On September 3, 2020, Joseph Griffin visited The Emory Clinic, Inc. (“Emory”) for a regular medical examination with Dr. David R. Propp, his long-term physician. Before being seen by Dr. Propp, Griffin was taken by Anna Smith, Dr. Propp’s medical assistant, to get weighed. Griffin was instructed by Smith to get out of his wheelchair without assistance and to climb onto a weighing machine. While trying to get onto the machine, Griffin fell and suffered injuries, including a femur fracture in his right leg.
Griffin filed suit against Emory, Propp, and Smith, alleging negligence based on injuries he suffered from the fall during a medical visit. Griffin did not list out separate claims or allegations against each defendant. Rather, he generally alleged that the “Defendants knew or ought to have known that [Griffin,] based on his medical condition and age[,] should have been weighed with a machine that fits his condition and[/]or aided while climbing and standing on a weighing machine for his weight to be taken.”
The trial court granted the Defendants’ motion to dismiss, on the basis that Griffin failed to file an expert affidavit in compliance with OCGA § 9-11-9.1 (a), even though his complaint alleged professional malpractice. Griffin appealed, arguing that the trial court erred in granting the motion to dismiss because Smith is not a licensed medical professional for whom an expert affidavit under OCGA§ 9-11-9.1 (a) is required.
The Court of Appeals of Georgia stated in its May 21, 2024 opinion, “OCGA § 9-11-9.1 (a) requires the contemporaneous filing of an expert affidavit only in professional malpractice claims asserted against certain professionals, and “medical assistant” does not fall into any of the categories of professionals enumerated within the Code section … Thus, construing the allegations of the complaint in the light most favorable to Griffin, as we must on a motion to dismiss, his complaint could be read to state a claim for ordinary negligence against Smith, a medical assistant. And medical assistant does not fall within any of the categories of professionals enumerated in OCGA § 9-11-9.1 (g). Consequently, he was not required to file an expert affidavit in order to state a claim against Smith … [and] we reverse the trial court’s dismissal of Griffin’s claims against Smith and any derivative claims against Emory and/or Dr. Propp alleging ordinary negligence for failure to file an expert affidavit under OCGA § 9-11-9.1.”
However, “To the extent Griffin’s complaint alleges a claim for professional negligence against Dr. Propp, a licenced health care professional under OCGA § 9-11-9.1 (g), or against Emory as vicariously liable for professional negligence, the trial court properly granted the Defendants’ motion to dismiss due to Griffin’s failure to file an expert affidavit as required by OCGA § 9-11-9.1 (a).”
Source Griffin v. The Emory Clinic Inc., A24A0073.
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