*1 light rulings recovery on 1 and a Counts on fraud precluded, would be and court did not err therefore granting summary judgment relating on Count 3 to fraud. 9-11-56, prevail summary
“To judgment under OCGA moving party genuine must demonstrate that there issue of ma- facts, undisputed terial fact and that viewed most light nonmoving party, judgment warrant as matter of favorable Haskins, Corp. Ap- Lau’s law.” case, this plying standard to the facts of this First American was enti- on all judgment complaint tled to three counts of the law, err in ruling. matter and the did not so Judgment Carley, J., J., Pope, P. and concur. affirmed. —
Decided October Reconsideration denied November Currie,
Swift, Hiers, Barwick, & C. McGee Jane appellants. for Sutherland, Brennan, & Byrne, appellee. Asbill Thomas M. for GEORGIA, A92A1451. HCA HEALTH OF SERVICES INC. v. al. HAMPSHIRE et A92A1452. KATZ et al. v. HAMPSHIRE et al.
A92A1453. GREEN v. HAMPSHIRE et al. BIELFELT A92A1454. v. HAMPSHIRE et al. Sognier, Judge. Chief Hampshire
Oliver Hampshire brought and Katie a medical mal- practice hospital, suit allopathic physician, five osteo- pathic physicians, professional corporation and the employs sev- osteopathic physicians, eral of the seeking personal damages for and injuries loss of consortium. Two of the defendants were voluntarily dismissed; upon the Hampshire, death of Mr. Ms. shire, as estate, administrator his was substituted as personal injury defendant, Except claim. all the defendants basis, alia, moved to dismiss the on the inter it failed comply with the requirements 9-11-9.1. OCGA § dismiss, The trial court denied the motions to their granted we applications interlocutory appeal. purposes
For appellees OCGA 9-11-9.1 submitted the af- Stone, fidavit of H. Harlan M.D. Dr. training, Stone set forth his qualifications, employment allopathic as an physician then that he personally copies Hampshire’s stated reviewed certified of Mr. appellant medical records at hospital, HCA Health Services Geor- (hereinafter Regional Center Medical gia, “Northlake”). HCA Northlake Inc. d/b/a ap- any name mention does not Dr. Stone’s diagnoses, dates, except pellant stated the Dr. Stone Northlake. eight Hampshire, in detail performed procedures discussed appear explained patient, “obvious” x-rays what would taken of the x-rays, I see “[f]rom what averred of those a review from *2 patient’s responsible care X-rays, physician(s) for this [sic] these recognized patient in degree as is for this of care to exercise failed the medical generally like professional conditions similar responsible “physician(s) then faulted Dr. Stone circumstances.” specified negligent con- patient” acts or omissions for two for the provided opinion professional Mr. the dare in his cluded that shire “fell below surgeons required care of the level of conjunction patient’s responsible physicians in care other profes- recognized generally general surgeon, in the medical as is my profes- It is and like circumstances. conditions sion under similar attending physician(s) to adhere failure of the that the sional presented treating in the condition of care standards patient. injury Hampshire” caused further incorrectly interpreted Appellants that the trial court contend part pertinent provides “[i]n in statute 9-11-9.1. That OCGA any plaintiff malpractice, alleging professional damages action for expert an affidavit of an file with the shall be competent specifically testify, at least shall set forth which affidavit negligent the factual basis claimed to exist and act or omission one § 9-11- because OCGA The trial court held that for each such claim.” expert’s negligent expressly require act averment of a an 9.1 does not only every “an indicates that defendant but instead or omission as to affidavit” supplied), expert” required (emphasis id. “an compe- by appellees affidavit, an Dr. Stone’s the submission tent to alleged negligent testify defend- the other defend- act of as to one ant, of the statute as to satisfied ants. intent and in with its real construed accordance
A statute is to be legislative purpose, strictly meaning John- as to defeat and not so Housing Atlanta, Ga. 816-817 Auth. son v. (1991), according most obvious to the natural and be read and should resorting import language forced con- to subtle and without opera- limiting extending purpose for the structions tion. (1) (391 Burbridge Hensley, App. 523, purpose number § 9-11-9.1 is to reduce the “The of OCGA malpractice being Moore, 190 Doctors &c. v. suits filed.” frivolous App. 286, § 9-11-9.1. misconstrued OCGA that the trial court We hold purpose reducing legislative the number accordance with suits, malpractice requiring we construe OCGA as frivolous in plaintiff malpractice suit to submit a valid affidavit an ex- competent testify professional pert against each complaint, specifically which is set forth at least one named act or omission claimed to exist as to each de- negligent otherwise, (jointly, appropriate; severally) where and the fac- fendant each To tual basis claim defendant. construe stat- proposed ute manner the trial court would defeat purpose authorizing naming of the statute malpractice defendants suits which a can forth no defendant, negligent act or omission to that attributable thus sanctioning profes- the filing malpractice of frivolous suits only tangentially defendants legitimate who are related to the brought against another defendant. 9-11-9.1, interpretation under the correct of OCGA § filing of an expert’s require- affidavit that satisfies statute’s as to necessarily ments one defendant does not mean that those re- quirements have been likewise satisfied as to other Ac- defendants. cordingly, by concluding the trial court erred appellees’ filing expert’s affidavit sufficient under OCGA 9-11-9.1 as to allo- *3 path dispositive appellants’ defendant was of claims that precluded affidavit was appellants’ insufficient consideration of objections to the affidavit. appellants’ dismiss,
2.
order on
to
motion
the
court
trial
“findings
made
deposition
of fact” derived from
testimony and other
during
evidence
discovery
prior
adduced
parties
conducted
the
to
ruling
appellants’ motions,
the
including a finding
is
that there
significant
difference
standard of
allopaths
care
of
osteopaths.
appellants
We
that on a motion to dismiss
insufficiency
based
the
of an affidavit
pursuant
submitted
to
9-11-9.1,
OCGA
consideration of
evidentiary
§
essential
matters not
included
the
is improper.
Cheeley Henderson,
See
v.
261
(405
865) (1991)
787)
Ga. 498
rev’g
(398
SE2d
543
SE2d
(1990) (held: expert’s
incorporate by
affidavit cannot
reference mat-
required by
ters
OCGA 9-11-9.1
to be set forth
of
within
affi-
davit). Compare
Goodgame,
(414
197)
v.
Gillis
tions to dismiss competent on the basis that Dr. expert Stone was an testify against to them.
(a) As to osteopath appellants the professional corpora- and their
Ill expert “an com- to be tion,1 for an affiant we held that order have member of same must be a testify,” petent to profes- or, if from a different as the professional school of methods treat- school, particulars how the must state the in order to establish that for the schools ment are the same different re- give to be able to possesses expertise the affiant is the defendant applicable standard of care garding the (417 715) Koenig, v. App. 684, held. Chandler Ga. 685 (397 (1990). Manno, Milligan v. (1992); App. 171 of a the witness is member affidavit ‘establishes “[W]here different school of medicine than defendant but practiced plaintiff’s con- contains the methods treatment no evidence exception to bring so as the witness within the dition are the same then) testify(, the affidavit incompetent rule that he is Chandler, Dr. supra at 686. Because legally insufficient.’ [Cit.]” school he is a member of a different Stone’s affidavit established that no evidence osteopath appellants than the and contained medicine professional “a so as to establish regarding the methods treatment [appellees] overlap alleged by in at matter expertise least one by denying trial erred malpractice,” constitute id. osteopath appellants dismiss and their motions to made A92A1452, A92A1453, and corporation in Case Nos. A92A1454.
(b) Northlake that appellees’ allegation appellant As to hospital malpractice of the individual alleged was liable physician-defendants, pleadings established appellants meaning of OCGA 9-11-9.1. are within Gillis, (see 43-34-20 osteopathy at 118 doctors of OCGA §§ (3); 43-34-27; practice osteopathy in professional corporation for (2); 14-7-3). Accordingly, was entitled to 14-7-2 Northlake §§ insufficiency assert the OCGA 9-11-9.1 affidavit defense alleged osteopath appellants. liability to its Turner, County Hosp. Greene v. Auth. Ga. Auth., County Hosp. Thornton Ware Compare holding our based on supra,
Division erred Northlake’s mo- *4 osteopath ap- hospital’s liability tion to insofar as the dismiss pellants is concerned. by do not with Northlake that the trial court erred We allegations appellees’ com- its motion to dismiss other
plaint. capacity corporation solely as the was named Bonner, Hosp. App.
employer appellants. v. of the individual See Doctor’s 152, (6) (a) (392 897) (1990). 161-162
(a) Appellees and Northlake admitted in its alleged answer that M.D., Arora, Hamp- O. M. performed defendant who surgery, shire’s was a member of Northlake’s medical staff at the time Appellees specifically of the issue. surgery alleged their com- (as plaint Dr. physician-defendants) Arora of the individual agent, by authority, was os- “acting actual [Northlake’s] tensibly,” thereby forth setting a claim Northlake under theory respondeat Bonner, superior. generally Hosp. See Doctors (6) (a) (392 897) (1990). 195 Ga. A 161-162 review appellees’ OCGA affidavit ex- 9-11-9.1 reflects that Dr. Stone is an pert competent testify against Dr. Arora and Dr. Stone set specific forth acts of negligence allegedly committed Dr. Arora.2 liability upon theory respondeat Since Northlake’s rests supe- rior, “appell[ees] complied with requirements 9-11- [OCGA] § 9.1 with filing complaint affidavits which forth negli- set [the] gence whose acts form the basis for [their] hospital.” Thornton, supra at 203.
(b) argues Northlake affidavit was insufficient and dismissal was demanded because copies the certified of medical allegedly records referenced reviewed Dr. Stone were not attached agree. to the affidavit. We do not OCGA 9-11-9.1 mandates expert’s forth: specifically one negligent at least “[1] act or omission claimed to exist and [2] the factual basis for each such claim.” plain “Where susceptible statute but one natural construction, authority reasonable has no place a dif it, ferent construction but must construe it according to its (Citations omitted.) terms.” punctuation Imports Pier 1 v. Chat ham County Assessors, Bd. Tax Nothing suggests that the “fac requirement tual basis” must be verified attaching documentary evidence to the affidavit. Such verification relate to evi dentiary standards applicable to supporting affidavits motion judgment, e.g., Feliciano, Smith v. 346) (1988), given plain language of OCGA 9-11- 9.1, we will not apply a verification used to affidavits satisfy that statute’s different legislative purpose reducing the fil ing of frivolous suits. generally &c., See Doctors af 288
Dr. fully Stone’s complies by setting the statute forth synopsis his of the salient he facts from Mr. derived records, shire’s medical supports his negligent acts or omissions had been presence committed. The within the affidavit, (b), As to the factual basis for Dr. Stone’s averrals in his Division 4 infra. see
113 distin- negligence claims the basis for the factual affidavit Hosp. &c., Baptist v. Ga. 198 Gooden case guishes this from (401 602) (1991), We note that (1) by Northlake. 407, cited SE2d can indicating an affidavit Gooden can be read as that to the extent by in- requirements of OCGA 9-11-9.1 mandatory comply with § docu- other by attaching to affidavit or corporating reference averrals, holding con- requisite are forth the ments in which (decided Cheeley, in Supreme Court’s decision flicts with Gooden) will be followed. after and not five months trial court (c) agree Finally, we not with Northlake do appel- in allegation motion to dismiss as erred its infer- provided having was liable “for complaint that Northlake lees’ well that a [appellees].” recognized “It is ior and facilities to services ordinary furnishing defective may negligence in hospital be liable in ... treating patients. by physicians surgeons for use and equipment care, in a duty requiring ordinary albeit medical breach of a [T]he Lamb Gen. v. Candler contéxt, malpractice. ...” is not medical (1) (413 [appel- Hosp., 262 Ga. “Insofar as hospital for supplying alleges negligence lees’] pa- treating for use in non-medical services [inferior facilities] tients, involving ‘profes- ‘professional’ is a the case not one is inapplicable malpractice.’ (Footnote omitted.) (2). Thus, required. Id. at [Cit.]” sufficiency ordinary in issue affidavit is not for their claim, properly denied Northlake’s mo- negligence and the Auth., County Hosp. Greene Id.; tion that claim. to dismiss to supra. in A92A1451 in and reversed Judgment part Case No. affirmed A92A1452, A92A1453, Judgments Case part.
in in Nos. J., J., McMurray, concurs. P. concurs Cooper, A92A1454 reversed. specially. Presiding Judge, concurring specially. McMurray, I with of what judgments and most is written solely my view, refer- majority opinion. I write order to state majority opinion, ence Division 4 decision to &c., Ga. Baptist Hosp. Gooden v. distinguished. Gooden should than be overruled rather Smith v. plainly makes to OCGA 9-11-9.1 from rule
Feliciano,
rely
708).
majority
distinguishes
relating
The
this case
Smith as
evidentiary
standards
holds that
verification
satisfy
applied
will
not be
affidavits submitted to
OCGA 9-11-9.1.
majority opinion distinguishes
Gooden on the basis that
present
“synopsis
case has set
of . . .
. . .
forth
facts
*6
derived from” the
medical
I
absent
records.
do not see this as signifi-
cantly
“recite,
different from the Gooden affidavits which
refer to and
rely on” absent medical records.
(Emphasis supplied.) Id. at 408.
view,
my
Gooden,
decision,
if a
viable
would be
to the case
judice
sub
require
disregard
and would
that we
Dr. Stone’s affidavit.
In Gooden, this court never reached the issue of
whether
content
the affidavits satisfied the
of OCGA 9-11-9.1 since
the affidavits were disregarded due to the
absence
the medical
they
predicated.
records
which
were
An
pursuant
affidavit submitted
to OCGA 9-11-9.1 must set
forth the
each
factual basis for
claim. The
matters
be set
forth within the
of an expert’s
may
not be incorporated
Cheeley Henderson,
u.
reference.
Decided October Reconsideration denied November Bird, Graves, Kent,
Alston & Hays, Judson Daniel A. Richard R. Paul Quiner, Brogdon, J. M. Gino for HCA Health Services. Bird,
Alston & Dow Kirkpatrick, N. for Katz. Gleaton, Egan, Gleaton, & N. Frederick H. Charles Scofield Fails, for Green. Sullivan, Smith, Hall Henry Jr., Booth & D. Green, for Bielfelt. Ford Haley, Ford, & L. James Cole, David C. Hampshire. for
A92A1458. RAIFORD et al. v. DEPARTMENT OF
TRANSPORTATION et al. Judge.
Beasley, petitioned The DOT acquire fee simple condemnation title to a 1.024-acre tract needed a right-of-way for a State-aid road.