Christy Coll v. John I. Kelly

── Christy Coll v. John I. Kelly ── Court: Court of Appeals of Georgia Date: May 22, 2026 Category: General FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.gov/rules May 22, 2026 In the Court of Appeals of Georgia A26A0830. COLL v. KELLY. MARKLE, Judge. Christy Coll appeals from the dismissal of her medical malpractice suit against Dr. John Kelly for the failure to attach an expert affidavit as required under OCGA § 9-11-9.1. Because we conclude that the affidavit was sufficient to meet the statutory requirements, we reverse. We review the grant of a motion to dismiss de novo, construing the pleadings “in the light most favorable to the plaintiff” and treating “all well-pled allegations in the complaint as true.” Blau v. Ga. Dep’t of Corr., 364 Ga. App. 1, 2 (873 SE2d 464) (2022) (quotation marks omitted). “[A]ny doubts regarding the complaint must be construed in favor of the plaintiff.” McLeod v. Costco Wholesale Corp., 369 Ga. App. 717, 718 (894 SE2d 442) (2023) (quotation marks omitted)).1 Importantly, when the dismissal is based on the sufficiency of an expert’s affidavit under OCGA § 9-11-9.1, this Court has cautioned that OCGA § 9-11-9.1 imposes a pleading requirement, not an evidentiary requirement. And because OCGA § 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it is to be construed in a manner consistent with the liberality of the Act so long as such a construction does not detract from the purpose of OCGA § 9-11-9.1, which is to reduce the filing of frivolous malpractice suits. Accordingly, plaintiffs are given a wide berth to conform to the statutory requirements, and in ruling on a motion to dismiss based on an allegedly defective affidavit, a court should construe the affidavit most favorably to the plaintiff and all doubts should be resolved in the plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible. Cantrell v. AU Med. Center, 358 Ga. App. 41, 44(2) (853 SE2d 137) (2020) (citation modified). So viewed, the record shows that Kelly is a licensed chiropractor. In August 2022, Coll made an appointment to see Kelly for neck and shoulder pain. Kelly took 1 Although the trial court held a hearing on the motion to dismiss, it did not consider any testimony. Thus, we are not bound to review the trial court’s ruling for abuse of discretion. Compare Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833, 836 (769 SE2d 575) (2015). 2 an X-ray, but a portion of the spine area was obscured by Coll’s necklace. Kelly did not repeat the X-ray before treating and manipulating Coll’s spine. Coll immediately experienced sharp pain that ultimately required additional medical care. Coll filed the instant suit against Kelly for negligence and professional negligence, alleging Kelly breached the standard of care for taking and interpreting an X-ray, and that his treatment protocol was the proximate cause of her injury.2 Attached to the complaint was an affidavit from Dr. Jeremy Royal, a musculoskeletal radiologist. Royal explained that he had been engaged in the active practice of musculoskeletal radiology since 2011 and was familiar with the standard of care for taking and reading X-rays. He opined that Kelly deviated from the standard of care by 2 Although Coll alleged a claim for negligence, she has not alleged any facts that constitute simple negligence; all of her allegations relate to professional decisions. See, e. g., Dodge County Hosp. Auth.