April 20, 2010
Georgia Cases and Comments
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.