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Georgia Supreme Court Challenges a Medical Malpractice Defense Attorney on his Unusual Reading of the Law Regarding the 9.1 Affidavit Requirement

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As I have discussed on my website under Medical Malpractice in Georgia, in order for a Plaintiff to file a Medical Malpractice Lawsuit the original complaint must comply with the Official Code of Georgia Section 9-11-9.1, more commonly referred to as the 9.1 Affidavit, whereby an Affidavit completed by an Expert in the field must be included, except in limited circumstances which are not at issue in this case, with the Original Complaint when filed.

The rule is in place to make sure that frivolous lawsuits in the field of medical malpractice and other similar cases are not being brought as these cases are very expensive, complicated, and time consuming in nature, and this purpose is not challenged in the case in point.

In the case in point, Gala v. Fisher, No. S14G0919, the issue is whether or not, once the suit is filed, a Plaintiff has the legal right to amend the Plaintiff's Complaint and preserve the original lawsuit if it is discovered after the initial filing that the 9.1 Affidavit is defective for some reason and, in the case in point, the reason is that the Expert was later shown to be incompetent as an expert in the case at hand. This is a very important question to be asked and answered since Georgia has set forth very strict requirements of who is and who is not an expert qualified to testify in a case.

Therefore, if the Plaintiff's affidavit expert is deemed to be inappropriate, or the affidavit is otherwise determined to be defective, and the Plaintiff, upon the Defendant's Motion to Dismiss, is not able to cure the defect, then the Plaintiff has basically lost the case before the case has even been tried by the finder of fact.

Subsection (e) of O.C.G.A. Section 9-11-9.1 regarding the Affidavit to Accompany the Charge of Professional Malpractice states in pertinent part that, "If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff's complaint shall be subject to dismissal for failure to state a claim." The subsection continues to state, however, that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 (ยง 9-11-15. Amended and supplemental pleadings) within 30 days of service of the motion alleging that the affidavit is defective.

The statute further states that the trial court may, in the exercise of its discretion, extend the time for filing said amendment or response to the motion, or both, as it shall determine justice requires. The Defendant in this case attempted to argue, however, that if the original affidavit is defective that the Plaintiff has now lost his/her right to the original claim itself, and that the claim must be dismissed.

The Honorable Kimberly Esmond Adams of Fulton County Superior Court agreed with the Defendant in this case and ordered the Plaintiff's lawsuit dismissed as a result. The Plaintiff appealed and the Georgia Court of Appeals disagreed with the lower court and the Defendant, and thereby reinstated the original lawsuit.

The Supreme Court of Georgia granted the Defendant's request for the case to be heard by the high court so when the court came back into session for the September, 2014 term it heard arguments from both Plaintiff and Defendants' Counsel about whether or not, in a medical malpractice case, if there is a challenge by the defense to the Plaintiff's 9.1 Expert Affidavit filed with the original complaint, then can the Plaintiff amend his/her complaint, under the Rules of Civil Procedure, with a new Expert Affidavit allowing the case to proceed with the original complaint and not be dismissed.

It seems that a strict reading of the law would allow the Plaintiff this remedy so as to not unduly prejudice the Plaintiff in a case that is not frivolous and is this serious in nature.

At Julie A. Rice, Attorney at Law, & Affiliates, we are experts at representing people in Medical Negligence Cases and we have many resources to identify qualified experts for the 9.1 Affidavit Requirement in said cases. If you or a loved one have been injured or killed due to the negligence of anyone in the medical profession, then please contact us in a timely manner for your free legal consultation so that we may get you the compensation that you deserve and so that your lawsuit is filed properly and in accordance with the law.

We may be reached by any or all of the following methods: By email at [email protected]; by the Contact Form on this blog or on our Website; and/or by phone at (770) 865-8654, or (813) 363-6664, and we look forward to speaking with you soon.

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