                            SECOND DIVISION
                              MILLER, P. J.,
                         DOYLE, P. J., and REESE, J.

                   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


                                                                     March 2, 2018




In the Court of Appeals of Georgia
 A17A1582. ST. MARY’S HEALTH CARE SYSTEM, INC. v.
     ROACH et al.

      REESE, Judge.

      The Appellant, St. Mary’s Health Care System, Inc. d/b/a St. Mary’s Hospital,

appeals from the trial court’s order denying its motion for summary judgment in a

negligence suit brought by Fredrick and Jacqueline Roach (“the Appellees”) for the

death of their son, Bryan Roach, following a visit to and discharge from the

Appellant’s emergency department in Athens, Georgia. The Appellant primarily

contends that the Appellees’ claim sounds in professional negligence which

necessitates the filing of an expert affidavit. For the reasons set forth, infra, we

reverse.
      Viewed in favor of the Appellees as the nonmoving party,1 the record shows

that Bryan Roach, accompanied by the Appellees, arrived at the Appellant’s

emergency department at 10:36 p.m. on November 8, 2013, with complaints of chest

pain, nausea, and fever. Chest x-rays were ordered and read by Dr. Elizabeth Smith,

an emergency medicine physician on duty at the time. She reviewed the chest x-rays,

finding an “enlarged heart, no obvious infiltrate[.]” Roach was discharged about two

hours after he had arrived with a diagnosis of acute febrile illness and atypical chest

pain. The record shows that the family was instructed to “follow up with [Roach’s]

primary care physician [the following] week” and to contact the emergency

department if symptoms worsened.

      At 7:51 a.m. on November 9, 2013, a radiologist interpreted the x-ray images

of Roach, and in his report noted “[h]eart size appears normal but there is opacity in

the suprahilar region on the right.” The radiologist recommended a “chest CT . . .

done with IV contrast. If the patient has had prior chest CTs that might demonstrate

this finding they should be obtained prior to obtaining . . . a chest CT[.]” At 11:44

a.m. on the same day, less than 12 hours after being discharged, emergency response


      1
       Crisp Regional Nursing & Rehabilitation Center v. Johnson, 258 Ga. App.
540, 541 (1) (574 SE2d 650) (2002).

                                          2
personnel received a call that Roach collapsed at home. Upon arrival of emergency

response personnel, Roach was transported, via ambulance, to the Appellant’s

hospital. Efforts to revive him were unsuccessful, and Roach was declared deceased

at 1:39 p.m. An autopsy report listed Roach’s cause of death resulting from

“[h]emopericardium secondary to asending aortic dissection[.]”

      The Appellees initially filed a medical malpractice action against Athens-

Clarke Emergency Specialists, P. C., Dr. Smith, and a physician assistant, and

attached an expert affidavit to the complaint, pursuant to OCGA § 9-11-9.1.

According to the affidavit, Roach’s “aortic dissection would have been visible on a

contrast CT scan at any point after his arrival” at the Appellant’s hospital.

      Later, the Appellees amended their complaint to add the Appellant. In their

amended complaint, the Appellees alleged that the Appellant’s imaging interpretation

system provided that x-rays ordered after 11:00 p.m. on a Friday night would not be

interpreted by a radiologist until the next morning, unlike those ordered during

regular hours. The Appellees did not attach an additional expert affidavit addressing

the Appellant’s alleged negligence claims to their amended complaint.

      The record shows that, in 2009, the Appellant entered into a “Radiology

Service Agreement” with Athens Radiology Services, P.C., a group practice of

                                          3
physicians, specializing in radiology (“Radiology Group”). The agreement

specifically provided that its purpose was to serve “the best interests of quality patient

care” and to ensure the “effective and efficient delivery of health care at the

Hospital[.]” The parties agreed to the following: (1) the Radiology Group would

provide in-person or on-call services 24 hours per day, 365 days a year; (2) the

Radiology Group could contract with a teleradiology group or physician to

preliminarily interpret “CT, MRI, and Ultrasound studies” between the hours of

midnight and 7:00 a.m. Monday through Thursday and 11:00 p.m. through 8:00 a.m.

Friday through Sunday [;]” (3) the Radiology Group would have an on-call

radiologist who would also be available during those times; and (4) the on-call

radiologist would be available for a consultation whenever it was requested by a

medical staff physician, with the consultation being conducted either via

teleradiology or by the radiologist physically returning to the hospital if the

circumstances so required.

      The Appellant filed a motion to dismiss, arguing that the Appellees’ claims

against it were based on professional negligence and thus, required an expert affidavit

pursuant to OCGA § 9-11-9.1. The trial court denied the Appellant’s motion to

dismiss, and discovery ensued.

                                            4
      In her deposition, Dr. Smith confirmed that the Appellant’s radiology policy

provided that every x-ray image would be reviewed and interpreted by a radiologist,

although, as in this case, x-rays performed after hours would not be reviewed until the

next day. She also testified that she could have gotten a radiology consultation in

Roach’s case on the night of his emergency room visit by contacting the on-call

radiologist to have the x-rays interpreted immediately. She explained, however, that

she did not seek the consult because she felt “comfortable” with her ability to

accurately read and interpret Roach’s chest film.

      The Appellant filed a motion for summary judgment asserting that: (1) the

Appellees’ claims against it were based on professional negligence; (2) there was no

evidence that the Appellant’s services were “unreasonable”; and (3) the Appellees

failed to show that any act or omission by the Appellant caused Roach’s death. After

a hearing, the trial court denied the Appellant’s motion for summary judgment, ruling

that the Appellees’ claims against the Appellant sounded in ordinary negligence,

because the Appellant’s radiology policy at issue “was the product of business

negotiations between the [Appellant] and Athens Radiology to provide exclusive

radiology services” and the resulting contract showed “no indication that physicians

were involved in the contract negotiations.”

                                          5
      This Court granted the Appellant’s application for interlocutory review, and

this appeal follows.

      This Court reviews a trial court’s ruling on a motion for summary judgment de

novo.2 “To prevail at summary judgment under OCGA § 9-11-56, the moving party

must demonstrate that there is no genuine issue of material fact and that the

undisputed facts, viewed in the light most favorable to the nonmoving party, warrant

judgment as a matter of law.”3 With these guiding principles in mind, we turn now to

the Appellant’s specific claims of error.

      1. The Appellant contends that the trial court erred in finding that the

Appellees’ claims against it sound in ordinary, not professional, negligence, whereas

the Appellees argue that entering the “Radiology Services Agreement” by the

Appellant sounded in ordinary negligence. We agree that the trial court erred in

finding that the Appellees’ claims fall under ordinary negligence and reverse the

denial of the Appellant’s motion for summary judgment.

      OCGA § 9-11-9.1 (a) provides, in relevant part,



      2
          See Crisp Regional Nursing, 258 Ga. App. at 541 (1) (citation omitted).
      3
        Munroe v. Universal Health Svcs., 277 Ga. 861, 864 (2) (596 SE2d 604)
(2004) (citation and punctuation omitted).

                                            6
      In any action for damages alleging professional malpractice[,] . . . the
      plaintiff shall be required to file with the complaint an affidavit of an
      expert competent to testify, which affidavit shall set forth specifically at
      least one negligent act or omission claimed to exist and the factual basis
      for each such claim.


      This Court has found that “[a]lthough 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.”4 “Where the professional’s alleged negligence requires the exercise of

professional skill and judgment[5] to comply with a standard of conduct within the

professional’s area of expertise, the action states professional negligence.”6

Therefore, negligence allegations that do not involve the exercise of professional skill




      4
       Bardo v. Liss, 273 Ga. App. 103, 104 (1) (614 SE2d 101) (2005) (citation
omitted).
      5
        See Carter v. Cornwell, 338 Ga. App. 662, 663 (791 SE2d 447) (2016)
(“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.”) (citation and punctuation omitted).
      6
          Bardo, 273 Ga. App. at 104 (1) (citation omitted).

                                           7
and judgment state a claim for ordinary negligence.7 Whether a complaint sounds in

ordinary or professional negligence is a question of law for the court to decide.8

      Thus, under OCGA § 9-11-9.1, a plaintiff must “attach to the complaint an

expert’s affidavit supporting his malpractice claim, but the requirement of attaching

a medical affidavit to the complaint does not apply to claims of ordinary negligence.”9

In contrast, “administrative, clerical, or routine acts demanding no special expertise

fall in the realm of simple negligence.”10

      In its decision, the trial court distinguished Bradway v. American National Red

Cross,11 which the Appellant had cited in support of its summary judgment motion.

In Bradway, the allegedly negligent conduct at issue was a blood bank’s failure to

obtain, through appropriate screening procedures and identify, from the potential

donor’s medical history, the information required to determine whether the donor’s



      7
          See MCG Health v. Casey, 269 Ga. App. 125, 128 (603 SE2d 438) (2004).
      8
          See Crisp Regional Nursing, 258 Ga. App. at 542 (2).
      9
        Carter v. VistaCare, LLC, 335 Ga. App. 616, 621 (3) (782 SE2d 678) (2016)
(citation and punctuation omitted).
      10
           Id. (citation and punctuation omitted).
      11
           263 Ga. 19 (426 SE2d 849) (1993).

                                             8
blood was likely infected with the Human Immunodeficiency Virus (“HIV”).12 The

screening procedures were developed by physicians and carried out by licensed

nurses.13 In finding that the claim against the blood bank sounded in professional

negligence, the Supreme Court of Georgia found that the injury at issue in the

complaint stemmed from the “alleged failures of the [screening] questions to provide

for effective elimination of high risk donors.”14

      In the present case, the Appellees’ complaint raises questions as to whether the

Appellant’s radiology policy should have required a radiologist to be on-site at all

hours to review and interpret x-rays in emergency cases; whether the Appellant’s

radiology policy should have mandated immediate review of all x-rays by a

radiologist; and whether the Appellant’s radiology policy improperly allowed an

emergency room physician, regardless of training and experience, to accurately

interpret x-rays and to discharge a patient based solely on that physician’s opinion,

independent of further review by a radiologist.




      12
           Id. at 20.
      13
           Id. at 21.
      14
           Id. at 22-23.

                                          9
      As this Court has previously explained, “if a claim of negligence goes to the

propriety of a professional decision rather than to the efficacy of conduct in the

carrying out of a decision previously made, the claim sounds in professional

malpractice.”15 The evidence established that the Appellant’s hospital policy allowed

for an immediate consult with a radiologist, but Dr. Smith exercised her medical

judgment when she decided that one was not necessary.16 Therefore, the Appellant’s

decision on how and when it would provide a radiologist to interpret x-rays of its

patients was not a purely administrative act, but involved the exercise of professional

knowledge and judgment.17

      Based on the foregoing, we find that this is a professional negligence case

because the Appellees’ argument is that the very execution and implementation of the

radiology agreement was negligent. The only way to properly allege and ultimately



      15
         Carter v. VistaCare, 335 Ga. App. at 621 (3) (citations and punctuation
omitted).
      16
           See Carter v. Cornwell, 338 Ga. App. at 663.
      17
         See Stafford-Fox, 282 Ga. App. 667, 671 (2) (639 SE2d 610) (2006) (The
failure of a physician to implement or follow proper procedures to ensure that he
reviewed and acted upon test results was “not [a] purely administrative act[ ], but
involve[d] the exercise of medical knowledge, skill or judgment in diagnosing a
medical condition[.]”) (punctuation omitted).

                                          10
establish the Appellant’s negligence, is with expert testimony explaining how the

“Radiology Service Agreement,” which does not require the Appellant to have a

radiologist on-site at all times, falls below the standard of care.18 As such, it was error

for the trial court to deny the Appellant’s motion for summary judgment. Therefore,

we reverse.

       2. In light of our holding in Division 1, supra, we need not reach the

Appellant’s remaining claims of error.

       Judgment reversed. Miller, P. J., and Doyle, P. J., concur.




       18
            See OCGA § 9-11-9.1 (a).

                                            11
