If the parties to a medical malpractice claim agree in writing to arbitrate the claim pursuant to this article, they shall file a petition in the superior court of the county where any party resides for an order authorizing the arbitration of the claim in accordance with this article and for the appointment of a referee for the arbitration. If the judge determines that the claim is a medical malpractice claim subject to this article, within 30 days of the filing of the petition for such order he shall issue an order authorizing the arbitration and appointing a referee. However, no agreement to arbitrate shall be enforceable unless the agreement was made subsequent to the alleged malpractice and after a dispute or controversy has occurred and unless the claimant is represented by an attorney at law at the time the agreement is entered into.
(Code 1933, § 7-403, enacted by Ga. L. 1978, p. 2270, § 2; Code 1981, §9-9-112; Code 1981, §9-9-62, as redesignated by Ga. L. 1988, p. 903, § 3.)
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1988, "article" was substituted for "part" twice in the first sentence and once in the second sentence of the Code section.
JUDICIAL DECISIONS
Preemption by federal Arbitration Act.
- O.C.G.A. § 9-9-62 singles out a specific class of arbitration agreement and restricts the enforcement thereof counter to the liberal federal policy favoring arbitration agreements; further, a defense based on § 9-9-62 is not a generally applicable contract defense. It follows that § 9-9-62 is preempted by the federal Arbitration Act. Triad Health Mgmt. of Ga., III, LLC v. Johnson, 298 Ga. App. 204, 679 S.E.2d 785 (2009), cert. denied, No. S09C1680, 2009 Ga. LEXIS 779 (Ga. 2009).
In a case in which a resident sued a care facility alleging negligence and the care facility moved to dismiss and compel arbitration of the resident's allegations pursuant to an arbitration clause contained in the Resident and Facility Agreement signed by the resident's son, the resident unsuccessfully argued that O.C.G.A. § 9-9-62 prohibited arbitration in medical malpractice cases where the arbitration agreements were signed before the claims arose or when a party was not represented by counsel, the Federal Arbitration Act (FAA) applied, and through the language in 9 U.S.C. § 2, the FAA preempted O.C.G.A. § 9-9-62. Holyfield v. GGNSC Atlanta, LLC, F. Supp. 2d (N.D. Ga. Apr. 8, 2009).
Motion to compel arbitration is not equitable in nature.
- Approval by the superior courts contemplated by O.C.G.A. § 9-9-62 is not a requirement applicable to contracts generally or even arbitration agreements generally, nor has the legislature deemed that motions to compel arbitration be treated as equitable in nature. Thus, there was no merit to an argument that § 9-9-62 evidenced the legislature's intent that enforcement of a arbitration agreement fall within the superior court's equity jurisdiction and that an arbitration agreement could not be enforced through a motion in the state court to compel arbitration. Triad Health Mgmt. of Ga., III, LLC v. Johnson, 298 Ga. App. 204, 679 S.E.2d 785 (2009), cert. denied, No. S09C1680, 2009 Ga. LEXIS 779 (Ga. 2009).
RESEARCH REFERENCES21A Am. Jur. Pleading and Practice Forms, References, § 2.