Candler General Hospital, Inc. v. Lamb

Birdsong, Presiding Judge.

We granted interlocutory appeal to the defendant Candler General Hospital, Inc., to review the trial court’s denial of defendant’s motion to dismiss, made on grounds that this is a professional malpractice case and plaintiff’s failed to file a sufficient expert affidavit pursuant to OCGA § 9-11-9.1.

Plaintiffs sued for damage caused to plaintiff Laverne Lamb’s eye during cataract surgery performed at defendant Candler Hospital. They alleged the damage was caused because contrary to the recommendations and warnings of the manufacturer of the “CooperVision” phaco-emulsifier used in the cataract surgery, hospital personnel negligently attached to the machine surgical supplies made by a company other than the manufacturer of CooperVision. Plaintiffs contend the CooperVision machine uses a high-speed vibration to dissolve cataracts, that the device overheated because of a failure of an irrigation system attached to the CooperVision machine, and that hospital personnel were negligent in using this irrigation system, made by Staar Surgical Company, with the “CooperVision” phaco-emulsifier, contrary to the warnings of the “CooperVision” manufacturer.

Plaintiffs also filed suit against the manufacturers of the CooperVision machine and against Staar Surgical Company. As to the hospital, they alleged in their original complaint that the hospital violated the standard of care applicable to hospitals of comparable size and location as well as to hospitals generally. They attached the affidavit of Douglas Allen, a registered professional engineer and former vice president for CooperVision. Mr. Allen described his familiarity with the CooperVision machine used in this case, and said: “I am familiar with the hazards of an effect on system performance by the use with the said [machine] of disposable supplies other than those specified by CooperVision for this unit. Use of disposables other than those of CooperVision may affect system performance and create potential hazards. . . . The instructions provided by CooperVision to the purchaser of every [surgical supply] kit for use with the said [machine] provided in part that the use of disposables other than those of CooperVision may affect system performance and create potential hazards. . . . One of the aforesaid effects on system performance or potential hazards includes interruption of the fluid flow to and from the eye during surgery.” (Emphasis supplied.)

The trial court denied Candler Hospital’s motion to dismiss, saying: “The case sub judice is not a medical malpractice case and defendant Candler’s alleged liability does not turn on a ‘medical question.’ A jury would be capable of resolving these issues without the help of a medical expert’s testimony. Therefore, OCGA § 9-11-9.1 (a) is not applicable here.” Held:

The trial court erred in ruling that a jury would be capable of resolving the issues in this case without expert evidence and that this is not a professional malpractice case and an expert affidavit is not required under OCGA § 9-11-9.1. Moreover, the affidavit submitted by plaintiffs with their complaint is insufficient to comply with the Code section as an expert affidavit.

This is not a simple negligence case and is to be distinguished from cases like Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107 (354 SE2d 872) and Self v. Executive Committee &c., 245 Ga. 548 (266 SE2d 168). Plaintiffs’ entire cause of action depends upon a determination by the jury that defendant’s employees committed a negligent act which caused Mrs. Lamb’s injury. It will not be sufficient for plaintiffs to show, either in a simple negligence context or in the context of professional malpractice, that use with a CooperVision phaco-emulsifier of surgical supplies other than supplies made by CooperVision to be used with that machine, “may affect system performance and create potential hazards,” or even “[may] interrupt the fluid flow to and from the eye during surgery.” In order for plaintiffs to sustain a verdict, there would have to be evidence that the use of surgical supplies other than those made by CooperVision for this machine did “exist” so as to cause a particular hazard. This might conceivably be proved at trial without expert medical testimony but there is nothing in the affidavit or the pleadings to suggest that it could be so proved. Moreover, there will have to be evidence that the particular hazard which was brought about by use of improper supplies caused interruption of fluid flow to Mrs. Lamb’s eye. If plaintiffs can prove this by any evidence other than expert medical evidence, they have not suggested it to us.

The purpose of OCGA § 9-11-9.1 (a) is to prevent “frivolous or unsuitable actions,” i.e., actions where plaintiff sets out to prove negligence but is unable to do so without expert evidence; if plaintiff cannot establish negligence and causation without expert testimony, the case is generally a professional malpractice action within the meaning of § 9-11-9.1. See Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489). To this end, OCGA § 9-11-9.1 (a) provides: “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.” (Emphasis supplied.)

At best, plaintiffs have merely submitted an affidavit suggesting that defendant’s employees committed an act that may cause interruption of the flow of fluid to the eye during surgery; they have not even shown a “factual basis” for a claim the supplies used in this instance “may” have interrupted the flow of fluid to the eye during surgery, much less than they did cause this hazard. We note also that they have not suggested any “factual basis for a claim” that this circumstance caused the injury to Mrs. Lamb’s eye.

The trial court erred in denying appellant’s motion to dismiss.

Judgment reversed. Cooper, J., concurs.

Pope, J., concurs specially.