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.
(Code 1981, §9-11-9.1, enacted by Ga. L. 1987, p. 887, § 3; Ga. L. 1989, p. 419, § 3; Ga. L. 1997, p. 916, § 1; Ga. L. 2005, p. 1, § 3/SB 3; Ga. L. 2006, p. 72, § 9/SB 465; Ga. L. 2007, p. 216, § 1/HB 221.)
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2002, "Dietitians" was substituted for "Dieticians" in paragraph (f)(7) (now paragraph (g)(8)).
Editor's notes.- Ga. L. 1997, p. 916, § 2, not codified by the General Assembly, provides that the amendment to this Code section applies to actions filed on or after July 1, 1997.
Ga. L. 2005, p. 1, § 1/SB 3, not codified by the General Assembly, provides that: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."
Ga. L. 2007, p. 216, § 3/HB 221, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2007, and shall apply to any action filed on or after July 1, 2007."
Law reviews.- For annual survey of tort law, see 41 Mercer L. Rev. 355 (1989). For annual survey on law of torts, see 42 Mercer L. Rev. 431 (1990). For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990). For annual survey on law of torts, see 43 Mercer L. Rev. 395 (1991). For article, "The Application of § 9-11-9.1 to Malpractice Actions in Federal Court," see 28 Ga. St. B.J. 212 (1992). For annual survey on legal ethics, see 44 Mercer L. Rev. 281 (1992). For annual survey of law of torts, see 44 Mercer L. Rev. 375 (1992). For annual survey article on the law of torts, see 45 Mercer L. Rev. 403 (1993). For article, "Georgia's Professional Malpractice Affidavit Requirement," see 31 Ga. L. Rev. 1031 (1997). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 4 (1997). For annual survey article discussing legal ethics, see 51 Mercer L. Rev. 353 (1999). For annual survey article on legal ethics, see 52 Mercer L. Rev. 323 (2000). For article, "Construction Law," see 53 Mercer L. Rev. 173 (2001). For article, "Trial Practice and Procedure," see 53 Mercer L. Rev. 475 (2001). For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003). For annual survey article on legal ethics, see 56 Mercer L. Rev. 315 (2004). For annual survey of trial practice and procedure, see 56 Mercer L. Rev. 433 (2004). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005). For article, "Georgia's New Expert Witness Rule: Daubert and More," see 11 Ga. St. B.J. 16 (2005). For annual survey of construction law, see 57 Mercer L. Rev. 79 (2005). For annual survey of legal ethics decisions, see 57 Mercer L. Rev. 273 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006). For survey article on evidence law, see 59 Mercer L. Rev. 157 (2007). For survey article on legal ethics, see 59 Mercer L. Rev. 253 (2007). For survey article on law of torts, see 59 Mercer L. Rev. 397 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on evidence law, see 60 Mercer L. Rev. 135 (2008). For annual survey on evidence, see 61 Mercer L. Rev. 135 (2009). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For annual survey on real property, see 66 Mercer L. Rev. 151 (2014). For article, "Fisher v. Gala: O.C.G.A. § 9-11-9.1(e) Keeping Malpractice Claims Afloat," see 66 Mercer L. Rev. 817 (2015). For annual survey of tort laws, see 67 Mercer L. Rev. 237 (2015). For annual survey on construction law, see 69 Mercer L. Rev. 63 (2017). For note, "Hewitt v. Kalish: Qualifying as an 'Expert Competent to Testify' Under O.C.G.A. Section 9-11-9.1," see 46 Mercer L. Rev. 1537 (1995). For note, "Forty-Eight States are Probably Not Wrong: An Argument for Modernizing Georgia's Legal Malpractice Statute of Limitations," see 33 Ga. St. U.L. Rev. 805 (2017). For comment, "Brown v. Nichols: The Eleventh Circuit Refuses to Play the Erie Game with Georgia's Expert Affidavit Requirement," see 29 Ga. L. Rev. 291 (1994). For comment, "Where Do We Go From Here? The Future of Caps on Noneconomic Medical Malpractice Damages in Georgia," see 28 Ga. St. U.L. Rev. 1341 (2012).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- O.C.G.A. § 9-11-9.1 does not violate the constitutional prohibition of Ga. Const. 1983, Art. III, Sec. V, Para III against the inclusion of more than one subject matter in a bill or in a law or a matter in the body different from the title since the caption of the overall act gives the public adequate notice that the act contains matter relating to malpractice actions against professionals generally. Lutz v. Foran, 262 Ga. 819, 427 S.E.2d 248 (1993).
Because nothing in O.C.G.A. § 9-11-9.1 imposed a cost or fee for filing or obtaining an expert affidavit, and because the law applied uniformly to any person or entity bringing a lawsuit for professional negligence, the trial court did not err when the court ruled that the statute withstood the constitutional challenges raised by the clients. Walker v. Cromartie, 287 Ga. 511, 696 S.E.2d 654 (2010).
No equal protection violation.
- Trial court did not treat similarly situated individuals differently, based on the statute's application of O.C.G.A. § 9-11-9.1(b) (now (e)), because whether it was a plaintiff filing a legal malpractice claim or, as here, a defendant filing a counterclaim more than 10 days before the expiration of the statute of limitations, the party would have been required to file an expert's affidavit contemporaneously with the claim and would not be entitled to the 45-day extension period of O.C.G.A. § 9-11-9.1(b) (now (e)); accordingly, there was no equal protection violation under U.S. Const., amend. 14 in the dismissal of the defendant's counterclaim for failure to file the affidavit in a timely manner. Landau v. Davis Law Group, P.C., 269 Ga. App. 904, 605 S.E.2d 461 (2004).
Purpose of section.
- Purpose of O.C.G.A. § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling the plaintiff to recover and capable of withstanding a motion for summary judgment before the defendant files an answer. Bowen v. Adams, 203 Ga. App. 123, 416 S.E.2d 102, cert. denied, 202 Ga. App. 905, 416 S.E.2d 102 (1992).
Consideration of affidavits validity limited to the four corners of the document.
- Requirements of O.C.G.A. § 9-11-9.1 were satisfied when the plaintiff attached an affidavit from a competent expert even though six months later the expert was not able to confirm the negligent acts alleged. Sawyer v. DeKalb Medical Ctr., Inc., 234 Ga. App. 54, 506 S.E.2d 197 (1998).
Section applies to actions in tort or contract.
- O.C.G.A. § 9-11-9.1 applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care. Richmond Leasing Co. v. Cooper, Cooper, Maioriello & Stalnaker, 207 Ga. App. 623, 428 S.E.2d 603 (1993).
Section applied retroactively.
- O.C.G.A. § 9-11-9.1 is procedural in nature and may be applied retroactively. Precision Planning, Inc. v. Wall, 193 Ga. App. 331, 387 S.E.2d 610 (1989); Blackmon v. Thompson, 195 Ga. App. 589, 394 S.E.2d 795 (1990).
In a wrongful death action, because the 45-day grace period under former O.C.G.A. § 9-11-9.1(b) (now (e)) was constitutionally required, an administratrix was entitled to the benefit of the statute's provisions and retroactive application. Rockdale Health Sys. v. Holder, 280 Ga. App. 298, 640 S.E.2d 52 (2006).
The 1997 amendments to O.C.G.A. § 9-11-9.1 applied prospectively, not retroactively to an action filed prior to July 1, 1997. Mug A Bug Pest Control v. Vester, 270 Ga. 407, 509 S.E.2d 925 (1999), overruling Vester v. Mug A Bug Pest Control, Inc., 231 Ga. App. 644, 500 S.E.2d 406 (1998).
Since legislative intent controls and the legislature expressly stated that the 1997 amendments to the statute should be applied only to actions filed after the effective date, July 1, 1997, the court could not apply the amendments retroactively. Mug A Bug Pest Control v. Vester, 270 Ga. 407, 509 S.E.2d 925 (1999).
Collateral estoppel barred professional negligence action.
- Trial court properly granted a defending corporation summary judgment in a professional negligence suit because the identical issue of the corporation's negligent performance was addressed in a federal lawsuit; thus, collateral estoppel barred the action. Coffee Iron Works v. QORE, Inc., 322 Ga. App. 137, 744 S.E.2d 114 (2013).
Applicable to counterclaims.
- O.C.G.A. § 9-11-9.1 applies to the assertion of a counterclaim by a defendant. Hardman v. Knight, 203 Ga. App. 519, 417 S.E.2d 338, cert. denied, 203 Ga. App. 906, 417 S.E.2d 338 (1992).
Counterclaim was subject to requirement that expert's affidavit be filed. Jordan v. Lamberth, Bonapfel, Cifelli, Willson & Stokes, 206 Ga. App. 178, 424 S.E.2d 859 (1992).
Amendments to pleadings to assert counterclaims with respect to the filing of the expert affidavit should be subject to the limitations of subsection (e) of O.C.G.A. § 9-11-9.1. Hardman v. Knight, 203 Ga. App. 519, 417 S.E.2d 338, cert. denied, 203 Ga. App. 906, 417 S.E.2d 338 (1992).
Amendment of affidavit allowed.
- When an affidavit has been filed with the complaint, the affidavit can be amended to respond to challenges to the affidavit's sufficiency. Washington v. Georgia Baptist Medical Ctr., 223 Ga. App. 762, 478 S.E.2d 892 (1996), aff'd in part and rev'd in part, Porquez v. Washington, 268 Ga. 649, 492 S.E.2d 665 (1997).
Trial court did not err in denying dismissal of a patient's medical malpractice complaint against physicians and their employers, based on the physicians' claim that the patient failed to file a timely expert affidavit which raised the claim of lack of informed consent, as required by O.C.G.A. § 9-11-9.1, as the patient's initial complaint had an expert affidavit timely filed, and thereafter, an amended affidavit asserting the lack of informed consent was filed pursuant to O.C.G.A. § 9-11-15; dismissal was not warranted unless an expert affidavit was never initially filed in a timely manner. Bhansali v. Moncada, 275 Ga. App. 221, 620 S.E.2d 404 (2005).
Amendment remedied affidavit deficiency.
- Because the patient filed an amended medical malpractice complaint with the affidavit of the second affiant-physician, who was a board-certified neurosurgeon and had been regularly engaged in the active practice of neurosurgery for at least three of the preceding five years, the patient used the cure provision in O.C.G.A. § 9-11-9, and the trial court erred in dismissing the patient's action based upon a competency determination concerning only the original affiant-physician. Fisher v. Gala, 325 Ga. App. 800, 754 S.E.2d 160 (2014), aff'd, 296 Ga. 870, 770 S.E.2d 879 (2015).
Prohibition against cure by amendments did not pertain when plaintiff filed purported affidavit, albeit a defective one, and thus the exception to that prohibition was not considered by the court as an avenue for the plaintiff to escape dismissal of the plaintiff's suit. Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga. App. 534, 510 S.E.2d 101 (1998).
Amendment of complaint to cure defective affidavit allowed.
- In a professional malpractice action, when a plaintiff files a complaint accompanied by an affidavit from a person not competent to testify as an expert in the action, O.C.G.A. § 9-11-9.1(e) permits the plaintiff to cure that defect by filing an amended complaint with the affidavit of a second, competent expert. Gala v. Fisher, 296 Ga. 870, 770 S.E.2d 879 (2015).
Claims against professional asserting misconduct do not require affidavit.
- Georgia appellate courts have repeatedly held that it is unnecessary to file an expert affidavit with a complaint asserting claims for intentional misconduct or acts against a professional, including claims for fraud and misrepresentation. Hobbs v. Great Expressions Dental Centers of Georgia, P.C., 337 Ga. App. 248, 786 S.E.2d 897 (2016).
Section not restricted to medical malpractice.
- Applicability of O.C.G.A. § 9-11-9.1 is not restricted to medical malpractice actions. Housing Auth. v. Greene, 259 Ga. 435, 383 S.E.2d 867 (1989).
Section applies to professional malpractice action.
- While O.C.G.A. § 9-11-9.1 was enacted as section 3 of the Medical Malpractice Act of 1987, which applies to medical-malpractice actions or health-care providers, section 3 of the Act applies to "any action for damages alleging professional malpractice." Housing Auth. v. Greene, 259 Ga. 435, 383 S.E.2d 867 (1989).
While the trial court erred in granting summary judgment against a patient in a medical malpractice action based on a failure to attach an expert affidavit pursuant to O.C.G.A. § 9-11-9.1 because the complaint could be construed as alleging claims of ordinary negligence, to the extent the complaint could be read to allege professional malpractice claims, summary judgment was proper; moreover, there were instances in which actions performed by a professional were nevertheless not professional acts constituting professional malpractice, but, rather, were acts of simple negligence which would not require proof by expert evidence. Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 635 S.E.2d 184 (2006).
State court properly denied a clinic's motion to dismiss a negligence complaint which arose out of injuries a patient allegedly sustained by and through the negligence of one of the clinic's employees as the patient was not suing for medical malpractice, the employee was not a licensed health care provider, and thus the patient was not required to file the necessary affidavit required under O.C.G.A. § 9-11-9.1. Mt. Orthopedics & Sports Med., P.C. v. Williams, 284 Ga. App. 885, 644 S.E.2d 868 (2007).
Former federal inmate's argument, alleging that the Bivens decision should be extended to the inmate's Eighth Amendment claim against private prison employees because the affidavit requirement of O.C.G.A. § 9-11-9.1(a) made recovery only theoretical under state law, failed; not only did the complaint not allege a claim for medical malpractice as defined by O.C.G.A. § 9-3-70, but even if the complaint did the inmate stood in the same shoes as anyone else in Georgia filing a professional malpractice claim and was subject to no stricter rules than the rest of Georgia's residents. Alba v. Montford, 517 F.3d 1249 (11th Cir. 2008), cert. denied, 129 S. Ct. 632, 172 L. Ed. 2d 619 (2008).
Trial court did not err in denying a psychiatrist's motion for summary judgment in a patient's medical malpractice action because whether the psychiatrist breached duties arising from the psychiatrist-patient relationship was an issue of fact; pursuant to O.C.G.A. § 9-11-9.1, the patient presented expert testimony that the psychiatrist's breaches of the duty of care directly resulted in the foreseeable harm of the patient's attempting suicide. Peterson v. Reeves, 315 Ga. App. 370, 727 S.E.2d 171 (2012).
In a medical malpractice action, a certified nurse midwife (CNM) should be considered a member of the same profession as a registered professional nurse (RN) and can offer an opinion on the standard of care exercised by a RN because the Georgia Registered Professional Nurse Practice Act, O.C.G.A. § 43-26-1 et seq., requires a CNM to be licensed as a RN, and both RNs and CNMs are regulated by the Georgia Board of Nursing; under the regulatory scheme, a CNM was a RN who had advanced training in a specialized area; and the expert affidavit statute lists only nurses, and the statute does not have a separate listing for CNMs. Dempsey v. Gwinnett Hosp. Sys., 330 Ga. App. 469, 765 S.E.2d 525 (2014).
Professional malpractice or ordinary negligence.
- Trial court must decide as a matter of law if the negligence alleged by a plaintiff is, in fact, ordinary negligence or professional malpractice, requiring an expert's affidavit. Drawdy v. DOT, 228 Ga. App. 338, 491 S.E.2d 521 (1997).
Dismissal of an action filed by children against a health care center that operated a nursing home alleging that their parent's injuries in a fall resulted from the nursing home's failure to follow emergency room instructions to take fall precautions was proper because the children did not file an expert affidavit contemporaneously with the complaint as required by O.C.G.A. § 9-11-9.1(a); their claim sounded in professional negligence, not ordinary negligence, because the nursing home was not given a list of specific precautions to be implemented, and the decision as to what specific precautions to take was left to the medical judgment of its staff. Gaddis v. Chatsworth Health Care Ctr., Inc., 282 Ga. App. 615, 639 S.E.2d 399 (2006).
Trial court did not abuse the court's discretion in vacating the court's initial order dismissing an administratrix's wrongful death complaint for failure to timely file an expert's affidavit as the record revealed that the original complaint, although not styled as a wrongful death action, nonetheless pled that a hospital's negligence caused the decedent's death and sought a judgment against the hospital in an amount in excess of $10,000 for all damages recoverable by law. Rockdale Health Sys. v. Holder, 280 Ga. App. 298, 640 S.E.2d 52 (2006).
Because a patient's complaint was so general and unspecific that the complaint could be construed to allege that a medical center was vicariously liable for the professional negligence of a licensed health care professional, as opposed to ordinary negligence, the patient was required to file an expert affidavit under O.C.G.A. § 9-11-9.1. Health Mgmt. Assocs. v. Bazemore, 286 Ga. App. 285, 648 S.E.2d 749 (2007).
Patient's complaint that a hospital nurse had administered the wrong medication sounded in professional negligence, not ordinary negligence; thus, an affi- davit was required under O.C.G.A. § 9-11-9.1(a). Wellstar Health Sys. v. Painter, 288 Ga. App. 659, 655 S.E.2d 251 (2007).
Trial court did not err in granting summary judgment in favor of a hospital and the hospital's employees in a surviving spouse's wrongful death action on the ground that the spouse's claims sounded in professional negligence, not ordinary negligence, which required an affidavit under O.C.G.A. § 9-11-9.1 because whether or not the treatments ordered by the husband's treating physician and carried out by the employees were timely was a question of medical judgment, and the duties involved in the administration of medications and treatments constituted a professional service; the spouse pointed to no admissible medical testimony to support the spouse's claim that the failure of the lab technician to call the intensive care unit (ICU) when the blood arrived caused the decedent's death, and the question of whether or not the lab technician's failure to call the ICU, resulting in the failure of the ICU to administer a blood transfusion, caused the decedent's death required expert testimony, which was excluded from the case. Pattman v. Mann, 307 Ga. App. 413, 701 S.E.2d 232 (2010).
Because a patient's complaint did not allege any negligence in the administration of a vaccination, but rather that a medical assistant was negligent in attempting to prevent the patient's fall from an examination table, there was no need for an expert affidavit under O.C.G.A. § 9-11-9.1(a); therefore, the trial court erred in dismissing the action. Kerr v. OB/GYN Assocs., 314 Ga. App. 40, 723 S.E.2d 302 (2012).
Trial court did not err by finding that a slip and fall case was one of ordinary negligence as opposed to medical malpractice because under the circumstances of the nurses knowing that the patient had been determined a fall risk, the jury could, without the help of expert testimony, find that the nurses and the nursing assistant failed to exercise ordinary care by leaving the patient unattended in the bathroom while they cleaned the room. Emory Healthcare, Inc. v. Pardue, 328 Ga. App. 664, 760 S.E.2d 674 (2014).
Since the administrator's assertions against the care provider involved medical judgment and the professional duties involved in providing such care, the assertions sounded in malpractice and the administrator was required to file an expert affidavit and the failure to do so rendered dismissal appropriate. Carter v. VistaCare, LLC, 335 Ga. App. 616, 782 S.E.2d 678 (2016).
Affidavit filed with inconsistent third-party complaint.
- In a breach of warranty action involving a survey commissioned by the defendants, the defendant's third-party complaint against the surveyor and filing of an expert's affidavit stating that the survey was incorrect did not estop the defendant from relying on the survey in defense of the action. Ewers v. Cooper, 217 Ga. App. 434, 457 S.E.2d 705 (1995).
Contribution and indemnity from third-party defendant.
- O.C.G.A. § 9-11-9.1 is applicable when a third-party defendant has been brought into an action based on assertions by a third-party plaintiff that, under allegations in the plaintiff's complaint, the third-party defendant is an unidentified joint tortfeasor with the third-party plaintiff, and, therefore, if the plaintiffs are entitled to an award of damages against the third-party plaintiff, the third-party plaintiff is entitled to contribution and indemnity from the third-party defendant. Housing Auth. v. Greene, 259 Ga. 435, 383 S.E.2d 867 (1989).
Affidavit requirement inapplicable to claim for breach of fiduciary duty.
- Action by husband and wife against attorney arising from an adulterous relationship between the attorney and wife during the period the attorney was representing her did not provide the basis for a malpractice claim, requiring an expert affidavit, but the plaintiffs did have a claim for breach of fiduciary duty based on the attorney-client relationship. Tante v. Herring, 264 Ga. 694, 453 S.E.2d 686 (1994).
Affidavit requirement inapplicable to claim for wrongful death.
- Trial court properly refused to dismiss a plaintiff's claim asserting tortious termination of life support based on the defendant's argument that it was really a medical malpractice claim and, therefore, required an expert medical affidavit under O.C.G.A. § 9-11-9.1; because such a claim is a suit for wrongful death, not medical malpractice, no expert medical affidavit was necessary. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823 (2007), cert. denied, No. S08C0710, 2008 Ga. LEXIS 477 (Ga. 2008).
Trial court did not err by denying the Georgia Department of Transportation's (GDOT) motion to dismiss the wrongful death action based on the parents' failure to file an expert affidavit because the parents did not allege that the GDOT was liable for the actions or inactions of one of the categories listed in O.C.G.A. § 9-11-9.1 but rather that the GDOT negligently made the decision to reopen the railroad crossing when the crossing remained in a dangerous condition following the repairs and, therefore, no expert affidavit was required. DOT v. Delor, 351 Ga. App. 414, 830 S.E.2d 519 (2019), cert. denied, No. S20C0086, 2020 Ga. LEXIS 260 (Ga. 2020).
Affidavit requirement inapplicable to intentional tort claim.
- Trial court erroneously dismissed a couple's complaint upon grounds that the complaint failed to state a claim upon which relief could be granted because the complaint alleged intentional torts against an attorney and that attorney's law firm, and not claims of professional malpractice or negligence; therefore, the complaint was not required to be accompanied by an expert's affidavit pursuant to O.C.G.A. § 9-11-9.1. Walker v. Wallis, 289 Ga. App. 676, 658 S.E.2d 217 (2008).
Georgia appellate courts have repeatedly held that it is unnecessary to file an expert affidavit with a complaint asserting claims for intentional misconduct or acts against a professional, including claims for fraud and misrepresentation. Specifically, no expert testimony is required to establish that it is improper for physicians to defraud their clients. Williams v. Murrell, 348 Ga. App. 754, 824 S.E.2d 638 (2019).
Trial court erred by dismissing the plaintiff's fraud claims based on failure to file an expert affidavit with the complaint pursuant to O.C.G.A. § 9-11-9.1 because the plaintiff's fraud claims were grounded in allegations of intentional misconduct, which claims did not need to be accompanied by an expert affidavit. Williams v. Murrell, 348 Ga. App. 754, 824 S.E.2d 638 (2019).
Affidavit requirement inapplicable in bankruptcy court.
- Chapter 13 debtors' adversary proceeding for legal malpractice, filed in a bankruptcy court, did not require an affidavit concerning the standard of care under O.C.G.A. § 9-11-9.1 because the federal rules of pleading applied to the proceeding. Pullen v. Cornelison (In re Pullen), Bankr. (Bankr. N.D. Ga. Mar. 31, 2009).
Section inapplicable in federal cases.
- O.C.G.A. § 9-11-9.1 applies exclusively to actions brought in state court and is inapplicable in federal cases. Boone v. Knight, 131 F.R.D. 609 (S.D. Ga. 1990).
Federal diversity action.
- O.C.G.A. § 9-11-9.1 is in direct conflict with Federal Rule of Civil Procedure 8(a) which requires only notice pleading and does not apply in a federal diversity action. Baird v. Celis, 41 F. Supp. 2d 1358 (N.D. Ga. 1999).
Defendants' motion to dismiss for failure to file an expert affidavit with the complaint, or within 45 days of the filing thereof as set forth in O.C.G.A. § 9-11-9.1, failed because that statute was inapplicable in diversity actions; the sufficiency of the heirs' complaint was judged by the standard set out in Fed. R. Civ. P. 8, which did not require the affidavit of an expert. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005).
Federal application unclear.
- When it was not clear at the time the plaintiff filed the plaintiff's medical malpractice complaint that O.C.G.A. § 9-11-9.1 would apply in a diversity action in federal court, the district court erred in dismissing the plaintiff's claims with prejudice. Instead, the court should have granted the plaintiff leave to amend the complaint. Brown v. Nichols, 8 F.3d 770 (11th Cir. 1993).
Affidavit requirement applies only to professionals defined in Code.
- Affidavit requirements of O.C.G.A. § 9-11-9.1 apply only to those professions recognized under Georgia law in O.C.G.A. §§ 14-7-2(2),14-10-2(2), and43-1-24. Gillis v. Goodgame, 262 Ga. 117, 414 S.E.2d 197 (1992).
Trial court erred in dismissing real estate developers' professional negligence claims against a civil engineering contractor based on the developers' failure to file an expert affidavit with their third party complaint because the civil engineering contractor was neither a professional licensed by the State of Georgia and listed in O.C.G.A. § 9-11-9.1 nor a licensed health care facility, and, consequently, the developers were not required to file an expert affidavit with their third party complaint. Sembler Atlanta Dev. I, LLC v. URS/Dames & Moore, Inc., 268 Ga. App. 7, 601 S.E.2d 397 (2004).
Because an emergency medical technician (EMT) was not one of the professions listed under the professional malpractice statute as requiring an expert affidavit, the trial court erred by applying the affidavit requirement to the claims against the EMT that dispensed medications on the weekend shift; and, in any event, the medical malpractice claims against the EMT, who was not a medical professional, could not stand, and the plaintiffs failed to allege simple negligence claims against the EMT. McKuhen v. TransformHealthRX, Inc., 338 Ga. App. 354, 790 S.E.2d 122 (2016).
When affidavit required.
- Although the law strictly requires an expert affidavit to be filed pursuant to O.C.G.A. § 9-11-9.1 in the appropriate case, this is only when the negligent doing of a thing must be proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service. Roebuck v. Smith, 204 Ga. App. 20, 418 S.E.2d 165 (1992).
Plaintiff's claim for injuries based on the failure of hospital agents and employees to raise bed rails required an expert affidavit since whether the side rails should have been in an "up" or "down" position was a question requiring the exercise of professional skill and judgment. Robinson v. Medical Ctr., 217 Ga. App. 8, 456 S.E.2d 254 (1995).
When allegations by an inmate against the medical director of a correctional institution sounded in malpractice, a supporting affidavit was required. Brooks v. Barry, 223 Ga. App. 648, 478 S.E.2d 616 (1996), cert. denied, 522 U.S. 899, 118 S. Ct. 246, 139 L. Ed. 2d 176 (1997).
Since the count clearly alleged that the plaintiff's spouse did not receive adequate medical care, which meant the plaintiff had to rely on the knowledge of experts with regard to what the applicable standard of care was and whether that standard was breached, the plaintiff was required to file an expert affidavit with the plaintiff's complaint. Epps v. Gwinnett County, 231 Ga. App. 664, 499 S.E.2d 657 (1998).
Since no affidavit was filed pursuant to O.C.G.A. § 9-11-9.1, an administrator of an estate was allowed to maintain claims against a nursing care facility only with regard to actions or omissions in executing nonprofessional work duties relating to the decedent's fall at the facility, and was not allowed to maintain claims based on medical questions concerning specialized expert knowledge; the alleged failure to adequately monitor for injuries and assure proper medical care fell within the realm of professional medical decision making, but the allegation that the fall was not properly documented encompassed an administrative task not involving professional medical judgment. Brown v. Tift Health Care, Inc., 279 Ga. App. 164, 630 S.E.2d 788 (2006).
Trial court erred in dismissing a client's amended legal malpractice complaint, which included fraud and breach of fiduciary duty, as the client's failure to file an expert affidavit pursuant to O.C.G.A. § 9-11-9.1 did not result in an automatic adjudication on the merits or preclude an amendment after the expiration of the relevant statute of limitation; further, the appeals court disagreed that the client's fraud and breach of fiduciary duty claims were barred because the claims arose from the same factual allegations as the original claim for professional negligence, and because the fraud claim was grounded in intentional conduct, the claim did not need to be accompanied by an expert affidavit. Shuler v. Hicks, Massey & Gardner, LLP, 280 Ga. App. 738, 634 S.E.2d 786 (2006).
Trial court properly dismissed a wrongful death claim by a deceased nursing home resident's children, alleging that the nursing home staff failed to properly administer the resident's medications, as such task involved the professional skill and judgment of a nurse, and nurses were licensed professionals with specialized knowledge pursuant to O.C.G.A. § 43-26-3(6) to which O.C.G.A. § 9-11-9.1 explicitly applied; as the children failed to comply with the expert affidavit requirement, dismissal of that aspect of the claim was proper. Williams v. Alvista Healthcare Ctr., Inc., 283 Ga. App. 613, 642 S.E.2d 232 (2007).
Hospital's admission that a nurse had given a patient the wrong medication did not relieve the patient of the obligation to file an affidavit under O.C.G.A. § 9-11-9.1. Wellstar Health Sys. v. Painter, 288 Ga. App. 659, 655 S.E.2d 251 (2007).
Denial of practice groups' motion to dismiss parents' medical malpractice action based on the parents' failure to comply with the expert affidavit requirement of O.C.G.A. § 9-11-9.1 was error because a prior appellate decision concluded that, at the time the litigation was brought, the question of whether a plaintiff was subject to the expert affidavit requirement depended not on the identity of the defendant, but on the cause of action, and explicitly held that, without an expert affidavit, the parents could have sustained only an ordinary negligence claim; the trial court's ruling, which held that because the practice groups were not licensed professionals or licensed health care facilities, no expert affidavit was needed, violated the law of the case. The parents could not have successfully argued on the appeal that the parents malpractice claims were exempt from the expert affidavit requirement. Atlanta Women's Health Group, P.C. v. Clemons, 299 Ga. App. 102, 681 S.E.2d 754 (2009).
Trial court properly dismissed a title company's complaint against an attorney for failure to comply with the expert affidavit requirement of O.C.G.A. § 9-11-9.1 because the complaint set forth a legal malpractice action by asserting that the attorney breached a legal services agreement to provide an accurate title commitment on certain real property, therefore, the complaint required compliance with the expert affidavit requirement of § 9-11-9.1. Old Republic Nat'l Title Ins. Co. v. Atty. Title Servs., 299 Ga. App. 6, 682 S.E.2d 134 (2009), cert. denied, No. S09C1913, 2009 Ga. LEXIS 798 (Ga. 2009).
Trial court correctly determined that a plaintiff's failure-to-warn claim against the state, arising out of the prescription of medicine for the plaintiff while the plaintiff was in a state-run hospital, alleged professional negligence and that the plaintiff's failure to comply with the affidavit requirements of O.C.G.A. § 9-11-9.1(a) warranted dismissal of the complaint. Nail v. State, 301 Ga. App. 7, 686 S.E.2d 483 (2009).
To the extent the "inverse condemnation" action sought compensation for damages to the property based on allegations of professional engineering negligence, the owner was required to file an expert affidavit with the complaint and dismissal was proper given the owner's failure to file an affidavit. Bray v. DOT, 324 Ga. App. 315, 750 S.E.2d 391 (2013).
To the extent that the patient made claims that the hospital and the radiologist were vicariously liable for professional negligence, those claims were properly dismissed for failure to include an expert affidavit. Oduok v. Fulton DeKalb Hosp. Auth., 340 Ga. App. 205, 797 S.E.2d 133 (2017).
Patient's breach of warranty claim, questioning the adequacy of the medical treatment, involved the defendants' professional skill and judgment and, thus, was properly dismissed due to the failure of the patient to include an expert affidavit. Oduok v. Fulton DeKalb Hosp. Auth., 340 Ga. App. 205, 797 S.E.2d 133 (2017).
Trial court properly dismissed the patient's breach of contract claim to the extent the claim alleged that the hospital and radiologist negligently performed or "botched" the biopsy as such allegations invoked professional judgment and skill and required an expert affidavit, which was not provided. Oduok v. Fulton DeKalb Hosp. Auth., 340 Ga. App. 205, 797 S.E.2d 133 (2017).
When affidavit not required.
- Plaintiffs were not required to attach a supporting expert affidavit to the plaintiff's complaint against the hospital authority based inter alia on medical malpractice claims stemming from alleged acts of negligence by the authority's agents and employees. Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 424 S.E.2d 632 (1992).
Affidavit requirement applies against a hospital not merely when liability is based upon the doctrine of respondeat superior but when liability is further grounded upon the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as "professionals" under O.C.G.A. §§ 14-7-2(2),14-10-2(2), and43-1-24. Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 424 S.E.2d 632 (1992).
When the plaintiff can prove negligence or breach without proof of a customary procedure and violation of the procedure, the case is not a professional malpractice case and O.C.G.A. § 9-11-9.1 does not apply to require an "expert's affidavit". Razete v. Preferred Research, Inc., 197 Ga. App. 69, 397 S.E.2d 489 (1990); Flowers v. Memorial Medical Center, Inc., 198 Ga. App. 651, 402 S.E.2d 541 (1991).
After the plaintiff's foot was burned by a lamp from which the heat shield had been removed during surgery - the alleged decision being to obtain more light by removing the heat shield or other protective device from the lamp, as opposed to bringing in another lamp or increasing the volume of overhead lights - the claim was not necessarily one of medical malpractice. If that particular act, coupled with leaving the lamp near the foot for an extended period, was the heart of the claim, then simple negligence, not medical malpractice, was involved, and medical testimony was not essential to establish liability. Jones v. Bates, 261 Ga. 240, 403 S.E.2d 804 (1991).
Affidavit was not required in an action by the estate of a deceased inmate against a city, county, sheriff, and medical personnel alleging claims arising from failure to respond to the inmate's request for treatment of the inmate's diabetic condition. Howard v. City of Columbus, 219 Ga. App. 569, 466 S.E.2d 51 (1995).
Portion of a complaint alleging that advance warning signs gave plaintiff inaccurate and confusing information as the plaintiff approached a construction site charged the violation of a mandatory Manual On Uniform Traffic Control Devices standard and did not need an expert affidavit. DOT v. Cushway, 240 Ga. App. 464, 523 S.E.2d 340 (1999).
When the plaintiff claimed the defendant breached a duty of privacy and tortiously interfered with the employment contract, the claims were based on the defendant's intentional act of telling the plaintiff's employer about the plaintiff's medical condition, and because the plaintiff made no claim against the defendant based on professional negligence, the plaintiff did not have to attach an expert affidavit to the complaint. Johnson v. Rodier, 242 Ga. App. 496, 529 S.E.2d 442 (2000).
O.C.G.A. § 9-11-9.1 did not require clients who filed an action against a law firm and several attorneys to file an expert's affidavit when the clients asserted claims for intentional breach of contract, intentional breach of a fiduciary duty, and fraud, and although the trial court properly dismissed the clients' claim for legal malpractice because the legal malpractice claim was not supported by an expert's affidavit, the trial court erred by dismissing the client's other claims. Smith v. Morris, Manning & Martin, LLP, 264 Ga. App. 24, 589 S.E.2d 840 (2003).
Trial court properly dismissed a patient's complaint against a hospital authority, a hospital, and a doctor based on the patient's failure to timely file an expert affidavit in support of claims of professional malpractice, as required by O.C.G.A. § 9-11-9.1(a), as the allegations were based on a misdiagnosis of the patient's medical condition, and not due to a simple clerical or administrative error and, thus, sounded in malpractice. James v. Hosp. Auth., 278 Ga. App. 657, 629 S.E.2d 472 (2006).
O.C.G.A. § 9-11-9.1 did not require a patient to file an expert affidavit with a complaint for fraud, misrepresentation, and deceit against a physician because the patient's allegations that the physician knowingly and intentionally misrepresented the nature and quality of a local hospital's equipment in order to induce the patient to have heart surgery at the local hospital rather than at another hospital preferred by the patient involved no question of professional judgment; the application of O.C.G.A. § 9-11-9.1 was limited to actions for professional negligence, and assertions of intentional misconduct against a professional fell outside of the statute's scope. Murrah v. Fender, 282 Ga. App. 634, 639 S.E.2d 595 (2006).
Trial court erred in dismissing a wrongful death claim by children of a deceased nursing home resident, based on their allegation that the nursing home violated O.C.G.A. § 31-8-108(a)(2) of the Bill of Rights for Residents of Long-Term Care Facilities by not documenting the resident's complaints of chest pain, as the claim was based on the nonprofessional, administrative aspects of running the facility and, accordingly, it was not subject to the pleading requirement of an expert affidavit pursuant to O.C.G.A. § 9-11-9.1. Williams v. Alvista Healthcare Ctr., Inc., 283 Ga. App. 613, 642 S.E.2d 232 (2007).
Couple who alleged that an engineer exceeded the authority granted in a stipulation for the engineer to remove pieces of a car for testing were not alleging professional malpractice and thus were not required to file an affidavit under O.C.G.A. § 9-11-9.1; resolution of the couple's claims required determination of whether the engineer complied with the language of the stipulation, not determination of whether the engineer acted in compliance with the standard of conduct applicable to professional engineers. Burke v. Paul, 289 Ga. App. 826, 658 S.E.2d 430 (2008).
Allegations of the complaint were so general that the allegations could have been liberally construed to claim damages based on ordinary or other negligence not controlled by the expert affidavit requirements. Bray v. DOT, 324 Ga. App. 315, 750 S.E.2d 391 (2013).
Trial court erred in dismissing claims asserting that the hospital and the radiologist engaged in or were liable for intentional conduct in allegedly conducting a bogus biopsy to collect money from the patient's insurance as the claims did not require an expert affidavit. Oduok v. Fulton DeKalb Hosp. Auth., 340 Ga. App. 205, 797 S.E.2d 133 (2017).
Affidavit requirement met.
- Parents properly invoked O.C.G.A. § 9-11-9.1(b) (now (e)) because the parents could not obtain additional affidavits before filing suit, and although the parents had obtained one affidavit stating that a first group of health care providers deviated from the standard of care when the suit was filed, the parents sought an affidavit to support the parents' claims against a second group of health care providers; both affidavits were filed within the 45-day period. Bell v. Phoebe Putney Health Sys., 272 Ga. App. 856, 614 S.E.2d 115 (2005).
Pre-complaint deposition not authorized.
- O.C.G.A. § 9-11-27 does not authorize the grant of a petition to take a pre-complaint deposition to acquire information for preparation of an affidavit to accompany a charge of medical malpractice which affidavit is required by O.C.G.A. § 9-11-9.1. St. Joseph Hosp. v. Black, 225 Ga. App. 139, 483 S.E.2d 290 (1997).
Renewal action not barred.
- On the statute's face, O.C.G.A. § 9-11-9.1(f) requires a motion to dismiss to be filed in addition to the first responsive pleading to foreclose the possibility of renewal under O.C.G.A. § 9-2-61. Mission Health of Georgia, LLC v. Bagnuolo, 339 Ga. App. 23, 793 S.E.2d 98 (2016).
Failure to file expert affidavit.
- When the plaintiff failed to file an expert affidavit with the complaint for legal malpractice, the plaintiff's complaint was subject to dismissal for failure to state a claim. Since such a dismissal was a dismissal on the merits, the trial court properly dismissed the complaint with prejudice. ABE Eng'g, Inc. v. Griffin, Cochran & Marshall, 212 Ga. App. 586, 443 S.E.2d 1 (1994); Stamps v. Johnson, 244 Ga. App. 238, 535 S.E.2d 1 (2000).
Failure of medical malpractice plaintiff to file an affidavit with the plaintiff's complaint of an expert competent to testify, that specifically stated at least one negligent act or omission claimed to exist and the factual basis for each such claim, warranted dismissal with prejudice of the complaint. Merck v. St. Joseph's Hosp. of Atlanta, Inc., 251 Ga. App. 631, 555 S.E.2d 11 (2001).
After medical malpractice plaintiff failed to file an expert affidavit with the plaintiff's complaint, the defect was not cured by filing an amended complaint which included the expert affidavit but did not allege that time constraints prevented the filing of an affidavit with the original complaint as required by O.C.G.A. § 9-11-9.1(b) (now (e)). Sullivan v. Fredericks, 251 Ga. App. 790, 554 S.E.2d 809 (2001).
In a medical malpractice and wrongful death action, the trial court did not abuse the court's discretion in denying the appellant's motion for an extension of time to file an expert affidavit; the appellant failed to allege in the appellant's complaint that the limitation period would expire within ten days of filing the complaint or that because of the time constraints the appellant was unable to obtain an expert affidavit. Cabey v. DeKalb Med. Ctr., 252 Ga. App. 313, 555 S.E.2d 742 (2001).
Pursuant to O.C.G.A. § 9-11-9.1, the renewal provision in O.C.G.A. § 9-2-61(a) did not save a second medical malpractice suit that was filed by the plaintiffs, patient and wife, after the statute of limitation but within six months of their voluntary dismissal of a timely first malpractice suit because: (1) the plaintiffs failed to attach an O.C.G.A. § 9-11-9.1 expert affidavit to the first complaint and dismissed the first action without giving the defendants, doctor and employer, a chance to seek dismissal on that ground; (2) the required affidavit was not executed until after the time for filing such an affidavit in the first action had expired; and (3) the defendants raised the affidavit issue in a motion to dismiss contemporaneous with the defendants' initial responsive pleadings in the second action. Griffin v. Carson, 255 Ga. App. 373, 566 S.E.2d 36 (2002).
When the doctors' alleged actions required the exercise of professional judgment and skill, a patient's allegations were for professional negligence requiring an expert's affidavit pursuant to O.C.G.A. § 9-11-9.1(a); as a result, the trial court erred by denying the doctors' and medical facilities' motions to dismiss. MCG Health, Inc. v. Casey, 269 Ga. App. 125, 603 S.E.2d 438 (2004).
Since all parties agreed that a patient's expert affidavit was available when the patient's first medical malpractice complaint was filed but was mistakenly omitted, O.C.G.A. § 9-11-9.1 applied and permitted renewal; the trial court erred in granting summary judgment in favor of a doctor and an institute in the patient's malpractice case. Rector v. O'Day, 268 Ga. App. 864, 603 S.E.2d 337 (2004).
Trial court properly dismissed, pursuant to Ga. Unif. Super. Ct. R. 14, a medical malpractice action against a doctor and a hospital; the patient failed to attach a legally sufficient expert affidavit to the complaint as required by O.C.G.A. § 9-11-9.1(a) as the affidavit submitted was not taken under oath. Harris v. Emory Healthcare, Inc., 269 Ga. App. 274, 603 S.E.2d 778 (2004).
Because a patient essentially alleged in a false imprisonment claim that a doctor provided inadequate medical care, the patient's failure to file an expert affidavit warranted dismissal. Goodin v. Gwinnett Health Sys., 273 Ga. App. 461, 615 S.E.2d 129 (2005).
Although a patient and a husband had an expert affidavit, they failed to file the affidavit with their complaint against a doctor and the professional corporation, alleging ordinary and professional negligence, and the trial court's grant of the motion to dismiss for failure to comply with O.C.G.A. § 9-11-9.1 was with prejudice as it was on the merits; as the patient and the husband conceded that they could not seek to amend the complaint by adding the affidavit, and they had failed to voluntarily dismiss their action prior to the trial court having ruled on the motion, the patient and the husband could not seek to renew under O.C.G.A. § 9-2-61. Bardo v. Liss, 273 Ga. App. 103, 614 S.E.2d 101 (2005).
Husband's pro se wrongful death action against a doctor and health service providers was dismissed for failure to attach an expert affidavit under O.C.G.A. § 9-11-9.1 since the husband alleged negligence due to the doctor's issuance of a do not resuscitate order with respect to the husband's wife; such an action involved professional negligence and medical questions and, thus, required an expert affidavit. Hardwick v. Atkins, 278 Ga. App. 79, 628 S.E.2d 173 (2006).
In a parent's wrongful death suit against a doctor, the trial court erred by partially denying the doctor's motion to dismiss all the claims as the allegations in the complaint alleged professional negligence by asserting inappropriate multiple pain medication prescriptions, which were claims that required the filing of an expert affidavit under O.C.G.A. § 9-11-9.1(a). Since the parent failed to file such an affidavit, the doctor's motion to dismiss should have been granted in the motion's entirety. Liu v. Boyd, 294 Ga. App. 224, 668 S.E.2d 843 (2008).
Plaintiff failed to file an expert affidavit to support the plaintiff's claim for professional malpractice; accordingly, the trial court did not err in granting the defendant's motion to dismiss the plaintiff's professional malpractice claim. Fortson v. Hotard, 299 Ga. App. 800, 684 S.E.2d 18 (2009).
Trial court did not err in dismissing with prejudice a plaintiff's medical malpractice action on the ground that the plaintiff failed to attach the required affidavits under O.C.G.A. § 9-11-9.1, and, although the plaintiff argued that the trial court should have allowed the plaintiff to amend the complaint to attach the affidavits or at least should have only dismissed the complaint as without prejudice so that the plaintiff could refile under the renewal statute, O.C.G.A. §§ 9-2-61(a) and9-11-9.1 did not allow such amendments; dismissals for failure to attach such affidavits were dismissals for failure to state a claim and were, therefore, on the merits and with prejudice. Roberson v. Northrup, 302 Ga. App. 405, 691 S.E.2d 547 (2010).
Because the unrebutted evidence showed that an officer's claims sounded in professional negligence, rather than ordinary negligence, and the officer failed to file contemporaneously with the complaint the expert affidavit required by O.C.G.A. § 9-11-9.1(a), there was no error in the trial court's grant of a corporation's motion to dismiss. Odion v. Varon, 312 Ga. App. 242, 718 S.E.2d 23 (2011), cert. denied, No. S12C0399, 2012 Ga. LEXIS 561 (Ga. 2012).
Trial court did not err in dismissing a client's action against a former attorney and a law firm for the client's failure to file an expert affidavit pursuant to O.C.G.A. § 9-11-9.1(a) because the client's claims asserted legal malpractice, and the client was required to comply with the provisions of O.C.G.A. § 9-11-9.1; although the client's complaint purported to state various causes of action, the substance of the allegations raised only claims of professional negligence against the attorney and law firm since all of the allegations in the complaint concerned the attorney's legal advice and actions taken as the client's legal representative in the underlying lawsuit. Fortson v. Freeman, 313 Ga. App. 326, 721 S.E.2d 607 (2011).
Hospital's motion for summary judgment was improperly denied as the appellees' claims did not fall under ordinary negligence and the appellees' case was a professional negligence case because the appellees' argument was that the very execution and implementation of the radiology agreement was negligent, and the only way to properly allege and ultimately establish the hospital's negligence was with expert testimony explaining how the radiology agreement, which did not require the hospital to have a radiologist on-site at all times, fell below the standard of care, but the appellees did not attach an expert's affidavit supporting the appellees' claim as required by O.C.G.A. § 9-11-9.1. St. Mary's Health Care Sys. v. Roach, 345 Ga. App. 274, 811 S.E.2d 93 (2018).
Failure to file expert affidavit may not be fatal.
- Cases that hold that the failure to file an expert affidavit with the complaint renders the complaint void and not subject to renewal should be overruled on that point, namely, Foskey v. Foster, 199 Ga. App. 205 (404 S.E.2d 303) (1991); Lyberger v. Robinson, 207 Ga. App. 845 (429 S.E.2d 324) (1993); Trucano v. Rosenberg, 215 Ga. App. 153 (450 S.E.2d 216) (1994); Grier-Baxter v. Sibley, 247 Ga. App. 560 (545 S.E.2d 5) (2001); Witherspoon v. Aranas, 254 Ga. App. 609 (562 S.E.2d 853) (2002); Shirley v. Hospital Auth. of Valdosta/Lowndes County, 263 Ga. App. 408 (587 S.E.2d 873) (2003); and Winfrey v. Total Health Clinic Corp., 255 Ga. App. 617 (566 S.E.2d 372) (2002). Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165 (2009), aff'd, 287 Ga. 406, 696 S.E.2d 640 (2010).
New complaint, read in the son and the administrator's favor, adequately pled fraud, battery, conspiracy, and wrongful death against the doctors, the nurses, and the hospital as the complaint asserted that the doctor knowingly and falsely represented to the family that the deceased's comatose condition was the result of metastasized cancer rather than aspiration, and that the doctor's intention in doing so was to deceive the family as to its actual cause. The complaint also asserted that the second doctor and the nurses were complicit in the doctor's misrepresentations and assisted the doctor in the deception of the family; that the family relied on the misrepresentations when the family agreed to admit the deceased to hospice care; and that as a proximate result of being admitted to hospice, the deceased was denied food and water and suffered renal failure. Therefore, because the son and the administrator were not required to support their adequately pled claims for fraud, battery, and conspiracy with a O.C.G.A. § 9-11-9.1 affidavit, the trial court erred when the court granted the motion to dismiss the claims. Estate of Shannon v. Ahmed, 304 Ga. App. 380, 696 S.E.2d 408 (2010).
Section supersedes rule as to affidavit in cases of clear malfeasance.
- Mandatory direction of O.C.G.A. § 9-11-9.1 that the plaintiff "shall be required to file with the complaint" a specific expert affidavit necessarily preempts and supersedes the judicially-created rule that no plaintiff's expert affidavit might be required in cases of malfeasance so "clear and palpable" as to be reasonably ascertained by the jury without expert evidence. Barr v. Johnson, 189 Ga. App. 136, 375 S.E.2d 51, cert. denied, 189 Ga. App. 911, 375 S.E.2d 51 (1988); Collins v. Newman, 237 Ga. App. 861, 517 S.E.2d 100 (1999).
Expert affidavit not required when question was just whether acts occurred.
- In a case alleging that the plaintiff was subjected to perverted mental health counseling, the court did not err in finding that no expert affidavit was required since the jury did not have to be told by an expert what is acceptable professional conduct in the circumstances. The question was whether the acts occurred, and this is purely a jury question. Roebuck v. Smith, 204 Ga. App. 20, 418 S.E.2d 165 (1992).
Determinative factor as to whether suit is malpractice action.
- Determinative factor as to whether a suit in negligence is or is not a malpractice action within the ambit of O.C.G.A. § 9-11-9.1 is the existence or absence of allegations that the defendant-professional has rendered negligent professional services. Jordan, Jones & Goulding, Inc. v. Wilson, 197 Ga. App. 354, 398 S.E.2d 385 (1990).
Compliance requirement not affected by lack of privity.
- Lack of privity may ultimately defeat a plaintiff's professional malpractice claim. A lack of privity does not, however, dispense with a plaintiff's compliance with the initial pleading requirement of O.C.G.A. § 9-11-9.1 when a plaintiff sues a professional and alleges a breach of the applicable standard of professional conduct. Jordan, Jones & Goulding, Inc. v. Wilson, 197 Ga. App. 354, 398 S.E.2d 385 (1990).
Any plaintiff, regardless of privity, who brings suit against a professional and seeks to recover for the alleged negligent performance of professional services is required to file an expert's affidavit setting forth at least one specific negligent act or omission and the factual basis for such a claim. Jordan, Jones & Goulding, Inc. v. Wilson, 197 Ga. App. 354, 398 S.E.2d 385 (1990).
Compliance requirement not affected by parties' knowledge of matter before court.
- O.C.G.A. § 9-11-9.1 applies even though the parties are professionals with expertise in the matter before the court; the parties' knowledge of the subject matter would do nothing to evaluate the merits of an action the parties were determined to bring. Jordan v. Lamberth, Bonapfel, Cifelli, Willson & Stokes, 206 Ga. App. 178, 424 S.E.2d 859 (1992).
Admission of negligence no excuse for missing affidavit.
- Physician's admission of negligence in medical records attached to the complaint in a medical malpractice action did not excuse the plaintiff's failure to comply with the requirement for contemporaneous filing of an expert affidavit. Johnson v. Brueckner, 216 Ga. App. 52, 453 S.E.2d 76 (1994).
O.C.G.A. § 9-11-9.1 imposes an initial pleading requirement on the plaintiff and mandates the filing of an expert's affidavit with the complaint. Robinson v. Starr, 197 Ga. App. 440, 398 S.E.2d 714 (1990).
O.C.G.A. § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action. Bowen v. Adams, 203 Ga. App. 123, 416 S.E.2d 102, cert. denied, 202 Ga. App. 905, 416 S.E.2d 102 (1992).
Compliance with statute not addressed in reversal of summary judgment order.
- In a medical malpractice action, because the record on appeal contained evidence creating a genuine issue of material fact as to the proximate cause of a patient's injuries, the trial court erred in granting a hospital summary judgment; moreover, the appeals court declined to hear the hospital's claim that the patient failed to comply with O.C.G.A. § 9-11-9.1. Renz v. Northside Hosp., Inc., 285 Ga. App. 882, 648 S.E.2d 186 (2007).
Amendment of pleading tacitly allowed.
- Trial court erred in granting summary judgment to a medical group in a medical malpractice case since the court tacitly allowed the spouse to "amend" pleadings because the court considered the entire record, in particular conflicting evidence as to the date of the decedent's death as relevant to the viability of the spouse's cause of action as complying with the exception to the contemporaneous filing requirement under O.C.G.A. § 9-11-9.1 (b) (now (e)), and no admission in judicio remained in bar of the spouse's claim, and a jury question existed as to the date of death of the decedent regarding the contemporaneous filing of an expert's affidavit requirement. Knutsen v. Atlanta Women's Specialists Obstetrics & Gynecology, 264 Ga. App. 87, 589 S.E.2d 588 (2003).
Expert affidavit may be sufficient to satisfy standards of this section.
- Expert affidavit may be sufficient to satisfy the pleading standards of O.C.G.A. § 9-11-9.1. The sufficiency of the expert affidavit determines whether the complaint for malpractice is subject to dismissal for failure to state a claim. Bowen v. Adams, 203 Ga. App. 123, 416 S.E.2d 102, cert. denied, 202 Ga. App. 905, 416 S.E.2d 102 (1992).
Affidavit should note recent experience.
- In a professional malpractice case brought by a married couple, an expert's original affidavit was insufficient under O.C.G.A. § 9-11-9.1 and former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702), which applied retroactively. Although the expert avowed therein that the expert had been licensed to practice medicine since 1974, the affidavit contained nothing concerning the expert's recent or continuing experience as an orthopedist. Cogland v. Hosp. Auth., 290 Ga. App. 73, 658 S.E.2d 769 (2008).
Expert's testimony was properly excluded in a medical malpractice suit for corrective bladder surgery for perforations following a hysterectomy because the expert's affidavit demonstrated that the expert was board certified in geriatrics, and the expert had not been engaged in the active practice of gynecology or urology for three of the five years before the patient's operation. Hope v. Kranc, 304 Ga. App. 367, 696 S.E.2d 128 (2010).
Trial court did not abuse the court's discretion in determining that the parent's expert was not actively engaged in the subject specialty for three of the five years prior to the alleged negligence. The expert acknowledged that the expert had done no intubations at all since the expert started working at the urgent care clinic and that the clinic did not possess intubation equipment. Aguilar v. Children's Healthcare of Atlanta, Inc., 320 Ga. App. 663, 739 S.E.2d 392 (2013).
Expert affidavit which unequivocally demonstrates merits not required.
- Patient cannot be required to submit an expert affidavit which unequivocally demonstrates the evidentiary merits of the patient's claim unless and until the defendant moves for summary judgment and submits evidence demonstrating that the patient's claim lacks merit. Bowen v. Adams, 203 Ga. App. 123, 416 S.E.2d 102, cert. denied, 202 Ga. App. 905, 416 S.E.2d 102 (1992).
Expert's affidavits need only set forth factual allegations which, if true, support at least one negligent act or omission; it need not state admissible facts or facts sufficient to withstand a motion for summary judgment. Crook v. Funk, 214 Ga. App. 213, 447 S.E.2d 60 (1994); Howard v. City of Columbus, 219 Ga. App. 569, 466 S.E.2d 51 (1995).
In a legal malpractice action, an affidavit stating that, as a result of the defendant lawyer's failure to consult with the client or review witnesses prior to the trial, the defendant failed to introduce documents which were available and were necessary to prove the plaintiff's case was sufficient, even though the affidavit was poorly drafted and hard to follow. Fidelity Enters., Inc. v. Beltran, 214 Ga. App. 205, 447 S.E.2d 150 (1994).
Conflict in experts' opinions in affidavit.
- In a wrongful death and medical negligence suit, a conflict between the testimony of experts in the plaintiff's expert affidavit, filed pursuant to O.C.G.A. § 9-11-9.1, merely raised an issue of fact; it could not be used to eliminate self-contradictory testimony for purposes of summary judgment. Rooks v. Tenet Health Sys. GB, Inc., 292 Ga. App. 477, 664 S.E.2d 861 (2008).
Requirement that at least one negligent act be set forth.
- O.C.G.A. § 9-11-9.1 has been interpreted as requiring that an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant. However, since that section establishes an exception to the general liberality of pleading permitted under the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, the statute should be construed in a manner consistent with the liberality of the Civil Practice Act when such construction does not detract from the purpose of the section. Gadd v. Wilson & Co., 262 Ga. 234, 416 S.E.2d 285 (1992).
Affidavit which does not state specifically at least one negligent act or omission is fatally defective. Edwards v. Vanstrom, 206 Ga. App. 21, 424 S.E.2d 326 (1992).
Specific statement of negligent act or omission.
- Expert's affidavit that defendant engineers "might" have used another specified design in construction at a post office site and that failure to use such a design or another appropriate alternative constituted malpractice was sufficient to set forth a negligent act or omission as required by O.C.G.A. § 9-11-9.1. Samuelson v. Lord, Aeck & Sergeant, Inc., 205 Ga. App. 568, 423 S.E.2d 268, cert. denied, 205 Ga. App. 901, 423 S.E.2d 268 (1992).
Affidavit must specify negligent act or omission by each defendant.
- Affidavit must set forth specifically at least one negligent act or omission claimed to exist as to each professional defendant (jointly, if appropriate; otherwise, severally) and the factual basis for the claim against each defendant. HCA Health Servs., of Ga., Inc. v. Hampshire, 206 Ga. App. 108, 424 S.E.2d 293 (1992).
Expert's affidavit was invalid since the notary administered the oath over the telephone to the expert, who was in another state. Schmidt v. Feldman, 230 Ga. App. 500, 497 S.E.2d 23 (1998); Sambor v. Kelley, 271 Ga. 133, 518 S.E.2d 120 (1999).
Affidavit was given under oath when the affidavit was signed by the defendant in front of a notary public and they both understood that what the defendant had done was sufficient to complete the act of swearing. Harris v. Murray, 233 Ga. App. 661, 504 S.E.2d 736 (1998).
Effect of noncompliance with pleading requirements.
- Failure to comply with the pleading requirements of O.C.G.A. § 9-11-9.1 would not authorize the grant of summary judgment. Druckman v. Ethridge, 198 Ga. App. 321, 401 S.E.2d 336 (1991).
Original document filed as an affidavit under the grace period of O.C.G.A. § 9-11-9.1, but without the affiant's having signed the document in the presence of a notary, was valid on its face and, thus, was not void but rather voidable. Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga. App. 534, 510 S.E.2d 101 (1998).
Complaint and affidavit timely filed.
- When nothing on the face of the record implied that the patient's O.C.G.A. § 9-11-9.1(b) (now (e)) pleading was not made in good faith, nothing contradicted their assertion that they were unable to prepare the expert's affidavit so as to file it in conjunction with their complaint, and considering a holiday, they timely filed their complaint within the 10-day computation period provided in the statute, the trial court properly denied the doctor's motion to dismiss on grounds that the patients failed to comply with the pleading requirements of O.C.G.A. § 9-11-9.1. Waters v. Stewart, 263 Ga. App. 195, 587 S.E.2d 307 (2003).
Negligence held linked to defendant although not expressly ascribed.
- Although the affidavit in question did not expressly ascribe the alleged negligence to the defendant, the requirement that the alleged negligence had to be linked to the defendant was substantially met since the defendant was the only defendant and, therefore, was implicitly the party to whom the plaintiff was attributing the alleged negligence. Gadd v. Wilson & Co., 262 Ga. 234, 416 S.E.2d 285 (1992).
Affidavit construed most favorably to plaintiff.
- O.C.G.A. § 9-11-9.1 should be construed 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. Gadd v. Wilson & Co., 262 Ga. 234, 416 S.E.2d 285 (1992).
Res judicata defense in subsequent action.
- When a prior summary judgment for an attorney in a legal malpractice action was based on a recognition that, regardless of the applicability of any pleading requirements imposed by the subsequently enacted provisions of O.C.G.A. § 9-11-9.1, the client's failure to have complied with the evidentiary requirements of O.C.G.A. § 9-11-56 nevertheless mandated the grant of summary judgment on the merits, the attorney's res judicata defense in a subsequent action was viable and the trial court erred in failing to grant the attorney's motion for summary judgment based upon the viable defense. Robinson v. Starr, 197 Ga. App. 440, 398 S.E.2d 714 (1990).
Dismissal required when complaint refiled with affidavit.
- When no professional affidavit was filed with the original complaint and, when the complaint was refiled, an affidavit of the same date was attached, dismissal of the malpractice count was required. Jones v. Bates, 261 Ga. 240, 403 S.E.2d 804 (1991).
Failure to attach affidavit as amendable defect.
- Failure to attach a supporting affidavit to the complaint in a professional malpractice action was an amendable defect under O.C.G.A. § 9-11-15(a) since the plaintiffs had obtained the affidavit before filing suit and had simply neglected to file the affidavit with the plaintiff's complaint. St. Joseph's Hosp. v. Nease, 259 Ga. 153, 377 S.E.2d 847 (1989).
Failure to file an expert's affidavit with a complaint for professional malpractice, as required by O.C.G.A. § 9-11-9.1, is an amendable defect, at least when the plaintiff has obtained the affidavit prior to filing the complaint and the failure to file the affidavit was the result of a mistake. Reid v. Brazil, 193 Ga. App. 1, 387 S.E.2d 1 (1989).
Plaintiff's failure to file an expert affidavit with the original complaint barred the plaintiff's claim for professional malpractice, filed three years after the statute of limitations expired, because O.C.G.A. § 9-11-9.1 mandates that the plaintiff's failure to file an affidavit with the original complaint could not be cured through the filing of an amended complaint which included an affidavit. Upson County Hosp., Inc. v. Head, 246 Ga. App. 386, 540 S.E.2d 626 (2000).
Amendment did not remedy affidavit deficiency.
- Malpractice plaintiffs' purported amendment did not remedy the deficiency in the plaintiffs' complaint concerning the plaintiffs' failure to file the expert affidavit required by O.C.G.A. § 9-11-9.1. Anderson v. Navarro, 227 Ga. App. 184, 489 S.E.2d 40 (1997).
Evidence at hearing under
§ 9-11-12(d). - Subsection (e) of O.C.G.A. § 9-11-9.1 is only designed to preclude amendment under O.C.G.A. § 9-11-15 when the plaintiff completely fails to file an affidavit; subsection (e) thus does not preclude a plaintiff from presenting evidence of his or her expert's competency at a O.C.G.A. § 9-11-12(d) hearing when that expert's affidavit was initially filed with the complaint. Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994).
Facsimile of affidavit.
- Although O.C.G.A. § 9-11-9.1 contemplates that the original affidavit of the expert should be filed, trial courts are not prohibited, when justice so requires, from considering facsimiles of affidavits that are available during the statutory period. Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256, 419 S.E.2d 36 (1992).
Filing a facsimile copy and not the original affidavit of an expert was not an amendable defect for purposes of O.C.G.A. § 9-11-9.1. Brown v. Middle Ga. Hosp., Inc., 211 Ga. App. 884, 440 S.E.2d 687 (1994).
Facsimile copy of expert affidavit satisfies the pleading standards of O.C.G.A. § 9-11-9.1 and the original may then be filed as a supplemental pleading without requiring the action to be renewed. Sisk v. Patel, 217 Ga. App. 156, 456 S.E.2d 718 (1995).
Facsimiles of affidavits that are available during the statutory grace period of subsection (b) of O.C.G.A. § 9-11-9.1 may be considered and, further, the original affidavit does not have to be in the plaintiff's possession, nor is the plaintiff required to demonstrate that failure to file the original during the grace period resulted from some mistake. Roberts v. Faust, 217 Ga. App. 787, 459 S.E.2d 448 (1995).
While a facsimile affidavit can satisfy the requirements of O.C.G.A. § 9-11-9.1, in the absence of an attached valid jurat, a writing in the form of an affidavit has no force or validity especially when the facsimile is a near but not exact copy of the original. Allen v. Caldwell, 221 Ga. App. 54, 470 S.E.2d 696 (1996).
Failure of plaintiff to file an expert affidavit did not warrant dismissal of a professional malpractice case since the defendant did not assert this defense in the defendant's initial responsive pleading. Colston v. Fred's Pest Control, Inc., 210 Ga. App. 362, 436 S.E.2d 23 (1993).
Trial court erred by dismissing a couple's renewed negligence complaint for failing to file an expert affidavit with the couple's original complaint as required by O.C.G.A. § 9-11-9.1(a) because the record failed to contain sufficient findings showing whether any professional negligence was involved with regard to the wife falling from a testing table as it was merely speculative whether the technician had to assess the wife's medical condition in order to decide whether she could get down from a raised table since it could have been that no professional judgment was required. The trial court additionally erred by dismissing the couple's renewed complaint because the defending medical entities waived their objection to the renewal by failing to file a separate motion to dismiss contemporaneously with their answer to the couple's original action. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165 (2009), aff'd, 287 Ga. 406, 696 S.E.2d 640 (2010).
Dismissal of action for failure to file an affidavit under O.C.G.A. § 9-11-9.1 was an adjudication on the merits for purposes of res judicata. Hodo v. Basa, 214 Ga. App. 895, 449 S.E.2d 523 (1994).
Dismissal of action for failure to file affidavit not absolute, some action required.
- Plaintiff's failure to amend an allegedly defective affidavit within 30 days did not lead to absolute dismissal because dismissal was discretionary and the trial court had to take action while the case was still pending, which the court did not do in the instant action. Wentz v. Emory Healthcare, Inc., 347 Ga. App. 302, 819 S.E.2d 296 (2018).
Defense of failure to file affidavit waived.
- Judgment for the defendant was reversed when the defense of failure to attach an affidavit required by O.C.G.A. § 9-11-9.1 was not presented, by way of amendment to the answer, until three months after the filing of responsive pleadings, and until the statute of limitations on the underlying claim had run. Glaser v. Meck, 258 Ga. 468, 369 S.E.2d 912 (1988).
Renewed complaint specifically incorporating deposition of plaintiff's expert.
- When a medical malpractice case was filed originally in March 1985, and dismissed in June 1988 without prejudice for failure of counsel for plaintiffs to appear at a peremptory calendar call, since the plaintiffs refiled the action within the six-month period allowed by O.C.G.A. § 9-2-61 with a renewed complaint which specifically incorporated the discovery taken in the previously dismissed action, including the deposition of the plaintiffs' expert, but failed to attach the required affidavit to the renewed complaint, and since the defendant/appellant moved to dismiss the renewed complaint for failure to file the required affidavit, the plaintiffs complied with the spirit, if not the letter, of O.C.G.A. § 9-11-9.1, and the trial court properly allowed the amendment. Hospital Auth. v. McDaniel, 192 Ga. App. 398, 385 S.E.2d 8 (1989).
Failure to attach expert affidavit is affirmative defense that must be asserted to be effective.
- In a patient's medical malpractice suit against a hospital and a doctor, the trial court erred in dismissing the complaint as against the hospital based on the patient's failure to attach an expert affidavit to the patient's complaint as required by O.C.G.A. § 9-11-9.1 as such failure was an affirmative defense which had to be raised to be effective; since the hospital did not assert that defense, the patient's failure to attach the expert affidavit did not warrant dismissal of the complaint as against the hospital. Frieson v. S. Fulton Med. Ctr., 255 Ga. App. 217, 564 S.E.2d 821 (2002).
Amendment of complaint to include statement regarding failure to attach affidavit.
- When a medical malpractice complaint, filed within ten days of the expiration of the statute of limitations, stated that an affidavit would be filed within the extended filing time, and the affidavit was filed within that time, the plaintiff could amend the complaint to include the required language that the affidavit could not be prepared because of time constraints. Glisson v. Hospital Auth., 224 Ga. App. 649, 481 S.E.2d 612 (1997).
Intent of section prior to 1989 amendment.
- Intent of O.C.G.A. § 9-11-9.1, as the statute existed prior to the 1989 amendment adding subsections (e) and (f), was the same as the legislature has provided in those subsections, which is (except as provided in paragraph (b)) to cause the dismissal of a malpractice suit when an expert affidavit was not filed, unless such an affidavit had been obtained and the plaintiff by mistake or neglect merely failed "to file it." Auston v. Greenberg Farrow Architects, 201 Ga. App. 448, 411 S.E.2d 346 (1991).
Failure of pro se plaintiff to file affidavit.
- Pro se plaintiff was allowed to amend the complaint to invoke the protections of subsection (b) (now (e)) of O.C.G.A. § 9-11-9.1, although the plaintiff failed to allege that the plaintiff was relying on that subsection when the plaintiff originally filed the complaint since the plaintiff had filed the cause of action within ten days of the expiration of the applicable statute of limitation for the plaintiff's claim. Thompson v. Long, 201 Ga. App. 480, 411 S.E.2d 322, cert. denied, 201 Ga. App. 904, 411 S.E.2d 322 (1991).
Challenge to sufficiency of affidavit.
- As a motion to dismiss for an insufficient affidavit under O.C.G.A. § 9-11-9.1 is a motion to dismiss for failure to state a claim under O.C.G.A. § 9-11-12(b)(6), and as O.C.G.A. § 9-11-9.1 does not provide that § 9-11-12 is inapplicable, such a hearing is a permissible method by which to challenge the sufficiency of an affidavit. Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994).
Plaintiffs were not required to respond with contrary evidence to the defendant's challenge to the defendant's expert's affidavit; thus, since the affidavit of the plaintiff's expert sufficiently established that the expert's expertise overlapped that of the defendant, the plaintiffs were not required to present any further evidence at that point, and summary judgment based on the sufficiency of the affidavit was improperly granted. Stubbs v. Ray, 218 Ga. App. 420, 461 S.E.2d 906 (1995).
Trial court erred in granting a hospital's motion to dismiss a survivor's wrongful death action based on O.C.G.A. § 9-11-9.1(e) because of a nurse's affidavit that allegedly failed to comply with former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) and because the trial court did not consider the survivor's other affidavit submitted, an unchallenged affidavit from a medical doctor. An affidavit should be construed 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, so long as such construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits. Piscitelli v. Hosp. Auth. of Valdosta & Lowndes County, 302 Ga. App. 746, 691 S.E.2d 615 (2010).
Dismissal of the patient's medical malpractice action was erroneous because the doctors failed to allege "with specificity" in the doctors' motion to dismiss, as required by O.C.G.A. § 9-11-9.1(e), the ground upon which the trial court dismissed the action, that the affidavits filed with the patient's complaint were inadequate because the affidavits said nothing of gross negligence. Ndlovu v. Pham, 314 Ga. App. 337, 723 S.E.2d 729 (2012).
Insufficient affidavit.
- Action for legal malpractice was properly dismissed, since the affidavit submitted by the plaintiff neither stated the qualifications of the affiant nor provided the affiant's opinion as to the reasonableness or skill of the defendant attorney's conduct. Padgett v. Crawford, 189 Ga. App. 568, 376 S.E.2d 724 (1988).
Physician's affidavit was insufficient since the affidavit failed to show that the affiant was "an expert competent to testify" in the field of nursing and did not indicate that the defendant hospital's nursing staff breached the requisite degree of care and skill required of the nursing profession generally by deviating from the treating physician's post operative instructions. Piedmont Hosp. v. Milton, 189 Ga. App. 563, 377 S.E.2d 198 (1988).
Affidavit required by O.C.G.A. § 9-11-9.1 to be filed with a malpractice complaint is insufficient if the affidavit fails to show the affiant is competent to testify as an expert in the case. Milligan v. Manno, 197 Ga. App. 171, 397 S.E.2d 713 (1990).
Two "affidavits" of dentists accompanying a complaint for dental malpractice did not meet the requirements of O.C.G.A. § 9-11-9.1 since a jurat was not affixed to either "affidavit." In the absence of valid jurats, the documents could not be deemed affidavits. Hill-Everett v. Jones, 197 Ga. App. 872, 399 S.E.2d 739 (1990).
Trial court did not err in striking affidavits which, in fact, were not originals but were photocopies, since no original, signed affidavits were filed. Gooden v. Georgia Baptist Hosp. & Medical Center, 198 Ga. App. 407, 401 S.E.2d 602 (1991).
Affidavits establishing that the doctor did not contact the affiant for or request from the affiant any x-rays, patient chiropractic data, treatment plan, or chiropractic findings before deciding that the plaintiffs had reached maximum medical treatment failed to set forth specifically that the doctor had failed to obtain such information or that the doctor was in fact negligent merely by failing to contact the affiant or in failing to request from the affiant the information at issue. The affidavits neither individually nor collectively set forth specifically at least one negligent act or omission claimed to exist. Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 424 S.E.2d 338 (1992).
When the expert affidavit of a registered nurse lacking executed jurat was received by mail by the plaintiff's attorney and was not notarized by the attorney's secretary, even though the affiant was not present and neither the attorney nor the secretary/notary had witnessed the affiant's signing, the affidavit was invalid. Harvey v. Kidney Ctr. of Cent. Ga., Inc., 213 Ga. App. 319, 444 S.E.2d 590 (1994).
Affidavit containing a partial transcript of an expert's testimony in a separate criminal action pertaining to the subject of the plaintiff's medical malpractice suit did not satisfy the requirement of O.C.G.A. § 9-11-9.1. Raskin v. Wallace, 215 Ga. App. 603, 451 S.E.2d 485 (1994).
In a malpractice action against a physicians and hospital, dismissal of the hospital as a defendant was proper because the plaintiff's affidavit did not attribute any negligent act to the nursing staff of the hospital. Goins v. Tucker, 227 Ga. App. 524, 489 S.E.2d 857 (1997).
Affidavits were not sufficient because the affidavits did not specify any negligent act or omission by agents or employees of the defendant hospital, nor did the affidavits specify any facts upon which the malpractice claim against the hospital was based. Candler Hosp. v. Carter, 224 Ga. App. 425, 480 S.E.2d 876 (1997).
Consideration of evidentiary matters not included in affidavit is improper in acting on a motion to dismiss based on insufficiency of the affidavit. HCA Health Servs., of Ga., Inc. v. Hampshire, 206 Ga. App. 108, 424 S.E.2d 293 (1992).
Affidavits from earlier action functioned as amendments in later action against same defendants.
- Expert affidavits, which the plaintiffs had filed in an earlier action against the defendants for medical malpractice, functioned as an amendment to the plaintiffs' complaint in a subsequent action against the same defendants since the affidavits were attached to the defendants' motion to dismiss, and the plaintiff thereby complied with O.C.G.A. § 9-11-9.1. Bell v. Figueredo, 259 Ga. 321, 381 S.E.2d 29 (1989).
Affiant not "active participant" in litigation for purposes of "abusive litigation claim."
- Attorney, who provided an expert affidavit in support of a legal malpractice claim, was not an "active participant" in the malpractice litigation and, accordingly, was not liable to the attorney charged with professional malpractice on an abusive litigation theory. Kirsch v. Meredith, 211 Ga. App. 823, 440 S.E.2d 702 (1994).
Procedure for challenging noncompliance.
- Noncompliance with the requirement for an affidavit in a malpractice action is properly challenged in a defensive pleading seeking dismissal of the complaint for failure to state a claim, not by a summary judgment proceeding. Williams v. Hajosy, 210 Ga. App. 637, 436 S.E.2d 716 (1993).
Defect in an expert's affidavit attached to the complaint in a legal malpractice action should be attacked via motion to dismiss and summary judgment on the basis of such defect was inappropriate. Freeman v. Pittman, 220 Ga. App. 672, 469 S.E.2d 543 (1996).
Defense of noncompliance with affidavit requirement was not waived because, even though the defendant did not raise the defense in the defendant's initial responsive pleading, the defendant acted diligently in raising the defense in the first pleading the defendant filed after discovering evidence causing the defendant to challenge the validity of the affidavit. Harris v. Murray, 233 Ga. App. 661, 504 S.E.2d 736 (1998).
Affidavit not subject to evidentiary standards for summary judgment.
- When the plaintiff brought a medical malpractice suit, did not file an expert's affidavit with the complaint, but amended the complaint within 45 days to file an expert's affidavit, the trial court erred by dismissing the plaintiff's complaint for failure of the expert's affidavit to set forth the appropriate standard of care, the expert's familiarity with that standard of care, and the specific details of how the defendants deviated from that standard, since the evidentiary standards applicable to evidence supporting a motion for summary judgment pursuant to O.C.G.A. § 9-11-56(e) are not incorporated in subsection (a) of O.C.G.A. § 9-11-9.1. O-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 378 S.E.2d 708 (1989); Ulbrich v. Batts, 206 Ga. App. 74, 424 S.E.2d 288 (1992).
Nothing in O.C.G.A. § 9-11-9.1 suggests that the "factual basis" requirement must be verified by attaching documentary evidence to the affidavit. HCA Health Servs., of Ga., Inc. v. Hampshire, 206 Ga. App. 108, 424 S.E.2d 293 (1992); Howard v. City of Columbus, 219 Ga. App. 569, 466 S.E.2d 51 (1995).
Conclusory opinion insufficient to withstand summary judgment.
- Malpractice plaintiff, as a respondent on summary judgment, cannot prevail on the motion, when the defendant by the content of the defendant's expert affidavit has carried the defendant's burden of proof, merely by presenting a conclusory opinion that the defendant was negligent or failed to adhere to professional standards of conduct, without stating the parameters of such conduct and the particulars of the defendant's deviation therefrom. Turner v. Kitchings, 199 Ga. App. 860, 406 S.E.2d 280 (1991).
Affidavit requirement inapplicable to fraud claim.
- Plaintiff's fraud claim did not appear to call into question professional standards of care applicable to attorneys but instead the claim appeared to be predicated on misrepresentations which would not be misunderstood by even the most uneducated layman and would be actionable against any person; therefore, the fraud claim did not require an affidavit under O.C.G.A. § 9-11-9.1 and dismissal of the claim was error. Hopkinson v. Labovitz, 231 Ga. App. 557, 499 S.E.2d 338 (1998).
Motion under sections considered as failure to state claim.
- Motion to dismiss for failure to file an expert affidavit under O.C.G.A. § 9-11-9.1 had to be considered as a motion to dismiss for failure to state a claim under O.C.G.A. § 9-11-12(b)(6). Burke v. Paul, 289 Ga. App. 826, 658 S.E.2d 430 (2008).
Cited in Freeman v. Van Dyke, 193 Ga. App. 190, 387 S.E.2d 351 (1989); Kalustian v. McDonald, 194 Ga. App. 435, 390 S.E.2d 657 (1990); Smith v. North Fulton Medical Ctr., 200 Ga. App. 464, 408 S.E.2d 468 (1991); Jarallah v. Schwartz, 202 Ga. App. 32, 413 S.E.2d 210 (1991); Jenkins County Hosp. Auth. v. Landrum, 206 Ga. App. 753, 426 S.E.2d 572 (1992); Lyberger v. Robinson, 207 Ga. App. 845, 429 S.E.2d 324 (1993); Howard v. Jonah, 208 Ga. App. 542, 430 S.E.2d 833 (1993); Hailey v. Blalock, 209 Ga. App. 345, 433 S.E.2d 337 (1993); Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 442 S.E.2d 265 (1994); Floyd v. Piedmont Hosp., 213 Ga. App. 749, 445 S.E.2d 844 (1994); French Quarter, Inc. v. Peterson, Young, Self & Asselin, 220 Ga. App. 852, 471 S.E.2d 9 (1996); Davis v. First Healthcare Corp., 234 Ga. App. 744, 507 S.E.2d 563 (1998); In re Carter, 235 Ga. App. 551, 510 S.E.2d 91 (1998); Ga. Dermatology Clinic, P.A. v. Nesmith, 254 Ga. App. 121, 561 S.E.2d 459 (2002); Oakes v. Magat, 263 Ga. App. 165, 587 S.E.2d 150 (2003); Lunsford v. DeKalb Med. Ctr., Inc., 263 Ga. App. 394, 587 S.E.2d 859 (2003); Campbell v. McLarnon, 265 Ga. App. 87, 593 S.E.2d 21 (2003); Atl. Rim Equities, LLC v. Slutzky, Wolfe, & Bailey, LLP, F. Supp. 2d (N.D. Ga. Dec. 20, 2005); Travick v. Lee, 278 Ga. App. 823, 630 S.E.2d 99 (2006); Chatham Orthopaedic Surgery Ctr., LLC v. White, 283 Ga. App. 10, 640 S.E.2d 633 (2006); Davenport v. Cummins Alabama, Inc., 284 Ga. App. 666, 644 S.E.2d 503 (2007); In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007); UniFund Fin. Corp. v. Donaghue, 288 Ga. App. 81, 653 S.E.2d 513 (2007); Emory Adventist, Inc. v. Hunter, 301 Ga. App. 215, 687 S.E.2d 267 (2009); Postell v. Hankla, 317 Ga. App. 86, 728 S.E.2d 886 (2012); Cope v. Evans, 329 Ga. App. 354, 765 S.E.2d 40 (2014); Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 799 S.E.2d 242 (2017); Atlanta Women's Specialists, LLC v. Trabue, Ga. , S.E.2d (Sept. 28, 2020).
Notary Requirement
De facto notary doctrine.
- Pursuant to the de facto notary doctrine, an expert's affidavit satisfied the requirements of O.C.G.A. § 9-11-9.1, despite the fact that the commission of the notary who attested the affidavit had expired. Thomas v. Gastroenterology Assocs. of Gainesville, P.C., 280 Ga. 698, 632 S.E.2d 118 (2006).
Expert's affidavit was invalid when oath was administered by notary public over telephone. Redmond v. Shook, 218 Ga. App. 477, 462 S.E.2d 172 (1995).
Expert Qualification
Expert despite financial interest.
- Lawyer was "an expert competent to testify" despite the lawyer's previous representation of the plaintiff in this matter and the fact that the lawyer had a financial interest in the outcome of this suit at the time the lawyer submitted the lawyer's affidavit. Findley v. Davis, 202 Ga. App. 332, 414 S.E.2d 317 (1991).
Expert in one's own behalf.
- Attorney, as well as a physician, may make an affidavit as an expert in their own behalf. Findley v. Davis, 202 Ga. App. 332, 414 S.E.2d 317 (1991).
Correct standard for legal malpractice expert.
- In a legal malpractice claim, whether the expert resides in Georgia or is a licensed member of the bar at the time of the alleged negligence is not indicative of competency. The correct standard is whether at the time of testifying the expert has knowledge of the applicable standard of care on at least one matter on which the claim is based. Morris v. Atlanta Legal Aid Soc'y, Inc., 222 Ga. App. 62, 473 S.E.2d 501 (1996).
Section applicable to claims requiring expert witness.
- Affidavit was required since it was alleged that the dentist gave inappropriate medication, did not properly monitor the patient's condition, and did not use proper technique to resuscitate the patient after the patient was in distress; these claims would require an expert witness and were not allegations of simple negligence. Edwards v. Vanstrom, 206 Ga. App. 21, 424 S.E.2d 326 (1992).
Self-contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986) does not apply to the testimony of a non-party expert witness who submits an affidavit in support of a claim of professional malpractice. Thompson v. Ezor, 272 Ga. 849, 536 S.E.2d 749 (2000), affirming Ezor v. Thompson, 241 Ga. App. 275, 526 S.E.2d 609 (1999).
Competence of affiant.- Resolution of the issue of whether the affiant physician was competent to give testimony with respect to the defendant's area of speciality was ill-suited to disposition on a motion to strike. Cahela v. Bernard, 155 F.R.D. 221 (N.D. Ga. 1994).
Trial court properly denied dismissal of a patient's widow's medical malpractice action against assorted medical personnel and entities, based on claims that the widow's expert affidavit pursuant to O.C.G.A. § 9-11-9.1 was insufficient as the fact that the doctor who acted as the expert was no longer licensed to practice medicine due to revocation for substance abuse issues did not impact the validity of the affidavit, which had no licensure requirement to it; the licensure issue was irrelevant to the validity of the affidavit, although licensure could be relevant for purposes of credibility. Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 627 S.E.2d 821 (2006).
In a medical malpractice action, given the relevant past experience of the patient's expert as a nurse, and the expert's familiarity with the degree and skills required of nurses and other medical staff in giving intermuscular injections, the expert was sufficiently qualified to render an expert opinion in the case. Allen v. Family Med. Ctr., P.C., 287 Ga. App. 522, 652 S.E.2d 173 (2007).
Trial court did not abuse the court's discretion by dismissing the parents' medical malpractice action because the court correctly found that the purported expert offered by the parents failed to make even one diagnosis of a vascular ring within five years of the date at issue, and had not taught others for at least three of the last five years to diagnose a vascular ring. Spacht v. Troyer, 288 Ga. App. 898, 655 S.E.2d 656 (2007), cert. denied, 129 S. Ct. 726, 172 L. Ed. 2d 726 (2008).
Qualification of affiant.
- For an affiant to constitute "an expert competent to testify" under subsection (a) of O.C.G.A. § 9-11-9.1, the affiant's expertise must include knowledge of the standard of care applicable to the defendant-physician as to at least one of the matters on which the plaintiff's malpractice claim is based. Chandler v. Koenig, 203 Ga. App. 684, 417 S.E.2d 715 (1992).
Toxicologist and pharmacologist, who was not a medical doctor, was competent to give an opinion in a medical malpractice action that a drug prescribed by the defendants caused the plaintiff's miscarriage since the affiant's testimony was not offered to address the applicable standard of care, but to show causation. Sinkfield v. Shi-Han Oh, 229 Ga. App. 883, 495 S.E.2d 94 (1998).
When a couple who filed a medical malpractice case did not show that their experts had actual professional knowledge and experience through active practice or by teaching during at least three of the last five years, the trial court properly held under O.C.G.A. § 9-11-9.1 and former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) that the experts were not qualified to give an opinion and dismissed the case. Akers v. Elsey, 294 Ga. App. 359, 670 S.E.2d 142 (2008).
Trial court did not err in dismissing a medical malpractice action on the ground that an anesthesiologist's affidavit in support of the complaint was insufficient under O.C.G.A. § 9-11-9.1 because the anesthesiologist did not meet the licensing requirement for expert witnesses, former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702); although the anesthesiologist's amended affidavit in support of a medical malpractice complaint indicated that the anesthesiologist held a medical license from Pennsylvania on the date of the alleged negligent act, there was no evidence that the anesthesiologist was practicing in that state. Craigo v. Azizi, 301 Ga. App. 181, 687 S.E.2d 198 (2009).
In a deceased patient's family's action against a hospital arising out of an alleged failure to properly treat decubitus ulcers (pressure sores), the expert affidavit failed to comply with O.C.G.A. §§ 9-11-9.1(a) and24-7-702(c)(2); the expert was a coroner with a specialty in forensic pathology and not engaged in the treatment of decubitus ulcers. Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833, 769 S.E.2d 575 (2015).
After the pre-trial detainee died in an isolation cell, and the plaintiffs filed a civil action alleging that the medical defendants committed malpractice, because the trial court did not abuse the court's discretion in finding that the affidavit of the plaintiffs' expert witness was insufficient to satisfy the statutory qualifications for an expert witness, the plaintiffs failed to meet the threshold requirement of filing an affidavit of an expert competent to testify and their medical malpractice claims failed as a matter of law; thus, the trial court properly granted summary judgment in favor of the medical defendants. McKuhen v. TransformHealthRX, Inc., 338 Ga. App. 354, 790 S.E.2d 122 (2016).
Proper inquiry was whether expert had appropriate level of knowledge.
- O.C.G.A. § 24-7-702(c)(2)(A), governing expert qualifications in medical malpractice cases, was not unconstitutionally vague, did not violate equal protection or separation of powers, did not make irrevocable grants of special privileges and immunities, and was not a special law; however, the trial court erred in rejecting an expert simply because the expert had not performed the specific procedure at issue. The proper consideration was whether the expert's level of knowledge was appropriate. Zarate-Martinez v. Echemendia, 299 Ga. 301, 788 S.E.2d 405 (2016).
Affiant prima facie qualified as expert.
- When the affiant was a licensed, registered nurse with specialized training in enterostomal therapy and was employed by Visiting Nurse Services, Inc. as an employee health nurse when according to the affiant, the affiant's graduate course qualified the affiant as a specialist in wound treatments, and when the affiant's opinion concerned the standard of care administered to the decedent by the defendant nursing home through the home's nursing staff, the affiant was prima facie qualified according to the affiant's training and experience to give the affiant's opinion as an expert. Thurman v. Pruitt Corp., 212 Ga. App. 766, 442 S.E.2d 849 (1994).
Affidavit need not be based on affiant's actual personal knowledge.
- Expert affidavit filed with a complaint pursuant to O.C.G.A. § 9-11-9.1 need not be based upon the affiant's actual personal knowledge. To the contrary, the affiant may base the affiant's expert opinion upon an assumption that the factual allegations of the complaint are true, just as the affiant could base the affiant's expert opinion at trial upon an assumption of the truth of the evidence adduced to support those allegations. Druckman v. Ethridge, 198 Ga. App. 321, 401 S.E.2d 336 (1991); Ulbrich v. Batts, 206 Ga. App. 74, 424 S.E.2d 288 (1992).
Competency of expert providing affidavit.
- Rule governing the competence of a member of one school of medical practice to testify against a member of another school applies not only to testimony presented at trial but also to the affidavit required to be filed with the complaint. Milligan v. Manno, 197 Ga. App. 171, 397 S.E.2d 713 (1990).
Affidavit indicating that witness in an action against an allopathic physician was a licensed osteopathic physician was insufficient since the affidavit contained no evidence that the methods of treatment of the plaintiff's condition were the same so as to bring the witness within the exception to the general rule that rendered the witness incompetent to testify. Milligan v. Manno, 197 Ga. App. 171, 397 S.E.2d 713 (1990).
Mere fact an affiant is an expert in his or her school of knowledge does not necessarily mean the expert is "competent to testify" under subsection (a) of O.C.G.A. § 9-11-9.1. Chandler v. Koenig, 203 Ga. App. 684, 417 S.E.2d 715 (1992).
Exception to the general rule is when there is proof by competent evidence that the methods of treatment are the same despite the difference in the nomenclature of the schools involved, the witness is competent to testify. Chandler v. Koenig, 203 Ga. App. 684, 417 S.E.2d 715 (1992).
In order for an affiant to be "an expert competent to testify," the expert either must be a member of the same professional school as the defendant or, if from a different professional school, must state the particulars how the methods of treatment are the same for the different schools in order to establish that the affiant possesses the expertise to be able to give an opinion regarding the applicable standard of care to which the defendant is held. HCA Health Servs., of Ga., Inc. v. Hampshire, 206 Ga. App. 108, 424 S.E.2d 293 (1992).
Court of Appeals erred by holding that O.C.G.A. § 9-11-9.1 establishes an evidentiary standard regarding the affiant's competency that must be proven at the pleading stage. Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994).
Affidavit from attorney in firm representing plaintiff.
- In a legal malpractice action, the affidavit of an attorney from the firm representing the client in the malpractice action, submitted in support of the malpractice claim, did not conflict with the client's interest, but rather served to advance those interests and, thus, the trial court erred in finding that an inherent conflict rendered the affiant incompetent to provide the affidavit testimony. Mitchell v. Parian, 355 Ga. App. 498, 844 S.E.2d 555 (2020).
Extension of Time
Meaning of "good cause" for extending time for filing.
- "Good cause", within the meaning of subsection (b) (now (e)) of O.C.G.A. § 9-11-9.1, is closer in effect to "proper case" or "meritorious cause" than it is to "excusable neglect." Brake v. Mintz, 193 Ga. App. 662, 388 S.E.2d 715 (1989).
Language of subsection (b) of O.C.G.A. § 9-11-9.1 refers to requests for extensions prior to expiration of the initial 45-day period. Statements in Brake v. Mintz, 193 Ga. App. 662, 288 S.E.2d 715 (1989) and Emory Clinic v. Wyatt, 200 Ga. App. 184, 407 S.E.2d 135 (1991), indicating that a motion to extend the initial 45-day period may be considered under the "good cause" standard when filed after the 45-day period has expired are dicta and will not be followed. Dixon v. Barnes, 214 Ga. App. 7, 446 S.E.2d 774 (1994).
Discretion of court in finding absence of "good cause."
- Court of Appeals will not interfere with the discretion of the trial court in finding the absence of "good cause" within the meaning of subsection (b) (now (e)) of O.C.G.A. § 9-11-9.1 and denying a motion to extend the time for filing an expert's affidavit absent manifest abuse. Brake v. Mintz, 193 Ga. App. 662, 388 S.E.2d 715 (1989).
Broad discretion is vested in the trial court to determine whether "good cause" exists and what constitutes "good cause" within the meaning of subsection (b) (now (e)) of O.C.G.A. § 9-11-9.1. Emory Clinic v. Wyatt, 200 Ga. App. 184, 407 S.E.2d 135 (1991).
"Misinterpretation" of law not "good cause."
- Trial court erred in denying the defendant's motion for summary judgment since the plaintiffs contemporaneously filed affidavit failed to specify any negligent act or omission, and the defendants' responsive pleading adequately raised the insufficiency issue. Cure by amendment, on the grounds that the affidavit was statutorily insufficient due to a "misinterpretation" of the law was prohibited. Cheeley v. Henderson, 261 Ga. 498, 405 S.E.2d 865 (1991); Wright v. Crawford Long Hosp., 205 Ga. App. 653, 423 S.E.2d 12 (1992), cert. denied, 510 U.S. 1118, 114 S. Ct. 1069, 127 L. Ed. 2d 388 (1994); Edwards v. Vanstrom, 206 Ga. App. 21, 424 S.E.2d 326 (1992).
"Good cause" not shown.
- Plaintiff who, subsequent to the plaintiff's treatment by the defendants, had undergone surgery in Germany, failed to show "good cause" for an extension of time to file an affidavit since the record showed that the plaintiff had approximately two years within which to collect and translate the medical records from Germany. Archie v. Scott, 190 Ga. App. 145, 378 S.E.2d 182 (1989).
Plaintiffs failed to demonstrate "good cause" for an extension of time since the plaintiffs' motions asserting inadequate funds and the plaintiffs' expert's departure for the Thanksgiving holiday did not provide a detailed showing of the efforts the plaintiffs had made to obtain the expert's affidavit and the unavoidable reasons for the delay. Brake v. Mintz, 193 Ga. App. 662, 388 S.E.2d 715 (1989).
"Good cause" extension allowed.
- Plaintiff properly invoked the provisions of O.C.G.A. § 9-11-15 to amend the complaint to include the language of subsection (b) of O.C.G.A. § 9-11-9.1, despite amending the complaint 75 days after the complaint was filed, the plaintiff triggered subsection (b) and the automatic 45-day extended filing period; however, even though the plaintiff could not and did not file the affidavit within the 45-day period, as the automatic extended filing period had already expired, yet, since the plaintiff fell within the provisions of subsection (b), the plaintiff was not precluded from seeking a "good cause" extension of time to file the affidavit after the statutory 45-day period had expired, but before the defendants' motions to dismiss had been granted. Peterson v. Columbus Med. Ctr. Found., Inc., 243 Ga. App. 749, 533 S.E.2d 749 (2000).
In order to invoke the protections of subsection (b) of O.C.G.A. § 9-11-9.1, the plaintiff must allege in the complaint that because of time constraints, the expert affidavit could not be prepared.but see Vester v. Mug A Bug Pest Control, Inc., 231 Ga. App. 644, 500 S.E.2d 406 (1998); Anderson v. Navarro, 227 Ga. App. 184, 489 S.E.2d 40 (1997).
Renewal action not barred.
- Trial court did not err in denying the appellants' motion to dismiss because in order to bar the appellees from filing a renewal action, O.C.G.A. § 9-11-9.1(c) required the appellants to file a motion to dismiss at the same time the appellants filed the appellants answer to the original complaint and only raising the matter as a defense in the answer was insufficient to preclude the appellees from renewing the appellees' action pursuant to O.C.G.A. § 9-2-61. Mission Health of Georgia, LLC v. Bagnuolo, 339 Ga. App. 23, 793 S.E.2d 98 (2016).
The 45-day delay provisions of subsection (b) of O.C.G.A. § 9-11-9.1 were not invoked since the applicable statute of limitation would not have expired within ten days of the date of filing of a complaint. Legum v. Crouch, 208 Ga. App. 185, 430 S.E.2d 360 (1993).
While plaintiff, spouse of deceased patient, was allowed to recommence a medical malpractice action under O.C.G.A. § 9-2-61 since the action was filed within six months of dismissal of the spouse's earlier timely filed suit, the applicable statutes of limitation had clearly run when the renewal action was filed and, therefore, the extension provided by O.C.G.A. § 9-11-9.1(b) (now (e)), which applied only when the complaint was filed within 10 days of the expiration of the limitations period, was not available; the trial court properly found that the surviving spouse could not invoke the 45-day extension of O.C.G.A. § 9-11-9.1(b) (now (e)) and properly dismissed the renewal action on the basis of a failure to file an expert affidavit. Fisher v. Coffee Reg'l Med. Ctr., Inc., 268 Ga. App. 657, 602 S.E.2d 135 (2004).
In an action in which a client filed a counterclaim, alleging legal malpractice against a law firm, the client's reliance on O.C.G.A. § 9-11-9.1(b) (now (e)) to extend the time within which the client had to file an expert's affidavit was misplaced as the statute of limitation on the client's counterclaim would not have expired within ten days of the filing of the counterclaim and the client was therefore not entitled to invoke the 45-day extension for filing the affidavit; the phrase "period of limitation" contained in O.C.G.A. § 9-11-9.1(b) (now (e)) plainly refers only to the statute of limitation applicable to a particular action, and does not refer to the 30 days within which responsive pleadings to a complaint must be filed. Landau v. Davis Law Group, P.C., 269 Ga. App. 904, 605 S.E.2d 461 (2004).
Statute of limitations not expired.
- Exception in subsection (b) of O.C.G.A. § 9-11-9.1 was not applicable as the statute of limitations did not run until much more than ten days after the filing of the original complaint. Epps v. Gwinnett County, 231 Ga. App. 664, 499 S.E.2d 657 (1998).
Applicability of 30-day time extension.
- Applicability of the extension of time provided by subsection (c) (now (e)) of O.C.G.A. § 9-11-9.1 is not dependent upon an ultimate judicial determination of whether the complaint alleges an action sounding in simple negligence or whether, in truth, the viable theory of liability is professional malpractice. Nor does it require a defendant to file a skeletal answer which must be amended to address the specifications of negligence as averred in any subsequently filed expert's affidavit. DOT v. Gilmore, 209 Ga. App. 656, 434 S.E.2d 114 (1993).
In an action involving multiple defendants alleging professional malpractice against some, but not all, the 30-day extension for filing an answer applies only to the malpractice defendants. Inasmuch as the requisite affidavit for malpractice claims has no bearing on purely simple negligence claims, a plaintiff's invocation of subsection (b) of O.C.G.A. § 9-11-9.1 would not extend the deadline for answering the complaint for the defendants against whom only simple negligence is alleged. DOT v. Gilmore, 209 Ga. App. 656, 434 S.E.2d 114 (1993).
In a personal injury action, since the plaintiff did not distinguish between professional and nonprofessional defendants in making general allegations of negligence, by invoking the 45-day extension of time to file an expert's affidavit, the plaintiff automatically caused the time period for all the defendants to file an answer to be extended for 30 days from the filing of the affidavit. McGarr v. Gilmore, 220 Ga. App. 286, 469 S.E.2d 720 (1996).
Trial court did not err in denying the defendants' motion to dismiss the patient's medical malpractice action because the patient did not retain counsel more than 90 days prior to the expiration of the period of limitations and, thus, the patient was entitled to invoke the 45-day extension of time to file an expert affidavit. Cruz Pico v. Brady, 345 Ga. App. 859, 815 S.E.2d 190 (2018), cert. denied, No. S18C1365, 2019 Ga. LEXIS 81 (Ga. 2019).
Application of 45-day extension.
- If the two conditions of subsection (b) of O.C.G.A. § 9-11-9.1 - that the period of limitation will expire within ten days of the date of filing and plaintiff has alleged that an affidavit could not be prepared because of time constraints - are met, it does not matter whether the trial court believes or disbelieves the plaintiff's allegation that time constraints prevented compliance with the contemporaneous filing requirement; the plaintiff is automatically given 45 extra days to come up with the necessary affidavit. Works v. Aupont, 219 Ga. App. 577, 465 S.E.2d 717 (1995).
In a medical malpractice action, the trial court erred by dismissing the complaint on the basis that the patient failed to fall within the exception of O.C.G.A. § 9-11-9.1(b), because the patient filed the pro-se complaint within 10 days of the expiration of the statute of limitations and, although the patient did not aver in the complaint the language of § 9-11-9.1(b), within 45 days of filing the patient's attorney filed a first amended complaint and the required expert affidavit. Siska v. McNeil, 346 Ga. App. 429, 816 S.E.2d 423 (2018).
Affidavit filed with complaint in renewal action.
- In a professional malpractice action against an extermination company, since the plaintiffs voluntarily dismissed the plaintiffs' initial complaint which did not contain an expert's affidavit, filing of an amended complaint with an affidavit was permissible since the renewal action was filed within the limitations period. Moritz v. Orkin Exterminating Co., 215 Ga. App. 255, 450 S.E.2d 233 (1994); Orkin Exterminating Co. v. Carder, 215 Ga. App. 257, 450 S.E.2d 217 (1994).
Because a health care provider simply raised a patient's failure to comply with O.C.G.A. § 9-11-9.1(a) as a defense in the provider's answer rather than in a contemporaneous motion to dismiss, as required by § 9-11-9.1(c), the patient was not precluded from renewing a negligence action pursuant to O.C.G.A. § 9-2-61. Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 696 S.E.2d 640 (2010).
Grace period eliminated.
- Current version of O.C.G.A. § 9-11-9.1 eliminated the 45-day grace period for filing an expert affidavit as well as the possibility of additional extensions for "good cause" shown; a patient was not entitled to obtain additional time to file an expert affidavit in a malpractice case filed after the effective date of the current version of O.C.G.A. § 9-11-9.1. Scott v. Martin, 280 Ga. App. 311, 633 S.E.2d 665 (2006).
Failure to obtain extension.
- Dismissal of a patient's medical malpractice case was affirmed since, on the 45th day after filing the patient's complaint, the patient moved the trial court to extend the 45-day period to file an expert affidavit, and on the 59th day after filing, the patient filed an expert affidavit without obtaining any ruling on the patient's motion to extend the filing period. It was the patient's duty to obtain a ruling on the patient's motion to extend the period, and the failure to do so before the motion to dismiss was granted was a waiver of the motion. Lowery v. Atlanta Heart Assocs., P.C., 266 Ga. App. 402, 597 S.E.2d 494 (2004).
Trial court's discretion to extend time for filing amended affidavits.
- O.C.G.A. § 9-11-9.1(e) expressly allowed the trial court, in the court's discretion, to extend the time for filing amendments to defective affidavits and granted the court the authority to consider an untimely filed amended or supplemental affidavit. Thus, in a medical malpractice case, the trial court erred by finding that in the absence of a showing of excusable neglect under O.C.G.A. § 9-11-6(b), the court had no discretion to allow a patient to file a late-filed amended affidavit. Schofill v. Phoebe Putney Health Sys., Inc., 315 Ga. App. 817, 728 S.E.2d 331 (2012).
Application to Professions
1. General Principles
"Professional."
- Legislature intended for the term "professional" as used in O.C.G.A. § 9-11-9.1 to be defined by O.C.G.A §§ 14-7-2(2),14-10-2(2), and43-1-24. Gillis v. Goodgame, 262 Ga. 117, 414 S.E.2d 197 (1992).
O.C.G.A. § 9-11-9.1 applies only to those licensed professions regulated by state examining boards when licensure is predicated upon the successful completion of the specialized schooling or training necessary to obtain the expertise to practice that profession. Harrell v. Lusk, 263 Ga. 895, 439 S.E.2d 896 (1994).
Affidavit requirement of O.C.G.A. § 9-11-9.1 did not apply to any acts committed by a lab technician because the technician was not recognized as a "professional" under Georgia law, O.C.G.A. § 14-7-2. Pattman v. Mann, 307 Ga. App. 413, 701 S.E.2d 232 (2010).
Affidavit required despite claim asserted to be one for breach of contract when really was for negligence.
- Regardless of nomenclature, a claim asserted by a plaintiff that is predicated on allegations that the defendant-professional rendered negligent professional services falls within the ambit of O.C.G.A. § 9-11-9.1(a). Hobbs v. Great Expressions Dental Centers of Georgia, P.C., 337 Ga. App. 248, 786 S.E.2d 897 (2016).
2. Engineering Profession
A. In General
Third-party complaint against an architectural firm, which was being sued in a wrongful death action for alleged faulty design and construction of a heating system, was subject to the affidavit filing requirement of O.C.G.A. § 9-11-9.1. Housing Auth. v. Gilpin & Bazemore/Architects & Planners, Inc., 191 Ga. App. 400, 381 S.E.2d 550, appeal dismissed, 259 Ga. 435, 383 S.E.2d 867 (1989).
Engineers.
- O.C.G.A. § 9-11-9.1 applies to professional engineers that are licensed by the State of Georgia. Goolsby v. Gain Techs., Inc., F.3d (11th Cir. Jan. 21, 2010)(Unpublished).
Engineering profession.
- Requirements of O.C.G.A. § 9-11-9.1(a) apply to the engineering profession. Kneip v. Southern Eng'g Co., 260 Ga. 409, 395 S.E.2d 809 (1990).
Dismissal of a claim for engineering malpractice for failure to file the required affidavit would have been unfair since cases applying O.C.G.A. § 9-11-9.1 to nonmedical malpractice actions had not been decided until after the complaint was filed. Kneip v. Southern Eng'g Co., 260 Ga. 409, 395 S.E.2d 809 (1990).
While the design of a bridge or guardrail must necessarily involve professional (engineering) services, the installation, repair, and maintenance of those structures would not necessarily require the exercise of professional skill and judgment. Adams v. Coweta County, 208 Ga. App. 334, 430 S.E.2d 599 (1993).
In a wrongful death action against the Department of Transportation (DOT), the trial court erred in dismissing as insufficient DOT's defense based on plaintiff's failure to file an expert affidavit in support of a claim involving a question of professional negligence by highway engineers. DOT v. Taunton, 217 Ga. App. 232, 457 S.E.2d 570 (1995).
Trial court erred in dismissing the plaintiff's complaint on the ground that the plaintiff's expert's affidavit was insufficient to meet the requirements of O.C.G.A. § 9-11-9.1 since the expert supplemented the affidavit with testimony adequate to aver that DOT failed to comply substantially with engineering standards applicable at the time an intersection was planned and designed as required by O.C.G.A. § 50-21-24(10). Lennen v. DOT, 239 Ga. App. 729, 521 S.E.2d 885 (1999).
In an action against engineers for professional malpractice, the plaintiff was required to file an expert's affidavit with the plaintiff's complaint, and the proper consequence for the plaintiff's failure to do so was dismissal of the complaint with prejudice. Jordan, Jones & Goulding, Inc. v. Balfour Beatty Constr., Inc., 246 Ga. App. 93, 539 S.E.2d 828 (2000).
Trial court properly granted summary judgment to a defendant engineer on a plaintiff's professional negligence claim pursuant to O.C.G.A. § 9-11-9.1 since the plaintiff's complaint showed on the complaint's face that the complaint involved an allegation of professional negligence that required an expert affidavit under § 9-11-9.1(a) and (d)(21), and the plaintiff failed to file such an affidavit with the complaint; the plaintiff's pro se status did not exempt the plaintiff from complying with the affidavit requirement of § 9-11-9.1. Dockens v. Runkle Consulting, Inc., 285 Ga. App. 896, 648 S.E.2d 80 (2007), cert. denied, 2007 Ga. LEXIS 668 (2007).
O.C.G.A. § 9-11-9.1 can be invoked by an engineering firm named as a party defendant. Southern Eng'g Co. v. Central Ga. Elec. Membership Corp., 193 Ga. App. 878, 389 S.E.2d 380 (1989), rev'd on other grounds, 260 Ga. 409, 395 S.E.2d 809 (1990).
B. Roads
Claim against county as to bridge guardrail.
- Although a county is not a professional and the affidavit requirement of O.C.G.A. § 9-11-9.1 does not automatically apply to any claim asserted against the county, a complaint against the county for negligent design, installation, repair, and maintenance of the guardrails on a road bridge was the performance of professional services and required an affidavit. Adams v. Coweta County, 208 Ga. App. 334, 430 S.E.2d 599 (1993).
Designing of roads.
- Since designing roads requires "engineering services" which have been described as the performance of professional services within the purview of O.C.G.A. § 9-11-9.1 by the Supreme Court, failure to contemporaneously file an expert affidavit with the complaint in an action for negligent repair, maintenance, and design of the road was fatal. Jackson v. DOT, 201 Ga. App. 863, 412 S.E.2d 847 (1991), cert. denied, 201 Ga. App. 904, 412 S.E.2d 847 (1992); DOT v. Mikell, 229 Ga. App. 54, 493 S.E.2d 219 (1997).
Subsection (a) does not apply to DOT.
- Intent of subsection (a) of O.C.G.A. § 9-11-9.1 as amended in 1997 is that the expert affidavit requirement in a professional malpractice case applies only to an employer that is a licensed health care facility in a suit when that employer's liability is premised on the action or inaction of a licensed health care professional listed in former subsection (f); because the DOT is not a licensed health care facility, it is not an employer to which subsection (a) applies. Minnix v. DOT, 272 Ga. 566, 533 S.E.2d 75 (2000), reversing Minnix v. DOT, 240 Ga. App. 524, 525 S.E.2d 704 (1999).
Repair and maintenance of roads.
- Claims against the Georgia Department of Transportation for ordinary negligence in the repair and maintenance of a roadway did not require the affidavit of an expert pursuant to O.C.G.A. § 9-11-9.1. Drawdy v. DOT, 228 Ga. App. 338, 491 S.E.2d 521 (1997).
Portions of a complaint alleging various negligent failures to comply with the standards of the Manual On Uniform Traffic Control Devices (MUTCD) in the placement of the traffic control devices by the DOT's contractor required an expert affidavit since those allegations fell within the advisory or permissive categories of the MUTCD. DOT v. Cushway, 240 Ga. App. 464, 523 S.E.2d 340 (1999).
3. Legal Profession
Professional malpractice pre-requisite to affidavit requirement.
- Since the complaint did not call into question professional standards of care applicable to attorneys, but rather raised questions concerning the existence of a legal services contract, whether any such contract was breached, and whether the defendant duped the plaintiff into purchasing advice for a false promise, the affidavit requirements of O.C.G.A. § 9-11-9.1 were not triggered. Peacock v. Beall, 223 Ga. App. 465, 477 S.E.2d 883 (1996).
Legal malpractice action supported by expert's affidavit.
- In an action by a spouse against a divorce attorney for legal malpractice, an expert's affidavit setting forth the attorney's negligent omission from the settlement agreement of the spouse's right to military pension benefits was sufficient to demonstrate that the spouse's claim was not frivolous. Hutchinson v. Divorce & Custody Law Ctr. of Arline Kerman & Assocs., 215 Ga. App. 25, 449 S.E.2d 866 (1994).
Application to professional negligence claims only and not attorney retainer agreement.
- In a former client's suit for fraud, breach of contract, and other claims against a former attorney for the attorney's failure to refund a retainer after being fired, the trial court only partially erred by denying the attorney's motion to dismiss the complaint for failure to comply with the expert affidavit requirement of O.C.G.A. § 9-11-9.1 with regard to the former client's breach of contract claims as § 9-11-9.1 applies to professional negligence claims only and, on the face of the complaint, the appellate court was unable to determine whether the former client's breach of contract claim against the attorney involved the use of the attorney's professional judgment and skill. The appellate court noted that any breach of contract claim not involving the attorney's professional judgment and skill remained pending in the trial court. Nash v. Studdard, 294 Ga. App. 845, 670 S.E.2d 508 (2008).
Affidavit not required for fraud.
- In action against an attorney for breach of contract, breach of fiduciary duty, fraud, and professional malpractice, the trial court properly denied the defendant's motion to dismiss the fraud count for failure to file an affidavit, but properly granted the motion as to the other counts since an affidavit was required to the extent that the counts sounded in malpractice. Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 451 S.E.2d 66 (1994).
In a client's fraud claim against an attorney, neither appellate opinions that the client could pursue that claim without filing the expert affidavit required under O.C.G.A. § 9-11-9.1(b) (now (e)) in professional malpractice claims, nor the trial court's subsequent denial of the attorney's summary judgment motion, asserting a failure to show a false representation or detrimental reliance, established the law of the case precluding the trial court from subsequently granting the attorney's summary judgment motion based on the client's failure to prove damages. Hopkinson v. Labovitz, 263 Ga. App. 702, 589 S.E.2d 255 (2003).
Negligent exercise of legal judgment is not simple negligence.
- Compliance with O.C.G.A. § 9-11-9.1 was required since the various acts and omissions averred in the complaint attempting to establish negligence on the part of an attorney each involved a situation requiring the exercise of legal judgment. Therefore, the complaint alleged professional, rather than simple, negligence. Richmond Leasing Co. v. Cooper, Cooper, Maioriello & Stalnaker, 207 Ga. App. 623, 428 S.E.2d 603 (1993).
Legal malpractice action properly dismissed for failure to file affidavit.
- When the plaintiff, acting pro se, sued the defendant attorney for alleged legal malpractice arising from the defendant's representation of the plaintiff on certain criminal charges, and contemporaneously with the filing of the defendant's answer, the defendant moved to dismiss the complaint on the ground that it was not accompanied by the supporting affidavit of an expert as required by subsection (a) of O.C.G.A. § 9-11-9.1, the trial court did not err in granting the defendant's motion to dismiss. Frazier v. Merritt, 190 Ga. App. 832, 380 S.E.2d 495 (1989).
Plaintiff's claims against attorneys for premature settlement of a medical malpractice case were properly dismissed for failure to comply with subsection (a) of O.C.G.A. § 9-11-9.1. Coleman v. Hicks, 209 Ga. App. 467, 433 S.E.2d 621 (1993).
To the extent an executor's cross-claim for contribution and indemnity against an attorney was based upon acts and omissions by the attorney, in the attorney's capacity as the executor's legal representative in a legal proceeding, the claim was properly dismissed for failure to file an expert affidavit. Crawford v. Johnson, 227 Ga. App. 548, 489 S.E.2d 552 (1997).
Attorney representing a corporation in a bankruptcy proceeding was necessarily exercising professional or legal judgment and a suit against the attorney for actions or omissions in that proceeding is an action for professional malpractice requiring an expert affidavit. Mendoza v. Pennington, 239 Ga. App. 300, 519 S.E.2d 715 (1999), cert. denied, 529 U.S. 1042, 120 S. Ct. 1541, 146 L. Ed. 2d 354 (2000).
Plaintiff's claim of professional malpractice was properly dismissed because the plaintiff failed to file an expert affidavit with the complaint and since the defendant raised this defense in the defendant's answer dismissal of the claim was mandated. Denson v. Maloy, 239 Ga. App. 778, 521 S.E.2d 666 (1999).
Expert affidavit required on title search issue.
- Action against law firm involving deficiency in a title search assigned by the firm to a nonlawyer required an expert affidavit. Centrust Mtg. Corp. v. Smith & Jenkins, 220 Ga. App. 394, 469 S.E.2d 466 (1996).
4. Medical Profession
Impact rule does not apply to medical malpractice actions.
- Policy concerns traditionally given for the impact rule and denying recovery for emotional distress unrelated to physical injuries are not present in medical malpractice cases because such cases require a physician-patient relationship between the defendant and the plaintiff; consequently, there is no question regarding the emotional impact of the defendant's alleged negligence on third parties or bystanders, nor is there concern about a "flood of litigation" arising from such negligence, and the concern about avoiding fraudulent or frivolous lawsuits is already addressed by the strict pleading requirements of O.C.G.A. § 9-11-9.1, the purpose of which is to reduce the number of frivolous malpractice suits filed. Bruscato v. O'Brien, 307 Ga. App. 452, 705 S.E.2d 275 (2010).
Claim of abandonment brought by the plaintiff against a podiatrist required the filing of an expert affidavit. Bradford v. Rossi, 249 Ga. App. 325, 548 S.E.2d 70 (2001).
Pharmacy.
- Although a pharmacy is defined as a profession in O.C.G.A. § 26-4-2(16)(A), the State Board of Pharmacy, which is charged with regulating and licensing pharmacists, was created pursuant to O.C.G.A. Art. 2, Ch. 4, T. 26. Pharmacy is not a profession to which the affidavit requirements of O.C.G.A. § 9-11-9.1 apply. Harrell v. Lusk, 208 Ga. App. 358, 430 S.E.2d 653 (1993), aff'd, 263 Ga. 895, 439 S.E.2d 896 (1994).
Licensed pharmacist.
- When a vendor of drugs or medicines is a licensed pharmacist and is sued on the basis of allegations that the pharmacist negligently dispensed the wrong drug in filling a medical prescription, the claim against the pharmacist clearly is for professional malpractice, and an affidavit is required to accompany the complaint. Sparks v. Kroger Co., 200 Ga. App. 135, 407 S.E.2d 105 (1991).
Professional negligence action against a pharmacist was subject to the requirements of O.C.G.A. § 9-11-9.1. Harrell v. Lusk, 263 Ga. 895, 439 S.E.2d 896 (1994).
Drug distributor.
- In a professional negligence action against a distributor of an anti-psychotic drug, failure to attach an expert affidavit required dismissal of the claims. Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547, 487 S.E.2d 70 (1997).
Physical therapists are "professionals" within the intent of O.C.G.A. § 9-11-9.1. Hodo v. General Hosps., 211 Ga. App. 6, 438 S.E.2d 378 (1993).
Affidavit was required in an action against a physical therapy company based on the company's negligent hiring, supervision, and training of a physical trainer in the company's employ. Georgia Physical Therapy, Inc. v. McCullough, 219 Ga. App. 744, 466 S.E.2d 635 (1995).
Affidavit of chiropractor cannot be used against physical therapist.
- Trial court erred by finding that the opinion of the patient's expert satisfied O.C.G.A. § 9-11-9.1 and former O.C.G.A. § 24-9-67.1(c) (see now O.C.G.A. § 24-7-702) because despite the expert testimony that, as allowed by the expert's chiropractic license, the expert had practiced physical therapy for a number of years, chiropractic medicine and physical therapy were not the same professions. Bacon County Hosp. & Health Sys. v. Whitley, 319 Ga. App. 545, 737 S.E.2d 328 (2013).
Psychologists.
- Expert's affidavit stating that the defendant's disclosure of confidential information was a deviation from the standard of care of a psychologist was adequate; it was not insufficient on the basis that the affidavit stated a violation of an ethical standard which, standing alone, cannot serve as a legal basis for a malpractice action. Bala v. Powers Ferry Psychological Assocs., 225 Ga. App. 843, 491 S.E.2d 380 (1997).
Failure to replace disposable parts in medical instrument, as required for the instrument's safe performance, created an issue of simple negligence by hospital employees for which the hospital could be liable. Because professional skill and judgment were not involved, an affidavit under O.C.G.A. § 9-11-9.1 was not necessary. Lamb v. Candler Gen. Hosp., 262 Ga. 70, 413 S.E.2d 720 (1992).
Radiological physicist.
- When the defendant's job as a radiological physicist involved calibrating the cobalt machine which is used to deliver radiation to the patient, and performing quality control services on any machines used in this therapy, and that the treating physician determines how much radiation the patient needs, and the defendant then calibrates the machine to deliver this amount, the defendant was not practicing medicine within the meaning of O.C.G.A. § 43-34-20(3) and, therefore the affidavit requirements of O.C.G.A. § 9-11-9.1 did not apply to radiological physicists. Gillis v. Goodgame, 262 Ga. 117, 414 S.E.2d 197 (1992).
Affidavit not required for "technician" who drew blood.
- In a patient's claim against a medical clinic alleging that a technician injured the patient in drawing blood without the patient's permission, the trial court erred in granting the clinic's motion to dismiss for failure to file an expert affidavit under O.C.G.A. § 9-11-9.1, because the technician was not a licensed professional for whom an affidavit was required. Additionally, the patient alleged an unlawful touching, which was the intentional tort of battery, and an affidavit was not required for intentional torts. Zephaniah v. Ga. Clinic, P.C., 350 Ga. App. 408, 829 S.E.2d 448 (2019).
University professor not expert in medical case.
- In an action against a physician involving a procedure in which a "ken nail" biomechanical device was implanted in the plaintiff's hip, a tenured professor of applied biomechanics who was not a licensed medical doctor was not competent to testify as an expert in the case since the professor's credentials did not include the ability, education, training, or experience to perform the necessary surgery or prescribe any care to a patient with a biomechanical device. Riggins v. Wyatt, 215 Ga. App. 854, 452 S.E.2d 577 (1994).
In action for injuries against hospital and doctor, since the plaintiff's affidavit setting forth negligence of the doctor did not allege any negligence on the part of the hospital, the hospital was not entitled to dismissal of ordinary negligence claims; the claim of negligence in the complaint against the hospital's "staff" was not one against a "professional" or involving "professional malpractice." Greene County Hosp. Auth. v. Turner, 205 Ga. App. 213, 421 S.E.2d 715, cert. denied, 205 Ga. App. 900, 421 S.E.2d 715 (1992).
Trial court properly concluded original and renewal complaints satisfied Georgia's forgiving notice-pleading requirements with respect to vicarious liability claim against the medical center and the doctor for negligence because the complaints specifically identified the doctor as an agent or employee of the center acting within the scope of employment or agency, such that the doctor's acts and omissions were imputed to the center, which was vicariously liable for the resulting injuries and harm to plaintiff. Trabue v. Atlanta Women's Specialists, LLC, 349 Ga. App. 223, 825 S.E.2d 586 (2019).
Expert affidavit regarding negligent credentialing by a hospital was not automatically necessary under O.C.G.A. § 9-11-9.1(a) because a hospital was not classified as a "professional"; the affidavit requirement applied to tort claims against a hospital when grounded upon acts or omissions requiring skill and judgment by professionals listed in the statute. In this case, the record did not reflect who had performed the credentialing function. Houston Hospitals, Inc. v. Reeves, Ga. App. , 846 S.E.2d 219 (2020).
Respondeat superior liability of hospital.
- To the extent that a complaint avers claims of hospital liability, based on the doctrine of respondeat superior, arising from acts or omissions constituting malpractice by doctors, registered professional nurses, or other "professionals," as recognized by the appropriate statutes, an affidavit is required. To the extent that a complaint avers claims based on the acts or omissions of agents or staff employees who are not "established" by the hospital as qualifying as professionals, no supporting affidavit would be required and those claims would not be dismissed or summary judgment granted for want of an affidavit. Legum v. Crouch, 208 Ga. App. 185, 430 S.E.2d 360 (1993).
Medical malpractice complaint, which included an expert affidavit pursuant to O.C.G.A. § 9-11-9.1, was not subject to dismissal against various nurses although the expert did not assert any expertise in the area of nursing care as the nurses failed to raise an objection to that aspect of the affidavit's sufficiency; further, the fact that there was no negligence asserted against medical entities was not fatal and did not require dismissal as negligence was opined against the employees, and the employers were sued under a respondeat superior theory. Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 627 S.E.2d 821 (2006).
Affidavit requirement inapplicable to ordinary negligence claim.
- Requirement for an expert affidavit was inapplicable to a claim that the hospital provided inferior services and facilities; the hospital may be liable in ordinary negligence for furnishing defective equipment. HCA Health Servs., of Ga., Inc. v. Hampshire, 206 Ga. App. 108, 424 S.E.2d 293 (1992).
Court was without authority to say O.C.G.A. § 9-11-9.1 did not apply and the plaintiff should not be required to file an expert affidavit if negligence was shown to be clear and palpable. Hopkinson v. Labovitz, 231 Ga. App. 557, 499 S.E.2d 338 (1998).
Action based on an attorney's negligent filing of an erroneous deed did not contain allegations of negligence which would require an expert affidavit. Bailey v. Joyner, 229 Ga. App. 832, 495 S.E.2d 45 (1998).
Doctor and medical practice's failure to object, pursuant to O.C.G.A. § 9-11-9.1, with specificity to a nurse's affidavit that a plaintiff submitted in support of the plaintiff's medical malpractice claim did not waive the issue of the nurse's competency as an expert in support of the patient's ordinary negligence claim. Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga. App. 820, 600 S.E.2d 778 (2004).
Trial judge did not err in denying a motion to dismiss a damages complaint filed against two medical clinics on grounds that the suing party failed to attach an expert affidavit as required by O.C.G.A. § 9-11-9.1(a) as the appeals court agreed that it was unclear from the face of the complaint whether the suing party was alleging either professional or simple negligence; hence, the suing party was entitled to pursue a simple negligence claim without an expert affidavit. Atlanta Women's Health Group, P.C. v. Clemons, 287 Ga. App. 426, 651 S.E.2d 762 (2007).
To the extent a patient's medical malpractice complaint could be construed to state a claim based on ordinary negligence, the trial court erred in granting a healthcare provider's motion to dismiss due to the patient's failure to file a malpractice affidavit pursuant to O.C.G.A. § 9-11-9.1 because, at least in part, the provider's alleged liability did not turn on a medical question but rather on a technician ignoring the patient's warning that the patient was going to fall off a treadmill. OKelley v. Atlanta Heart Assocs., P.C., 316 Ga. App. 218, 728 S.E.2d 313 (2012).
Trial court did not err in denying a doctor's motion to dismiss an administrator's professional negligence claim based on being barred due to the failure to file an expert affidavit with the original complaint because the original complaint raised only a claim of ordinary negligence; thus, the O.C.G.A. § 9-11-9.1 affidavit requirement was not implicated at the time that the original complaint was filed. Jensen v. Engler, 317 Ga. App. 879, 733 S.E.2d 52 (2012).
Trial court erred when the court granted a family medical center's motion to dismiss for failure to file an expert affidavit as the patient's claim against the center for failing to verify the prescription after the center was contacted by the pharmacy was not one of professional negligence for which an affidavit was required. Carter v. Cornwell, 338 Ga. App. 662, 791 S.E.2d 447 (2016).
Trial court erred in granting summary judgment to the hospital based on a failure to file an expert affidavit because the patient's claim was for ordinary, not professional, negligence as the record did not show that only a person with medical training could transport the patient in the wheelchair or that transporting the patient involved the exercise of medical judgment. Byrom v. Douglas Hosp., Inc., 338 Ga. App. 768, 792 S.E.2d 404 (2016).
Defective equipment supplied by hospital.
- Because the patient's complaint alleged negligence against the hospital for supplying defective equipment for use in treating the hospital's patients, the case was not one against a professional or one involving professional malpractice, no expert affidavit was required, and the hospital's motion to dismiss was improperly granted. Ambrose v. St. Joseph's Hospital of Atlanta, Inc., 325 Ga. App. 557, 754 S.E.2d 135 (2014).
Because the patient's complaint alleged that the hospital breached the hospital's duty of ordinary care by providing unsafe equipment for use in treating the patient, the patient's complaint alleged simple negligence, and the hospital's motion to dismiss was improperly granted. Ambrose v. St. Joseph's Hospital of Atlanta, Inc., 325 Ga. App. 557, 754 S.E.2d 135 (2014).
No specific application yet expert testimony required in medical fraud complaint.
- Although O.C.G.A. § 9-11-9.1 does not apply and a plaintiff is not required to attach an expert affidavit to a medical fraud complaint, that does not mean that expert testimony will not be necessary for a jury to find in the plaintiff's favor as expert evidence is required when a medical question involving truly specialized medical knowledge, rather than the sort of medical knowledge that is within common understanding and experience, is needed. Johnson v. Johnson, 323 Ga. App. 836, 747 S.E.2d 518 (2013).
Battery claim does not require affidavit despite medical setting.
- Patient alleging battery based on claim that surgeon punctured her duodenum during tubal ligation procedure was not required to file an expert's affidavit. Newton v. Porter, 206 Ga. App. 19, 424 S.E.2d 323 (1992).
Claim for battery is not an allegation of professional negligence and does not require an expert affidavit. Upson County Hosp., Inc. v. Head, 246 Ga. App. 386, 540 S.E.2d 626 (2000).
Doctor's alleged installation of a prosthetic patella in a backward position contrary to the instruction and design of the device constituted, if proven, an unconsented battery on the patient by the doctor and, thus, the patient was not required to file an expert's affidavit with the patient's complaint since a battery by a doctor did not come under O.C.G.A. § 9-11-9.1 and did not require an expert's affidavit. Sood v. Smeigh, 259 Ga. App. 490, 578 S.E.2d 158 (2003).
Affidavit not required absent "medical question."
- In a negligence action against a physician and the physician's office staff, the affidavit of a medical expert was not required since the defendants' alleged liability did not turn on a "medical question," and a jury would be capable of determining without the help of expert evidence whether the physician's medical assistant exercised due care. Brown v. Durden, 195 Ga. App. 340, 393 S.E.2d 450 (1990).
Failure to attach medical records.
- In a medical malpractice action, because it was undisputed that the record on appeal failed to include the medical records on which the parents' expert's conclusions were based, the parents failed to comply with O.C.G.A. § 9-11-56(e), hence, the trial court did not err when the court granted summary judgment against the parents on this basis. Conley v. Children's Healthcare of Atlanta, Inc., 279 Ga. App. 792, 632 S.E.2d 409 (2006).
Physician's affidavit must be signed in notary's presence.
- Affidavit that was not signed by the physician in the presence of a notary was not valid. Phoebe Putney Mem. Hosp. v. Skipper, 226 Ga. App. 585, 487 S.E.2d 1 (1997).
O.C.G.A. § 9-11-9.1 was intended to eliminate frivolous actions; however, since the patient had clear evidence of simple negligence and demonstrated the patient's ability to prove such simple negligence, that statutory provision would not serve its purpose if it were applied to the patient's claim. Although O.C.G.A. § 9-11-9.1 requires an expert's affidavit be submitted in a case involving alleged professional malpractice, the trial court did not err in denying the doctor's motion to dismiss the patient's action for attaching an expert's affidavit that was arguably invalid because the affidavit was unsworn and unnotarized as the patient's complaint alleging that the doctor committed simple negligence in performing the mechanical act of reassembly of a prosthetic patella did not involve professional skill and judgment and, thus, did not require the submission of an expert's affidavit. Sood v. Smeigh, 259 Ga. App. 490, 578 S.E.2d 158 (2003).
Extension of time to file physician's affidavit.
- When plaintiffs' treating physician would not execute an expert witness affidavit, and this was not found out until two days before the filing deadline, the trial court's grant of an extension of time to file an affidavit was not an abuse of discretion. Mem'l Hosp. of Adel, Inc. v. Dunn, 251 Ga. App. 399, 554 S.E.2d 548 (2001).
Medical malpractice expert's affidavit.
- In a medical malpractice action, the trial court properly denied a neurosurgeon's motion to dismiss the action on grounds that the affidavit required under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) was from an orthopedist and not a fellow neurosurgeon, and was thus insufficient as a matter of law to support the husband and wife's medical malpractice complaint as the statutory area of practice or specialty in which the opinion was to be given was dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff's injury. Abramson v. Williams, 281 Ga. App. 617, 636 S.E.2d 765 (2006), cert. denied, No. S07C0226, 2007 Ga. LEXIS 91 (2007).
Expert's affidavit met the requirement of O.C.G.A. § 9-11-9.1(a)(3), as the affidavit set forth acts and omissions by the physician that, in the expert's opinion, breached the standard of care by failing to find that the patient was experiencing a serious cardiac condition requiring immediate intervention and not merely an anxiety attack. Graham v. Reynolds, 343 Ga. App. 274, 807 S.E.2d 39 (2017), cert. denied, No. S18C0460, 2018 Ga. LEXIS 310 (Ga. 2018).
Medical expert affidavit insufficient to create jury questions.
- Opinion in a O.C.G.A. § 9-11-9.1 expert affidavit that an emergency room physician's failure to treat a patient's leg fracture was below the standard of care and grossly negligent was insufficient to create a jury question. In view of the physician's affidavit, stating that the physician sought no orthopedic consult because a radiologist opined that the x-rays showed no serious fracture, the patient could not prove by clear and convincing evidence that the physician acted with gross negligence as required under O.C.G.A. § 51-1-29.5(c). Pottinger v. Smith, 293 Ga. App. 626, 667 S.E.2d 659 (2008).
In a medical malpractice action alleging that a doctor was negligent and that a facility was vicariously liable for the doctor's negligence, the doctor's motion for summary judgment was properly granted because, in the expert affidavit of the patient's expert witness, the patient's expert conceded that the doctor did not violate the standard of care during the procedure or in providing aftercare to the patient. Dietzen v. Radiology Assocs. of Atlanta, 354 Ga. App. 279, 840 S.E.2d 653 (2020).
Jury to determine doctor's credibility.
- In a medical malpractice action, the trial court erred in granting summary judgment to a doctor and a pacemaker clinic because it was for a jury, not the trial court, to resolve a conflict created by an expert's contradictory testimony in an initial affidavit pursuant to O.C.G.A. § 9-11-9.1 and a subsequent deposition, and to determine the expert's credibility. Patterson v. Bates, 295 Ga. App. 141, 671 S.E.2d 195 (2008), cert. denied, No. S09C0628, No. S09C0658, 2009 Ga. LEXIS 224, 227 (Ga. 2009).
Affidavit of physician against physical therapist.
- Affidavit of an orthopedic surgeon showing the surgeon's knowledge of the professional standards of physical therapists from the surgeon's practice of medicine with their assistance was sufficient to support a medical malpractice complaint against a physical therapist. Lee v. Visiting Nurse Health Sys., 223 Ga. App. 305, 477 S.E.2d 445 (1996).
Affidavit of doctor proper against nurse.
- Affidavit of plaintiff's expert, a doctor, was competent regarding a nurse because the expert was familiar with the standard of care acceptable to the medical profession generally. Tye v. Wilson, 208 Ga. App. 253, 430 S.E.2d 129 (1993).
Nurse's affidavit.
- Expert affidavit of a nurse is necessary to support a claim for professional negligence by a nurse only when the alleged act or omission by the nurse requires the exercise of professional nursing skill and judgment. To assess whether or not a co-worker had a propensity to commit the alleged sexual assault was not a matter within the professional nursing skill and judgment of the nurse, the defendant. Bunn-Penn v. Southern Regional Medical Corp., 227 Ga. App. 291, 488 S.E.2d 747 (1997).
Because a doctor and the doctor's practice did not object with specificity to a nurse's affidavit that a patient submitted in support of the patient's medical malpractice complaint, they were not entitled to dismissal for failure to state a claim on account of the patient's alleged failure to comply with O.C.G.A. § 9-11-9.1. Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga. App. 820, 600 S.E.2d 778 (2004).
Nurses.
- Plaintiff's complaint that hospital nurses who were assisting the plaintiff knew or should have known that the plaintiff was subject to falling and failed to exercise proper care to prevent the plaintiff falling sounded in professional negligence; thus, the plaintiff's action was subject to the expert affidavit requirement. Holloway v. Northside Hosp., 230 Ga. App. 371, 496 S.E.2d 510 (1998).
Trial court erred in denying a hospital's motion to dismiss a medical malpractice complaint in a simple negligence action after the complainant failed to attach an expert witness affidavit pursuant to O.C.G.A. § 9-11-9.1, as a nurse's administration of medication to a patient, which was the subject matter of the suit, involved professional skill and judgment to comply with a standard within the professional's area of expertise. Grady Gen. Hosp. v. King, 288 Ga. App. 101, 653 S.E.2d 367 (2007).
Even if a patient clearly revoked the patient's consent to an intravenous antibiotic, the patient failed to show that it was medically feasible for a nurse to desist in the treatment without the cessation being detrimental; consequently, without an O.C.G.A. § 9-11-9.1 expert affidavit, the trial court properly dismissed the patient's complaint. King v. Dodge County Hosp. Auth., 274 Ga. App. 44, 616 S.E.2d 835 (2005).
Complaint alleged that a nurse committed malpractice by not accurately triaging a patient. As the patient's expert nurse had ongoing practical experience in patient triage, and years of practical and teaching experience in supervising patient care, the expert's affidavit filed under O.C.G.A. § 9-11-9.1 was legally sufficient even though the expert had not performed emergency room triage. Houston v. Phoebe Putney Mem. Hosp., Inc., 295 Ga. App. 674, 673 S.E.2d 54 (2009).
In a medical malpractice case dealing with a child's permanent disabilities, the hospital's motion for a new trial was improperly granted on the ground that a certified nurse midwife (CNM) could not testify as to the standard of care exercised by the registered professional nurses (RN) because the CNM was a member of the same profession as the hospitals RNs because the Georgia Registered Professional Nurse Practice Act, O.C.G.A. § 43-26-1 et seq., required a CNM to be licensed as a RN, and both RNs and CNMs were regulated by the Georgia Board of Nursing; a review of the regulatory scheme revealed that a CNM was a RN who had advanced training in a specialized area; and the expert affidavit statute listed only nurses and the statute did not have a separate listing for CNMs. Dempsey v. Gwinnett Hosp. Sys., 330 Ga. App. 469, 765 S.E.2d 525 (2014).
Nurse's affidavit sufficient.
- Nurse's affidavit was sufficient proof that the methods of treatment for the giving of phenergan injections by nurses and doctors are the same and, that as one familiar with the standard of care regarding the giving of these injections in both the nursing profession and in the medical profession generally, the doctor's performance fell beneath the standard of care in the medical profession. Nowak v. High, 209 Ga. App. 536, 433 S.E.2d 602 (1993).
Nurse's affidavit insufficient.
- Trial court erred in ruling that a registered nurse could provide an expert affidavit regarding a physical therapist's care, given that O.C.G.A. § 9-11-9.1(g) categorized nurses and physical therapists as practicing separate professions, and because an expert was required to meet the conditions of former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) in order to provide a § 9-11-9.1 affidavit. Ball v. Jones, 301 Ga. App. 340, 687 S.E.2d 625 (2009).
Attachment of medical records to affidavit not required.
- As long as the affidavit itself adequately sets forth the factual basis for at least one negligent act or omission of the defendant alleged in the complaint, it is not necessary that the medical records from which the stated facts were taken be attached to the affidavit. Ulbrich v. Batts, 206 Ga. App. 74, 424 S.E.2d 288 (1992); Williams v. Hajosy, 210 Ga. App. 637, 436 S.E.2d 716 (1993).
Affidavit is not statutorily insufficient when the affidavit satisfies all the express requirements of subsection (a) of O.C.G.A. § 9-11-9.1 but fails to attach the medical documents therein referred to and relied upon by the expert when reciting in the affidavit the factual basis supporting each claim. Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 424 S.E.2d 632 (1992).
Sufficiency of affidavit.
- In an action against the hospital, physicians and nurses, the plaintiffs complied with the requirements of O.C.G.A. § 9-11-9.1 by filing with the plaintiffs' complaint affidavits which set forth the negligence of professionals (physicians and nurses) whose acts form the basis for the claim against the hospital; amendment to the complaint merely clarified the specific basis of the hospital's liability under a theory of respondeat superior. Thornton v. Ware County Hosp. Auth., 205 Ga. App. 202, 421 S.E.2d 713 (1992), cert. denied, 205 Ga. App. 901, 421 S.E.2d 713 (1992).
Affidavit of dentist was sufficient since the affidavit stated that the defendant failed to exercise the minimum degree of care and skill by failing to provide the plaintiff with notice of the serious health risks and known problems associated with interpositional implants. Allen v. Belinfante, 217 Ga. App. 754, 458 S.E.2d 867 (1995).
Because a statement in an expert affidavit attached to a patient's complaint did not bear a jurat, the trial court did not err in ruling that the affidavit was invalid under O.C.G.A. § 9-11-9.1. Goodin v. Gwinnett Health Sys., 273 Ga. App. 461, 615 S.E.2d 129 (2005).
Because a dental patient's expert affidavit pursuant to O.C.G.A. § 9-11-9.1 was not based on certified or sworn records, nor was the affidavit based on the personal knowledge of the expert, the trial court erred in denying the dentist's motion for summary judgment in the patient's dental malpractice action; although the records custodian had failed to properly provide certified copies of the records upon the patient's discovery request, the patient waived the right to present such evidence pursuant to Ga. Unif. Super. Ct. R. 6.2 since the patient did not file a timely response to the dentist's summary judgment with an O.C.G.A. § 9-11-56(f) affidavit, and the patient did not show excusable neglect for purposes of O.C.G.A. § 9-11-60(b). Rudd v. Paden, 279 Ga. App. 141, 630 S.E.2d 648 (2006).
Summary judgment was improperly granted to the defendants on the plaintiffs' professional negligence claim as the affidavits of two doctors and a nurse set forth at least one negligent act or omission and the factual basis for each claim as the first doctor identified a standard of care requiring supervision of healthcare personnel and policies and procedures that insured timely review of a patient's care, but opined that was not done for the deceased detainee, and faulted the administrator of the medical care provider for the failure to actively monitor the medical care being provided; a second doctor averred the same standards of care and failures iterated by the first doctor; and a nurse listed multiple deficiencies of the nursing staff. Graham v. WellStar Health Sys., 338 Ga. App. 178, 789 S.E.2d 369 (2016).
Trial court did not err in dismissing the patient's professional negligence complaint for failure to file a sufficient expert affidavit because the affidavit of the patient's expert witness recited only generally that the nurses and staff at the hospital failed to appropriately treat, assess, and advocate for the unconscious patient while the patient was there, and it did not contain any specific instances of any of those alleged failures; and the affidavit failed to set out a sufficient factual basis to support a negligent act or omission by the nurses or hospital staff. Ziglar v. St. Joseph's/Candler Health Sys., 341 Ga. App. 371, 800 S.E.2d 395 (2017).
Patient's complaint was properly dismissed for failure to file a sufficient expert affidavit because, although the patient alleged that the complaint set out a claim for simple negligence, the entirety of the patient's claims fell within the realm of professional negligence as the patient's allegations that the hospital's nurses and unspecified staff did not take the appropriate steps to ensure that the unconscious patient did not develop a pressure ulcer while confined to the patient's hospital bed and to appropriately treat the ulcer once discovered required highly specialized expert knowledge; and a medical judgment clearly would have been involved in assessing the severity of the ulcer and prescribing a course of treatment. Ziglar v. St. Joseph's/Candler Health Sys., 341 Ga. App. 371, 800 S.E.2d 395 (2017).
In a medical malpractice suit, the hospital's and a nurse's motion for summary judgment was properly granted because the affidavit of the surviving relatives' expert stating that the decision to administer the medication by mouth, rather than through the nasogastric-feeding tube as the doctor ordered, proximately caused the decedent's death by aspiration was conclusory as nothing in the record indicated that the decedent aspirated while ingesting the medication by mouth; and the hospital's and the nurse's expert testified that using a feeding tube to administer the medication did not eliminate the risk of aspiration as vomiting was a known risk of the medication. Edokpolor v. Grady Mem. Hosp. Corp., 347 Ga. App. 285, 819 S.E.2d 92 (2018), cert. denied, No. S19C0260, 2019 Ga. LEXIS 373 (Ga. 2019).
In a medical malpractice case arising out of gynecology surgery that resulted in complications, the trial court erred in dismissing the patient's claim; the patient's expert affidavit described that the doctor's act of performing the procedures despite the doctor's known physical limitations (including fine motor control problems, a stroke, and the loss of vision in one eye) breached the standard of care. Holmes v. Lyons, 346 Ga. App. 99, 815 S.E.2d 252 (2018).
Affidavit on abortion sufficient.
- Expert affidavit was sufficient when the affidavit stated that the physician performed two suction abortions on the plaintiff, that the physician failed to follow generally accepted medical practice, that the physician failed to exercise the degree of care generally employed by medical professionals in the physician's field, and that the physician's failure to complete the two abortions constituted negligence. Vitner v. Miller, 223 Ga. App. 692, 479 S.E.2d 1 (1996).
Hospital could assert the insufficiency of affidavit as a defense to the hospital's liability for the alleged malpractice of individual physician-defendants who were established as professionals by the pleadings. HCA Health Servs., of Ga., Inc. v. Hampshire, 206 Ga. App. 108, 424 S.E.2d 293 (1992).
Witness who is member of different school of medicine than defendant.
- When the affidavit establishes that the witness is a member of a different school of medicine than that practiced by the defendant but contains no evidence that the methods of treatment of the plaintiff's condition are the same so as to bring the witness within the exception to the general rule that the witness is incompetent to testify, then the affidavit is legally insufficient. Chandler v. Koenig, 203 Ga. App. 684, 417 S.E.2d 715 (1992).
Allopathic physician was competent to testify as to osteopathic physician's performance when the osteopathic physician examined and treated a pediatric meningitis patient in the physician's capacity as an emergency room physician and when it was in the allopathic physician's capacity as an emergency room physician that the allopathic physician testified in an affidavit that the osteopathic physician had failed to meet the standard of care and skill required of an emergency room physician. Handson v. HCA Health Servs. of Ga., Inc., 264 Ga. 293, 443 S.E.2d 831 (1994).
Testimony of pharmacologist as to physician's standard of care.
- Although pharmacologist's affidavit establishes that the pharmacologist is an internationally recognized pharmacologist and possesses expertise in that area which probably far exceeds that of the average medical doctor, bare assertion that the pharmacologist is familiar with the applicable standard of care is not enough when nothing in the affidavit explains how the pharmacological education or the professorial duties has provided the pharmacologist with expert knowledge of the standard of care in the prescribing of drugs ordinarily employed throughout the general medical profession by physicians who are years removed from the intensive pharmacological training the physicians received in medical school and for whom the prescribing of drugs is but one facet of their practice. Chandler v. Koenig, 203 Ga. App. 684, 417 S.E.2d 715 (1992).
"Period of limitation."
- Doctor's motion to dismiss a widow's suit was properly denied as the "period of limitation" in O.C.G.A. § 9-11-9.1(b) (now (e)) referred to the statute of limitations in O.C.G.A. § 9-3-71(a) and the statute of repose in § 9-3-71(b); the appellate court would not delve into the factual basis for the widow's statement that the widow believed that the period of limitations was about to end as the doctor might have claimed that the statute of limitations period ran from the doctor's misdiagnosis of the patient. Cochran v. Bowers, 274 Ga. App. 449, 617 S.E.2d 563 (2005).
In a wrongful death suit, a medical center was properly granted partial summary judgment as to an administrator's claims of nursing malpractice since the amended complaint alleged the claims were not filed within the two-year statute of limitation period set forth in O.C.G.A. § 9-3-33.
5. Other Professions
Plumbing services.
- Since plumbing services could only be performed pursuant to a license issued by the Division of Master Plumbers and Journeyman Plumbers of the State Construction Industry Licensing Board, and such Board was a "state examining board" pursuant to O.C.G.A. § 43-1-1, third party complaints against the owners of such plumbing services were professional negligence actions within the meaning of O.C.G.A. § 9-11-9.1, and the plaintiffs were required to contemporaneously file expert affidavits. Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 470 S.E.2d 283 (1996).
Pest control company.
- Based upon the statutory definition of professional service, a pest control company's control and treatment of wood destroying organisms is a profession for purposes of filing a professional malpractice action. Colston v. Fred's Pest Control, Inc., 210 Ga. App. 362, 436 S.E.2d 23 (1993).
Homeowner's complaint, calling into question exterminator's conduct as a professional in its area of expertise rather than alleging negligence in the performance of administrative, clerical, or routine acts which require no expertise, alleged negligence and breach of contract in the performance of professional services requiring the filing of an expert affidavit. Raley v. Terminix Int'l Co., 215 Ga. App. 324, 450 S.E.2d 343 (1994).
Application of the expert affidavit requirement to pest control services was clearly foreshadowed by Gillis v. Goodgame, 262 Ga. 117, 414 S.E.2d 197 (1992); thus, it was not unfair to dismiss an action for failure to file an affidavit, even though the complaint was filed before a decision that specifically applied the requirement to exterminators. Fender v. Adams Exterminators, Inc., 218 Ga. App. 62, 460 S.E.2d 528 (1995).
Real estate brokers and salespersons must be licensed and, thus, are "professionals" within the intent of O.C.G.A. § 9-11-9.1. Allen v. Remax N. Atlanta, Inc., 213 Ga. App. 644, 445 S.E.2d 774 (1994).
Accountants.
- By alleging that the accountant failed to provide the necessary and proper tax advice normally required by a certified public accountant, the plaintiffs raised an issue as to whether the accountant performed services in accordance with the professional obligation of care for certified public accountants; accordingly, an expert affidavit should have been filed with this count of the complaint. Hilton v. Callaghan, 216 Ga. App. 145, 453 S.E.2d 509 (1995).
Expert affidavit was not required under O.C.G.A. § 9-11-9.1 to support the plaintiff's claim of fraud against the plaintiff's accountant. Hilton v. Callaghan, 216 Ga. App. 145, 453 S.E.2d 509 (1995).
Unlicensed bookkeeper and tax preparer was not a professional subject to an action for professional malpractice. Hewitt v. Walker, 226 Ga. App. 764, 487 S.E.2d 603 (1997).
Annuity planner.
- Client's allegation that an annuity planner was negligent in transmitting information regarding the regularity of payments was not one of professional malpractice but one of simple negligence; therefore, an affidavit was not required and an affidavit was unnecessary to determine whether the planner was a "professional" within the meaning of O.C.G.A. § 9-11-9.1. Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499, 397 S.E.2d 294 (1990).
Manufacturers.
- Requirement for an expert affidavit did not apply to a strict products liability action against a manufacturer. SK Hand Tool Corp. v. Lowman, 223 Ga. App. 712, 479 S.E.2d 103 (1996).
Architects.
- O.C.G.A. § 9-11-9.1 applies to professional malpractice suits against architects. McLendon & Cox v. Roberts, 197 Ga. App. 478, 398 S.E.2d 579 (1990).
Construction program manager.
- Specifically, with regard to a professional negligence claim, O.C.G.A. § 9-11-9.1(a), which requires a plaintiff asserting a professional negligence claim to submit an expert affidavit along with the complaint to set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim applies to professional malpractice claims alleging professional negligence; as the plaintiff, a surety, failed to provide the court with any evidence that the defendant, a construction program manager (CPM), hired to oversee school construction projects, was a professional as defined by any code sections, the school board could not have maintained an action against the CPM for professional malpractice, and neither could the surety as subrogee. Carolina Cas. Ins. Co. v. R.L. Brown & Assocs., F. Supp. 2d (N.D. Ga. Sept. 29, 2006).
Harbor pilots.
- O.C.G.A. § 9-11-9.1 applies to professional malpractice suits against harbor pilots. Lutz v. Foran, 262 Ga. 819, 427 S.E.2d 248 (1993).
RESEARCH REFERENCESDiscovery date in medical malpractice litigation, 26 POF3d 185.
ALR.- Social worker malpractice, 58 A.L.R.4th 977.
Veterinarian's liability for malpractice, 71 A.L.R.4th 811.
What patient claims against doctor, hospital, or similar health care provider are not subject to statutes specifically governing actions and damages for medical malpractice, 89 A.L.R.4th 887.
Legal malpractice in defense of criminal prosecution, 4 A.L.R.5th 273.
Medical malpractice: negligent catheterization, 31 A.L.R.5th 1.
Admissibility and necessity of expert evidence as to standards of practice and negligence in malpractice action against attorney - general principles and conduct related to interaction with client, 58 A.L.R.6th 1.
Admissibility and necessity of expert evidence as to standards of practice and negligence in malpractice action against attorney - conduct related to procedural issues, 59 A.L.R.6th 1.
Liability of hospice in tort, in contract, or pursuant to statute, for maltreatment or mistreatment of patient, 95 A.L.R.6th 479.
Constitutionality of Affidavit or Certificate of Merit Requirements in Actions Brought Against Licensed Professionals, 45 A.L.R.7th Art. 1