The appellant, Sara Johnson, filed the instant action for damages against the appelleеs, Dr. Lawrence T. Brueckner and Gwinnett Orthopedic Surgery, P. C. (hereinafter referred to as Gwinnett Orthopedic), alleging that Dr. Brueckner was negligent in performing surgery on her right wrist and negligent in failing to advise her of all of the risks invоlved with the surgery. Johnson did not file an expert affidavit contemporanously with the filing of the complaint аs required under OCGA § 9-11-9.1, but attached to her complaint a medical record in which Dr. Brueckner acknowledged that he inadvertently severed the median nerve of her right hand during surgery. Johnson averred in her complaint that this statement was an admission of negligence and hence eliminated the need for compliаnce with OCGA § 9-11-9.1.
Dr. Brueckner and Gwinnett Orthopedic raised this lack of an expert’s affidavit as a defense in their answer, and thereafter, moved to dismiss the complaint, or in the alternative, for summary judgment in their favor, based upon Johnson’s failure to comply with the statute. Following a hearing, the trial court dismissed the comрlaint, concluding that the acts and omissions of negligence alleged therein required the exercise of some medical skill and judgment on the part of the physician, and therefore an expert affidаvit was required. This appeal followed.
1. OCGA § 9-11-9.1 specifically requires the contemporaneous filing оf an expert affidavit in any action for damages involving professional negligence. “The expеrt’s affidavit prerequisite servés a salutary purpose, which is to reduce the number of frivolous malpraсtice suits being filed. The plaintiff is simply required to show at the outset that it is not a frivolous suit. This serves to prevent putting a professional to great expense and adversely affecting his or her professional rеputation unjustifiably. It also serves to prevent the clogging of the courts with such suits, which merely increase the costs of operating the courts and delay the resolution of meritorious suits. It simply contemplatеs that parties allegedly damaged by malpractice show up
*53
front, by expert’s affidavit, that they have some evidence of malpractice, which by its nature can be established only by professional or expert testimony.” (Citations and punctuation omitted.)
Gillis v. Goodgame,
While the medical records attached to the complaint demonstrate that Johnson’s claim is not frivolous and therefore satisfies the purpose for which the statute was enacted, that is, to eliminate the filing of frivolous actions challenging the reputation of professionals, “[w]e are without authority to say § 9-11-9.1 does not apply and the plaintiff shаll
not
be required to file such an expert affidavit. ... If we were to say so, we would be repealing the act by violating its terms. We see no exception to it in this case, and no way to sustain the plaintiff’s
action
for profеssional malpractice without her having complied with the mandatory provisions of § 9-11-9.1.”
Barr v. Johnson,
Dr. Brueckner’s admissiоn of inadvertence in the attached medical records does not excuse plaintiff’s failure to comply with OCGA § 9-11-9.1. While such an admission against interest is admissible as evidence and may be sufficient to presеnt an issue of fact for jury resolution in response to a motion for summary judgment, see OCGA § 24-3-31;
Bruce Tile Co. v. Copelan,
“If the legislature sets forth a specific statutory means by which the plaintiff judicially enforces her cause of action, she must follow that law, or her action is subject to dismissal. OCGA § 9-11-41 (b).” Barr, supra at 137.
The mandatory languagе of the statute does not permit this court to ignore the affidavit requirement of OCGA § 9-11-9.1, even though justice may not be served and plaintiff will be denied her day in court, by our application of said statute in this case. Wе are not empowered to amend the lawful acts of the legislature. Perhaps the legis *54 lature shоuld reconsider the appropriateness of OCGA § 9-11-9.1, in view of its effect on the function of the courts, whiсh is to dispense justice, and the unquestioned ineffectiveness of the statute in reducing litigation. In excess of 100 cases involving OCGA § 9-11-9.1 have reached the appellate courts of Georgia since its inception in 1987.
2. Johnson further argues that she was excused from filing an affidavit based upon the incorrect information provided to her by Dr. Brueckner on the risks involved with surgery. However, this issue was not raised below and hence, is not appropriate for appellate review.
Holtapp v. City of Fayetteville,
Judgment affirmed.