                                 THIRD DIVISION
                              ANDREWS, MCMILLIAN
                                and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       May 12, 2017




In the Court of Appeals of Georgia
 A17A0214. ZIGLAR v. ST. JOSEPH’S/CANDLER HEALTH
     SYSTEM, INC.

      MCMILLIAN, Judge.

      Appellant Jason Keith Ziglar appeals following dismissal of his complaint for

failure to file a sufficient expert affidavit pursuant to OCGA § 9-11-9.1. As more

fully set forth below, we now affirm.

      “A motion to dismiss based upon the lack of [a sufficient] expert affidavit is

a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6).”

(Citation and punctuation omitted.) Brown v. Tift Health Care, Inc., 279 Ga. App.

164, 165 (630 SE2d 788) (2006). “We review a trial court’s ruling on a motion to

dismiss de novo, viewing all well-pled allegations in the complaint as true.” (Citation

omitted.) Hobbs v. Great Expressions Dental Centers of Ga., 337 Ga. App. 248, 248
(786 SE2d 897) (2016). So viewed, the sixteen-paragraph complaint alleges that

Ziglar was admitted to St. Joseph’s/Candler Health System, Inc. (“Hospital”) in

December 2013. Ziglar, who was unconscious at the time of his admission, developed

a Stage IV sacral ulcer during his stay. Ziglar filed a negligence action, contending

that the Hospital, nurses and support staff, for whose negligence the Hospital was

vicariously liable through theories of agency and respondeat superior, had failed to

properly assess and treat the ulcer and had failed to appropriately advocate for his

care while he was unconscious. As required by OCGA § 9-11-9.1 in professional

negligence actions, Ziglar attached the affidavit of nurse Sandra D. Copeland to his

complaint. The Hospital answered and filed a motion to dismiss on the basis that

Copeland’s affidavit did not meet the requirements of OCGA § 9-11-9.1. The trial

court granted the Hospital’s motion based solely on the failure to file a sufficient

Section 9-11-9.1 affidavit, and Ziglar filed this appeal.

      Pursuant to OCGA § 9-11-9.1 (a), plaintiffs who file professional negligence

claims against “(1) [a] professional licensed by the State of Georgia and listed in

subsection (g) of this Code section; [or] (3) [a]ny licensed health care facility alleged

to be liable based upon the action or inaction of a health care professional licensed

by the State of Georgia and listed in subsection (g) of this Code section,” must file

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an expert affidavit with their complaint. Further, the statute also plainly provides that

the expert’s “affidavit shall set forth specifically at least one negligent act or

omission claimed to exist and the factual basis for each such claim.” (Emphasis

supplied.) OCGA § 9-11-9.1 (a) (3).

      In pertinent parts, Copeland’s affidavit contained the following averments:

      “Based on my review of the above-described medical records, it is my
      opinion within a reasonable degree of medical probability that the staff
      of St. Joseph’s Hospital failed to exercise the standard of care and
      degree of skill possessed, exercised and employed by the medical
      profession generally and nurses and support staff with regard to nursing
      care of patients in medical facilities especially, under similar conditions
      and like circumstances, by negligently failing to: (1) properly assess and
      treat Jason Keith Ziglar’s wounds; and (2) appropriately advocate for an
      unconscious patient to ensure that said patient received the monitoring
      and treatment required.”


      The Hospital contends this affidavit was fatally defective because: 1) it fails

to set forth at least one negligent act or omission claimed to exist; 2) it fails to set

forth any factual basis for such a claim against the defendant; and 3) even assuming

plaintiff’s expert, a nurse, was competent to testify as to the standard of care of the

Hospital’s nurses, she is not competent to testify about the standard of care of the

Hospital’s unidentified “support staff” under OCGA § 24-7-702.

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       Our law is clear that “[a]n affidavit under OCGA § 9-11-9.1 which does not

state specifically at least one negligent act or omission is fatally defective.” (Citation

omitted.) Edwards v. Vanstrom, 206 Ga. App. 21, 22 (1) (424 SE2d 326) (1992).

Here, the affidavit recites only generally that the nurses and staff at the Hospital

failed to appropriately treat, assess, and advocate for Ziglar while he was a patient

there, and does not contain any specific instances of any of those alleged failures.

Moreover, even assuming the general assertions of “failure to assess or treat” were

sufficient to state an act or omission of negligence, the affidavit also failed to set out

a sufficient factual basis to support such a negligent act or omission. Cf. Crook v.

Funk, 214 Ga. App. 213, 214 (1) (447 SE2d 60) (1994) (doctor’s affidavit sufficient

under facts set out in the affidavit). In this regard, the affidavit referred to the medical

records but did not attach them, and as to facts otherwise recited only that

“[b]eginning in December of 2013, . . . Ziglar was an unconscious patient that was at

high risk for the development of pressure ulcers” and “[d]espite the fact that the staff

of [the Hospital] knew or should have known of the high risk of pressure ulcers, . .

. Ziglar developed a Stage IV sacral ulcer.” These are not the type of underlying facts

sufficient to support claims of professional negligence for purposes of the Section 9-

11-9.1 affidavit. Accordingly, even construing the affidavit in Ziglar’s favor, we find

                                             4
that the affidavit here was insufficient on its face to satisfy the requirements of

OCGA § 9-11-9.1.

      Ziglar argues, however, that his complaint also set out a claim for simple

negligence acts by the nonprofessional Hospital support staff for which he did not

need a OCGA § 9-11-9.1 affidavit.1 Carter v. VistaCare, LLC, 335 Ga. App. 616, 621

(3) (782 SE2d 678) (2016) (requirement of attaching a Section 9-11-9.1 affidavit does

not apply to claims of ordinary negligence); Padgett v. Baxley and Appling County

Hosp. Auth., 321 Ga. App. 66, 71 (2) (741 SE2d 193) (2013) (physical precedent

only) (CNA is not one of the professionals listed in OCGA § 9-11-9.1 or similar code

sections, and expert affidavit not required). It is true that Ziglar’s complaint recites

that “[t]his action is one for professional negligence, simple negligence and

malpractice.” But, as Ziglar acknowledges, we are not bound by his characterization

of his claims, and instead must review the complaint de novo to discover the nature

of Ziglar’s claims. “Whether a complaint alleges ordinary negligence or professional

malpractice is a question of law for the court.” (Citation and punctuation omitted.)

Carter, 335 Ga. App. at 621 (3).


      1
        The Hospital sought dismissal only on the basis that the OCGA § 9-11-9.1
affidavit was insufficient.

                                           5
      When assessing whether the complaint alleges ordinary negligence, we
      must liberally construe the allegations of the complaint and only
      conclude that ordinary negligence has not been alleged if it is foreclosed
      by the complaint itself[.] In determining, as a matter of law, whether the
      complaint alleged claims based on ordinary negligence, professional
      negligence, or both, . . . we look solely to the allegations of the
      complaint and liberally construe the allegations to state a claim if, within
      the framework of the complaint, the plaintiff may introduce evidence
      which will sustain a grant of relief based on the claim. We will conclude
      that the complaint does not allege a claim only if the allegations of the
      complaint disclose with certainty that the plaintiff would not be entitled
      to relief on the claim under any state of provable facts. (Citations and
      punctuation omitted.) Health Mgmt. Assoc. v. Bazemore, 286 Ga. App.
      285 (648 SE2d 749) (2007).


Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 146-47 (1) (682

SE2d 165) (2009).

      Ziglar set out two basic claims in the complaint – that the Hospital and its

employees, specifically its nurses and support staff, failed to properly treat and assess

Ziglar’s wounds and the Hospital failed to ensure that, as an unconscious patient, he

received the required level of monitoring and treatment, which would logically

include detecting the development of ulcers caused by a prolonged bed stay.




                                           6
      “Failure to adequately monitor for injuries and failure to assure proper medical

care are analogous to claims previously held to fall within the realm of professional

medical decision making.” Brown, 279 Ga. App. at 167. Ziglar alleged negligence

based on the failure of the Hospital’s nurses and unspecified staff to take the

appropriate steps to ensure that he, as an unconscious patient, did not develop a

pressure ulcer while confined to his hospital bed and to appropriately treat it once

they discovered it. Clearly, just what these steps are and what should have been done

to prevent the development of the ulcer would require “highly specialized expert

knowledge with respect to which a layman can have no knowledge at all, and the

court and jury must be dependent on expert advice.” (Citation and punctuation

omitted.) Brown, 279 Ga. App. at 166-67; see also Hendrix v. Fulton DeKalb Hosp.

Auth., 330 Ga. App. 833 (769 SE2d 575) (2015) (physical precedent only) (medical

malpractice case involving pressure sores). Likewise, a “medical judgment” clearly

would be involved in assessing the severity of the ulcer and prescribing a course of

treatment. “‘Medical judgments’ are ‘decisions which normally require the evaluation

of the medical condition of a particular patient and, therefore, the application of

professional knowledge, skill, and experience.’ Dent v. Mem. Hosp. of Adel, 270 Ga.

316, 318 (509 SE2d 908) (1998).” James v. Hosp. Auth. of the City of Bainbridge,

                                          7
278 Ga. App. 657, 659 (629 SE2d 472) (2006). Here, Ziglar alleged his claims in

terms of medical negligence, referring to a failure to exercise or a deviation from

acceptable standards of medical care. Thus, even construing the allegations of his

complaint broadly in his favor, we conclude that the entirety of Ziglar’s claims fall

within the realm of professional negligence and therefore were properly dismissed for

want of a sufficient OCGA § 9-11-9.1 affidavit.

      Judgment affirmed. Andrews and Rickman, JJ., concur.




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