GA: is expert opinion required in suit for fall? Yes--if licensed professional involved--no if...

CASE FACTS: Betty Bazemore sued Health Management Associates, Inc., d/b/a East Georgia Regional Medical Center for injuries she allegedly sustained when she fell while a patient at the hospital. Along with its initial responsive pleading denying liability, the hospital filed a motion to dismiss the complaint on the basis that it sought to impose vicarious liability on the hospital for the professional negligence of a hospital employee, and that Bazemore failed to file an expert affidavit with the complaint as required by Georgia law. The trial court denied the hospital's motion. The hospital appealed.

COURT'S OPINION: The Court of Appeals of Georgia affirmed the trial court's judgment in part and reversed it in part. The court held, inter alia, that when a complaint seeks damages against a licensed health care facility based on a claim that the facility is vicariously liable for the professional malpractice of a health care profession licensed by the State of Georgia, the plaintiff is required to file an expert's affidavit. The court held that the failure to file the affidavit subjected the complaint to dismissal. However, the court noted that when professional judgment and skill are not involved, an expert's affidavit is not required. Bazemore did not file an expert's affidavit with her complaint. She maintained that because her complaint alleged ordinary, rather than professional negligence, no affidavit was required. The court noted that despite the fact that the complaint characterized the claim as based on ordinary negligence, whether the complaint alleged ordinary or professional negligence was a question of law. Accordingly, the court held that Bazemore was required to file an expert's affidavit with her complaint under Georgia law, if the could be construed to allege that the hospital was vicariously liable for professional negligence. The court held that in determining, as a matter of law, whether the complaint alleged claims based on ordinary negligence, professional negligence, or both, the court had to construe the complaint under the test applied to motions to dismiss for failure to state a claim. However, the court found the allegations of the complaint to be so general and unspecific that Bazemore could produce various evidence in support of the allegations which could state claims that the hospital employee committed professional negligence or ordinary negligence. Based on this evidence, the complaint would allege professional negligence because "the degree of physical assistance needed by Bazemore to prevent a fall in light of her medical condition. Health Management Associates, Inc. v. Bazemore, GACA A07A1103-07037 (07/03/2007) S.E.2d--GA

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.