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Johnson v. Rodier2/10/2000
BA-112
Donald K. Johnson, a Harris County deputy sheriff, sued James Barton Rodier, M.D., for tortious interference with his employment, invasion of privacy, and fraud, stemming from a conversation Dr. Rodier had with Johnson's employer regarding Johnson's mental state. Rodier answered and moved to dismiss the unverified complaint on the ground that Johnson had failed to attach an expert affidavit as required by OCGA § 9-11-9.1. The trial court granted the motion as to the tortious interference and invasion of privacy claims, and later granted summary judgment to Rodier on the fraud claim. Johnson appeals, arguing that the first two claims did not allege a violation of professional standards that required an expert's supporting affidavit, and that issues of fact remained for a jury on the fraud claim. For the reasons that follow, we reverse the dismissal of the counts alleging invasion of privacy and tortious interference with contract, and affirm the grant of summary judgment to defendant Rodier on the fraud count.
1. In his complaint, Johnson alleged that on August 30, 1996, he visited Rodier, his personal physician, to discuss a physical problem. After the visit, Rodier contacted Johnson's employer and told him Johnson "should not be allowed to carry a firearm, deal with the public in a stressful situation, or control a motor vehicle under high speed stressful driving situations because he was mentally unfit." Johnson claimed that Rodier's communication with the sheriff breached his duty to protect Johnson's privacy, and constituted tortious interference with Johnson's employment because the allegation that he was not mentally fit was untrue. Rodier successfully moved to dismiss these two counts, arguing that Johnson's allegations against Rodier arose out of his medical care and treatment, making Johnson's failure to attach an expert affidavit to his complaint fatal to his claim.
Johnson argues on appeal that he did not need to attach an expert affidavit to his complaint because he was not suing Rodier for the exercise of his medical judgment, but for "independent tort separate and distinct from the tort of medical malpractice."
OCGA § 9-11-9.1 provides that, in an action for damages alleging professional malpractice, the plaintiff must file with the complaint an expert's affidavit setting out "specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." The Georgia Supreme Court recently examined the parameters of the statute, holding that the legislature "limited § 9-11-9.1 to only those actions for professional negligence by enacting a statute which stated that the necessary expert affidavit had to set forth 'a negligent act or omission claimed to exist and the factual basis for each claim.'" (Citations and punctuation omitted.) Labovitz v. Hopkinson, 271 Ga. 330, 336 (3) (519 SE2d 672) (1999). However, " hose claims grounded on a professional's intentional acts which allegedly resulted in injury to one with whom the professional had a professional relationship are not required to be accompanied by an expert affidavit." Id. at 336-337. As a result, the Supreme Court concluded that the plaintiff was not required to submit an expert affidavit in support of her fraud and misrepresentation claims. Id. at 337.
Johnson claims Rodier breached his privacy and tortiously interfered with his employment contract. These claims are based on Rodier's intentional act of telling Johnson's employer about Johnson's medical condition. Because Johnson makes no claim against Rodier based on professional negligence, he did not have to attach an expert affidavit to his complaint, and the trial court erred in granting
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