HOLMES et al.
LYONS et al.
ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
Phipps, Senior Appellate Judge.
Holmes appeals the dismissal of her complaint for failure to
file a sufficient expert affidavit in support of her medical
malpractice claim pursuant to OCGA § 9-11-9.1, and for
failure to state a claim and as being barred under Georgia
law with respect to her separate claims for fraud, battery,
and negligent misrepresentation. For the reasons set forth
more fully below, we reverse.
motion to dismiss based upon the lack of a sufficient expert
affidavit is a motion to dismiss for failure to state a claim
under OCGA § 9-11-12 (b) (6)." Ziglar v. St.
Joseph's/Candler Health System, Inc., 341 Ga.App.
371, 371 (800 S.E.2d 395) (2017) (citation and punctuation
omitted). "We review a trial court's ruling on a
motion to dismiss de novo, viewing all well-pled allegations
in the complaint as true." Hobbs v. Great
Expressions Dental Centers of Ga., 337 Ga.App. 248, 248
(786 S.E.2d 897) (2016).
viewed, the complaint alleges that on June 23, 2015, Thomas
Lyons, M.D., performed gynecological surgery on Holmes at
Rockdale Medical Center, owned and operated by Rockdale
Hospital, LLC (collectively, "Rockdale Hospital").
As a result of the surgery, Holmes suffered a right distal
ureteral injury and uterovaginal fistulas. In November 2016,
Holmes filed suit against Dr. Lyons, his employer Rockdale
Physician Practices, LLC d/b/a Advanced Gynecology Associates
("Rockdale Physician Practices"), and Rockdale
Hospital (collectively, the "Defendants"), alleging
claims of medical malpractice, fraud, negligent
misrepresentation, battery, punitive damages, as well as a
claim of loss of consortium on behalf of her husband, Jeremy
Holmes. Holmes also brought a claim against Rockdale
Physician Practices for negligent hiring, supervision, and
retention, and claims for negligent credentialing and
negligence per se against Rockdale Hospital.
complaint, Holmes alleged that Dr. Lyons was not physically
capable of performing the June 23 surgery, and he failed to
disclosed physical impairments that negatively affected his
motor skills and placed her at increased risk of
complications, including ureteral injury and uterovaginal
fistulas. In support of her claim, Holmes highlighted that in
2010, Dr. Lyons had sought total and residual disability
benefits under two separate disability insurance policies.
After being denied benefits, Dr. Lyons filed suit against
both insurers in 2011. Attached to Dr. Lyons's complaint
was a functional capacity evaluation report prepared by Marc.
A. Yeager, MPT, which opined that Dr. Lyons's
"functional capabilities do not match the physical
demand requirements of his job related to be a Gynecological
Surgeon due to decreased right and left lower quarter weight
bearing and decreased right- and left-hand gross and fine
motor coordination." In his suit, Dr. Lyons described
that: (1) in 2002, he became "residually disabled"
due to a total knee replacement which affected his ability to
stand and perform surgery; (2) his right thumb has a joint
that needed to be replaced and "affects him from a
surgical standpoint"; (3) in 2009, he lost vision in his
left eye, which affected his depth perception; and (4) in
2011, he suffered a stroke, which resulted in neurological
problems, including tremors and other issues that impacted
his fine motor skills. Holmes contended that Dr. Lyons was
impaired by the above-referenced disabilities when he
performed gynecological surgery on June 23, 2015, which
resulted in a preventable injury to Holmes's ureter and
other complications. Holmes further alleged that Dr. Lyons
never informed her of his diminished motor skills, vision
issues, or difficulties in weigh bearing, and never advised
her that her risk of complications would be reduced if
another gynecological surgeon, without the same physical
limitations, had performed the surgery.
attached an expert affidavit to her complaint authored by
Kelly M. Kasper, M.D., a board certified gynaecologist, whose
competency is not in dispute.In pertinent parts, Dr.
Kasper's affidavit stated that Dr. Lyons "breached
the standard of care in the following ways": (1) he
performed the surgical procedures on Holmes "even though
he was not physically capable of performing them in a manner
that was safe"; (2) he performed the surgical procedures
on Holmes "even though he was not physically capable of
performing them in a manner that did not put . . . Holmes at
increased risk for complications, including but not limited
to ureteral injury and uterovaginal fistulas;" (3) he
failed to inform Holmes of his "identified and admitted
disabilities and the likelihood that they would put her at
risk for and cause her complications, including ureteral
injury and uterovaginal fistulas;" (4) he failed to
inform Holmes of "practical alternatives, "
including that another physician, without the
"identified and admitted disabilities" could
perform the surgery, "which would not carry with it the
likelihood that she would be at risk for and suffer
complications, including ureteral injury and uterovaginal
fistulas;" and (5) he failed to perform the surgery on
Holmes "in a manner that would avoid complications,
including but not limited to ureteral injury and uterovaginal
fistulas." Dr. Kasper concluded that Dr. Lyons's
cumulative failures "caused Bonnie Holmes'
complications of right distal ureteral injury and
uterovaginal fistula." In a second amended affidavit,
Dr. Kasper added, "the complications that Bonnie Holmes
experienced secondary to the June 23, 2015 [p]rocedures,
including, but not limited to, ureteral injury and
uterovaginal fistulas, were a direct result of [Dr. Lyons]
physical impairments" and the "complications were
secondary to deficient surgical technique related to at least
Dr. Lyons' 'decreased right and left lower quarter
weight bearing and decreased right-and left-hand gross and
fine motor coordination.'"
Defendants filed separate motions to dismiss. The trial court
granted the motions to dismiss, finding, as relevant to this
appeal, that: (1) Holmes's medical malpractice claim was
subject to dismissal because Dr. Kasper's expert
affidavit failed to specify at least one negligent act or
omission committed by Dr. Lyons; and (2) under Georgia law, a
physician's failure to disclose to a patient
"negative life factors, " which might adversely
affect their professional performance could not serve as a
basis for Holmes's separate claims of fraud, negligent
misrepresentation, and battery. The court also dismissed
Holmes's claims against Rockdale Physician Practices and
Rockdale Hospital as "derivative" of Holmes's
meritless substantive claims. Holmes then filed the instant
her first enumeration of error, Holmes contends that the
trial court erred in dismissing her medical malpractice claim
for failure to file a sufficient expert affidavit. Pursuant
to OCGA § 9-11-9.1 (a), a plaintiff who files
professional negligence claims against "(1) [a]
professional licensed by the State of Georgia and listed in
subsection (g) of this Code section; [or] (3) [a]ny licensed
health care facility alleged to be liable based upon the
action or inaction of a health care professional licensed by
the State of Georgia and listed in subsection (g) of this
Code section, " must file an expert affidavit with their
complaint. Further, the statute also plainly provides that
the expert's "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). Unlike OCGA § 9-11-56, which imposes an
evidentiary requirement in the context of summary judgment on
the merits, OCGA § 9-11-9.1 merely imposes an initial
pleading requirement on the plaintiff in a malpractice
action. Robinson v. Starr, 197 Ga.App. 440,
441 (2) (398 S.E.2d 714) (1990). Accordingly, an expert
affidavit which would be insufficient to satisfy the
evidentiary standards of OCGA § 9-11-56 may nevertheless
be sufficient to satisfy the pleading standards of OCGA
§ 9-11-9.1. 0-1 Doctors Mem. Holding Co. v.
Moore, 190 Ga.App. 286, 287 (1) (378 S.E.2d 708) (1989).
The sufficiency of the expert affidavit determines whether
the complaint for malpractice is "subject to dismissal
for failure to state a claim[.]" OCGA § 9-11-9.1
(e). "A Section 9-11-9.1 affidavit should be construed
most favorably to the plaintiff and all doubts should be
resolved in plaintiff's favor, even if an unfavorable
construction of the affidavit may be possible."
Crook v. Funk, 214 Ga.App. 213, 214 (1) (447 S.E.2d
60) (1994) (citation and punctuation omitted).
the Defendants contend that Dr. Kasper's affidavit, as
amended, was fatally defective because it failed to set forth
at least one negligent act or omission claimed to exist. They
highlight that the affidavit summarily concluded that Dr.
Lyons utilized a deficit surgical technique because Holmes
experienced complications, without providing any details on
how Dr. Lyons was negligent in performing the surgery. See
Hawkins v. OB-GYN Assocs., P.A., 290
Ga.App. 892, 894 (1) (660 S.E.2d 835) (2008) ("[T]he
doctrine of res ipsa loquitur does not apply in a malpractice
case. An intended result does not raise an inference of
true that an expert affidavit must include at least one
specific negligent act or omission giving rise to a
malpractice claim. See, e.g., Porquez v. Washington,
268 Ga. 649, 650-651 & n. 1 (1) (492 S.E.2d 665) (1997)
(finding an expert affidavit set forth at least one specific
"factually-based act of negligence" by stating the
defendants failed to monitor the use of an emergency medical
device); Vitner v. Miller, 223 Ga.App. 692, 694 (2)
(479 S.E.2d 1) (1996) (finding an affidavit to be legally
sufficient where the expert averred that a physician's
"failure to complete the two suction abortions
constituted negligence"); Crook, 214 Ga.App. at
214 (1) (concluding that an expert affidavit met the minimum
requirements by referencing multiple acts by the defendants,
including their failure to diagnose an aneurysm and ordering
a treadmill stress test, despite the patient's poor
physical condition and high blood pressure).
case, however, Dr. Kasper's affidavit described that Dr.
Lyons's act of performing the set of six surgical
procedures on Holmes on the date in question despite his
known physical limitations "breached the standard of
care." See Bowen v. Adams, 203 Ga.App. 123, 124
(416 S.E.2d 102) (1992) ("The negligent act 'claimed
to exist' in the instant case is appellee's
performance of 'an unnecessary operative procedure'
upon appellant."). Specifically, Dr. Kasper opined that
Dr. Lyons: (1) performed the surgery despite his physical
limitations, (2) failed to inform Holmes of his disabilities,
and (3) employed a "deficient surgical technique, "
which arose from his physical impairments. Dr. Kasper further
averred that the complications suffered by Holmes,
"including, but not limited to, ureteral injury and
uterovaginal fistulas, were a direct result of [Dr.
Lyons's] physical impairments[, ]" and that the
"complications were secondary to deficient surgical
technique" due to Dr. Lyons's "decreased
right and left lower quarter weight bearing and decreased
right- and left-hand gross and fine motor coordination."
Although an unfavorable construction of this affidavit may be
possible, construing it most favorably for Holmes and
resolving all doubts in her favor, as we must on a motion to
dismiss, the trial court could not conclude that Dr.
Kasper's affidavit "discloses with certainty that
[Holmes] would not be entitled to relief under any state of
provable facts." Graham v. Reynolds, 343
Ga.App. 274, 282 (3) (807 S.E.2d 39) (2017).
in the instant affidavit did Holmes's expert specifically
assert that Dr. Lyons's performance of the surgical
procedure resulted in the cut to Holmes's ureter, as
Holmes alleges in her brief. However, "OCGA §
9-11-9.1 does not require an affiant to specifically opine
that the act constituted negligence." Graham,
343 Ga.App. at 281 (3). Holmes cannot be required to submit
an expert affidavit which unequivocally demonstrates the
evidentiary merits of her claim unless and until the
Defendants move for summary judgment and submit evidence
demonstrating that Holmes's claim lacks merit. See
Bowen, 203 Ga.App. at 124 ("The purpose of OCGA
§ 9-11-9.1 is to reduce the number of frivolous
malpractice suits being filed, not to require a plaintiff to
prove a prima facie case entitling him to recover and capable
of withstanding a motion for summary judgment before the
defendant need file his answer.") (citation omitted). It
follows that the trial court erred in granting the
Defendants' respective motions to dismiss with regards to
Holmes's medical malpractice claim.
our conclusion that the trial court erred in dismissing
Holmes's substantive claims for professional malpractice
against the Defendants, we also find that the court erred in
dismissing the claim for loss of consortium filed by Jeremy
Holmes. See Evans v. Rockdale Hosp., LLC, No.
A18A0233, 2018 WL 1753820, at *8 (2) (Ga.Ct.App., Apr. 12,
2018) (a spouse's claim for loss of consortium stems from
the right of the other spouse to recover for his or her
injuries). Likewise, the trial court erred in dismissing
Holmes's claims of negligent hiring, supervision, and
retention against Rockdale Physician Practices. See City
of Kingsland v. Grantham, 342 Ga.App. 696, 699 (805
S.E.2d 116) (2017) ("claims based upon negligent hiring,
supervision, and retention of an employee are derivative of
the underlying tortious conduct of the employee")
(citation and punctuation omitted). The court also erred in