Cert Petitions: March 11

Granted 

The Supreme Court granted cert in two related cases today, Rockdale Hospital LLC v. Holmes et al., Case No. S18C1401 and Lyons et al. v. Holmes et al., Case No. S18C1406.

The Court asked for briefing and argument on the following questions:

1. Does the expert affidavit, as amendment, attached to the complaint filed in this medical malpractice action meet the specificity requirements of OCGA 9-11-9.1?
2. Does the defendant physician's alleged failure to disclose his physical disabilities support the plaintiff's claims for fraud, battery, and negligent misrepresentation? See Albany Urology Clinic v. Cleveland, 272 Ga. 296 (2000).

In case no. A18A0277 the Court of Appeals reversed the trial court's dismissal of the plaintiff's medical malpractice claims for insufficiency of the required expert affidavit, and failure to state a claim as to allegations like fraud and negligent misrepresentation. See generally Holmes v. Lyons et al., 346 Ga.App. 99 (2018). The Court of Appeals concluded that the specificity requirement, i.e. that the expert affidavit state at least one negligent act or omission, was met because the affidavit specified that performing the given surgical procedures with the physician's specific disabilities fell below the requisite standard of care. The court emphasized that "[a]lthough 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.' ”Id. at 103-104.

As to the other claims, the Court of Appeals determined that the plaintiff had stated a claim for relief because Dr. Lyons failure to disclose his ongoing disabilities, which impacted his surgical abilities. The Court of Appeals rejected Lyons contention that, absent an affirmative inquiry by Holmes, Lyons had no duty to disclose the disabilities because they are not listed as categories required by the informed consent statute. Id. at 104-106. Specifically, the Court distinguished Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 298-299 (2000), in which the Supreme Court held that "neither the common law nor the Code impose[s] a duty upon physicians or any other professional to disclose personal life factors which might adversely affect their professional performance. Hence, the failure to make such disclosure cannot be a basis for either a fraud or battery claim." Id. at 303. The Court of Appeals emphasized that the Albany Court also said “obtaining consent for medical treatment by an artifice that is directly related to the subject matter of the professional relationship—i.e.: diagnoses, treatments, procedures—may result in an unlawful touching that supports a battery claim.” See id. at 301 (emphasis supplied). Unlike in Albany, the court pointed out, here there was evidence that the physician was impaired by the negative personal life factor at the time treatment was rendered. Holmes, 346 Ga. App. at 105-106.

Then Judges Bethel and Ellington dissented as to the division of the opinion dealing with the fraud and misrepresentation claims, arguing the relied upon portion of Albany was dicta, and, in any event, that  Dr. Lyons's physical limitations were not "directly related to the subject matter of the professional relationship—i.e.: diagnoses, treatments, [or] procedures[.] ” Id. at 107 (citation omitted).

The case will be docketed for the June, 2019 Oral Argument Calendar. Justices Bethel and Ellington will not participate in the case.

Denied 

S18C1552. MORGAN v. THE STATE  (A18A0433)
S18C1554. DANIELL v. THE STATE (A18A1564)
S18C1605. THOMAS v. MACKIEWICZ et al. (A18D0464)
S18C1569. LAWRENCE v. ELLIS (A18A0060)
S18C1577. GRISWOLD v. EAST GEORGIA REGIONAL MEDICAL CENTER, LLC et al. (A18A0584)
S18C1579. DIXIT v. DIXIT (A18A1689)
S18C1580. DIXIT v. DIXIT (A18D0481)