller Life patients. Jodie Threadgill sought
chiropractic treatment at Fuller Life on August 7 and 8, 2012. On August 7, 2012, Dr.
Fuller performed a chiropractic adjustment or manipulation of Mrs. Threadgill’s
spine, and Dr. Odom performed a chiropractic adjustment or manipulation of her
spine the following day. As a result of these spinal adjustments or manipulations,
Mrs. Threadgill allegedly suffered severe, permanent injuries to her spinal cord and
discs.
On August 6, 2014, Mrs. Threadgill and her husband, Charles Threadgill, sued
Drs. Fuller and Odom and Fuller Life, alleging that the defendant chiropractors
provided negligent chiropractic care and treatment to Mrs. Threadgill on August 7
and 8, 2012, and that their negligence caused her spinal cord and disc injuries. The
complaint further alleged that the Center was liable based on the doctrine of
respondeat superior. The Threadgills attached to their complaint an expert affidavit
in which a chiropractor opined that Drs. Fuller and Odom breached the applicable
standard of care for chiropractic doctors in their treatment of Mrs. Threadgill and that
their deviations from that standard were the proximate cause of her injuries.
3
The Threadgills voluntarily dismissed their action without prejudice on August
15, 2017. On February 14, 2018, the Threadgills filed a renewal action against the
defendants pursuant to OCGA § 9-2-61.1 The allegations in the renewal complaint
and attached expert affidavit were the same as those contained in the original
complaint and affidavit.
The defendants answered, denying liability. Subsequently, on February 7,
2022, the defendants filed a motion for judgment on the pleadings or, alternatively,
to dismiss the renewal action for failure to state a claim upon which relief could be
granted (“dismissal motion”). The defendants argued that the Threadgills’
chiropractic malpractice claims were barred by OCGA § 9-3-71 (b),2 the five-year
1
OCGA § 9-2-61 (a) provides in relevant part:
When any case has been commenced in either a state or federal court
within the applicable statute of limitations and the plaintiff discontinues or
dismisses the same, it may be recommenced in a court of this state or in a
federal court either within the original applicable period of limitations or
within six months after the discontinuance or dismissal, whichever is later,
subject to the requirement of payment of costs in the original action[.]
2
OCGA § 9-3-71 provides in part:
(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.
(b) Notwithstanding subsection (a) of this Code section, in no event
may an action for medical malpractice be brought more than five years after
the date on which the negligent or wrongful act or omission occurred.
4
statute of repose applicable to actions for medical malpractice. The Threadgills
opposed the dismissal motion, contending that OCGA § 9-3-71 (b) did not apply to
claims alleging professional negligence by a chiropractor; that the defendants were
barred from raising a statute-of-repose defense because they raised it in an untimely
manner and were equitably estopped from asserting such a defense based on fraud;
and that the renewal complaint included claims for ordinary negligence that were not
covered by the statute of repose.
In addressing the defendants’ dismissal motion, the trial court framed the
controlling question as whether “for the purposes of OCGA § 9-3-71 (b), treatment
by a chiropractor is medical treatment such that an action against a chiropractor
would be considered a medical malpractice action.” The trial court answered its
question in the negative, concluding that the statute of repose does not apply to “non-
medical acts, errors, or omissions” and that treatment by a chiropractor does not
constitute the “practice of medicine.” In support of its conclusion, the trial court
relied on an unofficial opinion of the Attorney General of Georgia issued in 1972,
(c) Subsection (a) of this Code section is intended to create a two-year
statute of limitations. Subsection (b) of this Code section is intended to create
a five-year statute of ultimate repose and abrogation.
5
which concluded that chiropractors were “not considered physicians for insurance
purposes” and reasoned that
the definition of “chiropractic,” as set forth in Ga. Laws 1921, p. 166
(Ga. Code Ann. 84-501), is not broad enough to bring chiropractic
within the definition of “practice of medicine” contained in Ga. Code.
Ann. § 84-901, as amended by Ga. Laws 1970, p. 301.
1972 Op. Atty. Gen. No. U72-17 (“AG Opinion”).3 Because the trial court determined
that chiropractic treatment was not the practice of medicine, the court ruled that
OCGA § 9-3-71 (b) did not bar the Threadgills’ renewal action even though it “was
refiled more than five years after the subject event.” Consequently, the trial court
denied the defendants’ dismissal motion.
The trial court granted the defendants a certificate of immediate review, and the
defendants filed an application for interlocutory appeal, which this Court granted.
This appeal followed.
At the outset, we note that
[a] properly filed renewal action stands on the same footing as the
original action with respect to statutes of limitation. Accordingly, if a
3
The current definition of “chiropractic” is found at OCGA § 43-9-1 (2), and the
current definition of “practice of medicine” is found at OCGA § 43-34-21 (3).
6
renewal action is properly filed within six months after dismissal of the
original action, it remains viable even though the statute of limitation
may have expired. However, the Supreme Court [of Georgia] has held
that the legislature never intended for the dismissal and renewal statutes
to overcome the five-year statute of repose for medical malpractice
actions set forth in OCGA § 9-3-71(b). [See] Wright v. Robinson, 262
Ga. 844, 846 (1) (426 SE2d 870) (1993).
(Citations and punctuation omitted.) Blackwell v. Goodwin, 236 Ga. App. 861, 863
(2) (513 SE2d 542) (1999). The five-year statute of repose “stands as an unyielding
barrier to a plaintiff’s right of action,” is “absolute,” and “destroys the previously
existing rights so that, on the expiration of the statutory period, the cause of action
no longer exists.” Wright, 262 Ga. at 845 (1). Thus, if a plaintiff refiles her action for
medical malpractice more than five years after the date upon which the alleged
negligent act or omission occurred, the action is subject to dismissal pursuant to
OCGA § 9-3-71(b). See id. at 846 (1); Carr v. Kindred Healthcare Operating, 293
Ga. App. 80, 82 (2) (666 SE2d 401) (2008); Blackwell, 236 Ga. App. at 863-865 (2).
It is undisputed that the Threadgills’ renewal action was filed more than five
years after the alleged negligent acts and omissions of Drs. Fuller and Odom.
Accordingly, if OCGA § 9-3-71 (b) applies to the Threadgills’ claims, their renewal
action was time-barred and should have been dismissed by the trial court. See Wright,
7
262 Ga. at 846 (1); Carr, 293 Ga. App. at 82 (2); Blackwell, 236 Ga. App. at 863-865(2).
1. The defendants argue that the trial court erred in concluding that professional
negligence claims asserted against chiropractors are not subject to OCGA § 9-3-71
(b). According to the defendants, a professional negligence action against a
chiropractor is an “action for medical malpractice” as that phrase is used in the statute
of repose.
In addressing whether OCGA § 9-3-71(b) applies to professional negligence
claims against chiropractors, we are mindful that
[i]n considering a statute’s meaning, courts must afford the words of the
statute their ordinary meaning, and we must presume that the General
Assembly meant what it said and said what it meant. Where the
language of a statute is plain and susceptible to only one natural and
reasonable construction, courts must construe the statute accordingly. In
fact, where the language of a statute is plain and unambiguous, judicial
construction is not only unnecessary but forbidden.
(Citations and punctuation omitted.) Southern States Chemical v. Tampa Tank &
Welding, 316 Ga. 701, 713 (2) (888 SE2d 553) (2023).
Guided by these statutory construction principles, we turn to the language of
OCGA § 9-3-71 (b), which provides that an “action for medical malpractice” cannot
8
“be brought more than five years after the date on which the negligent or wrongful
act or omission occurred.” The phrase “action for medical malpractice” as used in the
statute of repose is defined in OCGA § 9-3-70:
As used in this article, the term “action for medical malpractice”
means any claim for damages resulting from the death of or injury to any
person arising out of:
(1) Health, medical, dental, or surgical service, diagnosis,
prescription, treatment, or care rendered by a person authorized by law
to perform such service or by any person acting under the supervision
and control of the lawfully authorized person; or
(2) Care or service rendered by any public or private hospital,
nursing home, clinic, hospital authority, facility, or institution, or by any
officer, agent, or employee thereof acting within the scope of his
employment.
(Emphasis supplied.) By the plain language of these statutes, the five-year statute of
repose encompasses claims for damages resulting from injury to a plaintiff arising out
of “[h]ealth . . . treatment[ ] or care” provided by a person authorized by law to
perform such service. And we conclude that professional negligence claims against
chiropractors for injuries arising from their treatment and care of their patients fit
within that statutory definition.
9
Chapter 9 of Title 43 of the Official Code of Georgia Annotated addresses the
licensing and regulation of chiropractors. Chiropractors who comply with the
licensing requirements and other rules imposed by that chapter have the right to
practice “chiropractic” as that term is defined in OCGA § 43-9-1 (2) and “to evaluate,
diagnose, and adjust patients according to specific chiropractic methods in order to
correct spinal subluxations or to adjust the articulations of the human body.” OCGA
§ 43-9-16 (a). “Chiropractic” is defined in OCGA § 43-9-1 (2):
“Chiropractic” means the adjustment of the articulations of the human
body, including ilium, sacrum, and coccyx, and the use of X-ray,
provided that the X-ray shall not be used for therapeutical purposes. The
term shall also mean that separate and distinct branch of the healing arts
whose science and art utilize the inherent recuperative powers of the
body and the relationship between the musculoskeletal structures and
functions of the body, particularly of the spinal column and the nervous
system, in the restoration and maintenance of health. Chiropractic is a
learned profession which teaches that the relationship between structure
and function in the human body is a significant health factor and that
such relationships between the spinal column and the nervous system
are most significant, since the normal transmission and expression of
nerve energy are essential to the restoration and maintenance of health.
However, the term shall not include the use of drugs or surgery. The
adjustment referred to in this paragraph and subsection (b) of Code
Section 43-9-16 may only be administered by a doctor of chiropractic
10
authorized to do so by the provisions of this chapter; provided, however,
that the provisions of this Code section shall not prevent any other
health care provider from administering techniques authorized within
their scope of practice.
The “scope of practice of chiropractors” is set out in OCGA § 43-9-16. In
performing the “chiropractic adjustment of the spine or articulations of the human
body,” chiropractors are authorized to perform “manual adjustments and adjustments
by means of electrical and mechanical devices which produce traction or vibration.”
OCGA § 43-9-16 (b). Additionally, chiropractors who comply with Chapter 9 may
use certain treatment “modalities,” which “include any physical agent applied to
produce therapeutic change to biologic tissues including thermal, acoustic,
noninvasive light, mechanical, or electric energy, hot or cold packs, ultrasound,
galvanism, microwave, diathermy, and electrical stimulation.” Id. Chiropractors in
compliance with Chapter 9
may utilize and recommend therapeutic procedures effecting change
through the application of clinical skills and services that attempt to
improve function, including therapeutic exercise, therapeutic activities,
manual therapy techniques, massage, and structural supports as they
relate to the articulations of the human body; provided, however, that the
same shall not be construed to allow chiropractors to treat patients
outside the scope of practice of chiropractic as set forth in this chapter.
11
OCGA § 43-9-16 (b). Such chiropractors also “may recommend the use of nutritional
and dietary supplements,” OCGA § 43-9-16 (i), and they “have the right to sign
health certificates, reporting the same to the proper health officers the same as other
practitioners.” OCGA § 43-9-16 (d). Chiropractors, however, cannot “prescribe or
administer medicine to patients, perform surgery, or practice obstetrics or
osteopathy.” OCGA § 43-9-16 (e).
In sum, Georgia law defines chiropractic as a “healing art[ ]” aimed at “the
restoration and maintenance of health,” OCGA § 43-9-1 (2); licensed chiropractors
may “evaluate, diagnose, and adjust patients . . . to correct spinal subluxations or to
adjust the articulations of the human body,” OCGA § 43-9-16 (a); and licensed
chiropractors are entitled to use on their patients a wide range of therapeutic
procedures and treatment modalities, including “any physical agent applied to
produce therapeutic change to biologic tissues,” OCGA § 43-9-16 (b). Given the
statutory definition of “chiropractic” and the scope of practice afforded to
chiropractors, we conclude that chiropractors are authorized under Georgia law to
provide “[h]ealth . . . treatment[ ] [and] care” to their patients, such that an action
alleging professional negligence against a chiropractor meets the definition of an
“action for medical malpractice” set forth in OCGA § 9-3-70 (1). See generally Ga.
12
Comp. R. & Regs., r. 100-10-.01 (b) (Georgia Board of Chiropractic Examiners
regulation providing that “[t]he doctor of chiropractic has the responsibility as a
primary healthcare provider to examine, establish a diagnosis/clinical impression,
render treatment and/or referral, commensurate with his/her findings”) (emphasis
supplied); Foster v. Ga. Bd. of Chiropractic Examiners, 257 Ga. 409, 419 (14) (359
SE2d 877) (1987) (treating chiropractic medicine as among the “health professions”
in applying rational-basis standard to constitutional challenge to a regulation
proscribing certain conduct by chiropractors). Accordingly, professional negligence
actions against chiropractors are subject to the statute of repose imposed by OCGA
§ 9-3-71 (b).
In concluding that chiropractors were not subject to the statute of repose, the
trial court reasoned that chiropractic is not the “practice of medicine,” a phrase which
is defined in the Medical Practice Act of Georgia, OCGA § 43-34-20 et seq. See
OCGA § 43-34-21 (3).4 But the “‘the practice of medicine’ in OCGA § [43-34-21 (3)]
4
OCGA § 43-34-21 (3) provides:
“To practice medicine,” “the practice of medicine,” or “practicing
medicine” means to hold oneself out to the public as being engaged in the
diagnosis or treatment of disease, defects, or injuries of human beings; or the
suggestion, recommendation, or prescribing of any form of treatment for the
intended palliation, relief, or cure of any physical, mental, or functional
ailment or defect of any person with the intention of receiving therefor, either
13
for purposes of licensing and registration [of physicians] is narrow whereas the
meaning of ‘medical malpractice’ in OCGA § 9-3-70 for purposes of limitation of
actions is broad,” and the phrase “action for medical malpractice” contained in
OCGA § 9-3-71 (b) “plainly encompasses more than the practice of medicine.”
(Citations and punctuation omitted.) Zechmann v. Thigpen, 210 Ga. App. 726, 727
(1) (437 SE2d 475) (1993).
We have repeatedly noted that the broad scope of OCGA § 9-3-70 is not
limited to licensed physicians. Bradway v. American Nat. Red Cross,
263 Ga. 19, 21 (426 SE2d 849) (1993) (blood bank); Zechmann, [210
Ga. App. at 727 (1)] (optometrist); Allrid v. Emory Univ., 166 Ga. App.
130, 131(1) (303 SE2d 486) (1983), aff’d, 251 Ga. 367 (306 SE2d 905)
(1983) (hospital dispensing drug).
directly or indirectly, any fee, gift, or compensation whatsoever; or the
maintenance of an office for the reception, examination, and treatment of
persons suffering from disease, defect, or injury of body or mind; or attaching
the title “M.D.,” “Oph.,” “D.,” “Dop.,” “Surgeon,” “Doctor,” “D.O.,” “Doctor
of Osteopathy,” “Allopathic Physician,” “Osteopathic Physician,” or
“Physician,” either alone or in connection with other words, or any other
words or abbreviations to one’s name, indicating that such person is engaged
in the treatment or diagnosis of disease, defects, or injuries to human beings,
provided that the terms “doctors of medicine,” “doctors of osteopathic
medicine,” “doctors of medicine licensed to practice in the state,” and similar
terms wherever used or appearing in this article or elsewhere shall mean and
include only those persons licensed under this article.
14
Robinson v. Williamson, 245 Ga. App. 17, 18-19 (1) (537 SE2d 159) (2000)
(pharmacist). See Charter Peachford Behavioral Health System v. Kohout, 233 Ga.
App. 452, 454 (a) (504 SE2d 514) (1998) (physical precedent only) (noting that
“OCGA § 9-3-70 (1) and (2) defines an ‘action for medical malpractice’ so broadly
. . . that the defendant medical doctors, psychologists, mental hospitals, and the
dietician all come within the act”). The trial court’s focus on whether chiropractic
treatment constituted the “practice of medicine” therefore was misplaced.
Additionally, the trial court erroneously relied upon a 1972 unofficial AG
Opinion to support its decision that professional negligence actions against
chiropractors are not subject to the statute of repose. See 1972 Op. Atty. Gen. No.
U72-17. As an initial matter, “opinions of the Attorney General are not binding upon
this [C]ourt, even where applicable to the issues before us.” (Citation and punctuation
omitted.) C. W. Matthews Contractor Co. v. Collins, 214 Ga. App. 532, 533 (448
SE2d 234) (1994). In any event, the AG Opinion relied upon by the trial court is not
applicable to the issues before us because it addressed whether chiropractors are
physicians for insurance purposes, not whether actions alleging professional
negligence against chiropractors are considered actions for medical malpractice under
the statute of repose; the AG Opinion relied upon the definition of the “practice of
15
medicine,” which is narrower than the definition of “action for medical malpractice,”
as discussed supra; and the AG Opinion was issued before OCGA §§ 9-3-70 and 9-3-
71 (b) were enacted and thus cannot be construed as contemplating or addressing any
of the matters raised in this case. See Ga. L. 1976, p. 1363, § 1; Ga. L. 1985, p. 556,
§ 1.
For all of the aforementioned reasons, we conclude that professional
negligence claims against chiropractors are subject to the five-year statute of repose
imposed by OCGA § 9-3-71 (b). Accordingly, the Threadgills’ professional
negligence claims against the defendants asserted in their renewal action were subject
to the statute of repose, and the trial court erred in concluding otherwise.
2. “[T]his Court may affirm a trial court’s ruling on a motion to dismiss if it is
right for any reason, so long as the argument was fairly presented to the court below.”
(Citation and punctuation omitted.) City of Alpharetta v. Francis, 366 Ga. App. 454,
458 (2) (883 SE2d 400) (2023). We therefore consider the alternative arguments for
denying the defendants’ dismissal motion that were raised by the Threadgills in the
trial court. However, we do not find the Threadgills’ alternative arguments
persuasive.
16
(a) In opposing the dismissal motion, the Threadgills argued that the
defendants were barred from pursuing their statute-of-repose defense because they
did not raise it in timely manner. The Threadgills emphasized that the defendants did
not assert OCGA § 9-3-71 (b) as a defense in their answers and instead relied upon
the statute of repose for the first time in their dismissal motion filed several years
after the renewal action commenced. But “unlike a statute of limitation, a statute of
repose generally cannot be waived, if not initially pled, or tolled.” Trax-Fax v.
Hobba, 277 Ga. App. 464, 469 (2) (a) (627 SE2d 90) (2006). See Miller v. Vitner, 249
Ga. App. 17, 17 (546 SE2d 917) (2001) (“The statute of ultimate repose does not bar
a cause of action from being brought, which is a defense to the merits that can be
waived, but abrogates any cause of action so that no cause of action continues to
exist; thus, the cause of action ceases to exist in law after the five years have
passed.”). The defendants therefore did not waive their statute-of-repose defense by
failing to assert it earlier in the litigation. See Trax-Fax, 277 Ga. App. at 466 (2), 469-
470 (2) (a) (concluding that defense predicated on OCGA § 34-9-245 had not been
waived as untimely, where the statute in question was determined to be a statute of
repose).
17
(b) The Threadgills also argued that the defendants were equitably estopped
from raising their statute-of-repose defense. As we have explained,
In certain narrow circumstances, a defendant may be equitably estopped
from raising the statute of repose as a defense. In order for this to apply,
however, a plaintiff must show fraud by offering evidence of a known
failure to reveal negligence. In other words, there must be a separate and
independent act of fraud.
(Citation and punctuation omitted.) Golden v. Floyd Healthcare Mgmt., 368 Ga. App.
409, 419 (3) (a), n. 12 (890 SE2d 288) (2023).
The Threadgills argued in the court below that the defendants were equitably
estopped from raising a statute-of-repose defense because they performed
manipulations of Mrs. Threadgill’s spine without first obtaining her informed
consent. The Threadgills also asserted that the defendants were equitably estopped
because they produced a document during discovery in which Dr. Odom denied
performing a spinal manipulation on Mrs. Threadgill on August 8, 2012, and because
they claimed in the litigation that Mrs. Threadgill had not been treated at Fuller Life
on that date.
The conduct of the defendants alleged by the Threadgills does not support a
claim of equitable estoppel. The defendants’ alleged failure to obtain Mrs.
18
Threadgill’s informed consent before performing the spinal manipulations on her that
allegedly led to her injuries was not a “fraud separate from the underlying [alleged]
negligence” that would support the application of equitable estoppel. Smith v. Kayfan,
364 Ga. App. 651, 655 (874 SE2d 465) (2022) (noting that equitable estoppel
requires “a separate and independent act of fraud” occurring after the alleged medical
malpractice). See Wilhelm v. Houston County, 310 Ga. App. 506, 509 (1) (c) (713
SE2d 660) (2011) (noting that equitable estoppel can be applied where the
defendant’s fraud “occurred after the plaintiff’s injury accrued and, as a result of that
fraud, the plaintiff did not file suit until after the repose period expired”) (emphasis
in original). Furthermore, documents produced by the defendants after the Threadgills
filed their lawsuit, and assertions made by the defendants during the litigation, even
if false, do not support an equitable estoppel claim, which arises only where, “as a
result of [the] fraud, the plaintiff did not file suit until after the repose period
expired.” (Citation and punctuation omitted.) PTI Royston v. Eubanks, 360 Ga. App.
263, 272 (2) (861 SE2d 115) (2021). See Osburn v. Goldman, 269 Ga. App. 303, 304
(1) (a) (603 SE2d 695) (2004) (explaining that application of equitable estoppel
requires evidence of fraud “on which the plaintiff reasonably relied in forbearing the
bringing of a lawsuit”). Accordingly, the Threadgills have failed to allege any
19
conduct by the defendants that would equitably estop them from raising a statute-of-
repose defense.
(c) Lastly, in opposing the dismissal motion, the Threadgills argued that their
renewal complaint included a claim that the defendants failed to obtain Mrs.
Threadgill’s informed consent before performing physical manipulations and
adjustments on her spine, and that this claim sounded in ordinary negligence and thus
did not fall within the purview of OCGA § 9-3-71 (b). See Piedmont Hosp. v. D. M.,
335 Ga. App. 442, 445 (2) (779 SE2d 36) (2015) (“[B]y its terms, OCGA § 9-3-71
applies only to claims for medical malpractice, not to claims for ordinary
negligence[.]”).
As an initial matter, as pointed out by the defendants in seeking dismissal of
the Threadgills’ renewal action, our Supreme Court has held that “Georgia does not
recognize a common law doctrine of informed consent”; that “the doctrine of
informed consent for health procedures and treatment is defined in Georgia
exclusively by statutes and regulations”; and that “[t]here is no question that
chiropractic treatments are not among the procedures designated in [Georgia’s
informed consent statute,] OCGA § 31-9-6.1[,] for which informed consent is
required.” Blotner v. Doreika, 285 Ga. 481, 484-485 (2) (678 SE2d 80) (2009). The
20
Threadgills thus failed to state an informed consent claim, irrespective of whether the
statute of repose was applicable to such a claim.
Nevertheless, even if the Threadgills’ informed consent claim came within the
ambit of Georgia’s informed consent statute, OCGA § 31-9-6.1 (which it does not),
that statute provides that “[a] failure to comply with the requirements of this Code
section shall not constitute a separate cause of action but may give rise to an action
for medical malpractice as defined in Code Section 9-3-70 and as governed by other
provisions of this Code relating to such actions[.]” OCGA § 31-9-6.1 (d). Hence, such
a claim still would be subject to the five-year statute of repose for medical
malpractice actions. See Blackwell v. Goodwin, 236 Ga. App. 861, 863 (2) (513 SE2d
542) (1999) (concluding that the plaintiffs’ claim for the alleged failure to obtain
consent for an injection was subject to the five-year statute of repose for medical
malpractice actions based on OCGA § 31-9-6.1 (d)). The Threadgills therefore failed
to state any claims that were not subject to and barred by the statute of repose.
For all of these reasons, the trial court erred in determining that the Threadgills’
renewal action was not barred by the statute of repose for medical malpractice
actions. Because the defendants’ dismissal motion should have been granted, we
reverse the judgment.
21
Judgment reversed. Land and Watkins, JJ., concur.
22