Scott McKeever, a certified athletic trainer, was employed by Georgia Physical Therapy, Inc. (“GPT”). GPT encouraged its employees to participate in community activities, and, as part of this program, McKeever volunteered to work with various sports teams at South Cobb High School, including the football team. Jeffrey McCullough, one of the football players, complained to McKeever of pain in his right foot. McKeever attributed the pain to an ingrown toenail. Despite McKeever’s advice regarding care of the toe, however, the *745 condition worsened. When McCullough complained again a week later, McKeever noted that the toenail area was red, and recommended that McCullough consult with his family physician. As a result of medical complications which arose in connection with his toe, McCullough brought suit against numerous defendants, asserting a malpractice claim against McKeever and alleging negligent hiring, supervision, and training against GPT.
The trial court granted McKeever’s motion to dismiss because McCullough failed to file an affidavit in accordance with OCGA § 9-11-9.1. McCullough has not appealed that ruling. We granted GPT’s application for interlocutory review of the trial court’s denial of its motion to dismiss based on the absence of an expert affidavit.
The trial court found that by failing to have a physician on staff and available to its athletic trainers, GPT breached its legal duty by knowingly permitting McKeever to violate OCGA § 43-5-1 (2). Having committed negligence per se, the court concluded that the OCGA § 9-11-9.1 affidavit requirement was not applicable. The court relied on
Central Anesthesia Assoc. v. Worthy,
On appeal, GPT argues that the complaint did not assert a claim arising from a breach of a statutory duty. Even if it had, GPT asserts that OCGA § 43-5-1 (2) is inapplicable. We agree. OCGA § 43-5-1 does not require that a physical therapy group have a physician on staff. Further, the Code section delineates those procedures, “use [of] physical modalities, such as heat, light, sound, cold, electricity, or mechanical devices,” a trainer is permitted to perform on a patient “upon the advice and consent of a physician.” By failing to specify that this list is without limitation, the list of procedures contemplated by the statute must be construed as inclusive. See generally
Hamlin v. Timberlake Grocery Co.,
Even if we disagree with the trial court’s reasoning, however, we still examine whether there is a legal basis for the result reached below. The complaint alleges that at all times relevant to the complaint
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McKeever was acting within the scope of his employment as agent for GPT. It further alleges that GPT negligently hired, supervised, and trained McKeever. We have held that a malpractice affidavit is required in suits against entities not required to be licensed by this state where liability is predicated on the doctrine of respondeat superior or when “the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as ‘professionals.’ ”
Dozier v. Clayton County Hosp. Auth.,
Judgment reversed.