350 Ga. App. 408
Ga. Ct. App.2019Background
- Plaintiff Annie Zephaniah (pro se at filing) alleged that on May 25, 2016 a Georgia Clinic employee identified as a “technician” ("Margaret") performed a venipuncture and drew her blood without consent, causing injury.
- Zephaniah filed suit on May 24, 2018 alleging violation of the standard of care and professionalism and referenced OCGA § 9-11-9.1 in her complaint.
- Georgia Clinic moved to dismiss under OCGA § 9-11-9.1 for failure to attach an expert affidavit required in professional-malpractice suits; the trial court granted dismissal.
- Zephaniah appealed, now represented by counsel, arguing (1) the actor was a technician not a listed licensed professional so the affidavit requirement did not apply, and (2) she alleged intentional misconduct (battery) which likewise does not require an expert affidavit.
- The Court of Appeals reviewed the dismissal de novo, construing the pro se complaint liberally and resolving doubts in the plaintiff’s favor.
- The court reversed the dismissal, holding that (a) a “technician” is not among the professions enumerated in OCGA § 9-11-9.1(g) so the affidavit requirement did not apply to the alleged negligence of that employee, and (b) allegations of nonconsensual blood-draw state an intentional tort (battery) for which an expert affidavit is not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 9-11-9.1 affidavit required where the alleged wrongdoer is a "technician" | Zephaniah: No affidavit required because the actor is a technician, not a listed licensed professional | Georgia Clinic: Complaint should be read as alleging professional negligence requiring an affidavit; lack of details supports dismissal | Reversed: Technician is not among § 9-11-9.1(g) professions; affidavit not required when professional judgment/skill not implicated |
| Whether intentional-tort allegations (nonconsensual blood draw/battery) require an expert affidavit | Zephaniah: Alleged nonconsensual drawing of blood is intentional misconduct/battery, so no affidavit required | Georgia Clinic: Even if intentional-act theory could be construed, plaintiff failed to plead sufficiently (but court declined to reach sufficiency) | Reversed: Intentional tort claims need no § 9-11-9.1 affidavit; complaint sufficiently alleges nonconsensual touching to invoke that principle |
Key Cases Cited
- Procter v. Gwinnett Pulmonary Grp., P.C., 312 Ga. App. 486 (review standard; technician not in § 9-11-9.1(g))
- Health Mgmt. Assocs., Inc. v. Bazemore, 286 Ga. App. 285 (affidavit required in malpractice suits against listed professionals)
- Walker v. Wallis, 289 Ga. App. 676 (OCGA § 9-11-9.1 applies to professional negligence, not intentional acts)
- Oduok v. Fulton DeKalb Hosp. Auth., 340 Ga. App. 205 (intentional tort claims against medical providers do not require expert affidavit)
- Lockhart v. Bd. of Regents of the Univ. Sys. of Ga., 316 Ga. App. 759 (medical touching without consent can constitute battery)