Ndlovu v. Pham
314 Ga. App. 337
| Ga. Ct. App. | 2012Background
- Ndlovu filed a medical malpractice complaint in Cobb County with expert affidavits supporting negligence.
- The affidavits spoke in terms of ordinary negligence, not gross negligence.
- Defendants moved to dismiss arguing inadequate affidavits and other grounds; the court granted dismissal.
- The court did not identify the alleged inadequacy with specificity as required by OCGA § 9-11-9.1(e).
- Ndlovu amended her complaint and filed a new affidavit three weeks after the motion but more than 30 days after the motion was filed; the court later dismissed for lack of gross-negligence pleadings.
- The Georgia Court of Appeals reviews dismissal under OCGA § 9-11-9.1 de novo and must apply the statute’s specificity-and-cure requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal was proper absent a specific identification of an affidavit defect. | Ndlovu argues Pham/Morag failed to identify the defect with specificity. | Pham/Morag contend affidavits lacked gross-negligence content and were defective. | Dismissal error; must be based on a specific defect identified in the motion. |
| Whether mere notice of an inadequacy allows dismissal under OCGA § 9-11-9.1(e). | Notice alone cannot justify dismissal; only specific defects identified can. | Notice of inadequacy supports dismissal if tied to a specific defect. | Statute requires specific allegation of inadequacy; mere notice is insufficient. |
Key Cases Cited
- Estate of Shannon v. Ahmed, 304 Ga.App. 380 (2010) (standard of review; de novo for dismissal under 9-11-9.1)
- Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga.App. 820 (2004) (failure to object with specificity defeats dismissal for affidavit defects)
- Opensided MRI of Atlanta v. Chandler, 287 Ga. 406 (2010) (statutory language given plain meaning; specificity required)
- Clark v. Rush, 312 Ga.App. 333 (2011) (interpretation of statute language; no substitution of meaning)