Michael Morrell and William C. Morrell sought and received medical care at Douglas Hospital, Inc. without having private medical insurance or benefits under Medicare or Medicaid government programs to cover the charges for the care. After being individually charged for the care, the Morrells sued Wellstar Health Systems, Inc. and its affiliate, Douglas Hospital, Inc. collectively referred to as Wellstar Health, alleging that Wellstar Health overcharged them for the medical care at rates grossly in excess of the rates charged to private medical insurers, or to Medicare/Medicaid benefit programs, for the same medical care provided to their covered patients. In addition to seeking class action certification to represent similarly situated Wellstar Health patients, the complaint alleged in nine counts that Wellstar Health’s overcharges for the medical care: breached implied contractual obligations requiring the charge of reasonable rates for medical care count one; violated the Uniform Deceptive Trade Practices Act count two; constituted unjust enrichment justifying the imposition of a constructive trust on profits wrongfully obtained by overcharging count three; justified imposition of injunctive and declaratory relief prohibiting the overcharges and efforts to collect the charges count four; constituted fraud, constructive fraud, and negligent misrepresentation counts five, six, and seven; breached fiduciary duties owed to patients count eight; and constituted negligence and negligence per se count nine. Wellstar Health moved pursuant to OCGA § 9-11-12 b 6 for dismissal of the complaint for failure to state a claim upon which relief can be granted. The trial court granted the motion by dismissing all counts of the complaint, and the Morrells contend on appeal that the trial court erred in dismissing counts one, two, three, four and eight.1 For the reasons that follow, we affirm.
1. As an initial matter we note that, in ruling on the motion, the trial court elected to consider identical written documents prepared by Wellstar Health and signed by Michael and William Morrell by which they consented to and agreed to pay for the medical care. A copy of the document signed by the Morrells was submitted by Wellstar Health in support of its motion to dismiss. The substance of the document was not incorporated into the complaint, nor was a copy of the document attached as an exhibit to the complaint, so it was clearly a matter outside of the Morrells’ pleadings. Bakhtiarnejad v. Cox Enterprises, Inc. , 247 Ga. App. 205, 207-208 541 SE2d 33 2000; Hoffman v. PMC Dev. Co. , 238 Ga. 258 232 SE2d 541 1977. When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to OCGA § 9-11-56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment. Cox Enterprises, Inc. v. Nix , 273 Ga. 152, 153 538 SE2d 449 2000; OCGA § 9-11-12 b. The record does not show that the trial court gave the required notice, but the party opposing the motion may waive the right to the 30-day notice by acquiescing in the movant’s submission of evidence in support of the motion to dismiss. Cox Enterprises , 273 Ga. at 153-154. The record shows that the Morrells acquiesced in the submission of this evidence by conceding they signed the documents and by urging the trial court and this Court to consider the documents. All the parties, in effect, treated the motion to dismiss as being converted to a motion for summary judgment, and no party was denied an opportunity to respond to evidence submitted. Id. at 154. Under these circumstances, there is no indication of prejudice despite the trial court’s failure to give notice of the conversion, and the Morrells “waived any formal notice from the trial court that it would consider the motion to dismiss as one for summary judgment.” Id. at 154.
