The Georgia Court of Appeals has reversed the grant of summary judgment to the defendant in a case alleging billing fraud. Plaintiff sued her podiatrist, claiming the defendant did not perform the procedures for which she was billed. Plaintiff did not file an expert affidavit with the complaint. Defendant moved for summary judgment and the trial court granted the motion, holding that the question was one of professional judgment and therefore an affidavit was required.
The Court of Appeals reversed. As an initial matter, the Court pointed out that a motion to dismiss for failure to state a claim is the proper vehicle to dispose of a complaint in which there is no expert affidavit. Next, the Court held that the question of whether an expert would need to testify about the procedures was separate from the question of whether an expert affidavit is required with the complaint. The latter question turns on whether the claim is one for professional negligence as opposed to fraud. The Court relied on a long line of cases that distinguish claims for intentional conduct from claims for negligence. And the Court reaffirmed the rule that if a claimant alleges intentional conduct in the complaint and does not attach an affidavit, then cannot later change the case into a negligence claim, citing Walker v. Wallis, 289 Ga. App. 676 (2008).
Take-Home: The lines between what is considered to be ‘simple’ negligence, professional negligence, or intentional acts and when an affidavit is required remain as cloudy as ever.
The case is Williams v. Murrell, 2019 Ga.App. LEXIS 80 (Feb. 22, 2019).