Liu v. Boyd

The trial court erred in failing to dismiss the plaintiff's entire complaint, since all of her claims alleged professional negligence and she failed to file the required expert affidavit.

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In this interlocutory appeal arising out of a wrongful death action, Young Jian Liu, M.D., challenges the partial denial of his motion to dismiss all the claims of Joyce Boyd, as surviving parent of Joshua A. Bell. Specifically, Dr. Liu contends that the trial court erred in finding that some of Boyd’s claims alleged nonprofessional negligence, which did not require the filing of an affidavit in accordance with OCGA § 9-11-9.1 a, and in not finding that Boyd’s complaint failed to state a claim upon which relief could be granted. Because we find that all of Boyd’s claims were based on professional negligence, we reverse the trial court’s partial denial of Dr. Liu’s motion to dismiss. “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.” Punctuation omitted. Williams v. Alvista Healthcare Center .1 “On appeal, this Court reviews the denial of a motion to dismiss de novo.” Atlanta Women’s Health Group, P.C. v. Clemons .2 However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in her favor. See Williams , supra, 283 Ga. App. at 614.

So viewed, the complaint shows that between June 2005 and December 2005, Dr. Liu provided Boyd’s son Bell with prescriptions for various pain medications. On December 30, 2005, Boyd’s son died as a result of multiple drug toxicity. On December 28, 2007, Boyd filed a wrongful death action against Dr. Liu, alleging that Dr. Liu breached the duty of reasonable care that he owed to Boyd’s son by providing him with various pain medication prescriptions without taking steps to insure that the prescriptions were not being abused. Her complaint further alleged that it was unclear whether her son was an actual patient of Dr. Liu but that Dr. Liu’s negligence and intentional acts proximately caused her son’s death. Boyd’s complaint did not include an attached expert affidavit pursuant to OCGA § 9-11-9.1.

Liu v. Boyd

The trial court erred in failing to dismiss the plaintiff's entire complaint, since all of her claims alleged professional negligence and she failed to file the required expert affidavit.

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