concurring specially.
I concur in the judgment rendered by the majority affirming the trial court’s grant of summary judgment in favor of Dr. Howard on Ketchup’s claim that Dr. Howard committed malpractice by failing to inform him of the risks of the root canal procedure. The judgment in favor of Dr. Howard was mandated because the Georgia informed consent law set forth in OCGA § 31-9-6.1 did not require the disclosure of those risks.
I write separately to state that the majority opinion’s attempt by judicial fiat to prospectively expand the limitations of the Georgia informed consent law adopted by the General Assembly in OCGA § 31-9-6.1 usurps the exercise of legislative power to define the doctrine of informed consent in Georgia and is a matter beyond the authority of this Court. The majority does not contend that the informed consent law set forth in OCGA § 31-9-6.1 required Dr. Howard to inform Ketchup of the risks involved with the root canal procedure. To the contrary, the statute clearly does not apply the doctrine of informed consent to this procedure. Instead, the majority proclaims for prospective application only that: “Henceforth [,] the law of this state, like that of the other 49 states, will recognize the common law doctrine of informed consent.” Whether Georgia should recognize the doctrine of informed consent in a form similar to that adopted by other states is not the issue. The issue is whether the authority to do so rests with the courts or the General Assembly.
Prior to the 1988 enactment of the informed consent law in OCGA § 31-9-6.1, both this Court and the Supreme Court of Georgia held that the Georgia Medical Consent Law at OCGA § 31-9-6 established that there was no duty in Georgia to disclose the risks of medical treatment. Simpson v. Dickson, 167 Ga. App. 344, 347-348 (306 SE2d 404) (1983); Robinson v. Parrish, 251 Ga. 496, 497 (306 SE2d 922) (1983). Accordingly, under pre-1988 common law precedent, a failure to disclose such risks would not support a claim for professional negligence. Albany Urology Clinic v. Cleveland, 272 Ga. 296, 298 (528 SE2d 777) (2000), citing Young v. Yarn, 136 Ga. App. 737 (222 SE2d 113) (1975); Hyles v. Cockrill, 169 Ga. App. 132, 133 (312 SE2d 124) (1983); Padgett v. Ferrier, 172 Ga. App. 335 (323 SE2d 166) (1984). Both this Court and the Supreme Court of Georgia have also concluded that, since this common law rule is based on longstanding judicial interpretations of the Medical Consent Law which have become an integral part of that statute, any subsequent change in this rule could be accomplished only by an act of the General Assembly. Simpson, 167 Ga. App. at 347-348; Spikes v. Heath, 175 Ga. App. *75187, 188, n. 2 (332 SE2d 889) (1985); Albany Urology, 272 Ga. at 298. As the Supreme Court noted in Albany Urology, that change occurred in 1988 when the General Assembly adopted a limited application of the informed consent doctrine by enacting OCGA § 31-9-6.1. Id. at 298.
Addressing this statutory change in Albany Urology, the Supreme Court held that:
Section 31-9-6.1 sets forth six specified categories of information that must be disclosed by medical care providers to their patients before they undergo certain specified surgical or diagnostic procedures. The Georgia informed consent statute does not impose a general requirement of disclosure upon physicians; rather, it requires physicians to disclose only those factors listed in OCGA § 31-9-6.1 (a). . . . Because 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. Thus, in situations not covered by the statute’s language, the common law rule must still govern, as courts are without authority to impose disclosure requirements upon physicians in addition to those requirements already set forth by the General Assembly.
(Footnotes omitted; emphasis supplied.) Albany Urology, 272 Ga. at 298-299.
Since nothing in the Georgia informed consent statute at OCGA § 31-9-6.1 required Dr. Howard to inform Ketchup of the risks of the dental procedure at issue, the common law rule against requiring disclosure applies. Verre v. Allen, 175 Ga. App. 749 (334 SE2d 350) (1985) (common law rule applicable to dental procedure). Moreover, as noted above, both this Court and the Supreme Court of Georgia have held that it is beyond the power of this Court to expand the limited risk disclosure requirements imposed upon health care providers by OCGA § 31-9-6.1. It follows that the majority’s attempt to do so, however well intentioned, ignores contrary Supreme Court of Georgia authority and invades the province of the General Assembly.
I am authorized to state that Presiding Judge Blackburn, Judge Ruffin and Judge Miller join in this opinion.