Chandler v. OPENSIDED MRI OF ATLANTA, LLC , 299 Ga. App. 145 ( 2009 )

BLACKBURN, Presiding Judge,

dissenting.

I respectfully dissent with- the majority opinion on two separate grounds. First, the Chandlers were required to attach an expert affidavit to their original complaint because their claims alleged professional negligence. Second, defendants did not waive their defense of asserting the Chandlers’ failure to attach such an affidavit, and thus I disagree with the majority’s contention that this Court should overrule established precedent in this matter. Accordingly, I would affirm the trial court’s grant of defendants’ motion to dismiss.

1. OCGA § 9-11-9.1 (a) (3) requires that any action alleging professional malpractice be accompanied by an expert affidavit setting forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” An expert affidavit is also required when a complaint seeks damages against a licensed health care facility based on a claim that the facility is vicariously liable for the professional malpractice of a health care professional. Health Mgmt. Assocs. v. Bazemore.²⁰ Thus, an expert affidavit must be filed “[wjhere the professional’s alleged negligence requires the exercise of professional skill and judgment to comply with a standard of conduct within the professional’s area of expertise. ...” Bardo v. Liss.²¹ “[RJoutine acts demanding no special expertise fall in the realm of simple negligence.” (Punctuation omitted.) MCG Health v. Casey.²² “Whether a complaint alleges ordinary negligence or professional malpractice is a question of law for the court, regardless of how the plaintiff categorizes it.” (Punctuation omitted.) Grady Gen. Hosp. v. King.²³

In this matter, the Chandlers argue that the defendants’ failure to lower the MRI table and then to assist Mrs. Chandler in getting off the table constituted ordinary negligence. However, the degree to which the table needed to be lowered and to which Mrs. Chandler needed assistance in getting off the table given her pre-existing shoulder injury required the exercise of the MRI technician’s expert medical judgment. Indeed, this Court has “found that similar allegations of medical negligence constituted professional rather than ordinary negligence because the degree of physical assistance needed by a patient to prevent a fall in light of the patient’s medical condition required the exercise of expert medical judgment.” Bardo, supra, 273 Ga. App. at 104-105 (doctor’s failure to assist patient as she stepped down from examination table was professional negligence). See Gaddis v. Chatsworth Health Care Center²⁴ (nursing home’s failure to implement precautions to prevent a patient from falling was professional negligence); Holloway v. Northside Hosp.²⁵ (nurses’ failure to assist plaintiff and prevent her from falling constituted professional negligence); Sparks v. Southwest Community Hosp. &c.²⁶ (hospital’s decision to use the type of wheelchair from which plaintiff fell constituted professional malpractice). Compare Candler Gen. Hosp. v. McNorrill²⁷ (nurse’s decision to undertake the physical act of moving the patient from a stretcher or casting table to a wheelchair was merely an act of physical strength and dexterity rather than an act requiring the exercise of expert medical judgment).

In arguing that the trial court’s decision should be reversed, the majority makes no attempt to distinguish the four cases cited above, which found facts analogous to those at issue here to constitute professional malpractice claims. Nor does the majority argue that these four cases should be overruled. Instead, the majority simply ignores these cases and, relying on Health Mgmt. Assocs. v. Bazemore, supra, speculates that the Chandlers may be able to develop evidence supporting a theory of ordinary negligence. This reliance is misplaced. In Health Mgmt. Assocs., plaintiffs complaint alleged that an “employee” of a medical center “negligently failed to give adequate assistance and supervision to [plaintiff] while taking her to the restroom.” Supra, 286 Ga. App. at 286. Under these circumstances, this Court held that the allegations in plaintiffs complaint were “so general and unspecific” that plaintiff could produce evidence in support of professional negligence or ordinary negligence claims. Id. at 287.

In contrast, here, the Chandlers do not allege that some unidentified employee caused Mrs. Chandler’s fall but rather specifically allege that the MRI technician was responsible. In further contrast, the Chandlers do not allege that the act that caused her fall was something as commonplace as assisting someone to the restroom but rather specifically allege that the MRI technician’s failure to lower the table (an action for which the technician was specially trained as evidenced by the expert’s affidavit that the Chandlers attached to their refiled complaint) was the negligent act. It should also be noted that in Health Mgmt. Assocs., this Court approvingly cited Bardo v. Liss, supra, 273 Ga. App. 103, as an example of a case where expert medical judgment was required in assisting a patient off of an examination table. Health Mgmt. Assocs., supra, 286 Ga. App. at 287-288. As previously mentioned, the facts in Bardo are nearly indistinguishable from those at issue in this matter. Accordingly, I find no error in the trial court’s conclusion that the Chandlers’ original complaint stated claims based on professional negligence and thus required the attachment of an expert affidavit.

2. I also disagree with the majority’s conclusion that defendants waived any defense under former OCGA § 9-11-9.1 (c) by not filing a separate motion to dismiss contemporaneously with their initial pleadings in the original action. Former OCGA § 9-11-9.1 (c)²⁸ provided:

If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.

Thus,

failure to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1 is a non-amendable defect foreclosing the use of OCGA § 9-2-61, unless the court determines that the affidavit was available prior to the filing of the complaint, and that the failure to timely file it was the result of a mistake.

(Punctuation omitted.) Grier-Baxter v. Sibley.²⁹ See Lyberger v. Robinson.³⁰

Here, in their initial answers, defendants raised the Chandlers’ failure to file an expert affidavit as an affirmative defense and requested that the complaint be dismissed but did not file a separate motion to dismiss the complaint until nearly five months later. In interpreting the language in OCGA § 9-11-9.1 regarding raising a plaintiffs failure to file an expert affidavit, this Court has held that while the statute “authorizes the filing of a separate motion, it does not preclude its inclusion in the initial response.” Winfrey v. Total Health Clinic Corp.³¹ “The critical requirement is the timing of defendants raising this defense, not the form in which it is raised.” Id. Indeed, this Court has noted that the purpose of this language is to ensure that both the plaintiffs and the trial court are put on notice of a defendant’s intent to assert this defense. Id. Thus, the defendants “did not waive their right to assert [the Chandlers’] failure to file an expert affidavit as a defense to [their] claims against them simply because they raised the failure in their initial response, rather than by separate motion filed contemporaneously therewith.” Id. at 620. Compare Glaser v. Meek³² (defendant waived defense of plaintiffs failure to attach an expert affidavit by not raising it in responsive pleadings until three months after filing pleadings and until after the statute of limitation had run).

The majority argues that the 1997 amendment to OCGA § 9-11-9.1, which added the “contemporaneously with” language, requires that a defendant’s motion to dismiss for failure to attach an expert affidavit be a separate filing apart from but at the same time as defendant’s initial pleading. Based on this interpretation of the statute and its alleged legislative history, the majority argues that Winfrey was wrongly decided and should be overruled. However, this Court’s interpretation of the statute in Winfrey is supported by our Supreme Court’s similar interpretation. Although the case did not focus on whether defendants had waived the expert affidavit defense, in Mug a Bug Pest Control v. Vester,³³ a unanimous Supreme Court of Georgia addressed the 1997 amendments to OCGA § 9-11-9.1, as well as their legislative history, and noted that

[t]he 1997 amendments changed provisions relating to the time that the affidavit must be filed, required the defendant to seek dismissal in its initial responsive pleading, applied the affidavit requirement to licensed healthcare facilities, and listed the 24 professions to which the requirement applies.

(Emphasis supplied). In light of the fact that the Supreme Court of Georgia has not interpreted OCGA § 9-11-9.1 to require that a motion to dismiss for failure to attach an expert affidavit be filed separately with a defendant’s initial pleading, the majority’s contention that Winfrey was wrongly decided is without merit.

The majority further argues that because defendants allegedly waived the defense of the Chandlers’ failure to attach an expert affidavit, the Chandlers could dismiss and renew their complaint, pursuant to OCGA § 9-2-61, regardless of whether a court determines that the affidavit was available prior to the filing of the complaint and that the failure to timely file it was the result of a mistake. Based on this reading of OCGA § 9-11-9.1 (f), the majority concludes that numerous cases, which hold that failure to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1 is a nonamendable defect foreclosing the use of OCGA § 9-2-61, were wrongly decided and should be overruled. However, because I find that the defendants did not waive their OCGA § 9-11-9.1 expert affidavit defense, I do not agree that it is necessary for the Court to address this issue in this matter. In fact, even the majority concedes that plaintiffs are prohibited from renewing a complaint after the statute of limitation has expired under OCGA § 9-2-61 if the required expert affidavit was not attached to the original complaint and this failure was properly raised by defendants pursuant to OCGA § 9-11-9.1 (f).

In summary, given that the Chandlers failed to attach the required expert affidavit to their original complaint and given that the defendants adequately raised the failure to file such an affidavit in their initial pleadings, the Chandlers’ original complaint was not subject to the renewal provisions of OCGA § 9-2-61 and therefore cannot serve as a basis for a renewal action. See Griffin v. Carson;³⁴ Grier-Baxter, supra, 247 Ga. App. at 561-562 (2). Accordingly, I would affirm the trial court’s decision.

I am authorized to state that Presiding Judge Andrews, Presiding Judge Johnson and Judge Mikell join in this dissent.

Decided July 15, 2009 Barry L. Zimmerman, for appellants. Insley & Race, Brynda R. Insley, for appellees.

20 Health Mgmt. Assocs. v. Bazemore, 286 Ga. App. 285, 286 (648 SE2d 749) (2007).

21 Bardo v. Liss, 273 Ga. App. 103, 104 (1) (614 SE2d 101) (2005).

22 MCG Health v. Casey, 269 Ga. App. 125, 128 (603 SE2d 438) (2004).

23 Grady Gen. Hosp. v. King, 288 Ga. App. 101, 102 (653 SE2d 367) (2007).

24 Gaddis v. Chatsworth Health Care Center, 282 Ga. App. 615, 618 (2) (639 SE2d 399) (2006).

25 Holloway v. Northside Hosp., 230 Ga. App. 371, 372 (496 SE2d 510) (1998).

26 Sparks v. Southwest Community Hosp. &c., 195 Ga. App. 858 (395 SE2d 68) (1990).

27 Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110-111 (2) (354 SE2d 872) (1987).

28 In the 2007 amendment to this statute, former OCGA § 9-11-9.1 (c) was redesignated as OCGA § 9-11-9.1 (f). The language in subsection (f) is identical to that of former subsection (c). See Ga. L. 2007, p. 216, § 1.

29 Grier-Baxter v. Sibley, 247 Ga. App. 560, 561 (2) (545 SE2d 5) (2001).

30 Lyberger v. Robinson, 207 Ga. App. 845, 845-846 (429 SE2d 324) (1993).

31 Winfrey v. Total Health Clinic Corp., 255 Ga. App. 617, 619 (2) (566 SE2d 372) (2002).

32 Glaser v. Meck, 258 Ga. 468 (2) (369 SE2d 912) (1988).

33 Mug a Bug Pest Control v. Vester, 270 Ga. 407, 408 (1) (509 SE2d 925) (1999).

34 Griffin v. Carson, 255 Ga. App. 373, 375 (3) (566 SE2d 36) (2002).