ZIGLAR v. ST. JOSEPH‘S/CANDLER HEALTH SYSTEM, INC.
A17A0214
COURT OF APPEALS OF GEORGIA
DECIDED MAY 10, 2017
800 SE2d 395
MCMILLIAN, Judge.
jury found Darden not guilty of selling or intending to distribute cocaine. He was convicted only of possessing the cocaine found in his vehicle. Given the jury‘s relatively favorable verdict, as well as the clear evidence of cocaine in the car, we find it highly unlikely that Parker‘s response to defense counsel‘s question prejudiced Darden. See Whitaker v. State, 291 Ga. 139, 142 (2) (728 SE2d 209) (2012) (trial counsel‘s failure to object to comments on defendant‘s pre-arrest silence did not constitute ineffective assistance where defendant failed to show that comments likely impacted verdict); Hines v. State, 277 Ga. App. 404, 408 (2) (626 SE2d 601) (2006) (“Improper referenсe to a defendant‘s silence does not automatically require reversal or mandate a finding of ineffective assistance of counsel.“) (citation and punctuation omitted); see also McGlothlin v. State, 339 Ga. App. 371, 374 (2) (a) (791 SE2d 645) (2016) (verdict of acquittal on most serious charge undermined argument that detective‘s improper testimony prejudiced jury against defendant).
Judgment affirmed. Ellington, P. J., and Rickman, J., concur.
DECIDED MAY 10, 2017.
Daniels & Rothman, Jeffrey A. Rothman, for appellant.
Kenneth W. Mauldin, District Attorney, Grace
MCMILLIAN, Judge.
Appellant Jason Keith Ziglar appeals following dismissal of his complaint for failure to file a sufficient expert affidavit pursuant to
“A motion to dismiss based upon the lack of [a sufficient] expert affidavit is a motion to dismiss for failure to state a claim under
Pursuant to
In pertinent parts, Copeland‘s affidavit contained the following averments:
Based on my review of the above-described medical records, it is my opinion within a reasonablе degree of medical probability that the staff of St. Joseph‘s Hospital failed to exercise the standard of care and degree of skill possessed, exercised and employed by the medical profession generally and nurses and support staff with regard to nursing care of patients in medical facilities especially, under similar conditions and like circumstances, by negligently failing to: (1) properly assess and treat Jason Keith Ziglar‘s wounds; and (2) appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required.
The Hospital contends this affidavit was fatally defective because: 1) it fails to set forth at least one negligent act or omission claimed to exist; 2) it fails to set forth any factual basis for such a claim against the defendant; and 3) even assuming plaintiff‘s expert, a nurse, was competent to testify as to the standard of care of the Hospital‘s nurses, she is not competent to testify about the standard of care of the Hospital‘s unidentified “support staff” under
Our law is clear that “[a]n affidavit under
Ziglar argues, however, that his complaint also set out a claim for simple
When assessing whether the complaint alleges ordinary negligence, we must liberally construe the allegations of the complaint and only conclude that ordinary negligence has not been alleged if it is foreclosed by the complaint itself[.] In determining, as a matter of law, whether the complaint alleged claims based on ordinary negligence, professional negligence, or both, . . . we look solely to the allegations of the complaint and liberally construe the allegations to state a claim if, within the framework of the cоmplaint, the plaintiff may introduce evidence which will sustain a grant of relief based on the claim. We will conclude that the complaint does not allege a claim only if the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief on the claim under any state of provable facts. (Citations and punctuation omitted.) Health Mgmt. Assoc. v. Bazemore, 286 Ga. App. 285 (648 SE2d 749) (2007).
Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 146-47 (1) (682 SE2d 165) (2009).
Ziglar set out two basic claims in the complaint — that the Hospital and its employees, specifically its nurses and support staff, failed to properly treat and аssess Ziglar‘s wounds and the Hospital failed to ensure that, as an unconscious patient, he received the required level of monitoring and treatment, which would logically include detecting the developmеnt of ulcers caused by a prolonged bed stay.
“Failure to adequately monitor for injuries and failure to assure proper medical care are analogous to claims previously held to fall within the realm of professional medical decisionmaking.” Brown, 279 Ga. App. at 167. Ziglar alleged negligence based on the failure of the Hospital‘s nurses and unspecified staff to take the appropriate steps to ensure that he, as an unconscious patient, did not develop a pressure ulcer while confined to his hospital bed and to appropriately treat it once they discovered it. Clearly, just what thesе steps are and what should have been done to prevent the development of the ulcer would require “highly specialized expert knowledge with respect to which a layman can have no knоwledge at all, and the court and jury must be dependent on expert evidence.” (Citation and punctuation omitted.) Brown, 279 Ga. App. at 166-67; see also Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833 (769 SE2d 575) (2015) (physical precedent only) (medical malpraсtice case involving pressure sores). Likewise, a “medical judgment” clearly would be involved in assessing the severity of the ulcer and prescribing a course of treatment. “‘Medical judgments’ are ‘decisions which normally require the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience.’ Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998).” James v. Hosp. Auth. of the City of Bainbridge, 278 Ga. App. 657, 659 (629 SE2d 472) (2006). Here, Ziglar alleged his claims in terms of medical negligence, referring to a failure to exercise or a deviation from acceptable standards of medical care. Thus, еven construing the allegations of his complaint broadly in his favor, we conclude that the entirety of Ziglar‘s claims fall within the realm of professional negligence and therefore were properly dismissed for want of a sufficient
Judgment affirmed. Andrews and Rickman, JJ., concur.
DECIDED MAY 12, 2017.
The Bowen Law Group, Charles J. Bowen, Jr., for appellant.
Brennan, Wasden & Painter, Wiley A. Wasden III, Sandra V. Foster, for appellee.
MCMILLIAN
Judge