Plaintiff filed suit for negligence relating to falls in a nursing home but failed to attach the expert affidavit required by O.C.G.A. § 9-11-9.1. Defendants moved to dismiss. Plaintiffs retained new counsel who secured an affidavit from a physician and, based on the amendment, argued that the claim was for ordinary negligence. After considering the pleadings and the evidence submitted, the trial court granted Defendants’ motion. Initially the court noted that because the trial court considered matters outside the pleadings, the motion to dismiss was converted to a motion for summary judgment. In reviewing the evidence, the court found that the resident was admitted from the hospital with a general instruction to take fall precautions, but no specific instructions. The decision concerning what precautions to take was left to the nursing home staff’s medical judgment and, thus, the claim could not be one for ordinary negligence. The court distinguished Brown v. Tift County Hosp. Auth., 280 Ga. App. 847 (Ga. Ct. App. 2006), where a claim for ordinary negligence was allowed. Failure to include the required affidavit was fatal to the claim.
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