The Injustice of OCGA 9-11-9.1, Part 1

Roberson v. Northrup

A10A0693, 2010 Ga. App. LEXIS 144 (February 17, 2010)

OCGA 9-11-9.1 requires that a suit based on a claim of professional negligence be accompanied by an affidavit of a qualified expert, who testifies that the professional defendant(s) failed to comply with the professional standard of conduct. The Georgia Supreme Court has described it as

an initial pleading requirement. The legislative purpose behind the section 9-11-9.1 affidavit requirement is to reduce the number of frivolous malpractice claims that are filed. That purpose is fulfilled when, before filing a complaint, a plaintiff investigates his or her claim sufficiently to secure an expert's affidavit.

Thompson v. Ezor, 272 Ga. 849, 852 (2000) (footnotes omitted). That may be its official purpose, but if it is the actual purpose, the statute is poorly designed. Instead of reducing frivolous suits, it is often a "gotcha" trap to destroy non-frivolous ones, as the present case shows.

In Roberson, the plaintiff had "investigate[d] her claim sufficiently to secure an expert's affidavit" but, as often happens through clerical error, failed to attach it to the complaint. She sought to amend the complaint by attaching the affidavit, which would have satisfied the legitimate purpose of OCGA 9-11-9.1, but the current version of the statute provides a different procedure:

(f) If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.

The plaintiff attempted to cure the defect by attaching the affidavit to an amended complaint, but the trial court dismissed the complaint under this code section. The dismissal was "with prejudice," meaning that the plaintiff could not renew the suit by refiling it. On appeal, the plaintiff argued that any dismissal should have been without prejudice, but the Court of Appeals disagreed. The reason is that, in two other subsections, a failure to comply with the requirements of this section is treated as a dismissal for "failure to state a claim." Id. (b), (d). Quoting prior cases, it stated:

"[i]f the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice."

Accordingly, the only remedy is to dismiss the original complaint and file a renewal action with the affidavit.



The first thing a plaintiff must do when confronted with an issue under OCGA 9-11-9.1, whether drafting an affidavit or answering a motion, is to read the statute. The plaintiff must not rely on memory, because the statute has been amended numerous times, and likely will continue to be amended in the future. In the past, the plaintiff was allowed to cure the defect as the plaintiff attempted in this case. See, e.g., Mug a Bug Pest Control v. Vester, 270 Ga. 407 (1999).

Note how far the result departs from the stated goal of preventing frivolous suits from being filed. An expert provided an affidavit alleging negligence, and there is no contention that it was a defective or false affidavit. It was simply not joined with the complaint that was filed. There is no dispute that it existed before the suit was filed, and it therefore fulfilled the stated goal of ensuring proper pre-suit investigation.

Note that the statutory remedy requires a plaintiff to give up something that no other similarly situated litigant must give up. Others may amend freely to add such affidavits. For example,

There is no merit to the assertion that the complaint should have been dismissed because the verification was insufficient under OCGA 9-10-110 (petitions for extraordinary equitable relief shall be "verified positively by the petitioner or supported by other satisfactory proofs"). "[F]ailure to verify a petition is an amendable defect . . . [which is] waived by the defendant's failure to object thereto in the trial court."

Agri-Cycle LLC v. Couch, 284 Ga. 90, 92 (2008). OCGA 9-11-9.1 makes the plaintiff dismiss the current suit and renew it, making him forfeit the later right to dismiss and renew (a privilege usable only once) that all other plaintiffs have, and conversely, giving professional defendants additional privileges that no other defendants enjoy. This does not promote the goal of deterring frivolous suits.

Note also how misleadingly (intentionally or unintentionally) the statute addresses the consequences of a dismissal. It does not state that the dismissal would be "with prejudice." It simply states that the dismissal would be for failure to state a claim. A plaintiff could easily regard that statement as gobbledygook because the complaint does state a claim, and because the only defect is one that is amendable in every other case under the code. The code section could be thought not to mean what it says, and this would actually be true. Instead of stating the complaint should be subject to dismissal for failure to state a claim, which violates truth in legislating norms, it should have stated that the complaint would be treated as if it failed to state a claim, or with less circumlocution, the complaint would be dismissed with prejudice. As it is, it is a confusing trap for the unwary.

Finally, whatever benefit is obtained by dismissing the complaint, it runs counter to the purpose of this statute and the law to preclude the refiling of a meritorious complaint. The statute should not permit dismissal with prejudice when the plaintiff has adequately investigated the claim before suit and obtained an expert's validation of the suit.

Author: Charles M. Cork, III

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