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Nail v. State of Georgia

The plaintiff's failure to warn claim alleged professional negligence and she failed to file the required affidavit.

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Carol G. Nail filed suit against the State of Georgia; the Department of Human Resources of the State of Georgia “DHR”; Gateway Behavioral Health Services a/ka/ Gateway Mental Health; several pharmaceutical companies; and various unnamed defendants, alleging, in pertinent part, that the defendants had negligently prescribed and distributed medication to her without warning of the potential side effects. The State and DHR contemporaneously filed an answer and a motion to dismiss the complaint, contending that Nail’s claims were based on professional negligence and that she had failed to file the expert affidavit required by OCGA § 9-11-9.1 a.1 Following a hearing, the trial court granted the motion. On appeal, Nail contends that the trial court erroneously dismissed her failure to warn claim, arguing that her claim was based upon ordinary negligence to which the expert affidavit requirement did not apply. We disagree and affirm. “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.” Citation and punctuation omitted. Liu v. Boyd , 294 Ga. App. 224 668 SE2d 843 2008. On appeal from an order granting a motion to dismiss, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in her favor. Williams v. Alvista Healthcare Ctr. , 283 Ga. App. 613, 613-614 642 SE2d 232 2007.

So viewed, Nail’s complaint alleged that she was a patient at Gateway Mental Health, a facility operated by the Department of Human Resources of the State of Georgia. Nail alleged that while receiving medical treatment as a patient at the facility, she was prescribed and administered the drug Risperdal. According to Nail, her extended treatment with Risperdal caused her to develop Parkinson’s disease, sustain frequent falls, and suffer severe injuries. Nail alleged, inter alia, that the defendants failed to adequately warn her that the medication could cause Parkinson’s disease.

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