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King v. Dodge County Hospital Authority6/27/2005
SMITH, P. J., ELLINGTON and ADAMS, JJ.
This appeal presents a question regarding the application of the affidavit requirement in OCGA § 9-11-9.1 in an action alleging battery. Specifically, we are required to determine whether, once a procedure is begun, a medical professional who continues with the procedure after the patient instructs the professional to stop is exercising medical judgment. If so, an expert affidavit is required under OCGA § 9-11-9.1. Under the circumstances presented here, we agree with the trial court that medical judgment was involved and an expert affidavit was necessary.
The facts, as shown by the record, are as follows. During Pamela King's hospitalization at Dodge County Hospital, her doctor ordered the administration of an intravenous antibiotic. Melinda Kehayes, a registered nurse employed by the hospital, was assigned to care for King. Kehayes began attempting to start the intravenous line necessary to administer the prescribed drug. After several unsuccessful attempts to insert the IV in King's forearm, Kehayes began examining King's left hand to find a possible site. King became very upset, told Kehayes that she was left-handed, and informed her that she did not wish Kehayes to continue searching for a site in that location. She requested that Kehayes stop and make no further attempts to start the IV before consulting King's physician to see whether an oral antibiotic might be used.
Despite King's protests, Kehayes made several further unsuccessful attempts to start the IV in King's left hand. Kehayes finally left to telephone the doctor, who prescribed an oral antibiotic. When King's husband arrived, he found King crying out in pain from the multiple needle sticks. King alleged in her complaint that she sustained a neurological injury to her left hand as a result of Kehayes's battery. Dodge County Hospital and Dodge County Hospital Authority were joined as defendants under the theory of respondeat superior. See Robinson v. Medical Center, 217 Ga. App. 8, 9 (456 SE2d 254) (1995). The defendants answered and filed a motion to dismiss King's complaint on the ground that the action was one for medical malpractice and King had not attached an expert affidavit.
King contends that the trial court erred in finding that because Kehayes's decision to ignore King's request to stop involved medical judgment, her complaint required an expert affidavit . She also maintains that the trial court erred in finding that she did not withdraw her consent for treatment. Because these contentions are intertwined, we address them together.
Under OCGA § 9-11-9.1, a plaintiff alleging professional malpractice is required to file an expert affidavit with the complaint setting forth at least one "negligent act or omission claimed to exist," as well as the factual basis for that claim. This requirement applies only to complaints alleging professional negligence. Labovitz v. Hopkinson, 271 Ga. 330, 336 (519 SE2d 672) (1999). "Those 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. King argues that no professional negligence is involved here because her claim was made under a theory of battery, which is an intentional tort, and that an affidavit was therefore not required.
An action for battery arises in the medical context when a medical professional makes unauthorized contact with a patient during examination, treatment, or surgery. Harris v. Leader, 231 Ga. App. 709, 710 (499 SE2d 374) (1998). Unless consensual, " n the interest of one's general right of inv
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