SISK v. PATEL
A94A1929
Court of Appeals of Georgia
Decided March 17, 1995
Reconsideration denied March 31, 1995
217 Ga. App. 156 | 456 SE2d 718
JOHNSON, Judge.
Sisk filed a claim under the Federal Tort Claims Act, attaching an affidavit from Dr. Scheer as required. Uncertain over Patel‘s employment status, Sisk also sued him in superior court, alleging medical malpractice. Recognizing the need for an expert affidavit asserting malpractice to comply with
The superior court complaint was filed on June 7, 1993, exactly two years after the x-ray in question. At that time, Sisk did not have an affidavit from Dr. Scheer in hand, but he had a facsimile copy of one and Dr. Scheer‘s assurance that the original would be forwarded. Rather than allege in his complaint that an affidavit “could not be prepared” under
Patel responded and contended that the complaint failed to comply with
Sisk filed his notice of appeal contending that there are two issues to be determined: whether the facsimile of the affidavit satisfies
The Supreme Court has held that “since § 9-11-9.1 establishes an ’ “exception to the general liberality of pleading permitted under (the Civil Practice Act,
Sisk argues that the existence of a facsimile of the affidavit establishes its existence and shows it is “available,” within the meaning and purpose of the statute. We agree. There can be no facsimile if there is no original. As an affidavit under
The Supreme Court recently declined to require letter-perfect compliance with procedural requirements in a medical malpractice case. In Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994), uncertified copies of office and hospital records were attached to an affidavit submitted by plaintiffs’ expert in response to a motion for summary judgment. The Court held that this defect was cured when the defendant doctor acknowledged the authenticity of the records at his deposition, which was subsequently filed with the challenged documents included as exhibits. “Under the [se] circumstances, those records should not be ignored for lack of certification. [Cit.] It is the policy of this Court whenever possible to seek ‘substantial justice and judicial economy rather than strict compliance with procedural technicalities.’ [Cit.]” Paulin, supra at 605.
We recognize that the affidavit at issue in Paulin was submitted in connection with a motion for summary judgment, and held to a stricter standard, than to satisfy the requirements of
“With regard to whether a facsimile copy may be filed with the complaint, we turn to Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256 (2) (419 SE2d 36) (1992) for guidance. In that case, we noted that ‘(a)lthough the statute contemplates that the original affidavit of the expert should be filed, our decision in Gooden v. Ga. Baptist &c., 198 Ga. App. 407 (1) (401 SE2d 602) (1991) does not prohibit trial courts when justice so requires from considering facsimiles of affidavits that are available during the statutory period.’ Brown v. Middle Ga. Hosp., 211 Ga. App. 884, 885 (1) (440 SE2d 687) (1994). We disagree with the final analysis in Brown which would require application of the renewal provisions of
Electronic transmission of printed material has become an accepted method of communication and an indispensable tool for conducting business. A facsimile clearly establishes that the document existed, and was available, albeit in a different form, during the statutory period. Courts should be open to technological development in order to facilitate substantial justice and judicial economy. The better approach should be to allow the filing of a facsimile of a properly executed affidavit with a complaint in a professional malpractice action so as to avoid the running of the statute of limitation. Then the original should be allowed to be filed as a supplemental pleading, without requiring the action to be ‘renewed.’ ”
Sisk filed the original affidavit with his motion to set aside the trial court‘s dismissal. At that point the trial court had both the facsimile, filed with the complaint, and the original. In the absence of any evidence of differences between the two, the court exalted form over substance in refusing to set aside the dismissal of his complaint.
The dissent argues that the legislature specified the requirements and procedures applicable to
Judgment reversed. McMurray, P. J., Birdsong, P. J., Pope, P. J., Blackburn and Smith, JJ., concur. Beasley, C. J., Andrews and Ruffin, JJ., dissent.
BEASLEY, Chief Judge, dissenting.
I respectfully dissent, as Sisk failed to follow the law.
The legislature set out a very precise and detailed procedure to be followed in such cases, and the majority largely sweeps it away. Whether it is too demanding, and whether it should accommodate facsimile copies, is not for the court to decide unless it violates due process, a claim not advanced. If the legislature has power to establish the procedure, a point which is not challenged, then the judicial branch must honor its requirements. It is no answer to say that the Civil Practice Act is to be construed liberally, according to its own provisions. See
The submission of a facsimile of an affidavit does not meet the requirements of
Sisk does not cite any decision holding that a facsimile or other reproduction of an original affidavit can satisfy the requirement that an affidavit be filed, or that a copy will suffice when an affidavit is
In Brown v. Middle Ga. Hosp., 211 Ga. App. 884 (440 SE2d 687) (1994), we were similarly faced with the argument that a facsimile was sufficient or, if not, the failure to file the original was an amendable defect. We did not determine that a facsimile alone was satisfactory, but rather that it was defective and could only be considered for filing purposes if “the failure to file the proper affidavit in the first place constitutes an ‘amendable defect.’ ” Id. at 885 (1). Sisk‘s arguments concerning the policy behind the statute and the ability of a facsimile to fulfill that policy have some compelling logic, especially in this age of instant facsimile transmission and often distant witnesses; the process of creating and agreeing upon an affidavit is doubtless facilitated by the technology, and securing the evidence of the expert‘s opinion would be more efficient if a facsimile could be submitted. However, the simple fact is that a facsimile, or any reproduction, is not an affidavit. “A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit.” Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga. App. 386, 387 (199 SE2d 556) (1973). The only question then is whether the failure to file an original was an amendable defect.
Sisk argues that Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256 (419 SE2d 36) (1992), requires that amendment of the affidavit be permitted. In that case, the plaintiff had invoked the protection of
In Brown, supra, with facts similar to those in this case, we looked to Waldroup and concluded that Waldroup required that a facsimile of an original affidavit would be acceptable only if the origi-
Sisk argues that the existence of a facsimile of the affidavit establishes the existence of the original and shows it is “available,” within the meaning and purpose of the statute. There can be no facsimile if there is no original. As an affidavit under
Waldroup, supra, is clearly distinguishable because its resolution was governed by the less rigid subsection (b), however. Sisk must also satisfy the subsection (e) requirement that the failure to file the original was the result of a mistake, a requirement not found under the facts of Waldroup. Additionally, Waldroup does not control because the language Sisk wishes to rely upon concerning amendment rests upon St. Joseph‘s Hosp. v. Nease, 259 Ga. 153 (1) (b) (377 SE2d 847) (1989), which predates the addition of subsections (e) and (f) to
It is clear from the record and pleadings that the failure to file the original affidavit contemporaneously with the complaint was not due to any mistake but rather to the fact that it was not physically in plaintiff‘s possession when the complaint was filed.4 The only mistake asserted by Sisk occurred after the required time had expired, when the original affidavit arrived and was placed in an office file.
Although one might be inclined to construe the pleadings in this case to allow amendment so as to do substantial justice, satisfying both the policy behind
Sisk expressly appealed from the March 28, 1994 dismissal of his complaint, by notice filed April 26, 1994. He did not appeal from the subsequent denial of his motion to set aside and amend. The enumeration of error and argument are confined to the acceptability and amendability of the facsimile affidavit. Therefore, the attempted amendment itself is an issue not properly before us. See City of Atlanta v. Jackson, 263 Ga. 426, 428 (6) (435 SE2d 212) (1993).
Moreover, the affidavit is ineffective. The original affidavit, filed with the VA, was sworn to and subscribed before a notary public by Dr. Scheer on June 3, 1993. Suit was filed, without an original affidavit, on June 7, 1993. It had attached a facsimile copy of an affidavit signed by Dr. Scheer on May 31 and by the notary (a different one) on June 7. Thus, on its face it does not appear that Dr. Scheer swore to and subscribed the affidavit before the notary. The original of this one was filed after the complaint was dismissed in March 1994. Even if its filing had been timely, it was invalid. ” ‘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.’ ” Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994), and cases cited therein.
Although the existence of a valid affidavit at the time of filing the complaint satisfies the policy behind
The majority suggests that a facsimile be allowed to avoid the statute of limitation with the later filing of the original permitted as a “supplementary pleading.”
The majority also suggests that the submission of the facsimile itself should satisfy the filing requirement of
In this instance, the legislature has established the method, in fact alternative methods, by which its purpose in requiring an affidavit is to be served. Plaintiffs, and the courts, can devise other and even arguably better methods. However, because they are not empowered to change the law prescribed by the legislature absent constitutional infirmity, they are bound to follow it. The liberality given pleading requirements of the Civil Practice Act (CPA) does not extend to the specific procedural requirements placed on malpractice actions by the legislature after adoption of the CPA. Nor does it apply to the prerequisites for a valid affidavit.
The principle in the majority opinion taken from Gadd v. Wilson & Co., Engineers &c., 262 Ga. 234, 235 (416 SE2d 285) (1992), related to the contents and substance of the affidavit, that is, the sufficiency of affiant‘s statements of fact, not the procedural requirements of the statute with respect to such affidavits. Also, as noted by the majority, Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994), involves an affidavit submitted in opposition to a motion for summary judgment, which is not subject to the procedural filing requirements of
The law permitted Sisk‘s complaint to be dismissed, as it was. It cannot be concluded that the court erred as a matter of law in its application of
I am authorized to state that Judge Andrews and Judge Ruffin
ANDREWS, Judge, dissenting.
I join Chief Judge Beasley‘s dissent and write separately simply to note that the criticism the majority directs toward the legislature is misplaced.
DECIDED MARCH 17, 1995 —
RECONSIDERATION DENIED MARCH 31, 1995 —
Knight & Fisher, Ronald T. Knight, Joy H. Fisher, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellant.
Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, for appellee.