MISSION HEALTH OF GEORGIA, LLC Et Al. v. BAGNUOLO
339 Ga. App. 23
| Ga. Ct. App. | 2016Background
- Plaintiff (estate of Stephen McLoughlin) sued defendants (Mission Health of Georgia, LLC and others) and treating physician Dr. Andrew Frinks alleging ordinary and professional negligence after decedent's death.
- Plaintiff’s original complaint (Oct. 21, 2014) did not include the expert affidavit required for professional malpractice claims under OCGA § 9-11-9.1.
- Defendants raised the absence of an expert affidavit as an affirmative defense in answers; Frinks also filed a contemporaneous motion to dismiss the original complaint for that failure.
- Plaintiff voluntarily dismissed the original action without prejudice on Jan. 2, 2015, then refiled on June 26, 2015 under OCGA § 9-2-61 and attached an expert affidavit.
- Frinks renewed his motion to dismiss, arguing the original complaint’s lack of affidavit barred renewal; appellants (the other defendants) moved to dismiss the renewed complaint arguing the same ground but had not filed a contemporaneous motion to dismiss with their original answer.
- Trial court granted Frinks’s motion (dismissing professional negligence claim) but denied appellants’ motion, reasoning appellants waived the defense by failing to file a motion to dismiss with their initial responsive pleading. Appellants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants who raised lack-of-affidavit in their answer but did not file a contemporaneous motion to dismiss waived the defense so as to permit renewal under OCGA § 9-2-61 | Plaintiff argued appellants waived the defense because they failed to file a motion to dismiss with their original answer, so renewal was permitted | Appellants argued Frinks’ contemporaneous motion to dismiss sufficed for all defendants and thus they did not need a separate motion | Held: Defendants who did not file a motion to dismiss contemporaneous with their initial responsive pleading waived the § 9-11-9.1(f) protection; Frinks’ motion could not be relied upon by co-defendants, so trial court correctly denied appellants’ motion to dismiss |
| Whether professional negligence claims must be dismissed when original complaint lacked required expert affidavit | Plaintiff sought to renew after attaching an affidavit to the refiled complaint under § 9-2-61 | Defendants (including Frinks) argued professional negligence claims barred because original complaint lacked the affidavit and required a contemporaneous motion to dismiss to prevent renewal | Held: Trial court properly dismissed professional negligence claims as to Frinks for failure to attach required affidavit originally; statute requires a motion to dismiss contemporaneous with the initial responsive pleading to bar renewal |
Key Cases Cited
- Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406 (Georgia Supreme Court) (motion to dismiss must be filed contemporaneously with initial responsive pleading to bar renewal under § 9-2-61)
- Kerr v. OB/GYN Assoc. of Savannah, 314 Ga. App. 40 (Georgia Court of Appeals) (standard of review for motion to dismiss is de novo)
- Dove v. Ty Cobb Healthcare Systems, Inc., 316 Ga. App. 7 (Georgia Court of Appeals) (application of § 9-11-9.1 dismissal rules)
- Upson County Hosp., Inc. v. Head, 246 Ga. App. 386 (Georgia Court of Appeals) (professional negligence claims may be dismissed for failure to file expert affidavit while ordinary negligence claims survive)
- Williams v. Alvista Healthcare Center, Inc., 283 Ga. App. 613 (Georgia Court of Appeals) (affirming dismissal of professional negligence claims for lack of affidavit; distinguishing ordinary negligence claims)
- AKA Mgmt, Inc. v. Branch Banking and Trust Co., 275 Ga. App. 615 (Georgia Court of Appeals) (issues not raised below are waived on appeal)