Brown v. TIFT COUNTY HOSP. AUTHORITY

635 S.E.2d 184, 2006 Fulton County D. Rep. 2409, 280 Ga. App. 847, 2006 Ga. App. LEXIS 881
CourtCourt of Appeals of Georgia
DecidedJuly 13, 2006
DocketA06A0609
StatusPublished

This text of 635 S.E.2d 184 (Brown v. TIFT COUNTY HOSP. AUTHORITY) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. TIFT COUNTY HOSP. AUTHORITY, 635 S.E.2d 184, 2006 Fulton County D. Rep. 2409, 280 Ga. App. 847, 2006 Ga. App. LEXIS 881 (Ga. Ct. App. 2006).

Opinion

635 S.E.2d 184 (2006)

BROWN
v.
TIFT COUNTY HOSPITAL AUTHORITY et al.

No. A06A0609.

Court of Appeals of Georgia.

July 13, 2006.
Reconsideration denied July 31, 2006.

Robert Beauchamp, Beauchamp & Associates, Albany, for Gussie Brown.

Robert Wilmot, Reinhardt, Whitley, Wilmot, Summerlin & Pittman, PC, Tifton, Buckley King, Robert White, Diem Kaelber, Atlanta, for Tift County Hospital Authority.

*185 BERNES, Judge.

Appellant Gussie Brown brought the present action against appellee Ansley Tillman[1] 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.

(Citations and punctuation omitted; emphasis in original.) Hodo v. Gen. Hospitals of Humana, 211 Ga.App. 6, 8(2), 438 S.E.2d 378 (1993).

*186 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 complaint 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), 533 S.E.2d 749.

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 S.E.2d 873 (2003). "`Medical 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 S.E.2d 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 S.E.2d 425 (2002). Compare Bardo v. Liss, 273 Ga.App. 103, 103-104(1), 614 S.E.2d 101 (2005); Holloway v. Northside Hosp., 230 Ga.App. 371, 372, 496 S.E.2d 510 (1998); and Bulloch County Hosp. Auth. v. Parker, 196 Ga.App. 438, 439, 396 S.E.2d 37 (1990), with Flowers v. Mem. Med. Center, 198 Ga.App. 651, 652, 402 S.E.2d 541 (1991); Brown v. Durden, 195 Ga.App. 340, 342, 393 S.E.2d 450 (1990) (physical precedent only); and Hillhaven Rehabilitation, etc. v. Patterson, 195 Ga.App. 70, 71(2), 392 S.E.2d 557 (1990).

In resolving this issue, in many cases we have focused on the specific information *187 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, 566 S.E.2d 425

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Flowers v. Memorial Medical Center, Inc.
402 S.E.2d 541 (Court of Appeals of Georgia, 1991)
Dent v. Memorial Hospital of Adel
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Brown v. Durden
393 S.E.2d 450 (Court of Appeals of Georgia, 1990)
Hodo v. General Hospitals of Humana, Inc.
438 S.E.2d 378 (Court of Appeals of Georgia, 1993)
Donson Nursing Facilities v. Dixon
337 S.E.2d 351 (Court of Appeals of Georgia, 1985)
Peterson v. Columbus Medical Center Foundation, Inc.
533 S.E.2d 749 (Court of Appeals of Georgia, 2000)
Shirley v. Hospital Authority of Valdosta/Lowndes County
587 S.E.2d 873 (Court of Appeals of Georgia, 2003)
Hillhaven Rehabilitation & Convalescent Center v. Patterson
392 S.E.2d 557 (Court of Appeals of Georgia, 1990)
Crisp Regional Nursing & Rehabilitation Center v. Johnson
574 S.E.2d 650 (Court of Appeals of Georgia, 2002)
General Hospitals of Humana, Inc. v. Bentley
361 S.E.2d 718 (Court of Appeals of Georgia, 1987)
Upson County Hospital, Inc. v. Head
540 S.E.2d 626 (Court of Appeals of Georgia, 2000)
Bardo v. Liss
614 S.E.2d 101 (Court of Appeals of Georgia, 2005)
Brown v. Tift Health Care, Inc.
630 S.E.2d 788 (Court of Appeals of Georgia, 2006)
Holloway v. Northside Hospital
496 S.E.2d 510 (Court of Appeals of Georgia, 1998)
Pomerantz v. Atlanta Dermatology & Surgery, P.A.
566 S.E.2d 425 (Court of Appeals of Georgia, 2002)
Bulloch County Hospital Authority v. Parker
396 S.E.2d 37 (Court of Appeals of Georgia, 1990)
Moore v. Louis Smith Memorial Hospital, Inc.
454 S.E.2d 190 (Court of Appeals of Georgia, 1995)
Brown v. Tift County Hospital Authority
635 S.E.2d 184 (Court of Appeals of Georgia, 2006)

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Bluebook (online)
635 S.E.2d 184, 2006 Fulton County D. Rep. 2409, 280 Ga. App. 847, 2006 Ga. App. LEXIS 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-tift-county-hosp-authority-gactapp-2006.