Lutz v. Foran

Fletcher, Justice.

This appeal challenges the constitutionality of the affidavit requirement in professional malpractice actions. We hold that OCGA § 9-11-9.1 does not violate the constitutional prohibition against the inclusion of more than one subject matter in a bill or a matter in the body different from the title. Because the law was unsettled on the act’s coverage of professionals when the complaint was filed, we reverse and remand to enable the plaintiffs to file an appropriate affidavit.

Reid Lutz owned a shrimp boat that sunk in the Savannah River. The boat was salvageable, and Lutz marked it with buoys.1 He had raised it within five feet of the surface when a ship piloted by Michael Foran, a licensed harbor pilot, hit and damaged it beyond repair. Lutz and the owner of the salvage equipment sued Foran for negligence in failing to control his vessel and causing the collision of boats. Foran denied that a collision occurred and moved to dismiss for Lutz’s failure to attach an expert affidavit in compliance with OCGA § 9-11-9.1. Lutz appeals from the trial court’s order dismissing the complaint. In the cross-appeal, Foran argues that the dismissal was an adjudication on the merits and should have been with prejudice.

1. The expert affidavit requirement 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.

OCGA § 9-11-9.1 (a) (1982 & Supp. 1992). This court relied on the plain language of the statute to hold in Housing Auth. v. Greene, 259 Ga. 435, 437 (383 SE2d 867) (1989), that it “applies to ‘any action for damages alleging professional malpractice’ on the part of an architect or other professional.” Subsequently, we held that affidavits are required only in lawsuits filed against a professional in one of the occupations enumerated in OCGA § 14-7-2 (2) or subject to licensing and regulation under OCGA §§ 14-10-2 (2) and 43-1-24. Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992). A harbor pilot is a member *820of a profession listed in § 14-7-2. Therefore, Lutz must file an affidavit with his complaint if the allegations involve professional malpractice.

2. “A professional malpractice action is merely a professional negligence action and calls into question the conduct of a professional in his area of expertise.” (Emphasis deleted.) Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (354 SE2d 872) (1987). In malpractice actions, a plaintiff must present expert testimony “to establish the parameters of acceptable professional conduct.” Self v. Executive Committee, 245 Ga. 548, 549 (266 SE2d 168) (1980). Not every act that a professional performs, however, is a professional act that requires expert testimony. Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (395 SE2d 809) (1990). If the professional’s alleged negligence does not require the exercise of professional judgment and skill, the cause of action is based on a simple negligence theory. Candler, 182 Ga. App. at 111. For example, expert testimony on the appropriate standard of care is not needed when a patient falls as a result of a hospital’s failure to repair a leaking bathroom fixture. Self, 245 Ga. at 548-549; see also Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499, 500 (397 SE2d 294) (1990) (no affidavit required when a financial planner transmits the wrong payment plan for an annuity).

The allegations in the complaint establish that Lutz filed a claim for professional, rather than simple, negligence. Lutz’s complaint alleges that Foran acted negligently by failing to have a person acting as a lookout on the ship, failing to steer the ship away from the submerged boat’s markers, and failing to prevent the ship from hitting the shrimp boat. Unlike the simple negligence case where the professional performs an administrative, clerical, or routine act demanding no special expertise, Foran was executing a task that required his expert judgment and skill. He was navigating an ocean-going ship through the narrow channel of the Savannah River. Only a licensed harbor pilot is qualified to direct the movement of a ship as it travels into and out from the state’s ports and rivers. See OCGA § 52-6-30. Because conducting an ocean-going ship in the Savannah River calls for the professional skill of a harbor pilot, Lutz must file an expert affidavit with his complaint.

3. Lutz alleges that the affidavit requirement in OCGA § 9-11-9.1 should be struck down as unconstitutional because it is part of an act that contains more than one subject matter and a subject different from the matter expressed in the title. Specifically, he argues that the Medical Malpractice Reform Act of 1987 cannot apply to professions other than medicine without violating Art. III, Sec. V, Par. III of the Georgia Constitution.

This constitutional provision provides that “[n]o bill shall pass which refers to more than one subject matter or contains matter dif*821ferent from what is expressed in the title thereof.” Ga. Const., Art. III, Sec. V, Par. III. The legislature enacted this paragraph to prevent surreptitious legislation such as the “Yazoo Fraud” and omnibus bills that combine several adverse matters to secure their passage. Camp v. MARTA, 229 Ga. 35, 38 (189 SE2d 56) (1972). Requiring the act’s title to “alert the reader to the matters contained in its body is to protect against surprise legislation.” Mead Corp. v. Collins, 258 Ga. 239 (367 SE2d 790) (1988); see also Cady v. Jardine, 185 Ga. 9, 10 (193 SE 869) (1937) (recalling the event that caused the provision’s enactment in the 1798 Constitution); Central of Ga. R. Co. v. State, 104 Ga. 831, 846 (31 SE 531) (1898) (describing rationale for prohibition against multiple subject matters in same act).

(a) The provision requiring the title to express what is in the act must be given a reasonable interpretation.2 Cady, 185 Ga. at 10.

It was never intended that the substance of the entire act should be set forth in the caption. It was not contemplated that every detail stated in the body should be mentioned in the caption. If what follows after the enacting clause is definitely related to what is expressed in the title, has a natural connection, and relates to the main object of legislation, . . . there is no infringement of the constitutional [provision]. . . . Any provision in the body which is germane to [the act’s] general purpose as embraced in the title [does not violate] the [Constitution].

Id. at 10-11; accord Mead Corp., 258 Ga. at 240. The caption must indicate only the general object to be dealt with in the act to protect the people against covert legislation. State of Ga. v. Resolute Ins. Co., 221 Ga. 815, 817 (147 SE2d 433) (1966).

Applying a reasonable interpretation of the statute, we hold that the title of the act gives the reader sufficient notice that the affidavit requirement will apply in professional malpractice actions. The caption states that the act is “to provide that in any case in which professional malpractice is alleged, an affidavit of an expert competent to testify setting forth the particulars of the claim shall be filed with the complaint.” (Emphasis supplied.) Ga. L. 1987, p. 887. The language in section three of the act tracks the words in the caption. Id. at 889. Section three is one of only three substantive provisions of the four-page act and receives its proportionate share of the lines in the cap*822tion.3 Thus, despite the short title of “Medical Malpractice Reform Act of 1987,” the caption gives the General Assembly and the public adequate notice that the act contains matter relating to malpractice actions against professionals.

The act’s legislative history supports this conclusion. The Governor’s Advisory Committee on Tort Reform in its final report in 1986 recommended the affidavit requirement in “medical malpractice and other professional liability cases.” A conference committee composed of three leaders of both the house and senate added the affidavit provision to Senate Bill 2. 1 S. Jour, at 957; 1 H. Jour, at 1189. The bill was passed as part of an intensely debated effort to reform the state’s tort laws. Presumably, members of the General Assembly looked beyond the short title and read the caption of the bill to determine its contents before voting.

Although no one has previously challenged the constitutionality of OCGA § 9-11-9.1, we have previously considered the arguments on which the dissenting opinion relies. See Housing Auth., 259 Ga. at 437-438. We rejected the argument that the affidavit requirement applies solely to medical malpractice actions, despite the reference in the 1989 amendment to medical malpractice, because of the presumption that the General Assembly enacts statutes with full knowledge of the existing condition of the law and that statutes are to be interpreted with reference to prior decisions of the courts. Housing Auth., 259 Ga. at 438 (quoting Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 403 (349 SE2d 368) (1986)). Prior to the passage of the 1989 amendment, the Court of Appeals interpreted the statute to apply to any professional malpractice action. See Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988), cert. denied, 259 Ga. (1989).

Moreover, if legislators and citizens lacked notice that the affidavit requirement applied to professions outside the medical field, as *823the dissent contends, the surprise resulted from this court’s interpretation of the statute, not the act itself. In concluding that the statute is unconstitutional, the dissenting opinion ignores the rule of statutory construction that we must construe a statute as valid when possible. See City of Hapeville v. Anderson, 246 Ga. 786, 787 (272 SE2d 713) (1980). The statute would be constitutional, even under the analysis of the dissent, if the affidavit requirement were limited to the medical profession. Yet, the legislature has declined invitations in 1989, 1990, and 1991 to amend the statute to limit the affidavit requirement to the medical profession.4

To conclude that the caption gives inadequate notice because the professional affidavit requirement is located between provisions on medical malpractice and health care providers is to place in jeopardy a major portion of the bills that the legislature passes. Our court has never held either the legislature or the bills it passes to such a strict standard of notice. The test is reasonableness, and the title of the challenged act gives reasonable notice to any reader of the act’s contents.

(b) Whether an act violates the multiple subject matter rule depends on whether all of the bill’s provisions seek to accomplish a single objective. Wall v. Bd. of Elections, 242 Ga. 566, 570 (250 SE2d 408) (1978). The Constitution looks to “unity of purpose.” Central R. Co., 104 Ga. at 846.

As used in the Constitution, [the term “subject matter”] is to be given a broad and extended meaning so as to allow the legislature authority to include in one Act all matters having a logical or natural connection. To constitute plurality of subject matter, an Act must embrace two or more dissimilar and discordant subjects that by no fair intendment can be considered as having any logical connection with or relation to each other. All that our Constitution requires is that the Act embrace only one general subject.

Crews v. Cook, 220 Ga. 479, 481 (139 SE2d 490) (1964). This court has upheld several acts against constitutional challenges that they embraced multiple subject matters. See Wall, 242 Ga. at 570 (upholding act extending city limits by annexation and changing the method of electing a city’s governing body); Crews, 220 Ga. at 481 (upholding act *824dealing with wills and the administration of estates); Capitol Distrib. Co. v. Redwine, 206 Ga. 477, 486 (57 SE2d 578) (1950) (upholding act increasing excise taxes on both malt beverages and wine).

The general purpose of the challenged act is to reform tort liability of both medical providers and other professionals. The act seeks to reduce the number of liability claims against professionals. By establishing a new statute of limitation for suits against medical providers by minors or incompetents, requiring injured persons to support their allegations of professional malpractice with an affidavit by an expert, and granting immunity from civil liability to health care providers who render services without pay. Ga. L. 1987 at 888-891 (codified at OCGA §§ 9-3-73; 9-11-9.1; and 51-1-29.1). All three provisions are logically related to the general subject of professional liability and do not embrace discordant subjects. Therefore, the act is constitutional under the multiple subject matter provision.

4. A complaint is subject to dismissal for failure to state a claim when the plaintiff fails to file an expert affidavit as required. OCGA § 9-11-9.1 (e). A dismissal for failure to state a claim is a dismissal on the merits. Dillingham v. Doctor’s Clinic, 236 Ga. 302 (223 SE2d 625) (1976). Although ordinarily this court would rule that the trial court should have dismissed the complaint with prejudice, that result would be unfair in this case. In Kneip v. Southern Engineering, we concluded that dismissal of the engineering malpractice action would be manifestly unfair because it was unclear when the complaint was filed whether OCGA § 9-11-9.1 applied to claims of engineering malpractice. Similarly, when Lutz filed his complaint, he did not have the benefit of our decision in Gillis v. Goodgame delineating the professionals against whom an expert affidavit must be filed in a malpractice action. Accordingly, we reverse the dismissal and remand for the trial court to give Lutz a reasonable time to file the appropriate affidavit under OCGA § 9-11-9.1.

Judgment affirmed in Case No. S92A1068; reversed in Case No. S92X1069 and remanded with direction.

Clarke, C. J., Hunt, P. J., Benham, Hunstein, JJ., and Judge Eugene H. Gadsden concur; Sears-Collins, J., dissents.

Since Lutz appeals from the grant of a motion to dismiss under OCGA § 9-11-12 (b) (6), we must construe the pleadings in the light most favorable to him with all doubts resolved in his favor. See Alford v. Public Service Comm., 262 Ga. 386, n. 2 (418 SE2d 13) (1992).

This court has construed the word “title” in the Constitution to mean the act’s caption. See, e.g., Mead Corp., 258 Ga. at 239; Cady, 185 Ga. at 11. This opinion uses the terms “title” and “caption” interchangeably.

The entire caption states as follows:

To provide substantive and comprehensive reforms affecting claims for medical malpractice; to provide a short title; to amend Title 9 of the Official Code of Georgia Annotated, relating to civil practice, so as to provide that minors who have attained the age of five years and incompetents shall be subject to limitations of actions provisions regarding medical malpractice; to provide for periods of limitation and repose; to provide exceptions; to provide findings; to provide that certain actions shall not be revived or extinguished; to provide that in any case in which professional malpractice is alleged, an affidavit of an expert competent to testify setting forth the particulars of the claim shall be filed with the complaint; to provide the contents of such affidavit; to provide exceptions; to provide procedures; to provide that no period of limitation is extended by such filing requirements; to amend Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general provisions affecting torts, so as to provide immunity from civil liability to certain health care providers or other entities providing professional services without compensation or the expectation thereof; to provide exceptions; to provide for applicability; to repeal conflicting laws; and for other purposes.

See Southern Engineering, 260 Ga. at 411 (“should the legislature determine that our decisions interpret the statute more broadly than it intended, it may rewrite the statute”); Precision Planning v. Wall, 193 Ga. App. 331, 332 (387 SE2d 610) (1989) (Benham, J., concurring specially); see also Gillis v. Goodgame, 199 Ga. App. 413, 416 (404 SE2d 815) (1991), rev’d on other grounds, Gillis, 262 Ga. at 117.