FIRST DIVISION

BARNES, P. J.,

GOBEIL and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

May 21, 2024

In the Court of Appeals of Georgia

A24A0073. GRIFFIN v. THE EMORY CLINIC INC. et al.

GOBEIL, Judge.

Joseph Griffin filed suit against The Emory Clinic, Inc. (“Emory”), David R.

Propp, M.D., andhis medical assistant, AnnaSmith(collectively, the “Defendants”),

alleging negligence based on injuries he suffered from a fall during a medical visit. The

trial court granted the Defendants’ motion to dismiss, on the basis that Griffin failed

to file an expert affidavit in compliance with OCGA § 9-11-9.1 (a), even though his

complaint alleged professional malpractice. Griffin now appeals, arguing in

interrelated enumerations of error that the trial court erred in granting the motion to

dismiss because Smith is not a licensed medical professional for whom an expert
affidavit under OCGA§ 9-11-9.1 (a) is required.For the reasons that follow, we affirm

in part and reverse in part.

A motion to dismiss for failure to state a claim upon which relief

may be granted should not be sustained unless (1) the allegations of the

complaint disclose with certainty that the claimant would not be entitled

to relief under any state of provable facts asserted in support thereof; and

(2) the movant establishes that the claimant could not possibly introduce

evidence within the framework of the complaint sufficient to warrant a

grant of the relief sought. If, within the framework of the complaint,

evidencemay be introducedwhich will sustain a grant ofthe reliefsought

by the claimant, the complaint is sufficient and a motion to dismiss

should be denied. In deciding a motion to dismiss, all pleadings are to be

construed most favorably to the party who filed them, and all doubts

regarding such pleadings must be resolved in the filing party’s favor. On

appeal, a trial court’s ruling on a motion to dismiss for failure to state a

claim for which relief may be granted is reviewed de novo.

Eastside Recovery, LLC v. Calhoun, 368 Ga. App. 385, 386 (890 SE2d 135) (2023)

(citation and punctuation omitted).

So viewed, the record showsthatsince2005,Griffinhasbeen wheelchair-bound

and is non-weight-bearing at the baseline. On September 3, 2020, Griffin visited

Emory for a regular medical examination with Dr. Propp, his long-term physician.

Before being seen by Dr. Propp, Griffin was taken by Smith, Dr. Propp’s medical

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assistant, to get weighed. Griffin was instructed by Smith to get out of his wheelchair

without assistance and to climb onto a weighing machine. While trying to get onto the

machine, Griffin fell and suffered injuries, including a femur fracture in his right leg.

On August 22, 2022, Griffin filed the instant complaint, alleging that the

Defendants were negligentin causing his injuries because they “knewor ought to have

known that [Griffin,] based on his medical condition and age[,] should have been

weighed with a machine that fits his condition and[/]or aided while climbing and

standing on a weighing machine for his weight to be taken.” Griffin did not attach an

expert affidavit, pursuant to OCGA § 9-11-9.1 (a), to his complaint. The Defendants

filed an answer, and alsomoved to dismiss the complaint due to Griffin’s failure to file

an expert affidavit in support of his professional malpractice claim.

At oral argument, Griffin, through counsel, admitted that his fall was not the

result of tripping or slipping. Rather, he alleged that he fell “because based on [his]

condition, he shouldn’t have been told to rise from his wheelchair when [the

Defendants knew] that he can’t do that.” The trial court granted the motion to

dismiss, concluding that Griffin was required to file an expert affidavit as his claim

sounded in professional negligence based on his contention that “because [the]

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Defendants knew of his medical condition and medical limitations, they should not

have instructed him to stand unassisted.” The instant appeal followed.

Griffin argues that the trial court erred in granting the Defendants’ motion to

dismiss for failure to include an expert affidavit because Smith, the medical assistant

whose alleged negligence caused his injuries, is not a licensed professional for whom

an expert affidavit under OCGA § 9-11-9.1 is required. In a related claim of error, he

asserts that the trial court failed to consider Smith’s classification as a non-licensed

medical professional before dismissing the complaint.At this stage of the proceeding,

we agree.

As an initial matter, the Defendants highlight in their appellate briefthat Griffin

failed to raise his argument about Smith’s status as a non-licensed medical

professional in the trial court.

Nevertheless, OCGA § 9-11-9.1 imposes an initial pleading requirement

on the plaintiff in a malpractice action, and in reviewing the grant of a

motion to dismiss for failure to state a claim, it is the duty of the

appellate court to construe the pleadings in the light most favorable to

the appellant with all doubts resolved in appellant’s favor.

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Procter v. Gwinnett Pulmonary Group, P.C., 312 Ga. App. 486, 487 (1) (718 SE2d 860)

(2011) (citations and punctuation omitted). And a motion to dismiss based upon the

lack of an expert affidavit “is one for failure to state a claim under OCGA § 9-11-12

(b) (6).” Zephaniah v. Ga.Clinic, P.C., 350 Ga. App. 408, 410 (829 SE2d 448) (2019)

(citation and punctuation omitted); Holloway v. Northside Hosp., 230 Ga. App. 371,

371-372 (496 SE2d 510) (1998) (dismissing claim where the plaintiffs alleged the

nurses “should have known that she was subject to falling” because the claim

amounted to professional negligence and the plaintiffs’failure to attach a professional

affidavit mandated dismissal). As a result, “it was incumbent upon the Defendants to

establish before the trial court that [Griffin] failed to state a claim, and our reversal is

baseduponour application ofthe correct standardofreviewof[Griffin’s] complaint.”

Procter, 312 Ga.App. at 487 (1) (footnote omitted). See also Ford v.Ford, 349 Ga.App.

45, 47 (2) (a) (825 SE2d 449) (2019)(“Where a defendant obtains the dismissal of an

action for failure to state a claim without demonstrating the statutory prerequisites for

that dismissal, the plaintiff may assert that failure on appeal using a specific argument

not made to the trial court.”) (physical precedent only).

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In his complaint, Griffin did not list out separate claims or allegations against

each defendant. Rather, he generally alleged that the “Defendants knew or ought to

have known that [Griffin,] based on his medical condition and age[,] should have been

weighed with a machine that fits his condition and[/]or aided while climbing and

standing on a weighing machine for his weight to be taken.”The Defendants highlight

that Griffin’s complaint against the Defendants “in its entirety sounds in professional

negligence,” and therefore, he was required to file an expert affidavit.

However, in his complaint, Griffin asserted that Smith, a medical assistant,

performednegligent acts — namely, requiringGriffin to climb onto the weighing scale

unassisted despite his known physical limitations — which resulted in his fall and

subsequent injuries. OCGA § 9-11-9.1 (a) requires the contemporaneous filing of an

expert affidavit only in professional malpractice claims asserted against certain

professionals, and “medical assistant” does not fall into any of the categories of

professionals enumerated within the Code section.1

See Pattman v. Mann, 307 Ga.

1

See OCGA § 9-11-9.1 (g) (listing architects, attorneys at law, audiologists,

certified public accountants, chiropractors, clinicalsocialworkers,dentists,dietitians,

land surveyors, marriage and family therapists, medical doctors, nurses, occupational

therapists, optometrists, osteopathic physicians, pharmacists, physical therapists,

physicians’ assistants, podiatrists, professional counselors, professional engineers,

psychologists, radiological technicians, respiratory therapists, speech-language

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App. 413, 417 n.13 (701 SE2d 232) (2010) (noting that the “affidavit requirement does

not apply to any acts committed by [the lab technologist], who is not recognized as a

‘professional’ under Georgia law”); Sembler Atlanta Dev. I, LLC v. URS/Dames &

Moore, Inc., 268 Ga. App. 7, 9 (601 SE2d 397) (2004) (explaining that, by its specific

terms, OCGA § 9-11-9.1 (a) limits the expert affidavit requirement to professional

malpractice suits against members of one of the enumerated professions or the

employer of same when the employer’s liability is predicated on the professional

negligence of such employee).

Thus, construing the allegations of the complaint in the light most favorable to

Griffin, as we must on a motion to dismiss, his complaint could be read to state a claim

for ordinary negligence against Smith, a medical assistant.Andmedical assistant does

not fall within any of the categories of professionals enumerated in OCGA § 9-11-9.1

(g). Consequently, he was not required to file an expert affidavit in order to state a

claim against Smith. See Procter, 312 Ga.App. at 488 (1) (reversing dismissal of action

on the basis that plaintiff was not required, under OCGA § 9-11-9.1 (a), to file an

pathologists, or veterinarians); see also Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d

197) (1992) (“the affidavit requirements of [OCGA] § 9-11-9.1 apply only to those

professions recognized under Georgia law,” including the predecessor statute to

OCGA § 9-11-9.1).

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expert affidavit in support of negligence claim against a medical defendant whom she

characterized as a “technician,” given that “technician” did not fall within any ofthe

categories of professionals enumerated in OCGA § 9-11-9.1 (g)).

The Defendants maintain that, even if Griffin did not need to provide an expert

affidavit as to Smith, Griffin’s complaint does not allege that either Emory or Dr.

Propp are liable for Smith’s negligence in causing Griffin’s injuries under a theory of

respondeat superior or vicarious liability. However, in his complaint, Griffin alleged

that Smith is Dr. Propp’s medical assistant and was acting under Dr. Propp’s

“negligent instruction.”

2

Importantly, “[a] complaint is not required to set forth a

cause of action, but need only set forth a claim for relief. If, within the framework of

the complaint, evidence may be introduced which will sustain a grant of relief to the

plaintiff, the complaint is sufficient.”Sulejman v. Marinello, 217 Ga.App. 319, 320 (2)

(457 SE2d 251) (1995) (citation and punctuation omitted). See Depository Trust and

Clearing Corp. v. Jones, 348 Ga. App. 474, 477 (1) (823 SE2d 558) (2019) (“the

objective of the Civil Practice Act is to avoid technicalities and to require only a short

and plain statement of the claim that will give the defendant fair notice of what the

2

In their appellate brief, the Defendants describe that Smith was “acting at the

direction of Dr. Propp and Emory.”

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claim is and a general indication of the type of litigation involved; the discovery

process bears the burden of filling in details”) (citation, punctuation and emphasis

omitted). Additionally, “[t]here are instances in which actions performed by a

professional are nevertheless not professional acts constituting professional

malpractice, but, rather, are acts of simple negligence which would notrequire proof

by expert evidence.” Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 850 (635

SE2d 184) (2006) (citation and punctuation omitted).

Where the professional’s alleged negligence requires the exercise of

professional skill and judgment to comply with a standard of conduct

within the professional’s area of expertise, the action states professional

negligence. But where the allegations of negligence do not involve

professional skill and judgment, the action states ordinary negligence.

Whether a complaint alleges ordinary or professional negligence is a

question of law for the court.

Health Mgmt. Assoc., Inc. v. Bazemore, 286 Ga. App. 285, 287 (648 SE2d 749) (2007)

(citations and punctuation omitted). See, e.g., HillhavenRehabilitation&Convalescent

Ctr. v. Patterson, 195 Ga. App. 70, 71-72 (2) (392 SE2d 557) (1990) (failure to assist

patient in getting in and out of bed in weakened condition, iftrue, constituted ordinary

negligence); Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (2) (354 SE2d

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872) (1987) (“[T]he safe movement of appellee from the stretcher or casting table to

the wheelchair was merely an act ofrelativephysical strength and dexterity rather than

an act requiring the exercise of expert medical judgment.”). Accordingly, we reverse

the trial court’s dismissal of Griffin’s claims against Smith and any derivative claims

against Emory and/or Dr. Propp alleging ordinary negligence for failure to file an

expert affidavit under OCGA § 9-11-9.1. See Procter, 312 Ga. App. at 488 (1).

To the extent Griffin’s complaint alleges a claim for professional negligence

against Dr. Propp, a licenced health care professional under OCGA § 9-11-9.1 (g), or

against Emory as vicariously liable for professional negligence, the trial court properly

granted the Defendants’ motion to dismiss due to Griffin’s failure to file an expert

affidavit as required by OCGA § 9-11-9.1 (a). See Bazemore, 286 Ga. App. at 286

(When a plaintifffiles a lawsuit against a licensed health-care facility “based on a claim

that the facility is vicariously liable for the professional malpractice of a health care

professional licensed by the State of Georgia and listed in [OCGA § 9-11-9.1 (g)], the

plaintiff is required to file an expert affidavit with the complaint in accordance with

the requirements of OCGA § 9-11-9.1 (a).”).

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Judgment affirmed in part and reversed in part. Barnes, P. J., and Pipkin, J.,

concur.

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