In this medical malpractice action, Moswen A. Bonner appeals from the trial court’s dismissal of his complaint against Letty Revell Peterson, M.D. and Daniel J. Sheehan, M.D. Bonner asserts that the trial court erred in holding: 1 that he failed to timely assert a medical malpractice claim against Dr. Sheehan; and 2 that Dr. Peterson was entitled to qualified immunity. We agree that the trial court erred in finding that Bonner’s complaint and amended expert affidavit failed to assert a timely medical malpractice claim against Dr. Sheehan, and therefore reverse the trial court’s dismissal of that claim. We affirm the dismissal of Bonner’s claims against Dr. Peterson, however, because we agree with the trial court’s conclusion that her status as a state-employed resident physician entitled her to qualified immunity for any liability resulting from her allegedly negligent treatment of Bonner. We review a trial court’s order dismissing a plaintiff’s complaint de novo. Lewis v. Ga. Dept. of Human Resources .1 Where the order of dismissal was based upon the plaintiff’s failure to state a claim upon which relief could be granted see OCGA § 9-11-12 b 6, we “will affirm the same only where . . . the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted therein . . . .” Punctuation omitted. Love v. Morehouse College, Inc. 2 A motion to dismiss asserting sovereign immunity, however, is based upon the trial court’s lack of subject matter jurisdiction, rather than the merits of the plaintiff’s claim. See Dept. of Transp. v. Dupree ;3 OCGA § 9-11-12 b 1. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court’s pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12 b 1 motion is reviewed on appeal under the any evidence rule. Id.
The record shows that on January 5, 2006, Bonner went to the dermatology clinic at the Medical College of Georgia “MCG” for treatment of a bump on his chin. He was seen by Dr. Sheehan, an attending physician, and by Dr. Peterson, who was then a third-year resident physician. After examining Bonner, Dr. Sheehan told him the bump was most likely an ingrown hair and that they could attempt to treat the same either with antibiotics or by performing a procedure known as a shave biopsy. Bonner elected the shave biopsy, which involved numbing the site, removing the bump, and sending the same for a laboratory analysis. Dr. Sheehan told Bonner that Dr. Peterson would be performing the procedure, and left the room. Dr. Peterson then requested and received the necessary equipment from the nursing staff and removed the bump from Bonner’s face. She then applied a substance she believed to be aluminum chloride to the area. The substance was, in fact, potassium hydrochloride and its application to Bonner’s skin resulted in a more severe lesion developing on Bonner’s chin.
