The Georgia Court of Appeals has held that claims against a physician for failure to inform another physician about the results of a biopsy sound in professional malpractice and not ordinary negligence, reversing the denial of a motion to dismiss. The patient visited the physician for complaints of rectal pain. The physician performed a biopsy. The patient was then transferred to another hospital for treatment of complications from the biopsy. While the patient was at the second hospital, the pathologist informed the original physician that the biopsy was positive for cancer. Plaintiffs alleged that the original physician never told the patient or the providers at the second hospital about the cancer diagnosis. The patient died six months later.

The estate and wrongful death claimant sued the original physician for ordinary negligence. Plaintiffs did not attach an expert affidavit. The defendants filed a motion to dismiss, arguing that the claims sounded in professional malpractice and an affidavit was required. The trial court disagreed and denied the motion.

The Court of Appeals reversed. On appeal, plaintiffs argued that it did not require any special skill on the part of the original physician to transmit the pathology report or cancer diagnosis to the second hospital for action and that the act of calling or transmitting the report was a routine or administrative act. The Court disagreed, holding that, as a starting principle, the duty arose out of the professional relationship between doctor and patient. The Court then held that, by looking to the substance of the allegations (which included “failure to consult”), the claims sounded in professional negligence. The Court affirmed previous holdings that a “failure-to-inform claim constitutes a medical malpractice action.”

Take-home: ordinary negligence is asserted in many cases, typically as an alternative claim. Whether a claim actually sounds in ordinary negligence is a fact-specific and detailed analysis.

The case is Dodge County Hospital Authority v. Seay, _ S.E.2d __, 2022 WL 16569302 (Nov. 1, 2022).