325 Ga. App. 800
Ga. Ct. App.2014Background
- Fisher sued the neurosurgeons for medical malpractice in Fulton County Superior Court.
- The initial affidavit accompanying the complaint was by Dr. Rogan, who was challenged as incompetent to testify about the neurosurgical care at issue.
- The neurosurgeons moved to dismiss the complaint for failure to satisfy OCGA § 9-11-9.1.
- Fisher amended the complaint and filed the affidavit of Dr. Dogali, a board-certified neurosurgeon, in support.
- The trial court dismissed, holding the original affiant incompetent and that the cure by amendment with a different expert was not authorized by Georgia law at that time.
- The issue on appeal is whether Fisher could cure the defective affidavit by substituting a new, competent affidavit with an amended complaint, under OCGA § 9-11-9.1(e).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cure by amendment overrides defective affidavit | Fisher relied on OCGA § 9-11-9.1(e) to substitute a new affidavit via amended complaint. | The defect in the original affidavit cannot be cured by substitution with a new affidavit. | Reversed; cure via substitution permitted. |
| Whether the original affiant's competency controls dismissal | Placement of the cure provision allows substitution to cure competency defects. | Competency of the original affiant determines validity of the affidavit. | Reversed; replacement affidavit can satisfy the pleading requirement. |
| whether the new affidavit must meet 9-11-9.1 requirements | New affidavit by a competent neurosurgeon satisfies the statute. | Any deficiencies may render dismissal appropriate. | Reversed; substituted affidavit satisfies the gatekeeping purpose. |
Key Cases Cited
- Piscitelli v. Hosp. Auth. of Valdosta, 302 Ga. App. 746, 691 S.E.2d 615 (Ga. Ct. App. 2010) (new affidavit can cure defect if unchallenged)
- Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga. App. 534, 510 S.E.2d 101 (Ga. Ct. App. 1998) (amendment/substitution affidavits permitted to satisfy §9-11-9.1)
- Ndlovu v. Pham, 314 Ga. App. 337, 723 S.E.2d 729 (Ga. Ct. App. 2012) (liberality of 9-11-9.1 pleading balanced with gatekeeping)
- Porquez v. Washington, 268 Ga. 649, 492 S.E.2d 665 (Ga. 1997) (amendment allowed when challenging affidavit; purpose to reduce frivolous suits)
- Jensen v. Engler, 317 Ga. App. 879, 733 S.E.2d 52 (Ga. Ct. App. 2012) (courts liberally construe 9-11-9.1 to avoid frivolous actions)
- Walker v. Cromartie, 287 Ga. 511, 696 S.E.2d 654 (Ga. 2010) (purpose of 9-11-9.1 is to reduce frivolous professional malpractice suits)
- City of Atlanta v. Bennett, 322 Ga. App. 726, 746 S.E.2d 198 (Ga. Ct. App. 2013) (applying Evidence Code standards to expert testimony contemporaneously)
- Handson v. HCA Health Svcs., 264 Ga. 293, 443 S.E.2d 831 (Ga. 1994) (9-11-9.1 imposes initial pleading requirement to deter frivolous suits)