After the death of William J. Shannon, his son and administrator brought this action for fraud, battery, wrongful death and other claims against the doctors and others involved in Shannon’s care. On appeal, the Shannons argue that the trial court erred when it granted defendants’ motion to dismiss for failure to attach an expert affidavit as required by OCGA § 9-11-9.1. The Shannons also argue that the trial court erred when it denied their motion to add a medical malpractice claim and mooted their motion to strike defendants’ answers. We reverse as to the Shannons’ claims for intentional tort and remand for further proceedings. A motion to dismiss based upon the lack of an expert affidavit is a motion to dismiss for failure to state a claim under OCGA § 9-11-12 b 6. On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in her favor. Citations and punctuation omitted. Liu v. Boyd , 294 Ga. App. 224 668 SE2d 843 2008. So viewed, the record shows that on July 8, 2004, the decedent’s administrator and heirs filed a verified complaint in Chatham County Superior Court against Dr. Masood Ahmed and Dr. George Negrea, these doctors’ practice groups, and Candler General Hospital and its nurses. The complaint set out claims for fraud, battery, conspiracy, and wrongful death, and prayed for compensatory and punitive damages as well as fees. In April 2006, plaintiffs voluntarily dismissed this initial suit. On October 10, 2006, plaintiffs refiled substantially similar claims against the same defendants as well as Hospice Savannah and one of its employees, and named Cynthia Balkstra as one of the Candler General nurses involved in Shannon’s care.
The new complaint alleged that Shannon was placed under the care of Drs. Ahmed and Negrea at Candler General in early July 2002, and that while tied to his bed in a vest and hand restraints, Shannon twice aspirated, biting off a portion of his tongue and becoming comatose as a result of the second aspiration. The new complaint also alleged that a on learning of Shannon’s condition, Dr. Ahmed decided to withhold further medical assistance; b at a meeting between Julyand July 12, he informed the family that Shannon’s cancer had taken over his body without saying that his comatose condition was actually the result of aspiration; c Dr. Negrea and Nurse Balkstra “reinforced” Dr. Ahmed’s misrepresentations by “omitting the material fact that Shannon had aspirated while under Ahmed’s care” and “remained silent about the false diagnosis that Shannon’s cancer had spread”; d as a result of these fraudulent acts and omissions, Shannon was transferred to hospice care, where he was denied food and water, given morphine and other drugs, and suffered renal failure; e Dr. Ahmed furthered his scheme of concealing the cause of Shannon’s condition by representing that Shannon’s pancreatic cancer had metastasized to his lungs, though it had not, and that his renal failure was also the result of metastasis, though it was not; and f on learning that Shannon’s coma was actually the result of aspiration, the family insisted that he be returned to Candler General, where he died on September 13.
