341 Ga. App. 371
Ga. Ct. App.2017Background
- Plaintiff Jason Keith Ziglar was admitted unconscious to St. Joseph’s/Candler Hospital in December 2013 and developed a Stage IV sacral pressure ulcer during the stay.
- Ziglar sued the Hospital for negligence, alleging nurses and unidentified support staff failed to assess, monitor, prevent, and treat the ulcer; he alleged professional negligence and ordinary negligence.
- Pursuant to OCGA § 9-11-9.1, Ziglar attached an expert affidavit by nurse Sandra D. Copeland to the complaint.
- The Hospital moved to dismiss, arguing Copeland’s affidavit failed to (1) specify at least one negligent act or omission, (2) provide a factual basis for allegations, and (3) identify competent expert opinion as to unnamed “support staff.”
- The trial court dismissed the complaint solely for failure to file a sufficient OCGA § 9-11-9.1 affidavit; Ziglar appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Copeland’s affidavit satisfies OCGA § 9-11-9.1 requirement to state at least one negligent act/omission and factual basis | Copeland’s affidavit (referring to medical records) sufficiently alleges failure to assess/treat and to advocate for an unconscious patient | Affidavit is conclusory: does not identify specific negligent acts or factual bases and did not attach medical records | Affidavit is fatally defective for failing to specify any negligent act/omission and for lacking sufficient factual basis; dismissal affirmed |
| Whether an expert affidavit was required for alleged ordinary negligence by nonprofessional support staff | Ziglar contends complaint includes ordinary negligence claims that do not require a § 9-11-9.1 affidavit | Hospital argues allegations are professional medical claims requiring a § 9-11-9.1 affidavit | Court finds allegations (failure to monitor, prevent, assess, and prescribe treatment) are professional medical judgments requiring expert proof; ordinary negligence not alleged as a matter of law |
Key Cases Cited
- Brown v. Tift Health Care, Inc., 279 Ga. App. 164 (same principle that failure to attach sufficient § 9-11-9.1 affidavit supports dismissal)
- Hobbs v. Great Expressions Dental Centers of Ga., 337 Ga. App. 248 (standard of review for dismissal on § 9-11-12(b)(6) grounds)
- Edwards v. Vanstrom, 206 Ga. App. 21 (an affidavit that does not state at least one negligent act or omission is fatally defective)
- Crook v. Funk, 214 Ga. App. 213 (affidavit adequate where underlying facts supporting expert opinions are set out)
- Dent v. Memorial Hosp. of Adel, 270 Ga. 316 (definition of "medical judgments" requiring expert proof)