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Ball v. Jones

O.C.G.A. § 9-11-9.1 g explicitly categorizes nurses and physical therapists as separate professions.

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After the death of Louise Nedd on August 4, 2006, her son and Cynthia Jones, as the trustee of Nedd’s estate collectively, the “Plaintiffs”, sued approximately 50 entities and individuals, including Karla Ball, alleging that they negligently treated Nedd while she was a hospital patient and nursing home resident. In support of their professional malpractice claim against Ball and pursuant to OCGA § 9-11-9.1 a, the Plaintiffs filed an expert affidavit signed by Michelle Huey, a registered nurse, in which Huey opined that Ball failed to meet the standard of care for nurses in Georgia during her treatment of Nedd. Ball filed a motion to dismiss, claiming that Huey was not qualified to provide an expert affidavit as to her treatment of Nedd because Ball was not a nurse, but instead was a licensed physical therapist. After the trial court denied her motion, Ball filed a motion for interlocutory appeal, which we granted. For the reasons that follow, we reverse. A motion to dismiss for an insufficient affidavit under OCGA § 9-11-9.1 is equivalent to a motion to dismiss for failure to state a claim under OCGA § 9-11-12 b 6.1 Accepting the allegations of the Plaintiffs’ pleadings and affidavit as true, we review the trial court’s application of OCGA § 24-9-67.1 to these facts de novo.2

So viewed, the record shows that Nedd, who was 85 years old, was admitted to St. Joseph’s Candler Hospital on March 17, 2006, after she fell at her home. On March 21, 2006, Ball, who worked at the Hospital, provided Nedd with instruction on her physical therapy plan of care and goals, as well as on “basics” and “pain.” After physicians recommended that Nedd be admitted to a nursing home for continued pain management and rehabilitation, she was discharged from the Hospital on March 24, 2006.

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