                            THIRD DIVISION
                           ELLINGTON, P. J.,
          BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

                    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


                                                                       June 1, 2018




In the Court of Appeals of Georgia
 A18A0277. HOLMES et al. v. LYONS et al.                                      PH-010

      PHIPPS, Senior Appellate Judge.

      Bonnie Holmes appeals the dismissal of her complaint for failure to file a

sufficient expert affidavit in support of her medical malpractice claim pursuant to

OCGA § 9-11-9.1, and for failure to state a claim and as being barred under Georgia

law with respect to her separate claims for fraud, battery, and negligent

misrepresentation. For the reasons set forth more fully below, we reverse.

      “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).” Ziglar

v. St. Joseph’s/Candler Health System, Inc., 341 Ga. App. 371, 371 (800 SE2d 395)

(2017) (citation and punctuation omitted). “We review a trial court’s ruling on a

motion to dismiss de novo, viewing all well-pled allegations in the complaint as true.”
Hobbs v. Great Expressions Dental Centers of Ga., 337 Ga. App. 248, 248 (786 SE2d

897) (2016).

      So viewed, the complaint alleges that on June 23, 2015, Thomas Lyons, M.D.,

performed gynecological surgery1 on Holmes at Rockdale Medical Center, owned and

operated by Rockdale Hospital, LLC (collectively, “Rockdale Hospital”). As a result

of the surgery, Holmes suffered a right distal ureteral injury and uterovaginal fistulas.

In November 2016, Holmes filed suit against Dr. Lyons, his employer Rockdale

Physician Practices, LLC d/b/a Advanced Gynecology Associates (“Rockdale

Physician Practices”), and Rockdale Hospital (collectively, the “Defendants”),

alleging claims of medical malpractice, fraud, negligent misrepresentation, battery,

punitive damages, as well as a claim of loss of consortium on behalf of her husband,

Jeremy Holmes. Holmes also brought a claim against Rockdale Physician Practices

for negligent hiring, supervision, and retention, and claims for negligent credentialing

and negligence per se against Rockdale Hospital.

      In her complaint, Holmes alleged that Dr. Lyons was not physically capable of

performing the June 23 surgery, and he failed to disclosed physical impairments that


      1
       The surgery was alleged to include a hysterectomy, exploratory laparoscopy,
adhesiolysis, uteterolysis, laparoscopic total hysterectomy, and cystoscopy.

                                           2
negatively affected his motor skills and placed her at increased risk of complications,

including ureteral injury and uterovaginal fistulas. In support of her claim, Holmes

highlighted that in 2010, Dr. Lyons had sought total and residual disability benefits

under two separate disability insurance policies. After being denied benefits, Dr.

Lyons filed suit against both insurers in 2011. Attached to Dr. Lyons’s complaint was

a functional capacity evaluation report prepared by Marc. A. Yeager, MPT, which

opined that Dr. Lyons’s “functional capabilities do not match the physical demand

requirements of his job related to be a Gynecological Surgeon due to decreased right

and left lower quarter weight bearing and decreased right- and left-hand gross and

fine motor coordination.” In his suit, Dr. Lyons described that: (1) in 2002, he became

“residually disabled” due to a total knee replacement which affected his ability to

stand and perform surgery; (2) his right thumb has a joint that needed to be replaced

and “affects him from a surgical standpoint”; (3) in 2009, he lost vision in his left eye,

which affected his depth perception; and (4) in 2011, he suffered a stroke, which

resulted in neurological problems, including tremors and other issues that impacted

his fine motor skills. Holmes contended that Dr. Lyons was impaired by the above-

referenced disabilities when he performed gynecological surgery on June 23, 2015,

which resulted in a preventable injury to Holmes’s ureter and other complications.

                                            3
Holmes further alleged that Dr. Lyons never informed her of his diminished motor

skills, vision issues, or difficulties in weigh bearing, and never advised her that her

risk of complications would be reduced if another gynecological surgeon, without the

same physical limitations, had performed the surgery.

      Holmes attached an expert affidavit to her complaint authored by Kelly M.

Kasper, M.D., a board certified gynaecologist, whose competency is not in dispute.2

In pertinent parts, Dr. Kasper’s affidavit stated that Dr. Lyons “breached the standard

of care in the following ways”: (1) he performed the surgical procedures on Holmes

“even though he was not physically capable of performing them in a manner that was

safe”; (2) he performed the surgical procedures on Holmes “even though he was not

physically capable of performing them in a manner that did not put . . . Holmes at

increased risk for complications, including but not limited to ureteral injury and

uterovaginal fistulas;” (3) he failed to inform Holmes of his “identified and admitted

disabilities and the likelihood that they would put her at risk for and cause her

complications, including ureteral injury and uterovaginal fistulas;” (4) he failed to

inform Holmes of “practical alternatives,” including that another physician, without


      2
       Dr. Kasper initially submitted an affidavit on August 18, 2016, which she
supplemented with two amended versions on August 30, 2016 and December 6, 2016.

                                          4
the “identified and admitted disabilities” could perform the surgery, “which would

not carry with it the likelihood that she would be at risk for and suffer complications,

including ureteral injury and uterovaginal fistulas;” and (5) he failed to perform the

surgery on Holmes “in a manner that would avoid complications, including but not

limited to ureteral injury and uterovaginal fistulas.” Dr. Kasper concluded that Dr.

Lyons’s cumulative failures “caused Bonnie Holmes’ complications of right distal

ureteral injury and uterovaginal fistula.” In a second amended affidavit, Dr. Kasper

added, “the complications that Bonnie Holmes experienced secondary to the June 23,

2015 [p]rocedures, including, but not limited to, ureteral injury and uterovaginal

fistulas, were a direct result of [Dr. Lyons] physical impairments” and the

“complications were secondary to deficient surgical technique related to at least Dr.

Lyons’ ‘decreased right and left lower quarter weight bearing and decreased right-

and left-hand gross and fine motor coordination.’”

      The Defendants filed separate motions to dismiss. The trial court granted the

motions to dismiss, finding, as relevant to this appeal, that: (1) Holmes’s medical

malpractice claim was subject to dismissal because Dr. Kasper’s expert affidavit

failed to specify at least one negligent act or omission committed by Dr. Lyons; and

(2) under Georgia law, a physician’s failure to disclose to a patient “negative life

                                           5
factors,” which might adversely affect their professional performance could not serve

as a basis for Holmes’s separate claims of fraud, negligent misrepresentation, and

battery. The court also dismissed Holmes’s claims against Rockdale Physician

Practices and Rockdale Hospital as “derivative” of Holmes’s meritless substantive

claims. Holmes then filed the instant appeal.

       1. In her first enumeration of error, Holmes contends that the trial court erred

in dismissing her medical malpractice claim for failure to file a sufficient expert

affidavit. Pursuant to OCGA § 9-11-9.1 (a), a plaintiff who files 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 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.” OCGA §

9-11-9.1 (a). Unlike OCGA § 9-11-56, which imposes an evidentiary requirement in

the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes

an initial pleading requirement on the plaintiff in a malpractice action. Robinson v.

                                            6
Starr, 197 Ga. App. 440, 441 (2) (398 SE2d 714) (1990). Accordingly, an expert

affidavit which would be insufficient to satisfy the evidentiary standards of OCGA

§ 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA

§ 9-11-9.1. 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 287 (1) (378

SE2d 708) (1989). The sufficiency of the expert affidavit determines whether the

complaint for malpractice is “subject to dismissal for failure to state a claim[.]”

OCGA § 9-11-9.1 (e). “A Section 9-11-9.1 affidavit should be construed most

favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even

if an unfavorable construction of the affidavit may be possible.” Crook v. Funk, 214

Ga. App. 213, 214 (1) (447 SE2d 60) (1994) (citation and punctuation omitted).

      Here, the Defendants contend that Dr. Kasper’s affidavit, as amended, was

fatally defective because it failed to set forth at least one negligent act or omission

claimed to exist. They highlight that the affidavit summarily concluded that Dr. Lyons

utilized a deficit surgical technique because Holmes experienced complications,

without providing any details on how Dr. Lyons was negligent in performing the

surgery. See Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892, 894 (1) (660 SE2d

835) (2008) (“[T]he doctrine of res ipsa loquitur does not apply in a malpractice case.

An intended result does not raise an inference of negligence.”).

                                          7
      It is true that an expert affidavit must include at least one specific negligent act

or omission giving rise to a malpractice claim. See, e.g., Porquez v. Washington, 268

Ga. 649, 650-651 & n. 1 (1) (492 SE2d 665) (1997) (finding an expert affidavit set

forth at least one specific “factually-based act of negligence” by stating the

defendants failed to monitor the use of an emergency medical device); Vitner v.

Miller, 223 Ga. App. 692, 694 (2) (479 SE2d 1) (1996) (finding an affidavit to be

legally sufficient where the expert averred that a physician’s “failure to complete the

two suction abortions constituted negligence”); Crook, 214 Ga. App. at 214 (1)

(concluding that an expert affidavit met the minimum requirements by referencing

multiple acts by the defendants, including their failure to diagnose an aneurysm and

ordering a treadmill stress test, despite the patient’s poor physical condition and high

blood pressure).

      In this case, however, Dr. Kasper’s affidavit described that Dr. Lyons’s act of

performing the set of six surgical procedures on Holmes on the date in question

despite his known physical limitations “breached the standard of care.” See Bowen

v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102) (1992) (“The negligent act ‘claimed

to exist’ in the instant case is appellee’s performance of ‘an unnecessary operative

procedure’ upon appellant.”). Specifically, Dr. Kasper opined that Dr. Lyons: (1)

                                           8
performed the surgery despite his physical limitations, (2) failed to inform Holmes

of his disabilities, and (3) employed a “deficient surgical technique,” which arose

from his physical impairments. Dr. Kasper further averred that the complications

suffered by Holmes, “including, but not limited to, ureteral injury and uterovaginal

fistulas, were a direct result of [Dr. Lyons’s] physical impairments[,]” and that the

“complications were secondary to deficient surgical technique” due to Dr. Lyons’s

“decreased right and left lower quarter weight bearing and decreased right- and left-

hand gross and fine motor coordination.” Although an unfavorable construction of

this affidavit may be possible, construing it most favorably for Holmes and resolving

all doubts in her favor, as we must on a motion to dismiss, the trial court could not

conclude that Dr. Kasper’s affidavit “discloses with certainty that [Holmes] would not

be entitled to relief under any state of provable facts.” Graham v. Reynolds, 343 Ga.

App. 274, 282 (3) (807 SE2d 39) (2017).

      Nowhere in the instant affidavit did Holmes’s expert specifically assert that Dr.

Lyons’s performance of the surgical procedure resulted in the cut to Holmes’s ureter,

as Holmes alleges in her brief. However, “OCGA § 9-11-9.1 does not require an

affiant to specifically opine that the act constituted negligence.” Graham, 343 Ga.

App. at 281 (3). Holmes cannot be required to submit an expert affidavit which

                                          9
unequivocally demonstrates the evidentiary merits of her claim unless and until the

Defendants move for summary judgment and submit evidence demonstrating that

Holmes’s claim lacks merit. See Bowen, 203 Ga. App. at 124 (“The purpose of

OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed,

not to require a plaintiff to prove a prima facie case entitling him to recover and

capable of withstanding a motion for summary judgment before the defendant need

file his answer.”) (citation omitted). It follows that the trial court erred in granting the

Defendants’ respective motions to dismiss with regards to Holmes’s medical

malpractice claim.

       Given our conclusion that the trial court erred in dismissing Holmes’s

substantive claims for professional malpractice against the Defendants, we also find

that the court erred in dismissing the claim for loss of consortium filed by Jeremy

Holmes. See Evans v. Rockdale Hosp., LLC, No. A18A0233, 2018 WL 1753820, at

*8 (2) (Ga. Ct. App., Apr. 12, 2018) (a spouse’s claim for loss of consortium stems

from the right of the other spouse to recover for his or her injuries). Likewise, the trial

court erred in dismissing Holmes’s claims of negligent hiring, supervision, and

retention against Rockdale Physician Practices. See City of Kingsland v. Grantham,

342 Ga. App. 696, 699 (805 SE2d 116) (2017) (“claims based upon negligent hiring,

                                            10
supervision, and retention of an employee are derivative of the underlying tortious

conduct of the employee”) (citation and punctuation omitted). The court also erred

in dismissing Holmes’s claims against Rockdale Hospital, as these claims are

dependent on a legally sufficient claim of medical malpractice against a physician.

Ladner v. Northside Hosp., Inc., 314 Ga. App. 136, 142-143 (723 SE2d 450) (2012).

      2. In her next enumeration of error, Holmes argues that given Dr. Lyons’s

failure to disclose his admitted ongoing physical disabilities that impacted his

surgical abilities, the trial court erred in dismissing her separate claims for fraud,

negligent misrepresentation, and battery for failure to state a claim and as being

barred under Georgia law. We agree.

      In this case, the Defendants contend that, absent an inquiry by Holmes prior to

surgery, Dr. Lyons had no duty to voluntarily disclose his possible physical

limitations because this is not listed as a specific category of information in Georgia’s

informed consent statute, OCGA § 31-9-6.1 (a).3 See Albany Urology Clinic, P.C. v.

      3
         The implied consent statute’s mandatory disclosures include: (1) the patient’s
diagnosis requiring the proposed procedure; (2) the nature and purpose of the
procedure; (3) the generally recognized and material risks of “infection, allergic
reaction, severe loss of blood, loss or loss of function of any limb or organ, paralysis
or partial paralysis, paraplegia or quadriplegia, disfiguring scar, brain damage, cardiac
arrest, or death” associated with the procedure; (4) the likelihood of the procedure’s
success; (5) the practical, recognized and accepted alternatives to the procedure; and

                                           11
Cleveland, 272 Ga. 296, 298-299 (1) (528 SE2d 777) (2000). The Georgia Supreme

Court has explained that “[b]ecause OCGA § 31-9-6.1 is in derogation of the common

law rule against requiring physicians to disclose medical risks to their patients, it

must be strictly construed and cannot be extended beyond its plain and explicit

terms.” Id. at 299 (1).

      [N]either the common law nor the Code impose a duty upon physicians
      or any other professional to disclose personal life factors which might
      adversely affect their professional performance. Hence, the failure to
      make such disclosure cannot be a basis for either a fraud or battery
      claim.


Id. at 303 (5). But Albany does not stand for the proposition that a physician never

has a duty to disclose negative information about his personal life to patients. Rather,

it stated that “failure to make disclosures that are not required [under the Informed

Consent Doctrine] cannot give rise to an independent cause of action” from a

malpractice claim. Id. at 300 (2). Notably, the Court explained that “obtaining consent

for medical treatment by an artifice that is directly related to the subject matter of the

professional relationship—i.e.: diagnoses, treatments, procedures—may result in an



(6) the patient’s prognosis if the proposed procedure is rejected. See OCGA § 31-9-
6.1 (a) (1)-(6).

                                           12
unlawful touching that supports a battery claim.” Id. at 301 (3) (emphasis added). In

Albany, the Supreme Court declined to apply the informed consent statute to the facts

of that case, in which a physician’s drug use was at issue in a patient’s suit alleging

professional negligence, battery and fraudulent concealment of illegal cocaine use.

Id. at 301 (3). Specifically, the Court highlighted there was no evidence that the

“physician was impaired or affected by the negative personal life factor at the time

consent was obtained and treatment was rendered.” Id.

      The instant case appears distinguishable. Viewed in Holmes’s favor, as we

must on a motion to dismiss,4 the complaint could be read to adequately plead claims

      4
         Notably, in Albany — a case heavily cited by the Defendants in favor of
dismissal of Holmes’s claims of battery, fraud, and negligent misrepresentation — the
plaintiff’s claims were tried before a jury. Albany, 272 Ga. at 297. In that case, after
the jury ruled in favor of the defendant on the malpractice claim, but returned
plaintiff’s verdicts on the claims of fraudulent concealment and misrepresentation
based on the physician’s alleged drug use, the trial court granted the defendant’s
motion for judgment notwithstanding the verdict because the plaintiff’s fraud claim
failed as a matter of law. See also Williams v. Booker, 310 Ga. App. 209, 209 (712
SE2d 617) (2011) (physician and his medical practice sought interlocutory review to
appeal the denial of their motions for partial summary judgment on the issue of
whether the physician had a duty to inform a patient about his alcohol addiction);
Hooks v. Humphries, 303 Ga. App. 264, 264-266 (692 SE2d 845) (2010) (appeal of
grant of partial motion for summary judgment against plaintiff’s claims as to breach
of fiduciary duty and ordinary negligence based on physician’s failure to disclose
reasons he no longer delivered babies); Blotner v. Doreika, 285 Ga. 481, 481-482 (1)
(678 SE2d 80) (2009) (plaintiff appealed following a jury verdict in favor of
chiropractor, asserting that the chiropractor failed to inform him about risks or

                                          13
for fraud,5 battery,6 and negligent misrepresentation. The crux of Holmes’s claim is

that (1) Dr. Lyons failed to inform her of his known disabilities prior to the surgery;

(2) Dr. Lyons’s known physical limitations caused him to perform the surgery in a

deficient manner; and (3) Holmes experienced complications, including a right distal

ureteral injury and uterovaginal fistulas, as a direct result of the surgery. Holmes put

forth specific allegations, including that Dr. Lyons: (1) was impaired by multiple

disabilities when he performed gynecological surgery on June 23, 2015, which

resulted in a preventable injury to Holmes’s ureter and other complications; (2) never

informed her of his diminished motor skills, vision issues, or difficulties in weigh

bearing; and (3) never advised her that her risk of complications would be reduced

if another gynecological surgeon, without the same physical limitations, had

performed the surgery. Based on the foregoing, the trial court could not have said



treatment alternatives prior to performing a neck adjustment).
      5
       See Albany, 272 Ga. at 300 (2) n. 14 (“the successful pursuit of a fraud claim,
even one within the professional context, requires a showing of an intention to
deceive”).
      6
       A claim for medical battery arises when a patient’s consent to a procedure is
obtained by “fraudulent misrepresentations of material facts” in obtaining that
consent. OCGA § 31-9-6 (d); Lloyd v. Kramer, 233 Ga. App. 372, 375 (1) (503 SE2d
632) (1998).

                                          14
with certainty at this stage in the proceeding that Holmes “will be unable to prove any

set of facts in support of [her] claim that would entitle [her] to relief.” Estate of

Shannon v. Ahmed, 304 Ga. App. 380, 384 (1) (696 SE2d 408) (2010) (reversing

grant of motion to dismiss with respect to plaintiff’s adequately pled claims for fraud,

battery, and conspiracy). Accordingly, we reverse the trial court’s dismissal of

Holmes’s claims for fraud, battery, and negligent misrepresentation.

      3. Finally, Holmes asserts that the trial judge erred by not recusing herself sua

sponte based on an apparent financial conflict of interest with respect to Rockdale

Hospital. We need not address this issue because the record reflects that Holmes

failed to raise it in the trial court or to request recusal below. See Wilcher v. Way

Acceptance Co., 305 Ga. App. 868, 871 (5) (700 SE2d 876) (2010) (where recusal

issue was not raised in the trial court, claim was not properly before appellate court).

      Judgment reversed. Ellington, P.J., concurs. and Bethel, J., concurs in

Divisions 1 and 3, and dissents in Division 2.

* DIVISION 2 OF THIS OPINION IS PHYSICAL PRECEDENT ONLY,

COURT OF APPEALS RULE 33.2 (a).




                                          15
 A18A0277. HOLMES et al. v. LYONS et al.



       BETHEL, Judge, concurring in part and dissenting in part.

       While I concur in Divisions 1 and 3 of the majority’s opinion, I must

respectfully dissent as to Division 2. In Division 2, the majority distinguishes Albany1

and finds that the trial court wrongly dismissed Holmes’s claims for fraud, battery,

and negligent misrepresentation because Holmes’s allegations clear the relatively low

hurdle set for complaints on a motion to dismiss. I do not agree with the majority’s

interpretation of Albany and would affirm the trial court’s dismissal of these claims.

       As the majority correctly notes, the Georgia Supreme Court stated in Albany

that

       neither the common law nor the Code impose a duty upon physicians
       or any other professional to disclose personal life factors which might
       adversely affect their professional performance. Hence, the failure to
       make such disclosure cannot be a basis for either a fraud or battery
       claim.


       1
           272 Ga. 296 (528 SE2d 777) (2000).
272 Ga. at 303 (5).

      Despite this broad pronouncement, the majority relies upon dicta in the

opinion stating that “obtaining consent for medical treatment by an artifice that is

directly related to the subject matter of the professional relationship – i.e.: diagnoses,

treatments, procedures – may result in an unlawful touching that supports a battery

claim.” Id. at 301 (3). I do not find Dr. Lyons’s physical limitations to be “directly

related to the subject matter of the professional relationship – i.e.: diagnoses,

treatments, [or] procedures[.]” Thus, I believe Holmes is barred from asserting

independent causes of action based on Dr. Lyons’s failure to disclose those physical

limitations.




                                            2
