Betty L. Bazemore sued Health Management Associates, Inc. d/b/a East Georgia Regional Medical Center the Medical Center for injuries she allegedly sustained when she fell while she was a patient at the Medical Center. Along with its initial responsive pleading denying liability, the Medical Center filed a motion to dismiss the complaint on the basis that it sought to impose vicarious liability on the Medical Center for the professional negligence of a Medical Center employee, and that Bazemore failed to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1. Pursuant to our grant of an interlocutory appeal, the Medical Center appeals from the trial court’s denial of the motion. For the following reasons, we affirm in part and reverse in part. When a complaint seeks damages against a licensed health care facility1 based on a claim that the facility is vicariously liable for the professional malpractice of a health care professional licensed by the State of Georgia and listed in OCGA § 9-11-9.1 d, the plaintiff is required to file an expert affidavit with the complaint in accordance with the requirements of OCGA § 9-11-9.1 a. The failure to file the required affidavit subjects the complaint to dismissal. MCG Health, Inc. v. Casey , 269 Ga. App. 125, 127 603 SE2d 438 2004. “Thus, a § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required.” Holloway v. Northside Hosp. , 230 Ga. App. 371 496 SE2d 510 1998 Citations omitted. Bazemore did not file an expert affidavit with her complaint in accordance with OCGA § 9-11-9.1, and she claims that, because her complaint alleged ordinary rather than professional negligence, no affidavit was required.
Bazemore’s complaint alleged that, while she was a patient at the Medical Center, she fell when “an employee” of the Medical Center “negligently failed to give adequate assistance and supervision to her while taking her to the restroom. . . .” In an amendment to the complaint filed after the Medical Center filed its motion to dismiss, Bazemore alleged that, “the Medical Center employee failed to exercise ordinary care in assisting her in that the employee intentionally shut the restroom door and intentionally left her without assistance.” The complaint also alleged that Bazemore’s injuries were “the result of the negligence of the Medical Center, acting through its agents, servants and employees. . . .” The complaint did not identify Bazemore’s medical condition prior to the fall, did not identify the Medical Center employee who took Bazemore to the restroom, and did not state whether or not the employee was a health care professional licensed by the State of Georgia and listed in OCGA § 9-11-9.1 d. Moreover, the allegation in the complaint that the injures resulted from the negligence of Medical Center “agents, servants and employees” left unclear whether Bazemore claimed that her injuries were proximately caused by more than one Medical Center employee. Although complaints against professionals may state claims based on ordinary as well as professional negligence, the complaint’s characterization of claims as stating professional or ordinary negligence does not control. Shirley v. Hosp. Auth. of Valdosta/Lowndes County , 263 Ga. App. 408, 409-410 587 SE2d 873 2003. Where the professional’s alleged negligence requires the exercise of professional skill and judgment to comply with a standard of conduct within the professional’s area of expertise, the action states professional negligence. Holloway 230 Ga. App. at 372. But where the allegations of negligence do not involve professional skill and judgment, the action states ordinary negligence. MCG Health 269 Ga. App. at 128. Whether a complaint alleges ordinary or professional negligence is a question of law for the court. Crisp Regional Nursing & Rehabilitation Center v. Johnson , 258 Ga. App. 540, 542 574 SE2d 650 2002. Bardo v. Liss , 273 Ga. App. 103, 104 614 SE2d 101 2005.
