Recently, the Georgia Court of Appeals held that (1) a claim against a physician for altering a patient’s prescription sounded in professional negligence, but (2) a claim against the medical practice for failing to properly handle on call responsibilities by verifying whether a patient had a valid prescription was ordinary negligence and could proceed without an expert affidavit. See Carter v. Cornwell, 338 Ga. App. 662, 791 S.E.2d 447 (2016). In this case, Tami Carter sued Dr. William O. Cornwell and his medical practice, TCFPA Family Medical Centers, PC for negligence after Carter was arrested for altering a prescription when she went to fill a prescription written but then altered by Dr. Cornwell. Id. at 663. The facts show that Carter was a regular patient of Dr. Cornwell and he wrote her a prescription for 120 hydrocodone pills during a visit. Id. Before Carter left his office, Dr. Cornwell decided to change the quantity of pills from 120 to 180 and he altered the prescription to reflect the change. Id. When Carter went to the pharmacy to fill the prescription, a pharmacy employee assumed Carter had altered the prescription and called TCFPA to verify the prescription. Dr. Cornwell’s partner was the on-call physician and was not aware that Dr. Cornwell had altered the prescription, but he did not call Dr. Cornwell to verify whether he had changed the quantity of pills. Id. Carter was arrested when she returned to the pharmacy to pick up her medication, and she sued the parties for negligence. Id.

Dr. Cornwell and TCFPA filed a motion to dismiss based on Carter’s failure to file an expert affidavit with her complaint as required under O.C.G.A.§ 9-11-9.1. Id. Under that statute, “[i]n any action for damages alleging professional malpractice … the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Id. (quoting O.C.G.A. § 9-11-9.1). The trial court granted dismissal of both Defendants. Id.

The Court of Appeals first found that the claim that Dr. Cornwell was negligent in altering the prescription from 120 to 180 pills sounded in professional negligence rather than ordinary negligence because “[w]riting a prescription for a controlled substance ‘is a decision which normally requires the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience.’” Id. at 665 (quoting Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318, 509 S.E.2d 908 (1998)). Thus, an expert affidavit was required to proceed on this claim. Id. On the other hand, the Court found that the TCFPA on-call physician’s failure to make any attempt to contact Dr. Cornwell to verify whether he changed the prescription did not require the exercise of professional judgment or skill, and an expert affidavit was not required to proceed on an ordinary negligence claim against the practice. Id. at 666. The Court explained, “[N]ot every suit which calls into question the conduct of one who happens to be a medical professional is a medical malpractice action. We must look to the substance of an action against a medical professional in determining whether the action is one for professional or simple negligence.” Id. (quoting Atl. Women’s Health Grp. v. Clemons, 287 Ga. App. 426, 427, 651 S.E.2d 762 (2007)).

The above case highlights the fact that a medical practice could be liable for ordinary negligence if its employees—including physicians—fail to properly verify prescription information. If you have further questions about the foregoing case or how it may relate to issues facing your company or practice, please contact Mike Davis or any other attorney at Nall & Miller, LLP.