Bobby L. James appeals from the trial court’s order dismissing his complaint against the Hospital Authority of the City of Bainbridge d/b/a Memorial Hospital and Manor (“Memorial Hospital”) and Frederick Brown Lutz, M.D. based on his failure to timely file an expert affidavit in support of his professional malpractice claims. See OCGA§ 9-11-9.1 (a). James contends the trial court erred because he alleged claims for simple negligence which fall outside the requirements of OCGA § 9-11-9.1 (a). He also contends that the trial court erred in failing to abide by an automatic bankruptcy stay. For the following reasons, we affirm.
On November 27, 2001, James presented at the Memorial Hospital emergency room with complaints of abdominal pain, abdominal cramps, and constipation. James was treated by Dr. Lutz, who diagnosed him with diverticulitis, prescribed a medication, and then discharged him. On November 29, 2001, James returned to Memorial Hospital where he underwent emergency surgery for a gangrenous perforated appendix and an intra-abdominal abscess. Thereafter, James was transferred to another hospital where he was treated for acute renal failure secondary to his perforated appendix and abdominal sepsis.
On November 25, 2003, James filed his complaint, alleging that Dr. Lutz and Memorial Hospital “negligently failed to evaluate and treat [him] on November 27, 2001,” and that their “mis-diagnosis” caused him to suffer certain injuries and damages. James specifically alleged that his injuries “were caused by Defendants’ failure to properly evaluate [him], failure to properly diagnose [his] condition, and failure to properly treat [him].”
When James filed his complaint, he failed to submit an expert affidavit in support of his claims of professional negligence as required by OCGA § 9-11-9.1 (a). As a result, Dr. Lutz and Memorial Hospital moved to dismiss the complaint. Their motions were ultimately granted by the trial court in its order entered on March 4, 2005. In its order, the trial court also included a finding that “Plaintiff has failed to demonstrate that there are any bankruptcy proceedings which operate as a stay of this case.”
1. James’ first enumeration of error concerns the trial court’s dismissal of his complaint for failure to submit a timely expert affidavit. Significantly, James does not challenge the trial court’s dismissal of his professional negligence claims. Rather, James’ sole argument is that his complaint should have been construed as also alleging claims of simple negligence which did not require submission of an expert affidavit and thus were not subject to dismissal.
Under OCGA§ 9-11-9.1 (a), “[i]n any action for damages alleging professional malpractice,... the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”
OCGA § 9-11-9.1 (a) (2003).
1
By negative implication, an expert affidavit is not required for claims averred in a complaint that are based on acts or omissions constituting
Applying these principles to the present case, we conclude that despite James’ argument that his complaint can be construed as setting forth claims of simple negligence, all of his claims are plainly for professional medical malpractice. All of James’ claims stem from his specific factual assertion that the defendants misdiagnosed his medical condition as diverticulitis and improperly discharged him from the emergency room based on that misdiagnosis without treating his actual ailment, appendicitis. How to diagnose and treat a patient presenting with certain symptoms is a “decision[ ] which normally require [s] the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience.”
Dent,
“A complaint may be dismissed on motion if clearly without merit [,] and this want of merit may consist ... in the disclosure of some fact which will necessarily defeat the claim.” (Citation and punctuation omitted.)
Earl v. Mills,
2. In his second enumeration of error, James contends that the trial court erred in failing to abide by an automatic stay allegedly imposed by the United States Bankruptcy Court for the Northern District of Maryland, Baltimore Division. As previously noted, the trial court found that James failed to demonstrate that there were any bankruptcy proceedings that would operate as a stay in this case.
Contending that the trial court’s finding was erroneous, James relies upon certain documents attached to his brief purportedly relating to the bankruptcy action. However, in a previous order, we denied James’ request to supplement the appellate record with documents from the United States Bankruptcy Court. “It is well settled that the burden on appeal is on the appellant to show error by the record. When a portion of the evidence bearing upon the issues before the trial court was not filed in the trial court and not made a part of the record on appeal, this Court may not consider such material.” (Citation omitted.)
Since our review is confined to the record, we cannot consider the exhibits attached to James’ brief which are not contained therein. The record is void of any other evidence supporting James’ claim that this case was subject to an automatic bankruptcy stay. Accordingly, we must affirm the trial court’s finding.
Caconi Candy & Gum v. Curtis Products Co.,
Judgment affirmed.
Notes
OCGA§ 9-11-9.1 was amended effective February 16, 2005, by Ga. L. 2005, p. 1, § 3.