Lead Opinion
Laura S. Harris brought a medical malpractice action against Samuel D. Murray, Jr., M.D.,
1. Prior to discussing the application of OCGA § 9-11-9.1 to the facts of this case, we must first determine which version of the statute applies. The present action was filed on December 14, 1995. In 1997, the legislature amended § 9-11-9.1 with an effective date of July 1, 1997. Ga. L. 1997, pp. 916, 919, § 2. Section 2 of the 1997 amendments provided that the 1997 act “shall apply only to actions
In Vester v. Mug A Bug Pest Control,
The above-quoted holding in Vester is contrary to long established law, subverts the clear legislative intent for prospective application of the 1997 amendments, and we therefore overrule it. The correct rule is that “where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. Pritchard v. The Savannah Street &c. Co.,
2. We find no merit in Harris’ contention that Murray waived his defense under OCGA § 9-11-9.1.
Murray’s defense under § 9-11-9.1 was that the expert affidavit, which appeared valid on its face when it was filed with the complaint, was subsequently shown not to be an affidavit because it was not given under oath. Murray raised this defense after the expert testified on deposition that no formal oath was administered to him when he executed the affidavit.
Prior to the 1997 amendments to § 9-11-9.1, former subsection (e) of the statute provided in pertinent part that: “Except as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15. . . .” In Seely v. Loyd H. Johnson Constr. Co.,
The waiver holding in Seely is inapplicable to the present facts. Because Harris filed a document with the complaint which appeared on its face to be a valid expert affidavit in compliance with OCGA § 9-11-9.1, Murray initially had no reason to challenge the affidavit and, therefore, he had no duty under the statute to raise any § 9-11-9.1 defense in his initial responsive pleading to the complaint. When Murray subsequently deposed the expert, the expert testified that no formal oath was administered to him before he executed the affidavit. Upon making this discovery, Murray’s first response was to file motions seeking dismissal or summary judgment on the complaint in which he raised the defense that Harris failed to file the required affidavit. Under these facts, there was no waiver of the § 9-11-9.1 defense. Because Murray acted diligently in raising the defense in
This conclusion comports with our duty to construe the statute in a manner that gives effect to the intention of the legislature. City of Roswell v. City of Atlanta,
3. Harris asserts that, contrary to the trial court’s finding, the expert affidavit was given under oath. We agree with this assertion.
“In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” Carnes v. Carnes,
In the instant case, although the affiant did not hold up his hand and swear before signing the affidavit, it is uncontroverted that both he and the notary public understood that his actions and signing of the affidavit in the notary public’s presence were all that was necessary to complete the act of swearing. The record shows that in response to Murray’s summary judgment motion, Harris produced additional affidavits from Jeffrey S. Penner, M.D., the expert affiant on the § 9-11-9.1 affidavit, and from Laurette Ross, the notary public before whom Penner appeared to execute the § 9-11-9.1 affidavit.
Ross stated in her affidavit that “[o]n December 11,1995, Jeffrey S. Penner, M.D., appeared before me in order to execute an [expert] Affidavit to be given in [this case]. By his actions, I understood that he considered himself to be under oath when he executed the Affidavit.” Similarly, Penner stated in his second affidavit that “[o]n December 11, 1995,1 executed the document labeled Affidavit of Jeffrey S. Penner, M.D (hereinafter referred to as ‘First Affidavit’). At the time of executing the First Affidavit, I was standing before Laurette Ross, the notary public. As recited in the First Affidavit, I knew the document I was signing was intended to be an affidavit. I did consciously, in the presence of the notary, take upon myself the obligations of the oath. I intended all of the statements made in the First Affidavit to be truthful and understood myself to be under oath.”
Contrary to Chief Judge Andrews’ dissent, the evidence shows more than that Penner merely signed a document. The affidavit Penner signed clearly stated it was being made under oath, and Penner has said that he read and understood that it was being made under oath before he signed it. Furthermore, the signing was done in front of the notary public and she has sworn that by Penner’s actions she understood that he considered himself to be under oath when executing the affidavit. Because Penner signed the affidavit in front of Ross and because they both understood that what he had done was sufficient to complete the act of swearing, we must conclude that the affidavit was given under oath and is valid.
The dissent contends that this conclusion virtually eliminates the requirements for a valid oath set forth in McCain, supra, Britt, supra, and Carnes, supra. This contention is without merit. All three of those cases involved affidavits signed by affiants outside the presence of officers who later signed the affidavits. In both Carnes and Britt the Supreme Court found that affidavits signed by affiants outside the presence of the officers were invalid. In McCain, supra at 846, the Court determined that there was evidence the previously signed affidavit was valid when the affiant presented it to the officer, the affiant swore the affidavit was true, and then the officer signed
Moreover, this holding comports with the expressed intention of the legislature and our Supreme Court that the affidavit requirement be liberally construed in favor of the plaintiff and that amendment of the affidavit should be allowed to make it comport with OCGA § 9-11-9.1. “Because OCGA § 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it is to be construed in a manner consistent with the liberality of the Act so long as such a construction does not detract from the purpose of § 9-11-9.1, which is to reduce the filing of frivolous malpractice suits.” Porquez v. Washington,
In this case Harris clearly fulfilled the intent behind OCGA § 9-11-9.1 to thwart the filing of frivolous lawsuits by filing an expert affidavit, given under oath, that clearly states an act of professional
Judgment reversed.
Notes
The complaint also names other defendants who are not parties to this appeal.
Of course, this newly created 30-day right to cure alleged defects does not apply in the present case since, as previously stated, the 1997 amendments have no application here.
Concurrence Opinion
concurring specially.
1. Reluctantly, I agree with the majority as to the need to overrule in part Vester v. Mug A Bug Pest Control,
2. While I agree with Division 2 of the majority in its entirety as it applies to OCGA § 9-11-9.1 prior to the effective date of Ga. L. 1997, pp.'916, 919, § 2,1 would point out that the General Assembly intended in the 1997 amendment to prevent such issues, as in this case, being raised later by either motion to dismiss, OCGA § 9-11-12 (b) (6), or by summary judgment, OCGA § 9-11-56, because the defendant shall raise such defense “by motion to dismiss filed con
3. I concur fully with Division 3 of the majority and the judgment.
I am authorized to state that Presiding Judge McMurray joins in this special concurrence.
Dissenting Opinion
dissenting.
I fully concur with all that is said in Division 1 of the majority opinion. The majority correctly concludes that Vester v. Mug A Bug
I also fully concur with all that is said in Division 2 of the majority opinion. I agree that Murray preserved his § 9-11-9.1 defense by diligently raising it in the first pleading he filed after the expert affiant testified in his deposition that no oath was administered to him by the notary before he executed the purported affidavit. I add that this is the only reasonable interpretation that can be given to § 9-11-9.1 under these circumstances. To otherwise conclude that the defense of lack of compliance with the expert affidavit requirement is waived if not filed with the initial responsive pleading to the complaint would construe the statute as allowing a plaintiff to file a document which purports on its face to be an affidavit, but in fact is not, escape any subsequent challenge to its validity, and proceed with a malpractice action without a valid expert affidavit. This would frustrate the recognized intent of the statute to reduce the filing of frivolous malpractice actions by requiring a valid expert affidavit to be filed with the complaint. 0-1 Doctors Mem. Holding Co. v. Moore,
I respectfully dissent because I disagree with the majority’s conclusions in Division 3 that the purported affidavit was given under oath, and that the trial court erred by granting summary judgment to Murray. The trial court correctly concluded that the purported affidavit was not given under oath: Therefore, the trial court correctly granted summary judgment to Murray on the basis that the document was not an affidavit, and that Harris failed to file an expert affidavit with the complaint as required by § 9-11-9.1. The pre-1997 version of § 9-11-9.1, which applies in this case, plainly requires that Harris’ malpractice complaint be dismissed under these circumstances.
The majority finds that, even though the purported affidavit at issue was not executed with a formal oath, there was an informal oath sufficient to sustain the document as an affidavit. The evidence, however, does not support this holding.
On deposition, the expert affiant testified that the notary public whose jurat appeared on the purported affidavit did not administer an oath to him before he signed it. After making this discovery, Murray moved for dismissal of the complaint and for summary judgment on the basis that, without an oath, there was no affidavit and, therefore, Harris had failed to file an expert affidavit as required by OCGA § 9-11-9.1. In response to the summary judgment motion,
Ross stated by affidavit that: “On December 11, 1995, Jeffrey S. Penner, M.D., appeared before me in order to execute an [expert] Affidavit to be given in [this case]. By his actions, I understood that he considered himself to be under oath when he executed the Affidavit.” Penner stated by affidavit that: “On December 11, 1995, I executed the document labeled Affidavit of Jeffrey S. Penner, M.D. (hereinafter referred to as ‘First Affidavit’). At the time of executing the First Affidavit, I was standing before Laurette Ross, the notary public. As recited in the First Affidavit, I knew the document I was signing was intended to be an affidavit. I did consciously, in the presence of the notary, take upon myself the obligations of the oath. I intended all of the statements made in the First Affidavit to be truthful and understood myself to be under oath.”
Under long established law, these facts are insufficient to show that anything was done which could be construed as an oath administered by the officer and taken by the affiant. “In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” Carnes v. Carnes,
It is clear that, in order to show an oath was taken and administered, there must be more shown than simply statements after the fact by the affiant and the notary that an oath was intended — there must be evidence that, while the officer, the affiant, and the paper were present, something was done which amounts to the administration of an oath. Carnes,
The facts in the present case show only that the affiant signed the purported affidavit in the presence of the notary; that the purported affidavit contained language that it was executed under oath, and that the purported affidavit was then presented to the notary who immediately signed the jurat without administering an oath. The only additional evidence presented by the affiant, Penner, was that, when he executed the document, he knew the document was intended to be an affidavit; that he understood himself to be under oath, and that he consciously took upon himself the obligations of an oath. Penner presented no evidence that he said anything in the presence of the notary or did anything in the presence of the notary, other than the fact he signed the purported affidavit. The notary stated only that Penner executed the purported affidavit in her presence and that she understood he considered himself to be under oath by his actions when he executed the purported affidavit. The only evidence of any action taken by Penner is that he executed the purported affidavit in the presence of the notary. There is no evidence of anything said or done by the notary, other than the fact that she signed the jurat.
In support of its conclusion that an oath was administered and
These facts show a total absence of evidence of any words spoken or any actions taken which amount to the administration and taking of an oath. In the absence of such evidence, the notary and the affiant have simply stated in subsequent affidavits, after the fact, that they understood an oath was intended. But they have provided no evidence that something was done which amounted to the actual administration and taking of an oath. This fails to satisfy the requirement that there be “such concurrence of act and intention as will constitute a legal swearing.” McCain,
As this Court has previously stated, “ ‘[w]e can not but deprecate the tendency to treat the taking of an oath as a mere technical formality, worthy of little attention. In the strenuous age in which we live speed is deemed of prime importance. But one must still pause
That a legal swearing amounting to an oath must consist of more than merely signing a purported affidavit in the presence of a notary is illustrated by the case of Bertha Mineral Co. v. Buie,
Applying the facts of this case to the above controlling authorities, there is no evidence in the present record of anything said or done which could support an inference that Ross administered and Penner took an oath when the purported affidavit was executed. It follows that the purported affidavit was not in fact a valid affidavit, and therefore Harris failed to file an expert affidavit with her complaint as required by § 9-11-9.1.
Since Harris failed to file an expert affidavit with her malprac
Harris does not seek in this case to amend an insufficient or defective § 9-11-9.1 affidavit. The purported affidavit Harris filed with her complaint to comply with § 9-11-9.1 was in fact not an affidavit. Instead, Harris seeks an interpretation of § 9-11-9.1 that would allow her to obtain a valid affidavit and file it for the first time after the commencement of the action. No such construction can be placed upon the statute since this is precisely what § 9-11-9.1 prohibits by its plain terms.
Neither the liberal construction given to § 9-11-9.1 affidavits nor the broad right to amend such affidavits when they are insufficient or defective requires a different result. Section 9-11-9.1 affidavits are given a construction favorable to the plaintiff with respect to compliance with the procedural requirements of the statute. Porquez v. Washington,
Harris’ failure to file an affidavit with the complaint subjected the complaint to dismissal for failure to state a claim under the express provisions of subsection (e) of § 9-11-9.1. Subsection (e) provides that: “Except as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” Construing subsection (e) in Hewett, the court held that “[b]y referencing subsection (b) [of § 9-11-9.1], which sets forth one exception when a plaintiff need not file an expert affidavit with the complaint, and by providing that the complaint can be amended if the plaintiff had the affidavit before filing the complaint but by mistake failed to file it, subsection (e) [of § 9-11-9.1] is only designed to preclude amendment under § 9-11-15 when the plaintiff completely fails to file an affidavit.” Hewett,