Pursuant to a granted interlocutory appeal taken from the denial of a motion for reconsideration, the defendant below, Mountain Orthopedics & Sports Medicine, P. C. “Mountain”, challenges an order of the State Court of Rockdale County denying Mountain’s motion to dismiss Judy Williams’ complaint for injuries sustained “by and through the negligence of Mountain’s agent, employee and servant, George C. Lambros, Jr.” Mountain contended the complaint should be dismissed because it was not filed with the OCGA § 9-11-9.1 affidavit required to accompany a charge of medical malpractice. The state court denied the motion to dismiss, holding that an affidavit is not required “in a suit alleging professional malpractice of an employee when the suit is against an employee who is not a licensed health care provider. ” The issue raised on appeal, however, has been framed by Mountain as follows: “ The trial court ruled that Williams is not required by OCGA § 9-11-9.1 to submit an expert affidavit in a medical malpractice case against the professional corporation “P.C.”, i.e., practice group of the physician, even when the suit is based upon the alleged negligence of one of its physician agents/employees. This issue is one of first impression.” First, the issue as set forth by Mountain does not accurately reflect the state court’s ruling. Second, the issue as framed by Mountain does not appear to be one contemplated by its complaint. The complaint fails to specifically allege a claim for medical malpractice. In fact, the parties and the state court have proceeded thus far under the assumption that Williams’ suit is one alleging medical malpractice as opposed to ordinary negligence. Williams, however, has failed to assert in any pleading a statement from which a court could infer that her suit is one sounding in medical malpractice as opposed to ordinary negligence.
Although Williams’ named defendant is a medical corporation, the cause of action is described only as one for “negligence.” In fact, one might infer from the complaint that it sounds in ordinary negligence since nowhere does it mention an act of medical malpractice or even describe an act committed by a licensed health care provider.1 Williams states only that “George C. Lambros, Jr.,” who is not described as a doctor or other medical professional, “negligently injured” Williams. How he injured Williams is not set forth. We do not know based on the pleadings of record if he failed to protect her from a criminal assault, failed to clean up a slip-and-fall hazard, or failed to properly perform an administrative or a medical procedure. In an attempt to find out exactly what Lambros is alleged to have done, Mountain filed a motion for a more definite statement. The court below has not yet ruled on that motion.
