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Simple Negligence For Burns From Faulty Surgical Microscope


A man underwent spinal surgery to repair a ruptured lumbar disk. During the procedure, the surgeon used an OPMI Pentero surgical microscope (the “Pentero”) provided by the hospital. The Pentero integrated a surgical microscope and lighting system with digital video recording and the hospital's information infrastructure. The Pentero's computer software controlled its lighting features, which included powerful xenon lamps that shined ultraviolet light on the patient's body to illuminate the operative field. During surgery, the Pentero emitted UV light at a level that was too intense for the man's skin to tolerate and it burned his back. He had a scar and continued pain.

 

The man sued the hospital alleging that it breached its duty of care by providing unsafe equipment for use in treating him. The hospital filed a motion to dismiss for failure to file an expert affidavit. The trial court dismissed the claim finding that it sounded in medical malpractice and therefore Georgia law required that an expert affidavit be filed with the complaint.

 

The Court of Appeals of Georgia reversed holding that the man's claim alleged simple negligence rather than medical malpractice and the claim was not based on the action or inaction of a health care professional. The requirement of attaching a medical affidavit to a complaint filed against a health care professional or health care facility did not apply to claims of ordinary negligence.

 

The court held that whether an action filed against a health care professional or health care facility alleged professional negligence or simple negligence depended on whether the professional's alleged negligence required the exercise of professional judgment and skill. The court reasoned that a professional negligence claim filed against a health care professional or health care facility called into question the conduct of the professional in his area of expertise. Administrative, clerical, or routine acts demanding no special expertise fell in the realm of simple negligence. If a claim of negligence against a health care professional or health care facility went to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounded in professional malpractice.

 

The court held that the man's claim for using defective equipment alleged simple negligence rather than medical malpractice. The man alleged that the hospital breached its duty of ordinary care by providing unsafe equipment for use in treating him, that the hospital failed to update computer software on the Pentero, and that the hospital failed to warn the surgeon of the risk of using the Pentero.

 

The court held that the claim was not based on the action or inaction of a health care professional, such that no expert affidavit was required to be attached to complaint. The complaint did not allege that the surgeon negligently allowed the man to be overexposed to light from the Pentero. Instead, the complaint alleged only that his injuries were caused by the negligence of the hospital in providing unsafe equipment for use in treating patients.

 

The trial court’s dismissal of the action for failure to file an expert affidavit was reversed.

 

See: Ambrose v. Saint Joseph's Hosp. of Atlanta, Inc., 2014 WL 169870 (Ga.App., January 16, 2014) (not designated for publication). 

 

 

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