Last month the state Court of Appeals reversed a lower court’s decision to dismiss the injured party’s case in AMBROSE v. SAINT JOSEPH’S HOSPITAL OF ATLANTA, INC. The injured party underwent spinal surgery for a ruptured lumbar disk. While performing the surgery, the doctor operated with an OPMI Pentero surgical microscope that was provided by the hospital. The microscope is a complex system that both lights and records in addition to magnify, and provides the hospital with much information. The lighting component shines an ultraviolet light on the operated portion of the patient’s body. During this surgery, the microscope emitted light that was too strong, which caused burns on the injured patient’s body. The injured party has a scar and on-going pain that affected his modeling career and the ability to fully perform his duties at his job at hospice.
The lower court hinged its decision to dismiss on the hospital’s argument that that the injured party failed to include an expert affidavit under Georgia statute, OCGA § 9–11–9.1, which requires the injured party to include with the complaint an expert’s affidavit that supports the allegation of malpractice. The injured party appealed, countering that his suit was based in ordinary negligence, not professional malpractice, and did not fall under the types of cases for which OCGA § 9–11–9.1 was intended. The Court of Appeals agreed with the injured that the allegations set forth were one of ordinary negligence, and did not necessarily fall as one of medical malpractice. The Court of Appeals looked at previous case law, and discussed in their opinion what constitutes ordinary negligence and professional negligence. In the opinion, the Court asserted that a civil action alleges professional negligence when the injury-causing act was one that required the exercise of professional judgment and skill.
The injured patient in this case alleged that the hospital provided the unsafe microscope, failed to update the applicable software used by the microscope’s system, and failed to warn the surgeon performing the surgery of the applicable risks. Previous cases that involved hospital equipment were considered by the Court of Appeals, and those cases ultimately determined that those allegations were one of simple negligence and not professional negligence. One example provided in the decision was Lamb v. Candler Gen. Hosp., where the alleged act of negligence was the failure to replace disposable parts in instruments used in eye surgery. Continue reading