312 Ga. App. 486
Ga. Ct. App.2011Background
- Procter, proceeding pro se at start, sued Gwinnett Pulmonary Group, EC. & Associates, PC, Dr. Hayat, and Hilliard for medical malpractice and negligence arising from a January 8, 2008 bronchonebulizer treatment that allegedly caused Procter to lose her voice.
- Procter filed the complaint on January 8, 2010 and subsequently moved for and filed an expert affidavit on February 8, 2010 pursuant to OCGA § 9-11-9.1.
- Defendants moved to dismiss asserting Procter failed to contemporaneously file the required expert affidavit with the complaint.
- The trial court dismissed the claims; Procter appealed, now represented by counsel.
- Division 1 holds Hilliard is not a licensed professional required to file an expert affidavit under OCGA § 9-11-9.1(a); thus the dismissal as to Hilliard and derivative claims against Gwinnett Pulmonary Group is reversed.
- Division 2 holds that Procter, as a pro se litigant, is not entitled to the 45-day extension under OCGA § 9-11-9.1(b); thus the dismissals of the Dr. Hayat claims and derivative claims against Georgia Pulmonary Group are affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hilliard’s claim requires an expert affidavit | Hilliard is not a licensed professional listed in OCGA § 9-11-9.1(a). | OCGA § 9-11-9.1 applies to claims against professionals; Hilliard should be encompassed by the statute. | Reversed; Hilliard not subject to affidavit requirement; reversal of dismissal as to Hilliard and derivative claims. |
| Whether pro se status bars a 9-11-9.1 extension for filing an affidavit | Procter should receive a 45-day extension under 9-11-9.1(b). | Pro se litigants are not entitled to the extension; Peck v. Bishop controls. | Affirmed; the extension does not apply to Procter; Dr. Hayat claims affirmedly dismissed. |
| Scope of remaining claims after partial disposition | Plaintiff’s remaining claims against other defendants should proceed absent the 9-11-9.1 issue. | Disposition on the 9-11-9.1 issues forecloses the remaining claims. | Not reached; unresolved by this division, but other divisions addressed. |
Key Cases Cited
- Pattman v. Mann, 307 Ga. App. 413 (2010) (affidavit requirement does not apply to lab technologist not a listed professional)
- Barnes v. Turner, 278 Ga. 788 (2004) (early discussion of procedural standards in Georgia appellate review)
- Bowen v. Adams, 203 Ga. App. 123 (1992) (illustrates appellate treatment of procedural challenges)
- Beasley v. Northside Hosp., 289 Ga. App. 685 (2008) (evidence-based assessment of motion grants; relies on record evidence)