HCA Health Services of Georgia, Inc. v. Hampshire
HCA Health Services of Georgia, Inc. v. Hampshire
Opinion of the Court
Oliver Hampshire and Katie Hampshire brought a medical malpractice suit against a hospital, one allopathic physician, five osteopathic physicians, and the professional corporation that employs several of the osteopathic physicians, seeking damages for personal injuries and loss of consortium. Two of the osteopath defendants were voluntarily dismissed; upon the death of Mr. Hampshire, Ms. Hampshire, as administrator of his estate, was substituted as plaintiff on the personal injury claim. Except for the allopath defendant, all the defendants moved to dismiss the complaint on the basis, inter alia, that it failed to comply with the requirements in OCGA § 9-11-9.1. The trial court denied the motions to dismiss, and we granted their applications for interlocutory appeal.
For purposes of OCGA § 9-11-9.1 (a), appellees submitted the affidavit of H. Harlan Stone, M.D. Dr. Stone set forth his training, qualifications, and employment as an allopathic physician and then stated that he personally reviewed certified copies of Mr. Hampshire’s medical records at appellant hospital, HCA Health Services of Geor
1. Appellants contend that the trial court incorrectly interpreted OCGA § 9-11-9.1. That statute provides in pertinent part that “[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.” The trial court held that because OCGA § 9-11-9.1 does not expressly require an expert’s averment of a negligent act or omission as to every defendant but instead indicates that only “an affidavit” by “an expert” is required (emphasis supplied), id. at (a), the submission by appellees of Dr. Stone’s affidavit, an expert competent to testify as to one alleged negligent act of the allopath defendant, satisfied the requirements of the statute as to the other defendants.
A statute is to be construed in accordance with its real intent and meaning and not so strictly as to defeat the legislative purpose, Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816-817 (403 SE2d 97) (1991), and should be read according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (1) (391 SE2d 5) (1990). “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed.” 0-1 Doctors &c. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989).
We hold that the trial court misconstrued OCGA § 9-11-9.1. In accordance with the legislative purpose of reducing the number of
Therefore, under the correct interpretation of OCGA § 9-11-9.1, the filing of an expert’s affidavit that satisfies the statute’s requirements as to one defendant does not necessarily mean that those requirements have been likewise satisfied as to other defendants. Accordingly, the trial court erred by concluding that appellees’ filing of an expert’s affidavit sufficient under OCGA § 9-11-9.1 as to the allopath defendant was dispositive of appellants’ claims that appellees’ affidavit was insufficient and precluded consideration of appellants’ objections to the affidavit.
2. In its order on appellants’ motion to dismiss, the trial court made “findings of fact” derived from deposition testimony and other evidence adduced during discovery conducted by the parties prior to the ruling on appellants’ motions, including a finding that there is no significant difference in the standard of care required of allopaths and osteopaths. We agree with appellants that on a motion to dismiss based upon the insufficiency of an affidavit submitted pursuant to OCGA § 9-11-9.1, consideration of essential evidentiary matters not included in the affidavit is improper. See Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991) rev’g 197 Ga. App. 543 (398 SE2d 787) (1990) (held: expert’s affidavit cannot incorporate by reference matters required by OCGA § 9-11-9.1 to be set forth within body of affidavit). Compare Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992) (evidence extrinsic to the affidavit is admissible to determine whether defendant is “professional” to whom affidavit requirement in OCGA § 9-11-9.1 applies).
3. Appellants contend the trial court erred by denying their motions to dismiss on the basis that Dr. Stone was an expert competent to testify against them.
(a) As to the osteopath appellants and their professional corpora
(b) As to appellees’ allegation against appellant Northlake that the hospital was liable for the alleged malpractice of the individual physician-defendants, the pleadings established that the osteopath appellants are professionals within the meaning of OCGA § 9-11-9.1. Gillis, supra at 118 (see doctors of osteopathy in OCGA §§ 43-34-20 (3); 43-34-27; professional corporation for practice of osteopathy in OCGA §§ 14-7-2 (2); 14-7-3). Accordingly, Northlake was entitled to assert the insufficiency of the OCGA § 9-11-9.1 affidavit as a defense to its liability for the alleged malpractice of the osteopath appellants. Greene County Hosp. Auth. v. Turner, 205 Ga. App. 213 (421 SE2d 715) (1992). Compare Thornton v. Ware County Hosp. Auth., 205 Ga. App. 202 (421 SE2d 713) (1992). Therefore, based on our holding in Division 3 (a), supra, the trial court erred by denying Northlake’s motion to dismiss insofar as the hospital’s liability for the osteopath appellants is concerned.
4. We do not agree with Northlake that the trial court erred by denying its motion to dismiss other allegations in appellees’ complaint.
(b) Northlake argues that appellees’ affidavit was insufficient and dismissal was demanded because the certified copies of medical records referenced by and allegedly reviewed by Dr. Stone were not attached to the affidavit. We do not agree. OCGA § 9-11-9.1 mandates the expert’s affidavit set forth: “[1] specifically at least one negligent act or omission claimed to exist and [2] the factual basis for each such claim.” “Where a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Citations and punctuation omitted.) Pier 1 Imports v. Chatham County Bd. of Tax Assessors, 199 Ga. App. 294, 296 (1) (404 SE2d 637) (1991). Nothing in OCGA § 9-11-9.1 suggests that the “factual basis” requirement must be verified by attaching documentary evidence to the affidavit. Such verification requirements relate to evidentiary standards applicable to affidavits supporting a motion for summary judgment, e.g., Smith v. Feliciano, 187 Ga. App. 86, 87 (2) (369 SE2d 346) (1988), and given the plain language of OCGA § 9-11-9.1, we will not apply a verification requirement to affidavits used to satisfy that statute’s different legislative purpose of reducing the filing of frivolous malpractice suits. See generally 0-1 Doctors &c., supra af 288 (1).
Dr. Stone’s affidavit fully complies with the statute by setting forth his synopsis of the salient facts he derived from Mr. Hampshire’s medical records, which supports his opinion that negligent acts or omissions had been committed. The presence within the body of
(c) Finally, we do not agree with Northlake that the trial court erred by denying its motion to dismiss as to the allegation in appellees’ complaint that Northlake was liable “for having provided inferior services and facilities to [appellees].” “It is well recognized that a hospital may be liable in ordinary negligence for furnishing defective equipment for use by physicians and surgeons in treating patients. ... [T]he breach of a duty requiring ordinary care, albeit in a medical contéxt, is not medical malpractice. ...” Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992). “Insofar as [appellees’] complaint alleges negligence against the hospital for supplying [inferior non-medical services and facilities] for use in treating its patients, the case is not one against a ‘professional’ or involving ‘professional malpractice.’ Therefore, OCGA § 9-11-9.1 is inapplicable and no affidavit is required. [Cit.]” (Footnote omitted.) Id. at 72 (2). Thus, the sufficiency of appellees’ affidavit is not in issue for their ordinary negligence claim, and the trial court properly denied Northlake’s motion to dismiss as to that claim. Id.; Greene County Hosp. Auth., supra.
Judgment in Case No. A92A1451 affirmed in part and reversed in part. Judgments in Case Nos. A92A1452, A92A1453, and A92A1454 reversed.
The professional corporation was named as a defendant solely in its capacity as the employer of the individual osteopath appellants. See Doctor’s Hosp. v. Bonner, 195 Ga. App. 152, 161-162 (6) (a) (392 SE2d 897) (1990).
As to the factual basis for Dr. Stone’s averrals in his affidavit, see Division 4 (b), infra.
Concurring Opinion
concurring specially.
I agree with the judgments and most of what is written in the majority opinion. I write solely in order to state my view, with reference to Division 4 of the majority opinion, that the decision in Gooden v. Ga. Baptist Hosp. &c., 198 Ga. App. 407, 408 (1) (401 SE2d 602) should be overruled rather than distinguished. Gooden plainly makes applicable to OCGA § 9-11-9.1 the rule from Smith v. Feliciano, 187 Ga. App. 86 (369 SE2d 346) that affidavits which rely on materials not contained in the record must be disregarded because they do not set forth admissible facts. This is inconsistent with the construction of OCGA § 9-11-9.1 as establishing an exception to the general liberality of pleading permitted under the Civil Practice Act and “not to require a plaintiff to prove a prima facie case entitling
The majority opinion distinguishes Gooden on the basis that the affidavit in the present case has set forth a “synopsis of . . . facts . . . derived from” the absent medical records. I do not see this as significantly different from the Gooden affidavits which “recite, refer to and rely on” absent medical records. (Emphasis supplied.) Id. at 408. In my view, Gooden, if a viable decision, would be applicable to the case sub judice and would require that we disregard Dr. Stone’s affidavit. In Gooden, this court never reached the issue of whether the content of the affidavits satisfied the requirements of OCGA § 9-11-9.1 since the affidavits were disregarded due to the absence of the medical records upon which they were predicated.
An affidavit submitted pursuant to OCGA § 9-11-9.1 must set forth the factual basis for each claim. The matters required by OCGA § 9-11-9.1 to be set forth within the body of an expert’s affidavit may not be incorporated by reference. Cheeley u. Henderson, 261 Ga. 498 (405 SE2d 865). The anomaly which results is that material, which Gooden requires to be included in the record, may not be considered under Cheeley in determining the sufficiency of the expert affidavit.
Reference
- Full Case Name
- HCA HEALTH SERVICES OF GEORGIA, INC. v. HAMPSHIRE Et Al.; KATZ Et Al. v. HAMPSHIRE Et Al.; GREEN v. HAMPSHIRE Et Al.; BIELFELT v. HAMPSHIRE Et Al.
- Cited By
- 21 cases
- Status
- Published