Brown v. Tift County Hospital Authority

Bernes, Judge. Appellant Gussie Brown brought the present action against appellee Ansley Tillman1 seeking to recover damages for injuries that she allegedly sustained after falling in the hospital shower while under Tillman’s care. Brown appeals from the trial court’s grant of summary judgment to Tillman based upon her failure to attach an expert affidavit pursuant to OCGA§ 9-11-9.1. We affirm to the extent that Brown’s complaint can be construed as alleging claims of professional malpractice. However, as explained below, we reverse to the extent that Brown’s complaint can be construed as asserting a claim for ordinary negligence. We note at the outset that a failure to comply with the pleading requirements of OCGA §9-11-9.1 would not authorize the grant of summary judgment. However, we will address the merits of this appeal as if the trial court had dismissed [Brown’s] complaint rather than granted summary judgment in [Tillman’s] favor. [848] (Citations and punctuation omitted; emphasis in original.) Hodo v. Gen. Hospitals of Humana, 211 Ga. App. 6, 8 (2) (438 SE2d 378) (1993). Taking as true the allegations in her complaint,2 Brown was admitted into Tift Regional Medical Center on February 19, 2003 after having suffered a stroke. Brown’s risk of falling was well-documented in her hospital records, and a sign on her door warned that she was prone to fall. Her medical records also indicated that she needed maximum assistance when bathing and significant assistance when being moved. On February 25, 2003, Tillman, a licensed occupational therapist, approached Brown and instructed her to bathe. Over Brown’s objection, Tillman assisted her out of her bed into a wheelchair and then into a shower chair in an adjoining bathroom. Brown alleges that Tillman instructed her to stand in the shower while her lower body was bathed. While she was standing, Brown asserts that she twice told Tillman that she was slipping and needed help, but alleges that rather than assist her, Tillman left the bathroom in order to retrieve her bathrobe. While Brown was left unattended, she fell and broke her leg. The trial court dismissed Brown’s complaint because she failed to contemporaneously file an expert affidavit pursuant to OCGA § 9-11-9.1. Brown argues on appeal that the trial court erred because her complaint can be construed as asserting claims of ordinary, not professional, negligence against Tillman. We agree. Allegations of the compláint are construed most favorably to [Brown], even though other unfavorable constructions are possible. ... So taken, the allegations do not disclose with certainty that [Brown] would not be entitled to relief under a theory of simple negligence or that [Brown] could not possibly introduce evidence to support such a claim. Peterson, 243 Ga. App. at 755 (2). OCGA § 9-11-9.1 mandates that any action alleging professional malpractice be accompanied by an expert affidavit setting forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA§ 9-11-9.1 (a). In a claim for medical malpractice, the affidavit requirement applies to issues of negligence involving medical questions. Shirley v. Hosp. Auth. of Valdosta/Lowndes County, 263 Ga. App. 408, 409 (1) (587 SE2d 873) (2003). “ Medical [849] questions’ have been defined as those concerning 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.” (Punctuation and footnote omitted.) Id. Simply because an alleged injury occurs in a hospital setting, a suit to recover for that injury is not necessarily a “medical malpractice” action. Likewise, not every suit which calls into question the conduct of one who happens to be a medical professional is a “medical malpractice” action. . . . [W]e must look to the substance of an action against a medical professional... in determining whether the action is one for professional or simple negligence. (Citation and punctuation omitted.) Moore v. Louis Smith Mem. Hosp., 216 Ga. App. 299, 299-300 (454 SE2d 190) (1995). Admittedly, “[i]n cases involving a person’s fall while in the care of medical professionals, it can be difficult to distinguish professional negligence from ordinary negligence. This distinction is a question of law for the court.” (Citations omitted.) Pomerantz v. Atlanta Dermatology & Surgery, P.A., 255 Ga. App. 698, 699 (566 SE2d 425) (2002). Compare Bardo v. Liss, 273 Ga. App. 103, 103-104 (1) (614 SE2d 101) (2005); Holloway v. Northside Hosp., 230 Ga. App. 371, 372 (496 SE2d 510) (1998); and Bulloch County Hosp. Auth. v. Parker, 196 Ga. App. 438, 439 (396 SE2d 37) (1990), with Flowers v. Mem. Med. Center, 198 Ga. App. 651, 652 (402 SE2d 541) (1991); Brown v. Durden, 195 Ga. App. 340, 342 (393 SE2d 450) (1990) (physical precedent only); and HillhavenRehabilitation &c. v. Patterson, 195 Ga. App. 70, 71 (2) (392 SE2d 557) (1990). In resolving this issue, in many cases we have focused on the specific information known to the defendant about the victim’s condition and about the surrounding circumstances immediately prior to the victim’s fall. Compare Pomerantz, 255 Ga. App. at 699 (dismissal appropriate for failing to file expert affidavit in case where plaintiff fell off examination table, when defendant’s employees were “[without any indication that [plaintiff] was going to lose consciousness or any warning by [plaintiff]” that he was about to do so); Bulloch County Hosp. Auth., 196 Ga. App. at 438-439 (dismissal appropriate when plaintiff who fell in the shower “had not become dizzy until after she was in the shower and had not told defendant’s employees that she did not feel like getting a shower”); with Brown, 195 Ga. App. at 342 (no expert affidavit required when defendant left high risk patient unattended on examination table even though defendant knew that patient was dizzy and nauseous from an apparent seizure). Based on this case law, it is clear that if the specific information [850] known to the defendant was such that a jury could determine without the help of expert testimony whether the defendant exercised due care in failing to prevent the patient’s fall, the claim sounds in ordinary negligence and no expert affidavit is required. See id. See also Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1) (337 SE2d 351) (1985) (“As there was evidence of the nursing home’s knowledge of decedent’s propensity to set fires while smoking and of the failure of the nursing home to exercise any supervision of decedent in regard to smoking, expert opinion testimony was not required in order for plaintiff to prevail at trial.”). Compare Gen. Hospitals of Humana v. Bentley, 184 Ga. App. 489, 491 (361 SE2d 718) (1987) (expert testimony required to determine whether hospital staff acted negligently in failing to supervise patient while bathing, when plaintiff failed to establish that patient had severe medical condition of which staff was previously aware that created duty to supervise). Here, Brown alleges that Tillman exited the bathroom and left her standing unsupported and unattended in the shower, even though Brown twice told Tillman that she was slipping and needed help; Brown’s risk of falling was well documented in her hospital records and in a sign on her door warning that she was prone to fall; Brown’s medical records indicated that she required maximum assistance when bathing and significant assistance when being moved; and Brown had objected to being bathed. “[TJhere are instances in which actions performed by ... a professional are nevertheless not professional acts constituting professional malpractice, but, rather, are acts of simple negligence which would not require proof by expert evidence.” (Citation and punctuation omitted.) Flowers, 198 Ga. App. at 652. If Brown’s allegations are accepted as true (as they must be in evaluating the need for an expert affidavit), this case clearly is such an instance.3 See Brown, 195 Ga. App. at 342; Hillhaven Rehabilitation &c., 195 Ga. App. at 71 (2) (failure to assist patient in getting in and out of bed in weakened condition, if true, constituted ordinary negligence). See also Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998) (failure to follow previously issued orders, for patient constituted ordinary negligence). For the foregoing reasons, we reverse the grant of summary judgment in favor of Tillman, insofar as Brown’s complaint can be [851] construed as setting forth ordinary negligence as a basis for recovery. Brown is entitled to pursue her ordinary negligence claim without an expert affidavit. Judgment affirmed in part and reversed in part. Johnson, P. J., Barnes, Miller and Ellington, JJ., concur. Andrews, P. J., and Blackburn, P. J., concur in part and dissent in part. Footnotes [1] The trial court granted the Tift County Hospital Authority (“TCHA”) summary judgment on the grounds that TCHA could not be liable for the acts of Tillman because she was neither an employee nor a borrowed servant of TCHA. Brown has not appealed the trial court’s ruling in this regard. [2] Peterson v. Columbus Med. Center Foundation, 243 Ga. App. 749, 755 (2) (533 SE2d 749) (2000). [3] In concluding that Tillman’s actions involved the exercise of professional medical judgment, the dissent relies upon Tillman’s allegation that she was performing an “Activities of Daily Living Assessment” at the time of the fall. But, that allegation is found in Tillman’s affidavit, not Brown’s complaint. In determining whether Brown was required to file an expert affidavit, we must look only to the allegations in the complaint construed most favorably to Brown, even if other less favorable constructions are possible. See Peterson, 243 Ga. App. at 755 (2).