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Oduok v. Fulton Dekalb Hospital Authority

Court of Appeals of Georgia, Fifth Division

February 13, 2017


          DILLARD, P. J., REESE and BETHEL, JJ.

          Reese, Judge.

         Proceeding pro se, Inyang Peter Oduok sued the Fulton DeKalb Hospital Authority d/b/a Grady Memorial Hospital ("Grady Hospital"), Emory University ("Emory"), [1] and several healthcare providers for damages allegedly arising from a medical procedure. The trial court dismissed Oduok's complaint for want of prosecution and failure to comply with the expert affidavit requirement in OCGA § 9-11-9.1 (a). Oduok appeals, and for reasons that follow, we affirm in part, vacate in part, and reverse in part, and remand the case with direction.

          We review a trial court's ruling on a motion to dismiss de novo, construing the complaint and its allegations in the light most favorable to the plaintiff.[2] So viewed, the complaint alleges that in July 2013, Oduok visited a pulmonary clinic operated by Grady Hospital and Emory to follow up on medical tests that showed a mass on his right lung. Oduok underwent a CT scan and, based on those results, a physician, Dr. Ahmed Khan, recommended that Oduok have a CT-guided lung biopsy to determine whether the mass was cancerous. Although Oduok was certain that he did not have cancer, he submitted to the biopsy on August 14, 2013.

         According to the complaint, Khan and another physician, Dr. Eric Honig, ordered that Oduok be admitted to the hospital following the biopsy to guard against risks associated with a pneumothorax or punctured lung. Oduok, however, was discharged and sent home two hours after the procedure. Shortly after he returned home, Oduok's lung collapsed, and he was rushed to the hospital for emergency surgery.

         On July 30, 2015, Oduok filed his complaint against Grady Hospital, Emory, Dr. Michael Osipow, Dr. Nicholas Levi Henson, Dr. Ahmed Khan, and Dr. Kencliff Palmer, alleging claims for: (1) intentional misrepresentation; (2) violation of the Georgia and federal Racketeer Influenced and Corrupt Organizations ("RICO") Acts;[3](3) breach of contract; (4) breach of warranty; (5) promises made without intention to perform; (6) intentional infliction of emotional distress; (7) negligent hiring, retention, and supervision; and (8) negligence. Grady Hospital, Emory, and Osipow[4]subsequently moved to dismiss the complaint. Asserting that each claim rested upon a medical malpractice theory, they argued that Oduok was required - but failed - to support his claims with an expert affidavit pursuant to OCGA § 9-11-9.1 (a). The motion to dismiss also noted that the other defendants - Henson, Khan, and Palmer - had not been served with the complaint.

         On October 1, 2015, the trial court held a no-service/default calendar call to address service issues relating to Henson, Khan, and Palmer, as well as Emory.[5]Oduok failed to appear, and the trial court dismissed these defendants for want of prosecution, leaving only Grady Hospital and Osipow in the suit. A few months later, the trial court addressed the motion to dismiss filed pursuant to OCGA § 9-11-9.1 (a). Concluding that Oduok's failure to file an expert affidavit was "fatal to his claims, " the trial court dismissed the complaint against Grady Hospital and Osipow. Oduok moved the trial court to set aside or reconsider both dismissal orders and also requested that the trial judge recuse himself. The trial court denied Oduok's motions, and this appeal followed.

         1. We first consider the trial court's order dismissing the complaint against Grady Hospital and Osipow. Pursuant to OCGA § 9-11-9.1 (a), a claim alleging medical malpractice must be accompanied by "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."[6] Failure to comply with the affidavit requirement subjects a malpractice claim to dismissal.[7]

         As we have noted, however, "not every suit which calls into question the conduct of one who happens to be a medical professional is a medical malpractice action."[8] We look to the substance of a claim in deciding whether OCGA § 9-11-9.1 (a) applies.[9] The key factor "is the existence or absence of allegations that the defendant-professional has rendered negligent professional services."[10] Ultimately, when "the failure to do a thing, or the negligent doing of it, is proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service, it is a 'professional' act or practice."[11] With these standards in mind, we address each of Oduok's claims.

         (a) Counts 1, 2, and 6.

         Liberally construed, [12] Counts 1, 2, and 6 of the complaint appear to allege intentional torts, referring to conduct and statements made by defendants other than Grady Hospital and Osipow. Each claim, however, generally references "defendants, " and the complaint alleges that all defendants "schemed with Grady [Hospital] . . . and intentionally caused its doctors to conduct [a] bogus biopsy on plaintiff against his will to collect a huge sum of money from plaintiff's insurance." Specifically, Count 1 asserts that one or more defendants intentionally made false and misleading representations to Oduok regarding his health care providers' qualifications to perform the biopsy and the safety of that procedure. Count 2 alleges RICO violations stemming from these purported falsehoods, as well as other intentional and coercive conduct. And Count 6 asserts a claim for intentional infliction of emotional distress relating to the defendants' allegedly "outrageous conduct[]" before and after the biopsy.

         The affidavit requirement in OCGA § 9-11-9.1 applies to professional negligence allegations.[13] It does not reach claims "for intentional misconduct or acts against a professional, including claims for fraud and misrepresentation."[14]Accordingly, to the extent Oduok asserts that Grady Hospital and Osipow engaged in or are liable for the intentional conduct alleged in Counts 1, 2, and 6, these claims did not require an expert affidavit.[15] Accordingly, the trial court erred in dismissing these claims against Grady Hospital and Osipow.

         (b) Count 3.

         In Count 3, Oduok asserts a breach of contract claim. The basis for this count is not clear, nor is it clear against which defendants Oduok intended to assert this particular claim. Construed liberally, however, Count 3 appears to allege that the defendants - arguably including Grady Hospital and Osipow - breached an agreement (1) to properly perform the biopsy, and (2) to hospitalize Oduok after the procedure to guard against complications.[16]

         Again, OCGA § 9-11-9.1 (a) applies to allegations involving professional malpractice, including breach of contract claims.[17] "The determinative factor is whether the task in question requires the exercise of professional judgment and skill."[18] If the contract claim invokes a "failure to perform professional services in accordance with the applicable standard of care, " an affidavit must be filed.[19]Otherwise, no affidavit is needed.[20]

          Given these standards, the trial court properly dismissed Count 3 to the extent it alleges that Grady Hospital and Osipow breached a contract by negligently performing or "botching" the biopsy. Such allegations invoke professional judgment and skill, bringing them within OCGA § 9-11-9.1 (a).[21]

         Similarly, Oduok's apparent claim that Grady Hospital and Osipow breached an agreement to admit him to the hospital also depends on whether the failure to hospitalize Oduok breached the applicable standard of medical care.[22] The trial court, therefore, properly dismissed this claim pursuant to OCGA § 9-11-9.1 (a).[23]

         (c) Count 4.

         Count 4 alleges that the defendants breached a warranty to Oduok "by providing [him] a botched biopsy and collapsed lungs that almost resulted in . . . loss of his life." The claim questions the adequacy of Oduok's medical treatment, particularly the professional skill and judgment exercised by the defendants. It thus falls within OCGA § 9-11-9.1 (a) and was properly dismissed by the trial court.[24]

         (d) Count 5.

         In Count 5, Oduok alleges that defendant Henson agreed to reduce certain promises to writing, but failed to do so and "had no intention to perform" such promises. Although the title of Count 5 indicates that it was asserted against "Henson and Entity Defendants, " the substantive allegations do not mention any defendant other than Henson or set forth any basis for liability against another defendant. Even construed liberally, Count 5 does not allege a claim against Grady Hospital or Osipow and, thus, the trial court properly dismissed this claim as to them.

         (e) Count 7.

         Count 7 focuses on negligent hiring, retention, and supervision. To the extent this count alleges that Grady Hospital and/or Osipow are vicariously liable for the professional negligence of Oduok's treating healthcare providers, the trial court properly dismissed the claims for failure to comply with OCGA § 9-11-9.1 (a).[25] Any claims involving negligent supervision over the intentional conduct of these professionals, however, would not require an expert affidavit.[26] The trial court, ...

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