Ga. Code Ann. § 9-11-9.1

Section 9-11-9.1(a) requires an expert affidavit to set forth at least one negligent act or omission and the factual basis for the claim.

Waldroup v. Greene County Hospital Authority · filed 1992-04-24(a)

We hold that statement is sufficient to meet the requirement of OCGA § 9-11-9.1 (a) of setting forth at least one negligent act or omission and the factual basis for the claim.

Section 9-11-9.1 is satisfied when a hospital-liability complaint is filed with affidavits describing the negligence of the professionals whose acts support the claim; subsection (e) applies only when no affidavit was filed contemporaneously and does not bar an amendment clarifying the hospital’s liability.

Thornton v. WARE COUNTY HOSPITAL AUTHORITY · filed 1992-05-05(e)

We conclude that appellants complied with the requirements of § 9-11-9.1 by filing with their complaint affidavits which set forth the negligence of the professionals whose acts form the basis for appellants’ claim against the hospital. The hospital, citing OCGA § 9-11-9.1 (e), incorrectly characterizes appellants’ amendment to their complaint as an attempt to circumvent the filing requirements of § 9-11-9.1. We disagree. OCGA § 9-11-9.1 (e) addresses only the attempt to amend a complaint when the plaintiff fails to file an affidavit contemporaneously with the complaint. Appellants’ complaint as originally filed included the requisite affidavits setting forth the negligent acts of Dr. Whigham and the anesthesia team. However, the complaint was unartfully drafted in that it alleged that the defendants, collectively, failed to exercise the required degree of care. The amendment merely clarified the specific basis for the hospital’s liability. We find no merit to the hospital’s argument and hold that the trial court erred in dismissing appellant’s complaint.

Section 9-11-9.1(a) requires a malpractice plaintiff to file a valid expert affidavit identifying at least one specific negligent act or omission and its factual basis as to each professional defendant, but the affidavit need not attach the records supporting its factual synopsis.

HCA Health Services of Georgia, Inc. v. Hampshire · filed 1992-10-14(a)

We hold that the trial court misconstrued OCGA § 9-11-9.1. In accordance with the legislative purpose of reducing the number of frivolous malpractice suits, we construe OCGA § 9-11-9.1 as requiring a plaintiff in a malpractice suit to submit a valid affidavit by an expert competent to testify in court against each professional defendant named in the complaint, in which is set forth specifically at least one negligent act or omission claimed to exist as to each professional defendant (jointly, where appropriate; otherwise, severally) and the factual basis for the claim against each defendant. ... Therefore, under the correct interpretation of OCGA § 9-11-9.1, the filing of an expert's affidavit that satisfies the statute's requirements as to one defendant does not necessarily mean that those requirements have been likewise satisfied as to other defendants.

Section 9-11-9.1 requires an expert affidavit to specifically state at least one negligent act or omission, and it does not permit an amendment when the corrected affidavit was not prepared and in the plaintiff's possession before the original affidavit was filed.

Edwards v. Vanstrom · filed 1992-10-28(a), (e)

An affidavit under OCGA § 9-11-9.1 which does not state specifically at least one negligent act or omission is fatally defective. ... Consequently, it did not satisfy the requirements of OCGA § 9-11-9.1 (a), and the trial court did not err by so finding. ... Moreover, Edwards’ attempt to amend the affidavit to satisfy the requirements of OCGA § 9-11-9.1 was not authorized as it is apparent from the date of this second affidavit that it was not prepared and in Edwards’ possession prior to the date the first affidavit was filed. OCGA § 9-11-9.1 (e); ... Accordingly, the failure to file this affidavit was not a mistake, and no amendment was authorized.

Section 9-11-9.1(a) requires a professional-malpractice expert affidavit to specifically identify at least one claimed negligent act or omission and the factual basis for that claim.

Druckman v. Ethridge · filed 1991-01-10(a)

“What OCGA § 9-11-9.1 (a) requires is that the expert affidavit set forth specifically at least one negligent act or omission ‘claimed to exist’ and the factual basis for each such claim.”

Section 9-11-9.1 is satisfied when an expert affidavit identifies a specified alternative design and states that failing to use it or another appropriate alternative constituted malpractice, thereby setting forth a negligent act or omission.

Samuelson v. Lord, Aeck & Sergeant, Inc. · filed 1992-09-08

Likewise, in this case the opinion that another specified design “might” have been used and that the failure to use such a design or another appropriate alternative constituted malpractice is sufficient to set forth a negligent act or omission as required by the affidavit statute.

Section 9-11-9.1 requires an expert affidavit to identify at least one negligent act or omission and its factual basis; for an alleged omission, the failure to find affirmative evidence that notice was provided can supply factual support.

Allen v. Belinfante · filed 1995-06-26

The affidavit of dentist Sommercorn stated that Dr. Belinfante failed to exercise the minimum degree of care and skill by failing in a timely manner to provide Mrs. Allen with notice of the serious health risks and known problems associated with the interpositional implants. This was based on Sommercorn’s examination of Mrs. Allen’s medical records and her finding no indication that Dr. Belinfante had ever provided Allen with such notice, including an FDA public health alert. Since the gist of the alleged tort was omission, the failure to find affirmative evidence of notice provided sufficient factual support for the alleged negligent act.

Subsection (b) permits a trial court, when justice so requires, to consider a facsimile of an expert affidavit filed during the statutory grace period; the original need not already be in the plaintiff's physical possession, and no showing of mistake is required.

Roberts v. Faust · filed 1995-07-11(b)

Although OCGA § 9-11-9.1 contemplates that an original expert's affidavit should be filed, when justice so requires, trial courts may consider facsimiles of affidavits that are available during the statutory grace period found in OCGA § 9-11-9.1(b). Waldroup v. Greene County Hosp. Auth., 204 Ga.App. 256, 258(2), 419 S.E.2d 36 (1992); see Reid v. Brazil, 193 Ga.App. 1, 2(2), 387 S.E.2d 1 (1989). Contrary to defendant's assertion otherwise, an original affidavit does not have to be in a plaintiff's physical possession in order for it to be considered "available" under our holding in Waldroup. Nor do we find in Waldroup or OCGA § 9-11-9.1(b) any requirement that a plaintiff be able to demonstrate that the failure to file an original affidavit during the statutory grace period resulted from some mistake.

Section 9-11-9.1 is satisfied when the supporting expert affidavit establishes relevant expertise overlapping the defendant physician’s expertise in the procedure and post-operative care at issue.

Stubbs v. Ray · filed 1995-08-28

Bussey’s affidavit establishes that he is a board-certified general surgeon who, from his training, experience and practice, is familiar with the standard of care, skill and diligence exercised by physicians and surgeons in the post angiography and angioplasty management of patients, particularly with the symptoms of clotting and blockage of arteries. Because, as noted above, these qualifications overlap with those of a radiologist performing that same surgical procedure, and because the affidavit in all other ways satisfies the requirements of OCGA § 9-11-9.1, we find that summary judgment based on the insufficiency of the affidavit was improperly granted.

Section 9-11-9.1 requires a malpractice affidavit from an expert competent to testify that specifically identifies at least one negligent act or omission and its factual basis, and the affidavit is construed liberally in the plaintiff's favor.

Bala v. Powers Ferry Psychological Associates · filed 1997-03-07

And given the above interpretation, it is clear that the affidavit meets the requirements of OCGA § 9-11-9.1 because it was provided by “an expert competent to testify” and “set forth specifically at least one negligent act or omission claimed to exist and the factual basis [therefor].”

Section 9-11-9.1 allows a plaintiff to amend an expert affidavit filed with a malpractice complaint to cure an alleged defect, including insufficient factual allegations of negligent acts, subject to the statute's timing rules.

Porquez v. Washington · filed 1997-11-17(d)

Regardless of the need for amendment to withstand the motions to dismiss, the Court of Appeals correctly concluded that Washington's § 9-11-9.1 affidavit could be amended to present additional evidence of deviation from the standard of care. As this Court determined in Hewett, when the expert affidavit is initially filed with the complaint, a plaintiff is allowed to supplement the affidavit if its sufficiency is disputed. Even though Hewett dealt with a challenge to the expert's competency, its analysis is not limited to a contest over competency; the reasoning is extant when the challenge is to the sufficiency of the expert's statements regarding negligent acts.

For a medical-malpractice pleading, subsection (a) requires the supporting professional expert affidavit to come from someone knowledgeable about the allegedly breached standard of care.

Sinkfield v. Oh · filed 1997-12-05(a)

If Dr. Proctor, as a toxicologist and pharmacologist, had been offered as an expert witness against the two medical doctors for purposes of satisfying the strictures of OCGA § 9-11-9.1(a), Dr. Proctor would not have been a competent witness. ... It is well settled that a professional expert affidavit for pleading purposes under OCGA § 9-11-9.1(a) in a medical malpractice case must be from a person knowledgeable about the applicable standard of care that has allegedly been breached.

Section 9-11-9.1 is procedural, its 1997 amendments apply only prospectively, and under the 1989 version a plaintiff may amend to add an omitted expert affidavit only if the affidavit was available before the complaint was filed and the omission resulted from mistake.

Mug a Bug Pest Control v. Vester · filed 1999-01-11(e)

This Court has held that OCGA § 9-11-9.1 is a procedural law. ... Based on the express language of the act, we agree with the Court of Appeals of Georgia that the 1997 amendments to OCGA § 9-11-9.1 apply only prospectively. ... Interpreting OCGA § 9-11-9.1 as originally enacted, we held that a plaintiff’s failure to attach the required affidavit to a complaint in a professional malpractice action is an amendable defect when the plaintiff had obtained the affidavit but merely neglected to file it with the complaint. ... The 1989 version of § 9-11-9.1, which applies in this action, allowed a plaintiff to file an expert affidavit by amendment if two conditions were met. A court must find that (1) the plaintiff had the affidavit prior to filing the complaint and (2) the plaintiff failed to file it as a result of mistake.

Section 9-11-9.1 requires a professional-malpractice plaintiff to file the expert affidavit with the complaint and does not permit an amendment to cure its absence, except for the statutory 45-day supplementation.

Fales v. Jacobs · filed 2003-10-01(a), (b)

However, nothing in the current version of OCGA § 9-11-9.1 otherwise permits a party to add the necessary expert affidavit by amendment.

Section 9-11-9.1 requires a plaintiff alleging professional negligence against a licensed medical doctor to file an expert affidavit with the complaint, and the affidavit cannot be added later by amendment; after a merits dismissal, the statute's renewal provision is unavailable.

Bardo v. Liss · filed 2005-04-06(a), (e), (f)

When a complaint is filed for damages alleging professional negligence against a licensed medical doctor, OCGA § 9-11-9.1 requires that, contemporaneously with the complaint, an expert affidavit be filed setting forth at least one negligent act or omission claimed to exist and the factual basis for the claims. ... Where a party fails to file the required affidavit with the original complaint, the provisions of OCGA § 9-11-9.1 do not permit the party to add the affidavit by amendment. ... 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.

Section 9-11-9.1's expert-affidavit pleading requirement is distinct from the evidentiary requirements for opposing summary judgment; satisfying the former does not necessarily satisfy the latter.

Rudd v. Paden · filed 2006-04-28

An affidavit which satisfies the pleading requirements of OCGA § 9-11-9.1 will not necessarily satisfy the evidentiary requirements for summary judgment set forth in OCGA § 9-11-56.

Section 9-11-9.1(a) requires an expert affidavit to specifically identify at least one negligent act or omission and the factual basis for it.

Allen v. Family Medical Center, P.C. · filed 2007-09-12(a)

Pursuant to OCGA § 9-11-9.1 (a), an expert’s affidavit must set forth specifically at least one negligent act or omission and the factual basis for each such act or omission.

Section 9-11-9.1(d) gives a plaintiff 30 days to cure a defective malpractice affidavit after the defendant moves to dismiss, with the trial court able to extend that period in its discretion.

Thomas v. Gastroenterology Associates of Gainesville, P.C. · filed 2005-05-20(d)

The defendants brought their motions to dismiss on this basis, and yet Thomas failed to cure the defect within the 30-day period allowed her by statute. Thus we cannot say that the trial court abused its discretion when it granted the motions to dismiss.

Section 9-11-9.1 permits a plaintiff who timely files an initial expert affidavit to amend or substitute it to add further allegations of professional negligence; subsection (e) bars amendment only when the plaintiff filed no affidavit.

Bhansali v. Moncada · filed 2005-08-04(a), (b), and (e)

For these reasons, we hold the trial court did not err in denying Dr. Bhansali’s motion to dismiss under OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires an expert affidavit with a medical-malpractice complaint, but when the original complaint alleges only ordinary negligence, the requirement is satisfied by filing the affidavit contemporaneously with an amended complaint that adds a professional-negligence claim.

Jensen v. Engler · filed 2012-10-11(a)

Thus, the pleadings do not reflect that Engler’s amended complaint was an improper attempt to cure any original failure to file an expert affidavit or otherwise avoid the contemporaneous filing requirement of OCGA § 9-11-9.1 (a). And because Engler filed the required expert affidavit contemporaneously with the filing of her professional negligence claim, she satisfied the requirements of OCGA § 9-11-9.1 (a).

Section 9-11-9.1(a) requires an expert affidavit supporting a malpractice claim, but the affidavit need not establish the claim’s evidentiary merits to withstand dismissal.

Bowen v. Adams · filed 1992-02-05(a)

Appellant cannot be required to submit an expert affidavit which unequivocally demonstrates the evidentiary merits of her claim unless and until appellee moves for summary judgment and submits evidence demonstrating that appellant’s claim lacks merit. It follows that the trial court erred in granting appellee’s motion to dismiss.

Section 9-11-9.1 permits a plaintiff who filed an expert affidavit with the complaint to amend it in response to challenges to its sufficiency.

Washington v. Georgia Baptist Medical Center · filed 1996-11-13(e)

Although the ruling in Hewett allowed additional evidence to be presented regarding the expert’s competency, we do not see the holding as being limited to that particular challenge to the affidavit’s sufficiency, and find that when an affidavit has been filed with the complaint, it can be amended to respond to challenges to its sufficiency.

An expert affidavit alleging disclosure of unspecified confidential information can satisfy § 9-11-9.1.

Cagle v. Davis · filed 1999-02-17

Her assertion that the amount is excessive because her complaint should have been dismissed earlier for insufficiency of the expert affidavit is not only disingenuous but incorrect. See Bala v. Powers Ferry Psychological Assoc., 225 Ga. App. 843, 845 (491 SE2d 380) (1997) (assertion that defendant disclosed unspecified confidential information meets requirements of OCGA § 9-11-9.1).

Section 9-11-9.1 applies to professional malpractice claims brought as breach-of-contract actions for failure to meet the professional standard of care.

RICHMOND LEASING COMPANY, INC. v. Cooper, Cooper, Maioriello & Stalnaker · filed 1993-02-22

However, “ ‘OCGA § 9-11-9.1 “applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” ’ [Cit.] Therefore, the trial court did not err by applying the requirements of OCGA § 9-11-9.1 to [appellant’s claim].”

Section 9-11-9.1(a) requires a plaintiff in any professional-malpractice damages action to file with the complaint a competent expert affidavit identifying at least one specific negligent act or omission and its factual basis; the requirement is not limited to medical malpractice.

Padgett v. Crawford · filed 1988-12-05(a)

Held: OCGA § 9-11-9.1 (a) provides that "[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." Padgett contends that this Code section applies only to medical malpractice actions, but this court has already decided that issue otherwise. Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988). In this case, following the appellee's motion to dismiss Padgett's complaint for having filed no affidavit, the trial court gave Padgett 10 days in which to file such. Padgett submitted an affidavit within that time, but the affidavit neither states the qualifications of the affiant nor provides the affiant's opinion as to the reasonableness or skill of the defendant attorney's conduct. The trial court properly found this affidavit to be inadequate and dismissed the action.

Section 9-11-9.1(a) requires a malpractice plaintiff to file with the complaint a competent expert's affidavit identifying at least one negligent act or omission and its factual basis, but does not require the affidavit to state the standard of care or explain the deviation.

0-1 Doctors Memorial Holding Co. v. Moore · filed 1989-02-13(a)

Nothing in the affidavit requirements in OCGA § 9-11-9.1 demands that the standard of care be set forth, that a plaintiff’s expert state he is familiar with the appropriate standard of'care, or that the affiant detail the manner in which the defendant deviated from that standard. Thus the plain language of the statute does not support appellees’ arguments. ... We construe OCGA § 9-11-9.1 as establishing an “exception to the general liberality of pleading permitted under [the Civil Practice Act, OCGA § 9-11-1 et seq.],” ... by requiring when a malpractice suit is instituted that along with the complaint an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant. The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.

Section 9-11-9.1(a) requires a legal-malpractice complaint to be accompanied by a supporting expert affidavit.

Frazier v. Merritt · filed 1989-03-08(a)

The appellant, acting pro se, sued the appellee attorney for alleged legal malpractice arising from his representation of the appellant on certain criminal charges. Contemporaneously with the filing of his answer, the appellee moved to dismiss the complaint on the ground that it was not accompanied by the supporting affidavit of an expert as required by OCGA § 9-11-9.1 (a). ... 2. The trial court did not err in granting the appellee’s motion to dismiss.

Section 9-11-9.1 requires an expert affidavit in any professional-malpractice action based on negligent acts or omissions, whether sounding in tort or breach of contract for failure to meet professional care obligations.

Housing Authority of Savannah v. Gilpin+ bazemore/architects & Planners, Inc. · filed 1989-04-05

“[OCGA § 9-11-9.1] applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.”

Section 9-11-9.1 requires an affidavit providing a substantial basis for a professional-malpractice action, but incorporating prior discovery can satisfy the statute's purpose and permit amendment when the affidavit was not filed with a renewed complaint.

HOSPITAL AUTHORITY OF FULTON COUNTY v. McDaniel · filed 1989-07-06

By incorporating the discovery from the original action in the complaint for the renewed action, the McDaniels complied with the spirit, if not the letter, of OCGA § 9-11-9.1. The purpose of the Code requirement is to ensure a substantial basis for actions against professionals. Clearly, such a basis existed in the present case, and the trial court properly allowed the amendment.

Section 9-11-9.1 requires a plaintiff asserting a medical malpractice claim to attach an expert's affidavit to the complaint.

Freeman v. Van Dyke · filed 1989-09-25

The trial court did not err in dismissing appellant’s complaint because of his failure to attach the expert’s affidavit mandated by OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires an expert affidavit with a complaint alleging professional malpractice, including a third-party complaint seeking damages, and applies to architects and other professionals, not just medical-malpractice actions.

Housing Auth. of Savannah v. Greene · filed 1989-09-28(a)

Consequently, we hold that, under the plain language of the statute, OCGA § 9-11-9.1 applies to “any action for damages alleging professional malpractice” on the part of an architect or other professional. ... We hold that it does. We agree with the reasoning of the Court of Appeals in this case that the statute is applicable here, since the third-party complaint does allege professional malpractice, and asserts a claim for damages. ... Under the statute, where a third-party complaint asserts a damage claim and alleges professional malpractice, it is only necessary that there be filed contemporaneously with the filing of the complaint the affidavit of an expert stating that, in his expert opinion, such facts, if true, would constitute professional malpractice.

Section 9-11-9.1 requires a plaintiff alleging professional malpractice to submit an expert affidavit with the complaint, and that requirement is procedural rather than substantive.

Precision Planning, Inc. v. Wall · filed 1989-10-31

In the instant case, the OCGA § 9-11-9.1 requirement of submitting an expert's affidavit along with the complaint did not affect the substantive right of action for professional malpractice; it alters neither the standard of care to be applied nor the measure of recovery. The statute merely prescribes a procedure for enforcing that right, evidently with the purpose of preventing frivolous or unsustainable actions. Accordingly, the trial court erred in applying the statute prospectively only, and in denying the appellant's motions to dismiss.

Section 9-11-9.1 requires an expert affidavit with a medical-malpractice complaint, but the requirement does not apply when the alleged liability turns on no medical question.

Brown v. Durden · filed 1990-03-13

The appellant contends that the trial court erred in concluding that her claim was predicated solely on medical malpractice and in therefore granting summary judgment to the appellees due to her failure to submit an expert’s affidavit with her complaint in accordance with OCGA § 9-11-9.1. We agree that this ruling was erroneous. ... In the present case, the appellees’ alleged liability does not turn on a “medical question,” and a jury would be capable of determining without the help of expert evidence whether Dr. Durden’s medical assistant exercised due care in leaving the decedent unattended and unrestrained on the examining table after he had been brought to the office suffering from dizziness and nausea following an apparent seizure. We accordingly hold that the trial court erred in granting the appellees’ motion for summary judgment.

Section 9-11-9.1(a) requires an expert affidavit when a litigant alleges harm from an architect’s negligent professional services, and subsection (e) makes dismissal appropriate when the affidavit was not attached and the omission was not a mistake.

McLendon & Cox v. Roberts · filed 1990-10-15(a), (e)

That clearly categorizes appellee’s action against appellant as one for “damages alleging professional malpractice” within the ambit of OCGA § 9-11-9.1 (a) rather than one for the creation or maintenance of a nuisance under OCGA § 41-1-4. ... We thus find that the claims against appellant constituted an action for professional malpractice to which OCGA § 9-11-9.1 applies. ... OCGA § 9-11-9.1 (e) applies. Thus, appellee’s claim was subject to dismissal and his failure to comply with the statute was not an amendable defect.

Section 9-11-9.1 requires an expert affidavit for professional malpractice claims, but not for claims alleging only simple negligence.

Creel v. Cotton States Mutual Insurance · filed 1990-11-02

We now affirm the trial court's judgment, concluding that, even if Creel is a professional within the meaning of § 9-11-9.1, Cotton States was not required to file an affidavit under § 9-11-9.1 because Cotton States' action against Creel is not a professional malpractice action but a simple negligence action. ... This is an allegation of simple negligence. Accordingly, Cotton States was not required to file an expert affidavit pursuant to § 9-11-9.1.

Section 9-11-9.1 requires a malpractice plaintiff to file with the complaint an expert affidavit identifying at least one specific negligent act or omission.

Hill-Everett v. Jones · filed 1990-12-04

OCGA § 9-11-9.1 requires the plaintiff to file with the complaint an expert affidavit setting forth at least one specific act of negligence or omission which constitutes the claim of alleged negligence amounting to malpractice. Plaintiff failed to submit such an affidavit in the case sub judice. We need look no further than the face of the documents submitted by plaintiff to reach this conclusion because neither document bears a jurat. In the absence of valid jurats, the documents cannot be deemed affidavits.

Section 9-11-9.1 requires an expert affidavit filed with a professional-malpractice complaint and permits amendment to cure its absence only when the plaintiff had the affidavit available before filing and omitted it by mistake.

Smith v. North Fulton Medical Center · filed 1991-06-28(a), (e)

"In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." OCGA § 9-11-9.1 (a). ... "[I]f a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake." OCGA § 9-11-9.1 (e). ... Consequently, the trial court did not err in refusing to sustain any claim of professional malpractice based on the untimely affidavit included with the amended complaint.

Section 9-11-9.1(a) requires a professional-malpractice plaintiff to file an affidavit from an expert competent to testify in the relevant field that specifically identifies at least one negligent act or omission and its factual basis; an affidavit from a surgeon that neither establishes competence in nursing nor states that the nursing staff breached the professional standard is insufficient.

Piedmont Hospital, Inc. v. Milton · filed 1988-12-05(a)

OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” ... Dr. Scaljon’s affidavit is insufficient to meet the requirements of this Code section in that it fails to show that the affiant is “an expert competent to testify” in the field of nursing. The affidavit is also deficient in that it does not indicate that defendant’s nursing staff breached the requisite degree of care and skill required of the nursing profession generally by deviating from the treating physician’s post operative instructions.

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice by a licensed pharmacist to file an expert affidavit with the complaint, and noncompliance is a complete defense to claims against the pharmacist and the employer, even when the negligence is clear and palpable.

Sparks v. Kroger Co. · filed 1991-06-24(a)

Where a vendor of drugs or medicines is a licensed pharmacist and is sued on the basis of allegations that he negligently dispensed the wrong drug in filling a medical prescription, the claim against him clearly is for professional malpractice; and we find nothing in OCGA § 51-1-25 which would obviate the need for compliance with OCGA § 9-11-9.1 in such a case. ... Under these circumstances, the trial court correctly concluded that the appellant’s failure to comply with § 9-11-9.1 constituted a complete defense to the claim against the company as well as the claims against the pharmacists.

Section 9-11-9.1 requires a defendant's professional-malpractice counterclaim to include an expert affidavit, and amendment to cure its omission is allowed only under subsection (e); OCGA § 9-11-13 (f) cannot circumvent that limit.

Hardman v. Knight · filed 1992-02-24(a), (e)

Although we have discovered no direct controlling precedent on this issue, our review of existing case law and the statutes persuades us to agree with appellant. We first conclude that OCGA § 9-11-9.1 does apply to the assertion of a counterclaim by a defendant. ... Counterclaims, as well, are encompassed by the quoted definition of an "action" and are similarly subject to the affidavit requirement. ... OCGA § 9-11-9.1 (e) provides the only method by which the failure to file an affidavit with a complaint can be cured by amendment. ... Having concluded that counterclaims are subject to the requirements of OCGA § 9-11-9.1, we determine that amendments to pleadings to assert counterclaims with respect to the filing of the expert affidavit should be subject to the limitations of paragraph (e) of the statute. ... However, the trial court erred in circumventing those limitations by relying on OCGA § 9-11-13 (f) to allow the amendment to the answer to assert the new counterclaim.

Section 9-11-9.1 requires an expert affidavit with a professional-malpractice complaint, makes omission of the affidavit a nonamendable defect except when caused by mistake, and prevents renewal after the limitations period unless the omission resulted from mistake.

Lyberger v. Robinson · filed 1993-03-16(e) and (f)

“Amended paragraphs (e) and (f) of OCGA § 9-11-9.1 provide that the failure to attach an expert affidavit in a professional malpractice case renders the complaint subject to dismissal and is a defect which cannot be amended except where the failure to attach the ... [affidavit] ‘was the result of a mistake,’ and unless such failure was ‘the result of a mistake,’ such complaint shall not be subject to the renewal provisions of OCGA § 9-2-61 after the applicable period of limitation.” ... “Therefore, appellants were not entitled to renew the complaint after the expiration of the statute of limitation.”

Section 9-11-9.1 requires an expert affidavit in professional malpractice actions, but it does not apply when negligence or breach can be proven without expert testimony about a customary professional procedure.

Flowers v. Memorial Medical Center, Inc. · filed 1991-02-21

“[T]he purpose of OCGA § 9-11-9.1 is to prevent ‘frivolous or unsuitable actions,’ i.e., professional malpractice actions in which the plaintiff cannot prove by expert opinion that a professional standard or practice has been violated. But where . . . the plaintiff can prove negligence or breach without proof of a customary procedure and violation of it, the case is not a professional malpractice case and OCGA § 9-11-9.1 does not apply to require an ‘expert’s affidavit.’ It is not the intent of OCGA § 9-11-9.1 to cause dismissal of a complaint alleging negligence or breach of a duty merely because the defendant asserts he is a ‘professional.’ ”

In a professional-malpractice case, failure to attach an expert affidavit makes the complaint subject to dismissal and generally prevents renewal under § 9-2-61, unless the omission resulted from a mistake after obtaining the affidavit.

Foskey v. Foster · filed 1991-03-01(e), (f)

Amended paragraphs (e) and (f) of OCGA § 9-11-9.1 provide that the failure to attach an expert affidavit in a professional malpractice case renders the complaint subject to dismissal and is a defect which cannot be amended except where the failure to attach the complaint “was the result of a mistake,” and unless such failure was “the result of a mistake,” such complaint shall not be subject to the renewal provisions of OCGA § 9-2-61 after the applicable period of limitation.

Section 9-11-9.1 does not require an expert affidavit when alleged negligence can be proved without expert evidence about a customary professional standard, including in clear and palpable cases.

Roebuck v. Smith · filed 1992-04-15

“[W]here . . . the plaintiff can prove negligence or breach without proof of a customary procedure and violation of it, the case is not a professional malpractice case and OCGA § 9-11-9.1 does not apply to require an ‘expert’s affidavit.’ ”

Section 9-11-9.1 requires a malpractice complaint’s supporting affidavit to identify at least one specific negligent act and its factual basis, and permits a later affidavit only under the statute’s limited time-constraint or mistake exceptions.

Wright v. Crawford Long Hospital of Emory University · filed 1992-09-08(a), (b), and (e)

Contrary to appellant’s contentions, the deposition did not meet the requirement of “set [ting] forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim,” OCGA § 9-11-9.1 (a), as Dr. Benitez did not identify any negligent act committed by appellees and was unable even to speculate as to the source of the wire. ... The statute permits amendment of a complaint to add the required affidavit only in limited circumstances: (1) if the statute of limitation will expire within ten days and the plaintiff alleges that an expert affidavit could not be prepared because of time constraints (OCGA § 9-11-9.1 (b)); or ... (2) if the court determines that the plaintiff had the requisite affidavit available before the complaint was filed and the failure to file “was the result of a mistake” (id. at (e)).

Section 9-11-9.1 requires an expert affidavit with a professional-malpractice complaint; its ten-day limitations exception applies to tort claims but not contract claims.

Coleman v. Hicks · filed 1993-06-17(a), (b), (e)

2. “[I]f a plaintiff fails to file an affidavit as required by [OCGA § 9-11-9.1] contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” OCGA § 9-11-9.1 (e). In the case sub judice, plaintiff failed to file an expert affidavit with her complaint, relying upon OCGA § 9-11-9.1 (b), which provides: “The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared.” Although the exception set forth in OCGA § 9-11-9.1 (b) was applicable to plaintiff’s tort claims, it was not applicable to plaintiff’s contract claims. Thus, even though plaintiff’s contract claims were not time barred, they were dismissed properly for failure to comply with OCGA § 9-11-9.1 (a).

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice to file an expert affidavit with the complaint; licensed physical therapists are professionals, and no affidavit is needed for negligence not involving professional judgment and skill.

Hodo v. General Hospitals of Humana, Inc. · filed 1993-11-03(a)

Physical therapists must be licensed pursuant to OCGA § 43-33-11, and thus are “professionals” within the intendment of OCGA § 9-11-9.1. ... Under OCGA § 9-11-9.1 (a), in any action for damages alleging professional malpractice, the plaintiff must file with the complaint an affidavit of an expert setting forth at least one negligent act and the factual basis for such. ... Where the alleged negligence does not involve the exercise of professional judgment and skill, the cause of action is in simple negligence, and no expert’s affidavit is necessary. ... As such, Hodo’s action against Humana alleged professional malpractice, and her failure to file an expert’s affidavit pursuant to OCGA § 9-11-9.1 required dismissal of her complaint.

Section 9-11-9.1 does not require an expert affidavit for a negligence or breach claim that can be proved without establishing a customary professional procedure and its violation.

Razete v. Preferred Research, Inc. · filed 1990-09-25

But where, as in this case, the plaintiff can prove negligence or breach without proof of a customary procedure and violation of it, the case is not a professional malpractice case and OCGA § 9-11-9.1 does not apply to require an “expert’s affidavit.”

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice to file an expert affidavit when negligence and causation cannot be established without expert testimony, and the affidavit must identify at least one negligent act or omission and its factual basis.

Candler General Hospital, Inc. v. Lamb · filed 1991-05-15(a)

The purpose of OCGA § 9-11-9.1 (a) is to prevent “frivolous or unsuitable actions,” i.e., actions where plaintiff sets out to prove negligence but is unable to do so without expert evidence; if plaintiff cannot establish negligence and causation without expert testimony, the case is generally a professional malpractice action within the meaning of § 9-11-9.1.

Section 9-11-9.1(a) requires a legal-malpractice plaintiff to file with the complaint an expert affidavit identifying at least one negligent act constituting the alleged breach and the factual basis for each negligence claim.

Tante v. Herring · filed 1994-10-31(a)

Of course, in an action for legal malpractice, the plaintiff must file with the complaint an expert’s affidavit setting forth at least one negligent act constituting the alleged breach of duty and the factual basis for each claim of negligence. ... Although the Herrings did attach an expert’s affidavit to their complaint, the expert did not set forth a negligent act which would constitute the basis for a claim of legal malpractice.

Section 9-11-9.1 requires a plaintiff alleging the negligent performance of professional services to file an expert affidavit specifying at least one negligent act or omission and its factual basis.

Raley v. Terminix International Co. · filed 1994-11-22

“OCGA § 9-11-9.1 ‘applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.’ [Cit.]”

Section 9-11-9.1 requires an expert affidavit for professional-malpractice claims based on engineering services involved in building and designing roads.

Department of Transportation v. Taunton · filed 1995-03-31

... “The process of building and designing roads requires engineering services which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1. [Cits.]” ... Under the circumstances, we cannot say that “it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense.” ... The trial court erred in striking this defense.

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice to file an expert affidavit with the complaint, including when hospital liability rests on employees' exercise of professional skill and judgment.

Robinson v. Medical Center of Cent. Georgia · filed 1995-05-19(a)

OCGA § 9-11-9.1(a) pertinently provides that "[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert." ... An expert's affidavit is not necessary where professional skill and judgment are not involved. ... However, such an affidavit is required in an action against a hospital where, as here, liability is predicated on the doctrine of respondeat superior and "the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as `professionals' under OCGA § 14-7-2...." ... Inasmuch as Robinson's claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, we conclude that his complaint sounded in professional malpractice alone. Accordingly, the trial court did not err in granting summary judgment to Central Georgia based upon Robinson's failure to attach an expert's affidavit to his complaint pursuant to OCGA § 9-11-9.1(a).

Section 9-11-9.1(a) requires a valid affidavit to be filed with a complaint asserting a professional malpractice claim.

Rogers v. Coronet Insurance · filed 1992-10-29(a)

Additionally, the trial court correctly concluded that as to the professional malpractice claims, a valid affidavit was required to be filed with the complaint in accordance with the requirements of OCGA § 9-11-9.1 (a).

Section 9-11-9.1(a) requires a professional-malpractice complaint to include an expert affidavit identifying at least one negligent act or omission and its factual basis; under subsection (e), failure to file the affidavit permits dismissal for failure to state a claim.

ABE Engineering, Inc. v. Griffin, Cochran & Marshall · filed 1994-01-19(a), (e)

A complaint alleging professional malpractice must include an expert affidavit setting forth at least one negligent act or omission and the factual basis for each such claim. OCGA § 9-11-9.1 (a). ... In the instant case, plaintiff’s complaint set forth a cause of action for legal malpractice; however, it failed to file an expert affidavit with the complaint and, as such, its complaint was subject to dismissal for failure to state a claim.

Section 9-11-9.1(a) requires an expert affidavit for professional-malpractice claims, but not claims unrelated to malpractice; at the initial pleading stage, a synopsis of the salient facts supporting the expert's opinion suffices and the affidavit must link the professional defendant to the alleged negligent act or omission.

Howard v. City of Columbus · filed 1995-12-05(a)

The affidavit requirement in this subsection does not apply to claims unrelated to malpractice. Parker v. Brinson, 209 Ga.App. 19, 432 S.E.2d 626. Nor is OCGA § 9-11-9.1(a) applicable to all wrongful acts or omissions allegedly committed by professionals. "[T]he relevant inquiry is whether `a particular claim is grounded upon "professional malpractice," that is, an act or omission caused by a "professional" which constitutes malpractice.' [ Dozier v. Clayton County Hosp. Auth., 206 Ga.App. 62, 63(3), 64 (424 SE2d 632).]" Adams v. Coweta County, 208 Ga. App. 334, 335(2), 430 S.E.2d 599. ... These claims do not relate to the exercise of professional judgment and therefore do not require backing of an expert's affidavit. See Adams v. Coweta County, 208 Ga.App. 334, 335(2), 336, 430 S.E.2d 599, supra. ... All that was required to satisfy the initial pleading requirements of OCGA § 9-11-9.1(a) was a synopsis of the salient facts upon which Dr. Bussey based his opinion. HCA Health Svcs. of Ga. v. Hampshire, 206 Ga.App. 108, 112(4)(b), 424 S.E.2d 293.

Section 9-11-9.1 requires an expert affidavit to be attached to a professional-negligence complaint, and failure to do so supports summary judgment on that claim.

Moore v. Department of Human Resources · filed 1996-03-06

As Pope provided no expert testimony regarding professional negligence (and failed to attach an expert affidavit to his complaint as required by OCGA § 9-11-9.1), the trial court did not err in granting summary judgment on this claim.

Section 9-11-9.1 requires an expert affidavit for a counterclaim alleging professional negligence in legal services, including when setoff or recoupment is pleaded as a counterclaim rather than a defense.

French Quarter, Inc. v. Peterson Young Self & Asselin · filed 1996-03-12

The trial court’s order, which explains the role reversal and consequent burden reversal which attends counterclaims, is totally correct. The affidavit was clearly required. ... Defendants argue their counterclaim merely reincorporates their defenses of setoff and recoupment, and that as “defenses” rather than “claims” they are not subject to the statutory affidavit requirement. “Contrary to defendant’s contention, setoff and recoupment are counterclaims and not defenses.” ... In the instant case it is even more obvious, as the allegations and prayer for relief were presented by defendants in an express counterclaim and not merely in their answer.

Section 9-11-9.1 requires a contemporaneous expert affidavit for a professional-negligence complaint, and the defense of a missing affidavit is waived unless raised in the initial responsive pleading.

Seely v. Loyd H. Johnson Const. Co., Inc. · filed 1996-03-15(e)

The third-party complaints against R & R Plumbing alleging that plumbing work was negligently done are professional negligence actions which required the contemporaneous filing of an expert affidavit pursuant to OCGA § 9-11-9.1. ... Under Chapter 14 of OCGA Title 43, the plumbing services at issue in the third-party complaints may only be performed pursuant to a license issued by the Division of Master Plumbers and Journeyman Plumbers of the State Construction Industry Licensing Board. OCGA §§ 43-14-3; 43-14-8. This Board is a "state examining board" pursuant to OCGA § 43-1-1. Accordingly, it is clear under Gillis, supra, that the third-party complaints against R & R Plumbing are professional negligence actions within the meaning of OCGA § 9-11-9.1. Subsection (e) of OCGA § 9-11-9.1 provides in pertinent part that "if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim...." (Emphasis supplied.) Expert affidavits were not filed with the third-party complaints as required by OCGA § 9-11-9.1. Rather than raising the lack of expert affidavits when it filed answers to the complaints as its initial responsive pleadings, R & R Plumbing first raised the failure to file expert affidavits in its subsequently filed motion for summary judgment. Since the plain language of the statute requires that the defense be raised in the initial responsive pleading, the failure to do so was a waiver of the defense.

Section 9-11-9.1(a) requires a plaintiff asserting medical malpractice to attach a professional affidavit to the complaint.

Van Alstine v. Merritt · filed 1996-09-12(a)

Merritt was entitled to summary judgment on Van Alstine’s medical malpractice claim because Van Alstine failed to attach a professional affidavit to his complaint as required by OCGA § 9-11-9.1 (a).

Section 9-11-9.1 requires an expert affidavit for claims based on a professional's failure to meet the standards of the profession, but not for every claim involving a lawyer, including fraud or breach of contract claims that do not implicate professional standards of care.

Peacock v. Beall · filed 1996-11-05

The complaint in the case sub judice does not appear to call into question professional standards of care applicable to attorneys. On the contrary, the complaint raises questions relating to the existence of a legal services contract between Peacock and attorney Beall, whether attorney Beall breached the terms of any such contract, and whether attorney Beall duped Peacock into purchasing $1,000 worth of advice in exchange for a false promise to represent Peacock in a future action for $1,500. Accordingly, since the allegations in the complaint are subject to a construction which could support Peacock’s fraud and breach of contract claims, the trial court erred in dismissing the complaint for noncompliance with OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires a malpractice complaint to be filed with an expert affidavit identifying at least one claimed negligent act or omission and its factual basis, but the expert may assume the complaint’s factual allegations are true and need not rely on personal knowledge.

St. Joseph Hospital, Augusta, Georgia, Inc. v. Black · filed 1997-02-04(a)

An expert affidavit filed with a complaint pursuant to OCGA § 9-11-9.1 need not be based upon the affiant’s actual personal knowledge. To the contrary, the affiant may base his expert opinion upon an assumption that the factual allegations of the complaint are true . . . just as he could base his expert opinion at trial upon an assumption of the truth of the evidence adduced to support those allegations.’ [Cit.]” (Emphasis in original.) Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 68 (4) (424 SE2d 632) (1992). “ ‘ “What OCGA § 9-11-9.1 (a) requires is that the expert affidavit set forth specifically at least one negligent act or omission ‘claimed to exist’ and the factual basis for each such claim. ... It is unnecessary for the . . . plaintiff to . . . prove the alleged facts. . . . (W)here a . . .complaint asserts a damage claim and alleges professional malpractice, it is only necessary that there be filed contemporaneously with the filing of the complaint the affidavit of an expert stating that, in his expert opinion, such facts, if true, would constitute professional malpractice. . . .” ’ [Cit.]” (Emphasis in original.) Id.

Section 9-11-9.1 requires a plaintiff in any professional-malpractice action, whether sounding in tort or breach of contract, to file with the complaint an expert affidavit identifying at least one negligent act or omission and its factual basis, with no clear-and-pal­pable-negligence exception.

Barr v. Johnson · filed 1988-09-14

This statute applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.

Section 9-11-9.1(a) requires an expert affidavit for claims alleging professional malpractice based on a professional's negligent act or omission and requiring proof of professional standards; it does not require an affidavit for fraud claims based on ordinary standards of conduct.

Hodge v. Jennings Mill, Ltd. · filed 1994-11-02(a)

Not every claim which calls into question the conduct of one who happens to be a lawyer is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit. It is only where the claim is based upon the failure of the professional to meet the requisite standards of the subject profession that the necessity to establish such standards and the violation thereof by expert testimony for the guidance of the jury arises.

Section 9-11-9.1 imposes an initial pleading requirement in a malpractice action, and an affidavit is sufficient when it alleges the defendant’s negligent acts and supplies a substantial basis for the action, even if it would not satisfy summary-judgment evidentiary standards.

Vitner v. Miller · filed 1996-11-12

OCGA § 9-11-9.1 merely imposes an initial pleading requirement on a plaintiff in a malpractice action. “Accordingly, an expert affidavit which would be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1. [Git.]”

Section 9-11-9.1(a) requires an expert affidavit for a professional-malpractice claim based on negligent professional services, including an attorney’s negligent legal advice or handling of an estate.

Crawford v. Johnson · filed 1997-07-11(a)

Accordingly, to the extent Crawford alleges that Johnson acted negligently, the trial court properly dismissed the claim for failure to comply with OCGA § 9-11-9.1.

Section 9-11-9.1 requires an expert affidavit for professional-malpractice claims, but not for claims alleging only ordinary negligence in repairing and maintaining a roadway.

Drawdy v. Department of Transportation · filed 1997-09-02

Therefore, since Drawdy is alleging claims only for ordinary negligence in repair and maintenance of the roadway, an affidavit of an expert pursuant to OCGA § 9-11-9.1 is not necessary.

Section 9-11-9.1 requires a plaintiff alleging professional malpractice to file an expert affidavit identifying at least one negligent act or omission and its factual basis, and failure to do so requires dismissal for failure to state a claim.

Holloway v. Northside Hospital · filed 1998-01-28(a), (e)

“In any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). Further, failure to file the required affidavit requires dismissal because of failure to state a claim. OCGA § 9-11-9.1 (e).

Section 9-11-9.1(a) requires a plaintiff in a professional-malpractice action to file an expert affidavit with the complaint, and failure to do so requires dismissal with prejudice.

Mendoza v. Pennington · filed 1999-06-22(a)

In any action for professional malpractice, OCGA § 9-11-9.1 (a) requires that the plaintiff file with the complaint an expert affidavit setting forth a negligent act or omission. Failure to do so results in a dismissal with prejudice. ... If the claim is not for professional malpractice but for simple negligence, then no affidavit is required, even though the action may be against a professional.

Section 9-11-9.1 requires a plaintiff bringing a professional malpractice claim to file an expert affidavit with the complaint, and dismissal is mandated when the defendant raises the missing-affidavit defense.

Denson v. Maloy · filed 1999-08-17

Denson’s claim of professional malpractice was properly dismissed for the additional reason that he failed to file an expert affidavit with the complaint. OCGA § 9-11-9.1. As Maloy raised this defense in its answer, dismissal of the claim was mandated.

Section 9-11-9.1 requires an expert affidavit for professional-malpractice claims based on negligent acts or omissions, including contractual claims alleging failure to perform professional services with the required professional care.

Centrust Mortgage Corp. v. Smith & Jenkins, P. C. · filed 1996-02-28

Consequently, the trial court correctly determined that these claims were, in essence, claims of professional malpractice, and were subject to dismissal in light of CenTrust’s failure to file an expert affidavit as required by OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice to file an expert affidavit specifying at least one negligent act or omission and its factual basis; a tort claim that professional medical treatment was inadequate falls within that requirement.

Bradford v. Rossi · filed 2001-04-20(a)

Pursuant to OCGA § 9-11-9.1 (a), “[i]n any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” ... As such, the claim requires that the plaintiff file an expert affidavit.

Section 9-11-9.1(a) requires a plaintiff in a professional-malpractice damages action to file with the complaint an expert affidavit identifying at least one claimed negligent act or omission and its factual basis, and an unaccompanied complaint is subject to dismissal.

Merck v. Saint Joseph's Hospital of Atlanta, Inc. · filed 2001-09-21(a)

Furthermore, we find that the trial court correctly dismissed Merck’s malpractice claims based on her failure to file an expert affidavit with the complaint. OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” A complaint that is not accompanied by the required affidavit is subject to dismissal.

Section 9-11-9.1(a) requires an expert affidavit for claims alleging professional negligence or malpractice, but not for claims based on a professional's intentional acts.

Johnson v. Rodier · filed 2000-02-10(a)

OCGA § 9-11-9.1 (a) provides that, in an action for damages alleging professional malpractice, the plaintiff must file with the complaint an expert’s affidavit setting out “specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

Section 9-11-9.1(a) requires an expert affidavit when a professional-malpractice claim challenges a medical professional’s exercise of professional judgment, even if the claim is pleaded as battery.

King v. Dodge County Hospital Authority · filed 2005-06-27(a)

In summary, even if King’s consent was withdrawn, the issue facing Kehayes, i.e., whether she should abandon her attempts at starting the IV line, was one that required her to apply her professional experience, expertise, and judgment to resolve. Lacking medical expertise, the factfinder could not resolve this issue without the assistance of expert medical opinion, as required by OCGA§ 9-11-9.1. ... Because King failed to file an expert affidavit, the trial court did not err in granting the motion to dismiss.

Section 9-11-9.1(a) requires an expert affidavit in a professional-malpractice action involving a medical question, including a claim that a medical provider’s judgment caused a patient’s death.

Hardwick v. Atkins · filed 2006-03-07(a)

This provision applies in any cause of action that involves a medical question. ... Since this case involves the questioning of medical judgment, the trial court properly dismissed it based upon Hardwick’s failure to attach an expert affidavit as required by OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice to file an expert affidavit with the complaint, while claims based on simple negligence do not require one; diagnosis and treatment decisions are professional malpractice.

James v. HOSPITAL AUTHORITY OF BAINBRIDGE · filed 2006-03-23(a)

Under OCGA§ 9-11-9.1 (a), “[i]n any action for damages alleging professional malpractice,... the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” ... By negative implication, an expert affidavit is not required for claims averred in a complaint that are based on acts or omissions constituting simple negligence rather than professional malpractice. ... Applying these principles to the present case, we conclude that despite James’ argument that his complaint can be construed as setting forth claims of simple negligence, all of his claims are plainly for professional medical malpractice. ... In light of the specific factual assertions made in James’ complaint, we find no error in the trial court’s decision to dismiss the complaint for failure to comply with the expert affidavit requirement imposed by OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice to file a competent expert affidavit with the complaint, and failure to do so is fatal to the professional-negligence claims.

Gaddis v. Chatsworth Health Care Center, Inc. · filed 2006-11-29(a)

While appellants’ complaint sets forth unfortunate facts and circumstances, appellants’ failure to file an expert affidavit contemporaneously with their complaint as required by OCGA § 9-11-9.1 was fatal to their professional negligence claims.

Section 9-11-9.1 requires an expert affidavit for actions alleging professional negligence, but not for claims of intentional misconduct such as fraud or misrepresentation against a professional.

Murrah v. Fender · filed 2006-11-30

OCGA § 9-11-9.1 mandates that any action alleging professional malpractice be accompanied by an expert affidavit setting forth "at least one negligent act or omission claimed to exist and the factual basis for each such claim." Our Supreme Court has limited the application of OCGA § 9-11-9.1 to actions for professional negligence. Labovitz v. Hopkinson, 271 Ga. 330, 334-336(3), 519 S.E.2d 672 (1999). Thus, we have repeatedly held that complaints asserting claims for intentional misconduct against a professional, including fraud and misrepresentation, do not require the inclusion of an expert affidavit. See Howell v. Shumans, 281 Ga.App. 459, 460, 636 S.E.2d 182 (2006); Shuler, 280 Ga.App. at 741(1)(b), 634 S.E.2d 786; Smith v. Morris, Manning & Martin, L.L.P., 264 Ga.App. 24, 26-27, 589 S.E.2d 840 (2003); Johnson v. Rodier, 242 Ga.App. 496, 497(1), 529 S.E.2d 442 (2000). See also Bowling v. Foster, 254 Ga.App. 374, 380-381(1)(b), 562 S.E.2d 776 (2002); Boggs v. Bosley Med. Institute, 228 Ga.App. 598, 600(1)(a), 492 S.E.2d 264 (1997). Fender clearly alleges intentional misconduct by Murrah. We are bound by the directive of the Supreme Court and our prior precedent to hold that his claims fall outside of the purview of OCGA § 9-11-9.1.

Section 9-11-9.1 requires an expert affidavit for claims involving a licensed professional’s compliance with professional standards, including a nurse’s professional medication administration, but not nonprofessional administrative documentation.

Williams v. Alvista Healthcare Center, Inc. · filed 2007-02-16(a)

Therefore, we view a nurse’s administration of medication as within the scope of nursing duties involving professional skill and judgment. For example, the timing and urgency of administering the medicine is necessarily at issue in this case, and resolving such questions necessarily involves professional judgment. Accordingly, because the administration of medication involves the professional skill and judgment of a nurse, and nurses are licensed professionals to whom OCGA § 9-11-9.1 explicitly applies, we hold that the children’s claim for failing to properly administer Stanford’s medication is a claim of professional negligence. Therefore, the trial court correctly dismissed this claim based on the children’s failure to comply with OCGA § 9-11-9.1. ... Likewise, here the children can maintain this claim to the extent that they can show Alvista failed to properly perform the nonprofessional, administrative aspects of documenting Stanford’s complaints, and to the extent that such failure resulted in a regulatory violation leading to Stanford’s injuries as alleged in the complaint. Accordingly, the trial court erred in dismissing this claim at this stage.

Section 9-11-9.1 requires a plaintiff alleging professional malpractice by a listed professional, including a professional engineer, to file an expert affidavit with the complaint.

Dockens v. Runkle Consulting, Inc. · filed 2007-05-25(a), (d)(21)

Subsection (d) (21) of the statute lists “Professional engineers” as a profession to which this pleading requirement applies. ... Accordingly, Dockens’ complaint shows on its face that it involves an allegation of professional negligence that required an expert affidavit under OCGA § 9-11-9.1 (a) and (d) (21). ... Under the circumstances, we find the trial court properly granted Runkle summary judgment on Dockens’ professional negligence claim pursuant to OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires a medical-malpractice affidavit identifying at least one negligent act or omission for each professional whose conduct is challenged.

Thomas v. Medical Center of Central Georgia · filed 2007-05-29(a)

OCGA § 9-11-9.1 (a) requires an affidavit setting forth at least one act of negligence as to each professional whose conduct is challenged as negligent.

Section 9-11-9.1 requires an expert affidavit when a claim challenges compliance with a professional standard of conduct, but not when the alleged negligence involves nonprofessional administrative work without professional judgment or skill.

Brown v. Tift Health Care, Inc. · filed 2006-05-03(a)

Thus, “[a] § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required.” (Citation omitted.)

Section 9-11-9.1 requires an expert affidavit for actions alleging professional malpractice, but not for claims whose resolution does not require determining compliance with professional standards, including simple negligence and intentional tort claims based on conduct outside the professional judgment at issue.

Burke v. Paul · filed 2008-02-29(a)

Under OCGA § 9-11-9.1, any action alleging professional malpractice must be accompanied by an expert affidavit setting forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). ... Thus, the resolution of the Pauls’ claims requires a determination of whether Burke complied with the language of the stipulation, that is, whether he acted within the consent the Pauls granted for access to their automobile. Their claims do not demand a determination of whether Burke acted in compliance with the standard of conduct applicable to professional engineers. Accordingly, the Pauls do not allege a claim of professional malpractice. They assert claims of simple negligence and intentional tort, and the trial court properly denied Burke’s motion to dismiss the complaint for failure to attach an expert affidavit.

Section 9-11-9.1(a) requires an expert affidavit in an action alleging professional malpractice when the alleged negligence involves professional judgment or skill, including inappropriate medication prescribing.

Liu v. Boyd · filed 2008-10-23(a)

OCGA § 9-11-9.1 (a) requires that any action alleging professional malpractice be accompanied by an expert affidavit setting forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” “Thus, a § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required.”

Section 9-11-9.1(a) requires a professional-malpractice complaint to include an expert affidavit identifying at least one negligent act or omission and its factual basis, and failure to file it subjects the complaint to dismissal for failure to state a claim under subsection (e).

Old Republic National Title Insurance Co. v. Attorney Title Services, Inc. · filed 2009-06-12(a), (e)

That statute requires any complaint alleging professional malpractice to be accompanied by an expert affidavit setting forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). Where a plaintiff fails to file the requisite expert affidavit, its complaint “shall be subject to dismissal for failure to state a claim.. . .” OCGA § 9-11-9.1 (e).

Section 9-11-9.1(a) requires a plaintiff in a professional malpractice action to attach an expert affidavit setting out the act of negligence underlying the claim; if the affiant does not meet the applicable expert-witness requirements, the affidavit is insufficient and the complaint is subject to dismissal.

Craigo v. Azizi · filed 2009-11-19(a)

Under OCGA § 9-11-9.1 (a), the plaintiff in a professional malpractice action is required to attach to the complaint the affidavit of an expert “setting out the act of negligence underlying [the] claim.” ... The expert providing the affidavit must meet the requirements for an expert witness set forth in OCGA § 24-9-67.1. ... Where the affiant fails to meet those requirements, the affidavit is insufficient; and the complaint is subject to dismissal.

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice against a listed Georgia professional, including a professional engineer, to file a competent expert affidavit with the complaint identifying at least one negligent act or omission and its factual basis.

Odion v. Varon · filed 2011-09-29(a)

Professional engineers are listed under subsection (g). ... “An action alleges professional malpractice when it calls into question the conduct of a professional in his area of expertise.” ... Because the unrebutted evidence showed that Odion’s claims sounded in professional negligence rather than ordinary negligence, and Odion failed to file contemporaneously with his complaint the expert affidavit required by OCGA § 9-11-9.1 (a), there was no error in the trial court’s grant of CEC’s motion.

Section 9-11-9.1's expert-affidavit requirement does not apply to claims alleging a professional's intentional conduct, including medical fraud.

Johnson v. Johnson · filed 2013-08-28(a)

Although OCGA § 9-11-9.1 does not apply and, as a result, Mr. Johnson was not required to attach an expert affidavit to his medical fraud complaint, this does not mean that expert testimony will not be necessary for a jury to find in his favor.

Section 9-11-9.1 requires a plaintiff alleging professional engineering malpractice to file an expert affidavit with the complaint, and permits dismissal when the affidavit is absent.

Bray v. Department of Transportation · filed 2013-10-23(a), (b), and (g)

We conclude that, to the extent the “inverse condemnation” action sought compensation for damages to the property based on allegations of professional engineering negligence, Bray was required to file with the complaint the expert affidavit required by OCGA § 9-11-9.1. In the absence of the required affidavit, the trial court did not err in dismissing the complaint to the extent it sought compensation based on allegations of professional engineering negligence.

Section 9-11-9.1(a) requires an expert affidavit with a complaint alleging professional malpractice, but not for ordinary negligence; claims involving professional skill, judgment, or medical treatment fall within the affidavit requirement.

CARTER v. VISTACARE, LLC (Two Cases) · filed 2016-02-18(a)

OCGA § 9-11-9.1(a) provides that “[i]n any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” ... “Although complaints against professionals may state claims based on ordinary as well as professional negligence, where the allegations of negligence against a professional involve the exercise of professional skill and judgment within the professional’s area of expertise, the action states professional negligence.” ... Here, even assuming that the act of allegedly failing to follow Cantrell’s doctor’s orders by placing Cantrell in hospice care could be construed as ordinary negligence, no damage resulted from the mere placement of Cantrell into the hospice service. Rather, the damages alleged involve injuries to Cantrell’s health resulting from the medical treatment she received while in hospice care. Thus, Carter’s claims assert issues involving medical judgment and the professional duties involved in providing such care to Cantrell, including the propriety of administering morphine to her. Accordingly, we agree with the trial court that Carter was required to file an expert affidavit along with her complaint, and her failure to do so bars her claim for negligence.

Section 9-11-9.1(a) requires an expert affidavit in an action for damages alleging professional malpractice, including a breach-of-contract claim based on failure to perform professional services according to the applicable standard of care.

Hobbs v. Great Expressions Dental Centers of Georgia, P.C. · filed 2016-05-27(a)

As our appellate courts have explained before, the expert affidavit requirement contained in OCGA § 9-11-9.1 (a) applies to “any action for damages alleging professional malpractice,” based on the failure to perform professional services in accordance with the applicable standard of care, including breach of contract claims.

Section 9-11-9.1 imposes a threshold expert-affidavit requirement for medical-malpractice claims against professions listed in the statute; an EMT is not among those professions.

McKuhen v. Transformhealthrx, Inc. · filed 2016-07-15

Because we conclude that the trial court did not abuse its discretion in finding that Kern’s affidavit was insufficient to satisfy OCGA § 24-7-702, the McKuhens have failed to meet the threshold requirement under OCGA § 9-11-9.1 and their medical malpractice claims fail as a matter of law. ... EMT is not one of the professions listed under OCGA § 9-11-9.1 as requiring an expert affidavit.

Section 9-11-9.1 requires a plaintiff asserting medical malpractice against a hospital to file an expert affidavit identifying at least one negligent act or omission and its factual basis; claims based on conduct that does not require professional skill or medical judgment are ordinary-negligence claims and do not require that affidavit.

Byrom v. Douglas Hospital, Inc. · filed 2016-10-04

A plaintiff who asserts a claim for medical malpractice against a hospital is required to file an expert affidavit along with her complaint setting forth at least one negligent act or omission and the factual basis for the claim. OCGA § 9-11-9.1. ... Where the professional’s alleged negligence requires the exercise of professional skill and judgment to comply with a standard of conduct within the professional’s area of expertise, the action states professional negligence. But where the allegations of negligence do not involve professional skill and judgment, the action states ordinary negligence. ... Here, the record does not show that only a person with medical training could transport Byrom in the wheelchair or that transporting her involved the exercise of medical judgment. ... Thus, Byrom’s claims are not for medical malpractice. Accordingly, the trial court erred in granting summary judgment to Douglas Hospital based on a failure to file an expert affidavit.

Section 9-11-9.1(a) requires a professional-negligence affidavit to identify at least one specific negligent act or omission and the factual basis for it.

Ziglar v. St. joseph’s/candler Health System, Inc. · filed 2017-05-12(a)

Here, the affidavit recites only generally that the nurses and staff at the Hospital failed to appropriately treat, assess, and advocate for Ziglar while he was a patient there, and does not contain any specific instances of any of those alleged failures. Moreover, even assuming the general assertions of “failure to assess or treat” were sufficient to state an act or omission of negligence, the affidavit also failed to set out a sufficient factual basis to support such a negligent act or omission. Cf. Crook v. Funk, 214 Ga. App. 213, 214 (1) (447 SE2d 60) (1994) (doctor’s affidavit sufficient under facts set out in the affidavit). In this regard, the affidavit referred to the medical records but did not attach them, and as to facts otherwise recited only that “[b]eginning in December of 2013, . . . Ziglar was an unconscious patient that was at high risk for the development of pressure ulcers” and “[d]espite the fact that the staff of [the Hospital] knew or should have known of the high risk of pressure ulcers, . . . Ziglar developed a Stage IV sacral ulcer.” These are not the type of underlying facts sufficient to support claims of professional negligence for purposes of the Section 9-11-9.1 affidavit. Accordingly, even construing the affidavit in Ziglar’s favor, we find that the affidavit here was insufficient on its face to satisfy the requirements of OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires a plaintiff alleging professional malpractice to file an expert affidavit with the complaint identifying at least one negligent act or omission and its factual basis; the requirement does not apply to ordinary-negligence claims.

ST. MARY'S HEALTH CARE SYSTEM, INC. v. ROACH Et Al. · filed 2018-03-02(a)

Thus, under OCGA § 9-11-9.1, a plaintiff must “attach to the complaint an expert’s affidavit supporting his malpractice claim, but the requirement of attaching a medical affidavit to the complaint does not apply to claims of ordinary negligence.”

Section 9-11-9.1 requires a malpractice plaintiff to support the complaint with an expert affidavit that identifies at least one negligent act or omission and its factual basis, as an initial pleading requirement rather than proof of the claim's evidentiary merits.

HOLMES Et Al. v. LYONS Et Al. · filed 2018-06-01(a)

Unlike OCGA § 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action.

Section 9-11-9.1 requires an expert affidavit setting out at least one negligent act or omission for each defendant in a complaint alleging professional malpractice.

BROWN v. COLUMBUS POLICE DEPARTMENT · filed 2022-07-13

Georgia law requires an expert affidavit to be filed with complaints in actions alleging professional malpractice. ... Because Plaintiff failed to file an affidavit of an expert that sets forth at least one negligent act or omission against each Defendant against whom Plaintiff wants to assert a medical malpractice claim, Plaintiff’s motion to join these claims is denied.

Section 9-11-9.1 requires an expert affidavit for professional-malpractice claims, including EMTALA stabilization claims, but not EMTALA screening claims that turn on disparate treatment rather than professional negligence.

ESTATE OF MINNIE LEE TOMLINSON v. HOUSTON HEALTHCARE · filed 2024-08-13(a)

We conclude that the Estate’s EMTALA claim against the Hospital for failure to provide an appropriate medical screening examination does not sound in professional negligence and thus is not a claim for professional malpractice within the meaning of OCGA § 9-11-9.1 so as to trigger the expert affidavit requirement imposed by that statute. ... In contrast to the Estate’s EMTALA screening claim, we conclude that its EMTALA stabilization claim constitutes a claim for professional malpractice within the meaning of OCGA § 9-11-9.1 and thus triggers the expert affidavit requirement.

Section 9-11-9.1 requires an expert affidavit for professional-malpractice claims, including claims against a hospital based on professional acts, but it does not automatically apply to every claim against a hospital.

EDWARD F. STRINGER, IV v. SEAY · filed 2022-11-01(a), (g)

The plain language of OCGA § 9-11-9.1 requires an expert affidavit to support only professional malpractice claims, see Carter v. VistaCare, LLC, 335 Ga. App. 616, 621 (3) (782 SE2d 678) (2016), and, as we have said before, “[n]ot every suit which calls into question the conduct of one who happens to be a medical professional is a medical malpractice action,” (Citations and punctuation omitted.) Roberts v. Quick Rx Drugs, Inc., 343 Ga. App. 556, 558 (1) (807 SE2d 476) (2017). ... In short, we have no trouble concluding that the claim here against Dr. Stringer – whether understood as the negligent failure to consult with another physician concerning the pathology report or the negligent failure to inform Beauchamp or her subsequent treating physicians of those results – sounds in professional negligence and, thus, required an expert affidavit in accordance with OCGA § 9-11-9.1.

Section 9-11-9.1 requires a plaintiff alleging professional malpractice against a covered professional, including a veterinarian, to file an expert affidavit identifying at least one negligent act or omission and its factual basis; failure to comply can authorize dismissal.

MERRITTS v. NORTH GEORGIA VETERINARY REFERRAL PRACTICE, INC. · filed 2023-02-13(a), (g)(26)

OCGA § 9-11-9.1 imposes “an initial pleading requirement on the plaintiff in a malpractice action.” ... And OCGA § 9-11-9.1 (g) (26) specifically imparts that, among other professions, the Code section applies to veterinarians. ... Consequently, Merritts was required to comply with the provisions of OCGA § 9-11-9.1, and her failure to do so authorized the dismissal of her complaint.

In a medical-malpractice action, the plaintiff must file with the complaint an affidavit from a competent expert identifying at least one alleged negligent act or omission and its factual basis.

Doe v. Augusta University · filed 2025-09-12(a)

Plaintiff has failed to comply with provisions of Georgia law regarding the filing of a medical malpractice claim. “Georgia law also requires medical-malpractice plaintiffs to submit an affidavit from a competent expert, ‘set[ting] forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.’” ... Thus, to the extent Plaintiff’s claims are construed as asserting medical malpractice claims under Georgia law, any such claims are subject to dismissal for failing to comply with the statutory pre-suit requirements.

Section 9-11-9.1(a) requires a malpractice plaintiff to file an affidavit from a competent expert identifying at least one negligent act or omission and its factual basis; the requirement applies to chiropractor claims under subsection (g)(5), and an affidavit is sufficient when it supports the alleged breach at the pleading stage.

Coll v. Kelly · filed 2026-05-22(a), (e), (g), (g)(5)

In a medical malpractice case, OCGA § 9-11-9.1(a) requires that the plaintiff “file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” This requirement applies to malpractice claims against chiropractors. OCGA § 9-11-9.1(g)(5). If the affidavit submitted with the complaint is defective, the complaint must be dismissed for failure to state a claim. See OCGA § 9-11-9.1(e). ... On these allegations, and construing the affidavit in the light most favorable to Coll, Royal’s affidavit was sufficient to meet the requirements of OCGA §§ 9-11-9.1 and 24-7-702(c)(2) with respect to his opinion that Kelly breached the standard of care in taking and reading the X-ray.

Section 9-11-9.1(a)(1) requires a plaintiff to file an expert affidavit in an action for damages alleging professional malpractice against a Georgia-licensed professional, but the requirement does not apply to claims based on intentional acts rather than professional negligence.

WISE BUSINESS FORMS INCORPORATED v. FORSYTH COUNTY, GEORGIA · filed 2022-03-15(a)(1)

OCGA § 9-11-9.1 (a) (1) requires plaintiffs to file an expert affidavit in “any action for damages alleging professional malpractice” against professionals licensed by the State of Georgia, including professional engineers.

Section 9-11-9.1(a) requires the expert affidavit supporting a professional-malpractice complaint to be from an expert competent to testify under § 24-9-67.1.

Aguilar v. Children's Healthcare of Atlanta, Inc. · filed 2013-03-05(a)

“The standard for determining an expert’s competence to testify is governed by OCGA § 24-9-67.1,... and the statute applies to affiants under OCGA § 9-11-9.1.”

In a professional malpractice action, the plaintiff must attach an expert affidavit identifying the act of negligence underlying the claim, and the affiant must satisfy the applicable expert-witness requirements.

Cagle v. EHIRIM · filed 2010-06-17(a)

Under OCGA § 9-11-9.1 (a), the plaintiff in a professional malpractice action is required to attach to the complaint the affidavit of an expert setting out the act of negligence underlying the claim.

Section 9-11-9.1 requires a medical malpractice plaintiff's expert affidavit to be properly notarized, with the affiant personally appearing before the notary.

Sambor v. Kelley · filed 1999-05-03

Therefore, we reaffirm our prior holding that notarization occurs only when the affiant or person acknowledging execution personally appears before the notary.

Section 9-11-9.1 requires a plaintiff filing a professional negligence claim to file an expert affidavit with the complaint stating the case's factual basis.

DAVIS v. GGNSC ADMINISTRATIVE SERVICES LLC · filed 2019-08-26

O.C.G.A. § 9-11-9.1 requires that a plaintiff who files a professional negligence claim must file an expert affidavit along with the complaint setting forth the factual basis of the case.

Section 9-11-9.1 requires an expert affidavit when a claim alleges damages for professional negligence.

Georgia Department of Transportation v. Mixon · filed 2020-06-10

Consequently, the requirement of OCGA § 9-11-9.1 to file an expert affidavit when a claim alleges damages for professional negligence is inapposite here.

Section 9-11-9.1 does not require an expert affidavit for Wise’s inverse-condemnation-by-permanent-nuisance claim.

WISE BUSINESS FORMS INCORPORATED v. FORSYTH COUNTY, GEORGIA · filed 2023-12-22

The Court noted that it “did not grant certiorari on [this Court’s] ruling that Wise’s claim for inverse condemnation by permanent nuisance did not require an expert affidavit under OCGA § 9-11-9.1 or on its ruling that Wise’s inverse-condemnation-by-abatable-nuisance claim was properly dismissed by the trial court.” ... Because the Supreme Court did not address our other dispositive holdings — that Wise’s claim for inverse condemnation by permanent nuisance did not require an expert affidavit, that Wise did not allege sufficient facts to assert a claim of inverse condemnation by abatable nuisance, and that Wise abandoned his claim for per se taking on appeal — and because those holdings are consistent with the Supreme Court’s opinion, those holdings become binding upon the return of the remittitur.

Section 9-11-9.1(a) requires a professional negligence plaintiff to file an expert affidavit stating at least one specific negligent act or omission and its factual basis.

LEWIS v. EMORY HEALTHCARE, INC. · filed 2026-02-03(a)

Where, as here, a complaint seeks damages for professional negligence, OCGA § 9-11-9.1 (a) requires the plaintiff “to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

Section 9-11-9.1 requires an expert affidavit with a professional malpractice complaint even when the alleged negligence would be apparent to a layperson.

Collins v. Newman · filed 1999-04-30(a)

Collins does not contest the fact that her action constituted an action for professional negligence. However, she contends that an expert affidavit was not required because it would be apparent to a layman that leaving an instrument inside a patient constitutes professional negligence. This argument is without merit.

Section 9-11-9.1(f) permits renewal of a malpractice complaint filed without the required affidavit only if the affidavit existed when the original suit was filed and was omitted by mistake.

Jones v. Bates · filed 1991-05-10(f)

Under St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 155 (377 SE2d 847) (1989), Jones could renew this malpractice count only if it were shown that the required affidavit existed at the time of the original suit but was omitted from it by mistake. Accord OCGA § 9-11-9.1 (f).

Subsection (f) limits the circumstances in which a professional-malpractice action may be renewed after the applicable limitation period has expired.

Floyd v. Piedmont Hospital, Inc. · filed 1994-07-01(f)

Aside from the need to disapprove countless precedents implying otherwise, Piedmont in effect asks this court to render meaningless the clear import of OCGA § 9-11-9.1 (f), which expressly limits the circumstances under which renewal is possible in professional malpractice cases after the applicable limitation period has expired.

Section 9-11-9.1 requires a malpractice plaintiff to attach an expert affidavit identifying at least one negligent act or omission and its factual basis, but those pleading requirements do not bind plaintiffs in federal court.

Boone v. Knight · filed 1990-02-06

As the above authorities indicate, the pleading requirements of O.C.G.A. § 9-11-9.1 are not binding on a plaintiff in federal court. Rather, the sufficiency of plaintiffs complaint must be judged solely by the standard set out in Federal Rule 8, according to which the pleading of evidence is not required.

Section 9-11-9.1’s expert-affidavit requirement does not apply in federal diversity actions because Federal Rule 8(a) governs the sufficiency of the complaint.

Roberts v. Jones · filed 2005-05-09

This Court finds that it is well settled law that in a diversity action the Georgia statute, O.C.G.A. § 9-11-9.1, requiring plaintiffs to file an affidavit of an expert is inapplicable. The sufficiency of a plaintiff’s complaint is judged by the standard set out in Federal Rule 8(a) which does not require the affidavit of an expert.

Section 9-11-9.1 does not bind a federal court when it determines the pleading standard for a motion to dismiss; federal law governs that issue.

Hays v. Page Perry, LLC · filed 2014-06-10

The Plaintiffs response to the Motion to Dismiss begins with a blatant misstatement of the law: that in ruling on a motion to dismiss, this Court is bound by O.C.G.A. § 9-11-9.1. No authority for this preposterous statement is given. Of course, federal law determines the pleading standard in ruling on a motion to dismiss in federal court.

Section 9-11-9.1's expert-affidavit requirement does not apply to professional-malpractice actions in federal court.

Callaway v. O'Connell · filed 2014-08-29

The Court recognizes the requirement that a plaintiff attach an expert affidavit to his complaint in a professional malpractice action pursuant to O.C.G.A. § 9-11-9.1 does not apply in federal court.

Section 9-11-9.1 is an initial pleading requirement rather than an evidentiary requirement, and its expert-affidavit requirement does not apply in federal court.

Encompass Home & Auto Insurance Company v. Stevens Hale & Associates · filed 2022-08-11

As an initial matter, O.C.G.A. § 9-11-9.1 is not implicated in this case. First, O.C.G.A. § 9-11-9.1 sets out an “initial pleading requirement rather than an evidentiary requirement.” ... Thus, the statute is inapplicable at this stage in the litigation and does not impact or alter a plaintiff’s burden to produce expert testimony at trial in professional malpractice cases. ... Furthermore, the statute does not apply in federal court. ... Therefore, O.C.G.A. § 9-11-9.1 is inapplicable to this case.

Section 9-11-9.1 requires a medical-malpractice plaintiff to file an expert affidavit with the complaint; the requirement is procedural and may apply retroactively to a cause of action arising before the statute's effective date.

Blackmon v. Thompson · filed 1990-05-11

“In the instant case, the OCGA § 9-11-9.1 requirement of submitting an expert’s affidavit along with the complaint did not affect the substantive right of action for professional malpractice; it alters neither the standard of care to be applied nor the measure of recovery. The statute merely prescribes a procedure for enforcing that right, evidently with the purpose of preventing frivolous or unsustainable actions. Accordingly, the trial court [did nor err] in applying the statute [retroactively], and in [granting appellees’ motion] to dismiss. [Cits.]”

Section 9-11-9.1 requires an expert affidavit as a prerequisite to filing a renewal action when the statute became effective between dismissal of the original action and filing of the renewal action.

Bell v. Figueredo · filed 1989-01-23

The affidavit filing requirement must be complied with as a prerequisite to the filing of the case at bar because OCGA § 9-11-9.1 became effective after the first suit was dismissed and before this action was filed. ... Thus, we find the trial court properly concluded that the prerequisite of filing an affidavit pursuant to OCGA § 9-11-9.1 must be met for this renewal action.

Section 9-11-9.1 requires an expert affidavit only in actions against professions recognized under Georgia law in OCGA §§ 14-7-2 (2), 14-10-2 (2), and 43-1-24.

Gillis v. Goodgame · filed 1992-02-27(a)

We hold, therefore, that the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-1-24.

Section 9-11-9.1 requires an expert affidavit in malpractice actions against pharmacists, but subsection (f)'s renewal-action bar is not applied when the statute's coverage was unclear when the original suit was filed.

Harrell v. Lusk · filed 1994-02-07(a), (f)

Because a suit that calls into question the conduct of a professional pharmacist in his area of expertise is a suit brought against a defendant who provides a service which can be legally performed only pursuant to a license from a state examining board issued upon successful completion of specialized schooling and/or training, we hold that the requirements of OCGA § 9-11-9.1 must be met. Accord Sparks v. Kroger Co., 200 Ga. App. 135 (407 SE2d 105) (1991). See also Faser v. Sears, Roebuck & Co., 674 F2d 856 (11th Cir. 1982). However, although ordinarily this Court would rule that Lusk's second complaint, filed with the affidavit of a licensed pharmacist, should be dismissed with prejudice pursuant to OCGA § 9-11-9.1 (f), that result would be unfair in this case.

Section 9-11-9.1 requires a malpractice plaintiff to file an affidavit from an expert competent to testify, and treats that affidavit as an initial pleading requirement rather than a prima facie case.

Handson v. HCA Health Services of Georgia, Inc. · filed 1994-05-16

OCGA § 9-11-9.1 requires a plaintiff to file an affidavit of an expert “competent to testify” in actions alleging professional malpractice. This is merely an initial pleading requirement, and the complaint will not be subject to dismissal unless the affidavit “ ‘ “disclose [s] with certainty that the plaintiff would not be entitled to relief under any state of provable facts.” ’ [Cit.]”

Section 9-11-9.1 does not require a separate expert affidavit addressing negligence allegations against a hospital when the filed affidavit addresses the physician-related negligence allegations.

Jenkins County Hospital Authurority v. Landrum · filed 1992-09-08

Therefore, an affidavit under OCGA § 9-11-9.1 is not necessary, and the trial court did not err in denying the hospital’s motion to dismiss.

Section 9-11-9.1 requires a malpractice complaint to be accompanied by an affidavit from an expert competent to testify.

Raskin v. Wallace · filed 1994-11-22

Nonetheless, the statute imposes an initial pleading requirement that the affidavit filed with the complaint be that of an “expert competent to testify.”

Section 9-11-9.1 requires an expert affidavit for a professional-malpractice claim alleging negligent performance of professional services, but not for a fraud claim.

Hilton v. Callaghan · filed 1995-01-24

However, an expert affidavit was not required under OCGA § 9-11-9.1 to support the Hiltons’ claim of fraud.

Section 9-11-9.1 requires an expert affidavit when claims against an entity are based on professional treatment by an agent or employee, and failure to file the affidavit requires dismissal.

Georgia Physical Therapy, Inc. v. McCullough · filed 1995-12-06

We have held that a malpractice affidavit is required in suits against entities not required to be licensed by this state where liability is predicated on the doctrine of respondeat superior or when “the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as ‘professionals.’ ” ... Applying that principle to the facts of this case, it is clear that McCullough’s claims against GPT arise out of the treatment rendered by its agent, McKeever, in the exercise of his professional skill and judgment. McCullough’s failure to file an expert affidavit in accordance with OCGA § 9-11-9.1 mandates the dismissal of his claims against GPT.

Section 9-11-9.1 requires a plaintiff in a professional-negligence action to file an expert affidavit as an initial pleading requirement, and an admission of negligence does not excuse that filing.

Johnson v. Brueckner · filed 1994-12-16

Dr. Brueckner’s admission of inadvertence in the attached medical records does not excuse plaintiff’s failure to comply with OCGA § 9-11-9.1.

Section 9-11-9.1 makes the expert affidavit an initial pleading requirement, so its sufficiency is judged on a motion to dismiss from the affidavit's four corners rather than by later summary-judgment evidence.

Sawyer v. DeKalb Medical Center, Inc. · filed 1998-08-20(f)

The validity of an affidavit for OCGA § 9-11-9.1 purposes is not a summary judgment question; it is a motion to dismiss question.

Section 9-11-9.1 requires a professional-malpractice plaintiff to file an expert affidavit with the complaint, but that requirement does not bind a plaintiff in federal diversity court because it conflicts with Federal Rule of Civil Procedure 8(a).

Baird v. Celis · filed 1999-03-05

The Court finds, therefore, that O.C.G.A. § 9-11-9.1, requiring an expert affidavit to be filed with a complaint for professional malpractice, is in direct conflict with Federal Rule of Civil Procedure 8(a) which requires only notice pleading.

Section 9-11-9.1 requires an expert affidavit with a complaint alleging professional malpractice, including claims against pharmacists or nurses styled as contract or tort claims.

Presto v. Sandoz Pharmaceuticals Corp. · filed 1997-05-13

Although the Prestos attached to their complaint an expert affidavit alleging the negligence of Dr. Warren, as required by OCGA § 9-11-9.1, that affidavit makes no reference to any negligent act or omission attributable to Caremark. ... The Prestos’ claims, however labeled, are allegations of professional malpractice on the part of pharmacists or nurses at Caremark. ... The failure to attach to the complaint the expert affidavit required by OCGA § 9-11-9.1 required the dismissal of these claims.

Section 9-11-9.1(a) requires an expert affidavit for a professional-negligence claim against a nurse only when the alleged act or omission requires professional nursing skill and judgment.

Bunn-Penn v. Southern Regional Medical Corp. · filed 1997-07-11(a)

Although Bunn-Penn filed an affidavit pursuant to OCGA § 9-11-9.1(a), the expert affidavit of a nurse is necessary to support a claim for professional negligence by a nurse only where the alleged act or omission by the nurse requires the exercise of professional nursing skill and judgement.