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Holmes v. Lyons

Court of Appeals of Georgia, Third Division

June 1, 2018

HOLMES et al.
v.
LYONS et al.

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

          Phipps, Senior Appellate Judge.

         Bonnie 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.

         "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 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).

         So viewed, the complaint alleges that on June 23, 2015, Thomas Lyons, M.D., performed gynecological surgery[1] 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.

         In her 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.

         Holmes attached an expert affidavit to her complaint authored by Kelly M. Kasper, M.D., a board certified gynaecologist, whose competency is not in dispute.[2]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.'"

         The 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 appeal.

         1. In 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).

         Here, 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 negligence.").

         It is 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).

         In this 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).

         Nowhere 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.

         Given 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 dismissing ...


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