Lead Opinion
Ms. Johnnie Lusk brought an action in February 1990 against Robert Harrell, who is a licensed pharmacist, and others, alleging that Harrell had negligently filled a prescription she had given him with the incorrect dosage (5 mg. instead of the prescribed 25 mg.). The parties agree that Lusk attached the affidavit of a medical doctor to her complaint and that thereafter the action was dismissed on the ground that the affidavit failed to satisfy the requirements оf OCGA § 9-11-9.1.
In Gillis, supra, this Court, in determining the professions tha1 come within the ambit of OCGA § 9-11-9.1, looked not only to OCG^ § 14-7-2 (2) (which defines “profession” by setting forth 16 specific professions), but also OCGA § 14-10-2 (2) (defining “professional service”) and OCGA § 43-1-24 (providing that licensed professionals arc subject to regulation by state examining boards). OCGA § 14-10-2 (2) provides that a professional sеrvice is that “which may be legally performed only pursuant to a license from a state examining board pursuant to Title 43.” (Emphasis supplied.) OCGA § 43-1-24 speaks in terms of “[a]ny person licensed by a state examining board” (emphasis supplied) and cross-references Title 14, Chapters 7 and 10, as containing the Code sections setting forth the professions and professional services subject to regulation.
It is apparent from the interplay between OCGA § 14-10-2 (2) and OCGA § 43-1-24 that the Gillis Court sought to limit the application of the affidavit requirement in OCGA § 9-11-9.1 to those professions which can legally be performed only when a state examining board has determined that the applicant has successfully completed the schooling or training statutorily required to qualify him to practice that profession.
Pharmacy has been legislatively defined as a profession. OCGA § 26-4-2. The practice of pharmacy is regulated by the State Board of Pharmacy, OCGA § 26-4-37, and an applicant is entitled to receive a license to practice pharmacy only upon compliance with the requirements in OCGA § 26-4-72, including graduating from a recognized school or college of pharmacy and successfully passing an examinatiоn administered by the State Board of Pharmacy. An extensive review of the Official Code of Georgia Annotated reveals that pharmacy, with its education-qualified licensing and state examining board regulation, is the only profession declared to be such by the legislature that is not included in Title 43.® As the legislature itself recognized when it enacted the Fair Business Practices Act, OCGA § 10-1-391 et seq., and provided, among the powers of the administrator, thе authority to revoke professional licenses, our Code defines a “person holding a professional license” as including not only Title 43 but also Chapter 4 of Title 26, i.e., pharmacists. OCGA § 10-1-395 (f).
We therefore find it necessary to augment the list of professions set forth in Gillis, supra, with those persons holding a professional license pursuant to Chapter 4 of Title 26.
However, although ordinarily this Court would rule that Lusk’i second complaint, filed with the affidavit of a licensed pharmacist should be dismissed with prejudice pursuant to OCGA § 9-11-9.1 (f) that result would be unfair in this case. As in Lutz v. Foran,
Judgment affirmed.
Notes
OCGA § 9-11-9.1 requires that an affidavit by an expert competent to testify must be attached to the plaintiff’s complaint “[i]n any action for damages alleging professional malpractice.” (Emphasis supplied.) Id. at (a).
Hence, a distinction must be drawn between those occupations included in Title 43 where licensure involves merely registration, e.g., firearm dealers, OCGA § 43-16-1 et seq.; operators of motor vehicle racetracks, OCGA § 43-25-1 et seq.; peddlers, OCGA § 43-32-1 et seq.; and used motor vehicle pаrts dealers, OCGA § 43-48-1 et seq., and those occupations where licensure is conditioned upon the state examining board’s determination that the applicant successfully completed the schooling and/or training upon which licensure is statutorily preconditioned.
Although there are other licensed businesses not included in Title 43, e.g., water well contractors, OCGA § 12-5-127 (who are required to act under the direction of a professional geologist or professional engineer, OCGA § 12-5-125, both of which are licensed professions under OCGA § 14-7-2 (2)) and professional foresters, OCGA § 12-6-52 (the refusal to grant or revocation of whose licenses are subject to Title 43, OCGA § 12-6-57), such businesses are not denominated professions in the same manner in which the legislature has denominated pharmacy a profession. See OCGA § 26-4-2 (16) (A).
Professional negligence suits against teachers are not subject to OCGA § 9-11-9.1 because, although the legislature has recognized that teaching is a profession, OCGA § 20-2-791, teachers are certified, not licensed, OCGA § 20-2-200, and, unlike certified public accountants, are not expressly listed among the professions in OCGA § 14-7-2 (2). See also, e.g., court reporters, OCGA §§ 15-14-22 (3); 15-14-29; fire fighters, OCGA §§ 25-7-7; 25-4-8.
We find no merit in Lusk’s argument that Harrell occupies the same status as the unlicensed radiological physicist in Gillis based on the legislature’s enactment, subsequent to our holding in Gillis, of the Nuclear Pharmacy Law. OCGA § 26-4-130 et seq. (Code 1981, enacted by Ga. L. 1983, p. 790, § 2.)
Concurrence Opinion
concurring specially.
Appellant-defendant is a pharmacist who allegedly committed i negligent act or omission in filling appellee-plaintiff’s prescription Appellee’s original suit against appellant was dismissed for appellee’s failure to comply with OCGA § 9-11-9.1 (a). After the statute of limitation had run, appellee brought the instant renewal action againsl appellant. Appellant moved to dismiss pursuant to OCGA § 9-11-9.1 (f). Relying upon Gillis v. Goodgame,
At the outset, it is important to recognize that the law of this state mandates that thе plaintiff produce expert testimony at two different stages of a “professional malpractice” action. The common law
the legislature intended for the term “professional” as used in OCGA § 9-11-9.1 [(a)] to be defined by OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24. We hold, therefore, that the affidavit requirements of [OCGA] § 9-11-9.1 [(a)] apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24. [Cit.]
(Emphasis supplied.)
It is clear that, as interpreted in Gillis, the scope of the applicability of the statutory pleading requirement of OCGA § 9-11-9.1 (a) would be much narrower than that of the common law evidentiary requirement. The applicаbility of the common law evidentiary requirement is certainly not limited to malpractice actions against only those defendants who are engaged in the “professions” that are enumerated in OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24. “The word ‘profession’ literally may be applied to any calling or vocation requiring special knowledge of a branch of science or learning . . . .” Ga. State Bd. of Examiners v. Friedmans’ Jewelers,
Professional men in general, and those who undertake any work calling for sрecial skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. Most of the decided cases have dealt with physicians and surgeons, but the same is undoubtedly true of dentists, pharmacists, psychiatrists, attorneys, architects and engineers, accountants,*900 abstracters of title, and many other professions and even skilled trades.
Prosser, Thе Law of Torts (4th ed. 1971), pp. 161-162, § 32.
“The law imposes upon persons performing architectural, engineering, and other professional and skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions.” [Cit.]
(Emphasis supplied.) Bodin v. Gill,
Thus, the scope of the applicability of the common law evidentiary requirement extends to any malpractice action against a defendant who is engaged in any “profession” requiring “highly specialized expert knowledge with respect to which a layman can have no knowledge at all. . . .” Pilgrim v. Landham,
“[t]he court and the jury must have a standard measure which they are to use in measuring the acts of the [professional] in determining whether he exercised a reasonable degree of care and skill. They аre not permitted to set up and use any arbitrary or artificial standard of measurement that a jury may wish to apply.” [Cit.]
(Emphasis in original.) Howell v. Jackson,
The reason for this requirement is simply that a jury cannot rationally apply negligence principles to professional conduct absent evidence of what the competent [professional] would have done under similar circumstances, and the jury may not be permitted to speculate about what the “professional custom” may be. Expert evidence as to the “professional custom” is required in malpractice actions against . . . professionals. [Cits.]
Hughes v. Malone,
There is no dispute that pharmacy is a “profession” calling for highly specialized expert knowledge. See Prosser, The Law of Torts (4th ed. 1971), p. 161, § 32, fn. 34. Thus, insofar as the applicability of the common law evidentiary requirement is concerned, a suit by
Contrary to the holding in Gillis, I do not believe that the scope of the applicability of OCGA § 9-11-9.1 (a) is dependent upon a statutory definition of the term “professional.” In specifying its scope, OCGA § 9-11-9.1 (a) does not merely employ the term “professional.” Instead, it employs the phrase “any action for damages alleging professional malpractice.” Accordingly, the issue for resolution is not whether “the General Assembly enacted OCGA § 9-11-9.1 [(a)]
‘ “with full knowledge of the existing condition of the law [regarding a statutory definition of the term ‘professional’] and with reference to it. . . .” ’ [Cits.]” Gillis v. Goodgame, supra at 118. Instead, the issue for resolution is the legislative intent in establishing the submission of an expert’s affidavit as an initial pleading requirement in “any action for damages alleging professional malpractice.”
There is certainly a presumption that the General Assembly enacted OCGA § 9-11-9.1 (a) “ ‘with full knowledge of the existing condition of the law and with reference to it ... .’ ” Housing Auth. of Savannah v. Greene, supra at 438. However, OCGA § 9-11-9.1 (a) relates to the specific topic of practicе and procedure in “professional malpractice” actions and, although the three statutes cited in Gillis may define the term “professional” for certain purposes, none of those statutes relates to the specific topic of “professional malpractice” actions. On the other hand, the common law evidentiary requirement specifically applicable in “professional malpraсtice” actions long antedates enactment of OCGA § 9-11-9.1 (a). In my opinion, it is “with full knowledge” of that specific antecedent common law legal principle, and not “with reference” to the non-germane provisions of OCGA §§ 14-7-2 (2); 14-10-2 (2) or 43-1-24, that the General Assembly established the statutory pleading requirement of OCGA § 9-11-9.1 (a). Thus, the legislative intent of OCGA § 9-11-9.1 (a), as I perceive it, was not to limit the applicability of the initial pleading requirement to only malpractice actions brought against those defendants who are engaged in the “professions” enumerated in OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24. Rather, the legislative
The majority perpetuates what I perceive to be the error in Gillis, insofar as it accepts the premise of Gillis that the scope of the applicability of OCGA § 9-11-9.1 (a) is somehow dependent upon a statutory definition of the term “professional.” Having discovered another statute which was not enumerated in Gillis, but which does define a “pharmacist” as a “professional,” the majority now “find[s] it necessary to augment the list of professions set forth in Gillis, supra, with those persons holding a professional license pursuant to Chapter 4 of Title 26.” Majority at p. 897. I cannot join in the majority’s rationale of “augmenting” Gillis’ list of various statutes which define the term “professional” for various and sundry reasons. By its express terms, OCGA § 9-11-9.1 (a) applies to “any action for damages alleging professional malpractice. ...” That phrase already has a common law definition which needed no judicial reinterpretation in Gillis and which needs no further judicial “augmentation” in the instant case оr in any future cases.
Where the failure to do a thing, or the negligent doing of it, is proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service, it is a “professional” act or practice. [Cit.]*903 Wherever it is “necessary to establish the parameters of acceptable professional conduct” ([cit.]) in order to prove nеgligence or breach for failure to perform in a workmanlike manner, the case must be deemed a professional malpractice case.
(Emphasis in original.) Razete v. Preferred Research,
[t]he determinative factor as to whether a suit in negligence is or is not a malpractice action within the ambit of OCGA § 9-11-9.1 is the existence or absence of allegations that the defendant-professional has rendered negligent professional services. In the case wherein such allegations are made, resolution of the issue of the defendant’s compliance with or deviation from the applicable standard of professional conduct calls for “highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.” [Cit.] Accordingly, any plaintiff . . . who brings suit against a professional and seeks to recover for the alleged negligent performance of professional services is required by OCGA § 9-11-9.1 to file an expert’s affidavit setting forth at least one specific negligent act or omission and the factual basis for such a claim.
(Emphasis in original.) Jordan, Jones & Goulding v. Wilson,
The trial court аnd the Court of Appeals were bound by this Court’s holding in Gillis that OCGA § 9-11-9.1 (a) applied only to suits against those professionals enumerated in OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24. It is only this Court which is authorized to reexamine Gillis and to rectify any error in its holding. The majority would recognize that Gillis was erroneous, but only to the extent that it overlooked certain provisions found in Chapter 4 of Title 26 relating to the practice of pharmacy. I would go further and overrule Gillis on the basis that its very premise was erroneous. Without regard to any statutory definition of the term “professional” which may have been in existence at the time that suit was originally filed against appellant, appellee would have been required, under this state’s common law, to produce at the post-pleading stage an expert’s testimony to establish the standard of care from which she alleged that appel