Ga. Code Ann. § 9-11-9.1

Section 9-11-9.1 does not require an expert affidavit for claims alleging ordinary negligence rather than professional malpractice.

Bailey v. Joyner · filed 1997-11-19

The trial court properly denied the motion to dismiss. Not all complaints alleging wrongful acts committed by professionals must be accompanied by an expert’s affidavit in compliance with OCGA § 9-11-9.1. ... The breach of a duty requiring ordinary care, albeit in a legal context, is not legal malpractice triggering OCGA § 9-11-9.1.

Section 9-11-9.1 requires an expert affidavit for an allegation of professional negligence, but no affidavit is necessary for a battery claim that is not grounded in professional negligence.

Cleveland v. Albany Urology Clinic, P.C. · filed 1998-11-19

When “an allegation for negligence” is premised on a violation of the informed consent law then “the expert’s affidavit required by Code Section 9-11-9.1 shall set forth that the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure and that such injury was a material risk required to be disclosed under this Code section.” OCGA § 31-9-6.1 (d) (3). But a claim for battery faces no such procedural impediment because it is not “an allegation for negligence.” Since the allegation was not grounded in professional negligence, no OCGA § 9-11-9.1 affidavit was necessary.

Subsection (a) requires a complaint alleging professional malpractice to include an expert affidavit identifying at least one specific negligent act or omission and its factual basis; an unsworn document does not satisfy that requirement.

Howard v. Jonah · filed 1993-04-07(a)

Any complaint alleging professional malpractice must include “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).

Section 9-11-9.1 requires an expert affidavit when the negligence issue is a medical question, and subsection (e) limits renewal after the limitations period when the defendant raises the missing affidavit as a defense.

Shirley v. Hospital Authority of Valdosta/Lowndes County · filed 2003-09-25(e)

OCGA § 9-11-9.1 (e) provides that when a plaintiff does not file an affidavit, and the defendant, as in this case, raises such failure as a defense pursuant to the Code section, the plaintiffs complaint is not subject to the renewal provisions of OCGA § 9-2-61 after the expiration of the applicable period of limitation except under very limited circumstances not at issue in this case.

Section 9-11-9.1(a) requires an expert affidavit with an action alleging professional malpractice, but not with a claim based on ordinary negligence.

Brown v. TIFT COUNTY HOSP. AUTHORITY · filed 2006-07-13(a)

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." OCGA § 9-11-9.1(a). ... Based on this case law, it is clear that if the specific information known to the defendant was such that a jury could determine without the help of expert testimony whether the defendant exercised due care in failing to prevent the patient's fall, the claim sounds in ordinary negligence and no expert affidavit is required. ... Brown is entitled to pursue her ordinary negligence claim without an expert affidavit.

Section 9-11-9.1(a) requires an expert affidavit with a complaint alleging professional negligence by a covered licensed health care professional; ordinary-negligence claims do not require that affidavit.

Health Management Associates, Inc. v. Bazemore · filed 2007-07-03(a), (d)

We hold that, because the complaint can be construed to allege that the Medical Center is vicariously liable for the professional negligence of a licensed health care professional listed in subsection (d) of OCGA § 9-11-9.1, and Bazemore failed to file the expert affidavit required by OCGA § 9-11-9.1 (a), the trial court erred by denying the Medical Center’s motion to dismiss to the extent it sought dismissal of any such claim alleged in the complaint.

Section 9-11-9.1(a) requires an expert affidavit in professional-malpractice actions against listed licensed professionals and licensed health care facilities, but not against other employers of listed professionals.

Sembler Atlanta Development I, LLC v. URS/Dames & Moore, Inc. · filed 2004-06-17(a)

It thus appears settled that the expert affidavit requirement of OCGA § 9-11-9.1 (a) does not apply to malpractice actions against employers, other than licensed health care facilities, of those professionals listed in OCGA § 9-11-9.1 (f).

Section 9-11-9.1 requires an expert affidavit in professional-negligence cases, but the affidavit requirement does not apply to matters of simple negligence.

Atlanta Women's Health Group, P.C. v. Clemons · filed 2007-08-21(a)

OCGA § 9-11-9.1 is only applicable in cases involving professional negligence; in matters of simple negligence the affidavit requirement does not apply.

Section 9-11-9.1 requires an expert medical affidavit for a medical malpractice claim, but not for an intentional tort claim alleging the unauthorized termination of life support.

Dekalb Medical Center, Inc. v. Hawkins · filed 2007-11-29

Ultimately, the issue in the instant case is not whether DMC violated professional standards of care (as in a malpractice case), but whether it committed an intentional tort when it deliberately terminated Hawkins' life support without the consent of the decedent, her family, or the court, and over the objections of the decedent's mother. ... Accordingly, the trial court properly refused to dismiss the claim in its entirety after finding that the plaintiff had asserted a tortious termination of life support claim and that such claim was not a medical malpractice action requiring an expert medical affidavit under OCGA § 9-11-9.1.

Section 9-11-9.1's expert-affidavit requirement does not cover appraisers because they are not among the listed professionals.

Georgia Real Estate Appraisers Board v. Krouse · filed 2009-07-14(g)

See OCGA § 9-11-9.1 (requiring malpractice claims against certain professionals to be supported by an expert affidavit). Notably, however, the legislature did not include appraisers on the list of professionals to which the expert affidavit requirements of OCGA § 9-11-9.1 apply. See OCGA § 9-11-9.1 (g).

A professional-malpractice complaint must be accompanied by an expert affidavit identifying at least one alleged negligent act or omission and its factual basis.

Fortson v. Hotard · filed 2009-08-04(a)

Furthermore, Fortson failed to comply with OCGA § 9-11-9.1 (a), which requires that any complaint 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.” Fortson did not file an expert affidavit to support his claim for professional malpractice. Accordingly, the trial court did not err in granting Hotard’s motion to dismiss Fortson’s professional malpractice claim.

Section 9-11-9.1 requires an expert affidavit for medical-malpractice claims, and claims are barred when the plaintiff fails to file one.

In Re Carter · filed 2007-11-07

The claims against the physicians are thus barred by Plaintiffs failure to file an expert affidavit pursuant to OCGA § 9-11-9.1.

Section 9-11-9.1 does not require an expert affidavit for claims based on intentional torts, including breach of fiduciary duty, rather than professional negligence.

Walker v. Wallis · filed 2008-02-20

Because the complaint alleges intentional torts, no affidavit was required.

Section 9-11-9.1 requires an expert affidavit as a pleading requirement, but it is not intended to facilitate the resolution of motions for summary judgment.

Rooks v. Tenet Health System GB, Inc. · filed 2008-07-07

The expert affidavit requirement is a pleading requirement only.

Section 9-11-9.1 requires any person or entity bringing a professional-negligence action to file an expert affidavit, applies uniformly, and does not itself impose the costs of obtaining one.

Walker v. Cromartie · filed 2010-06-28(a)

Appellants’ argument that OCGA § 9-11-9.1 is a special law because indigent defendants may not be able to afford the fees associated with obtaining an expert affidavit is unfounded. The law applies uniformly to any person or entity bringing a lawsuit for professional negligence. Any disparities in the costs associated with obtaining an expert affidavit are circumstances beyond the scope or control of the statute. Accordingly, the trial court did not err when it ruled that the statute withstood the constitutional challenges raised by appellants.

Section 9-11-9.1(a) requires a plaintiff alleging medical negligence to file an expert affidavit with the complaint, but the requirement does not apply to ordinary-negligence claims.

Okelley v. Atlanta Heart Associates, P.C. · filed 2012-05-04(a)

OCGA § 9-11-9.1 (a) requires a plaintiff alleging medical negligence to file contemporaneously with the complaint an expert affidavit setting forth at least one negligent act or omission supporting each claim. ... But the requirement does not apply to claims of ordinary negligence.

Section 9-11-9.1 requires an expert affidavit only when a professional negligence action is brought against a professional listed in subsection (g); a certified nursing assistant is not one of those professionals.

Padgett v. Appling Healthcare Systems · filed 2013-03-29(g)

Here, the allegedly negligent actor was a certified nursing assistant (CNA). A CNA is not one of the “professionals” for which OCGA § 9-11-9.1 requires an expert affidavit to avoid dismissal of a professional negligence action.

Section 9-11-9.1 requires an expert affidavit for professional-malpractice claims, but no affidavit is required for an ordinary-negligence claim.

Emory Healthcare, Inc. v. Pardue · filed 2014-07-31

Because no expert affidavit was filed pursuant to OCGA § 9-11-9.1 and because the tolling provisions of OCGA § 9-3-90 do not apply to medical malpractice actions, Defendant claims that it was entitled to judgment as a matter of law. We disagree. ... If the specific information known to the defendant was such that a jury could determine without the help of expert testimony whether the defendant exercised due care in failing to prevent the patient’s fall, the claim sounds in ordinary negligence and no expert affidavit is required. ... Here, like the defendants in Brown v. Tift County Hosp. Auth., supra, Donson, supra, and Durden, supra, it was shown on summary judgment and during trial that the nurses and nursing assistant assisting Plaintiff on the night of her fall were aware of her medical and cognitive conditions and that a duty to supervise her had been established prior to her fall. ... Under these circumstances, a jury could, without the help of expert testimony, find that the nurses and the nursing assistant failed to exercise ordinary care by leaving Plaintiff unattended in the bathroom while they cleaned her room. ... The trial court did not err.

Section 9-11-9.1(a) requires a contemporaneously filed expert affidavit only for professional malpractice claims against professionals listed in the statute, so a technician is not covered.

Procter v. Gwinnett Pulmonary Group & Associates, P.C. · filed 2011-11-10(a)

OCGA § 9-11-9.1 (a) requires the contemporaneous filing of an expert affidavit only in professional malpractice claims asserted against certain professionals, and “technician” does not fall into any of the categories of professionals enumerated within the Code section.

Section 9-11-9.1(a) requires a medical-malpractice plaintiff to file with the complaint a competent expert affidavit specifying at least one negligent act or omission and its factual basis; failure to provide a proper affidavit requires dismissal.

Bacon County Hospital & Health System v. Whitley · filed 2013-01-16(a)

Pursuant to OCGA § 9-11-9.1 (a), a plaintiff asserting a claim for medical malpractice must “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(a)'s expert-affidavit requirement in professional-malpractice suits does not violate federal law merely because the Federal Rules lack a similar requirement.

Major Fortson v. State of Georgia · filed 2015-01-28(a)

His contention on appeal that O.C.G.A. § 9-11-9.1 violates federal law because the Federal Rules do not contain a similar requirement is frivolous. He has shown no authority suggesting federal and state procedural rules must be identical or the affidavit requirement of § 9-11-9.1 violates federal law.

Section 9-11-9.1(a) requires a medical-malpractice plaintiff to file a competent expert affidavit specifying at least one negligent act or omission and its factual basis; subsection (e) allows dismissal only when a specifically identified defect is not cured within 30 days.

Billy Ray Hendrix, Sr. v. Fulton Dekalb Hospital Authority D/B/A Grady Memorial Hospital, Inc. D/B/A Grady Health System · filed 2015-03-02(a), (e)

Where the defendant contends that the expert affidavit filed by the plaintiff pursuant to OCGA § 9-11-9.1 (a) is defective, the procedure governing dismissal of the complaint for failure to file an adequate affidavit is set forth in OCGA § 9-11-9.1 (e). Under this subsection, ... OCGA § 9-11-9.1 (e). “The statute . . . permits dismissal only when the plaintiff fails to cure an inadequacy within 30 days of the filing of a motion to dismiss that identifies the same inadequacy “with specificity.”

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, but no affidavit is required for claims based on simple negligence.

CARTER v. CORNWELL Et Al. · filed 2016-09-21(a)

OCGA § 9-11-9.1 (a) provides, in pertinent part, 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.” 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. Whether the alleged acts or omissions constitute simple negligence or professional malpractice is a question of law for the court to resolve. The resolution of whether an act or omission sounds in simple negligence or medical malpractice depends on whether the conduct, even if supervisory or administrative, involved a medical judgment. ‘Medical judgments’ are decisions which normally require the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience.

Section 9-11-9.1 requires an expert affidavit in a professional-malpractice claim alleging that a professional negligently supplied incorrect information in the course of performing professional services.

Phoenix Development and Land Investment, LLC v. Geoscience · filed 2017-03-16

Such a claim would, of course, remain subject to the expert affidavit requirement of OCGA § 9-11-9.1.

Section 9-11-9.1 does not require an expert affidavit for negligence-per-se or ordinary-negligence claims that do not sound in medical or professional malpractice.

Curles v. Psychiatric Solutions, Inc. · filed 2017-11-02

Accordingly, we conclude the Plaintiffs’ claims of negligence per se in relation to the alleged statutory violation does not sound in medical or professional malpractice and is therefore not barred by the statute of repose3 for medical malpractice actions and is not subject to the expert affidavit requirement set forth in OCGA § 9-11-9.1.

Section 9-11-9.1 requires an expert affidavit as an initial pleading requirement for a professional-malpractice complaint, and the affidavit need not satisfy the evidentiary standard applicable at later stages.

Georgia Department of Transportation v. Thompson · filed 2020-03-13

The trial court improperly based its ruling on the standard used when considering a motion to dismiss a complaint for professional malpractice pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim on the ground that the expert affidavit filed in accordance with OCGA § 9-11-9.1 was insufficient, which was not the basis for DOT’s motion. As our cases make clear, however, the affidavit required by OCGA § 9-11-9.1 is an initial pleading requirement, not an evidentiary requirement. See Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992) (“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”). ... That different standards apply is emphasized by the fact that a complaint accompanied by a defective expert affidavit is subject to dismissal for failure to state a claim under OCGA § 9-11-12 (b) (6), while a complaint that fails to establish a waiver of sovereign immunity is subject to dismissal for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1).

Section 9-11-9.1 requires an expert affidavit for a professional malpractice claim in Georgia, and failure to provide one requires dismissal.

Ross v. Hangar Prosthetics & Orthotics, Inc. · filed 2022-06-27

Typically, such a determination would not end the case. But here, the Plaintiff does not contest the fact that she failed to produce an expert affidavit as required for professional malpractice claims in Georgia. O.C.G.A. § 9-11-9.1. Such a failure requires the dismissal of the Plaintiff’s claims under Georgia law.

Section 9-11-9.1(g)(12) treats nurses as one profession for the expert-affidavit requirement, so registered nurses and nurse practitioners are members of the same profession.

Bryant v. Okafor · filed 2023-05-08(g)(12)

OCGA § 9-11-9.1 (g) sets forth an enumerated list of professions that require an expert affidavit to be filed with a complaint in a professional malpractice action. ... Similar to the statute’s treatment of “medical doctors” as a profession, OCGA § 9-11-9.1 (g) (12) broadly lists “nurses” as a profession and does not recognize nurse practitioners and registered nurses as separate professions. ... Given the undisputed facts and the law set forth above, we conclude that Kujawski, a registered nurse, is a member of the same profession as Okafor, a nurse practitioner. They are both nurses and members of the nursing profession. ... Thus, the trial court erred in granting Okafor’s motion to dismiss on the ground that a registered nurse and a nurse practitioner are not members of the same profession.

Section 9-11-9.1(a) requires a medical-malpractice plaintiff to file a competent expert affidavit specifically identifying at least one alleged negligent act or omission and its factual basis; in an FTCA action, the requirement applies as substantive state law.

Henderson v. United States · filed 2024-06-03(a)

Georgia law 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.” O.C.G.A. § 9-11-9.1(a). ... Accordingly, even though Georgia’s expert affidavit requirement has been described as “purely procedural” and thus inapplicable in cases before the Court under diversity jurisdiction, Allen, 2018 WL 6729646, at * 5, if the requirement affects the liability of the United States in the FTCA context, it must be incorporated as a pertinent element of substantive state law for Plaintiffs’ FTCA claim. ... Without the required affidavit, Plaintiffs’ medical malpractice claims are subject to dismissal,5 and Defendant’s Motion to Dismiss on this ground is GRANTED.

Section 9-11-9.1(a) does not automatically require a hospital to file an expert affidavit for every claim; it applies when the claim alleges acts or omissions requiring professional skill and judgment by a listed professional.

Houston Hospitals, Inc. v. Amanda Ann Reeves, as Next Kin of Alvin D. Blount, Jr. · filed 2020-07-13(a)

As explained in Legum v. Crouch,6 because HMC is not classified as such a “professional,” the affidavit requirement does not apply automatically as to any claim asserted against it. Rather, the affidavit requirement applies regarding tort claims filed against a hospital . . . when . . . grounded upon the additional averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as “professionals” [listed in OCGA § 9-11-9.1 (g)].

Section 9-11-9.1(a) requires an expert affidavit with a complaint asserting a professional-malpractice claim, but that requirement does not apply when the plaintiff does not assert professional malpractice.

RODRIGUEZ · filed 2026-03-12(a)

Plaintiff does not assert a claim for professional malpractice. Thus Dr. Moody’s argument that the SAC should be dismissed for failure to comply with O.C.G.A. § 9-11-9.1(a) requiring that an affidavit of an expert be filed with Plaintiff’s complaint is baseless.

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.

Alba v. Montford · filed 2008-02-22(a)

It is true that in Georgia a plaintiff must include with a professional malpractice 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.” Ga. Code Ann. § 9-11-9.1(a). ... Because Alba’s complaint does not state a claim for professional malpractice, the affidavit requirement would not hinder his attempt to file a state tort lawsuit against the Defendants.

Subsection (a) requires the malpractice expert affidavit filed with the complaint to state at least one specific negligent act or omission and the factual basis for it, and does not permit satisfying that requirement by incorporating other documents by reference.

Cheeley v. Henderson · filed 1990-10-30(a)

As Cheeley correctly notes, there is not set forth in Prof. Metzloff’s affidavit itself any one negligent act or omission claimed by Henderson to have been committed by Cheeley, and nothing in OCGA § 9-11-9.1 provides for the satisfaction of that requirement by the incorporation in the expert’s affidavit of a reference to other documents.

Section 9-11-9.1(a) requires a malpractice affidavit to identify at least one specific negligent act or omission and its factual basis, but it does not require particular wording or attachment of records identified and described in the affidavit.

Minster v. Pohl · filed 1992-11-23(a)

The statute does not require that specific language be employed. It requires only that the affidavit “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). ... Here, Case’s affidavit “indicates” unequivocally that Hines breached the requisite degree of care and skill required of the nursing profession generally by setting forth specific acts of negligence, although those exact words were not used. Accordingly, the affidavit was in compliance with the requirements of OCGA § 9-11-9.1. ... Given that Case provided a detailed factual basis for her allegations of negligence in the body of her affidavit and specifically identified the records she reviewed as the source of those facts, the affidavit complied with the statute.

Section 9-11-9.1(a) requires a malpractice plaintiff's expert affidavit to identify at least one specific negligent act or omission and its factual basis as to each professional defendant; failure to comply subjects the complaint to dismissal under subsection (e).

Candler Hospital, Inc. v. Carter · filed 1997-01-30(a), (e)

The affidavits do not specify any negligent act or omission by the agents or employees of Candler Hospital. Nor do they specify any facts upon which the malpractice claim against Candler Hospital is based. In fact, the affidavits do not even state that Candler Hospital’s agents or employees were involved in the surgery. The affidavits do not meet the requirements of the statute with regard to any malpractice claims against Candler Hospital.

Section 9-11-9.1's expert-affidavit requirement did not apply to a medical-malpractice action filed before the statute was enacted.

Kirk v. Ashley · filed 1991-04-03

This lawsuit was filed prior to the enactment of OCGA § 9-11-9.1 and therefore it was not necessary that an expert affidavit be filed with the complaint.

The 1997 revision of § 9-11-9.1 applies retroactively as procedural law, requires a dismissal motion based on a missing affidavit to be filed with the initial responsive pleading, and excludes termite exterminators from the professionals covered by the affidavit requirement.

Vester v. Mug a Bug Pest Control, Inc. · filed 1998-09-14(b), (d), (e), and (f)

The General Assembly passed Ga. L. 1997, pp. 916, 917, § 1, which replaced OCGA § 9-11-9.1 entirely and made the provisions less harsh; under the 1997 revised OCGA § 9-11-9.1 (b), defendants’ motion to dismiss for failure to file the affidavit would not require dismissal, because the motion to dismiss for failure to state a claim based on the absence of the affidavit was untimely. Only the “motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim.” ... In the revised OCGA § 9-11-9.1, Ga. L. 1997, p. 916, § 1 added a new subsection, (f), which defined expressly the professionals who came within the ambit of the Act, and thereby excluded many actual or so-called professionals from the effect of OCGA § 9-11-9.1. The caption stated the purpose of the revision as: “to provide for professions to which the affidavit requirement applies,” which does not include termite exterminators. ... This Court has held that OCGA § 9-11-9.1 is procedural in nature, conveying no vested rights, and can be applied retroactively. ... Therefore, although the trial court had dismissed Count 2 prior to the passage of the revision of OCGA § 9-11-9.1 under a correct interpretation of the then existing law, such dismissal on appellate review must be decided based upon the present status of the law.

Section 9-11-9.1 requires a legal-malpractice plaintiff to file an affidavit contemporaneously with the complaint specifying at least one negligent act or omission and its factual basis, and a deficient filing generally cannot be cured by amendment unless the required affidavit was already available and the failure to file it was a mistake.

Cheeley v. Henderson · filed 1991-06-27(a), (e)

Non-compliance with the Civil Practice Act is a basis for dismissing a plaintiff's action, OCGA § 9-11-41(b), but the state's liberal amendment policy, OCGA § 9-11-15, typically allows amendments. However, according to OCGA § 9-11-9.1, the contemporaneous filing requirement is mandatory, and the General Assembly made it apparent when it enacted subsection (e) which provides that failure to comply with the contemporaneous filing requirements 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.

Section 9-11-9.1 covers professional engineering claims challenging an intersection’s design or choice of traffic control devices.

Department of Transportation v. Mikell · filed 1997-10-29

Because the plaintiffs are challenging the layout of the intersection itself and the choice of traffic control devices which control it, they are asserting that the intersection is negligently engineered and designed. Where, as here, the engineering design of a road is questioned, this Court has held that “[designing roads requires ‘engineering services’ which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1 [the professional malpractice affidavit statute].”

Section 9-11-9.1 requires an expert affidavit filed with the complaint when a litigant alleges harm from a professional's negligent performance of engineering services, including highway design.

Jackson v. Department of Transportation · filed 1991-10-28(e)

Designing roads requires “engineering services” which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1 by the Supreme Court. ... “[T]he statute is not restricted to malpractice actions brought by plaintiffs who were clients of the professional, but extends to any litigant who alleges harm as a result of the defendant professional’s negligent performance of professional services.” ... “[E]ven in cases of f clear and palpable’ professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint.” ... If the highway were defectively designed it was the result of professional negligence. In such instance, the failure to contemporaneously file an expert affidavit with the complaint was fatal.

Section 9-11-9.1(a) does not require an expert affidavit for a hospital-negligence claim based on supplying defective equipment when professional skill and judgment are not involved.

Lamb v. Candler General Hospital, Inc. · filed 1992-02-27(a)

Here, the failure to replace disposable parts in the instrument involved in this case, as required for its safe performance, creates an issue of simple negligence by hospital employees for which the hospital may be liable. Because professional skill and judgment are not involved, an affidavit under OCGA § 9-11-9.1 is not necessary.

Section 9-11-9.1 does not require a plaintiff alleging battery, rather than professional malpractice, to file an expert affidavit with the complaint.

Newton v. Porter · filed 1992-10-27

We find this holding to be applicable in this case and conclude that it was not incumbent upon plaintiff to file an expert’s affidavit pursuant to OCGA § 9-11-9.1. ... By its own' terms, the “medical malpractice” definition set forth in OCGA § 9-11-8 applies only to that Code section; it does not apply to OCGA § 9-11-9.1.

Section 9-11-9.1 applies to professional-negligence claims and does not govern an amended claim alleging simple negligence.

Thomas v. Tenet Healthsystem Gb, Inc. · filed 2017-01-18

However, because in Thomas we analyzed the amendment to the original complaint under OCGA § 9-11-9.1, its holding is inapplicable in the present case inasmuch as the new claims do not allege professional negligence.

Section 9-11-9.1 does not require an affidavit for a hospital negligence claim involving nonprofessional staff, but the hospital may raise the lack of an affidavit if it establishes that the staff members are professionals.

GREENE COUNTY HOSPITAL AUTHORITY v. Turner · filed 1992-05-05

Therefore, the trial court did not err in denying appellant’s motion to dismiss as to appellee’s ordinary negligence claims. However, as the Supreme Court noted in Lamb, the hospital is not precluded from asserting the lack of a § 9-11-9.1 affidavit as a defense if the hospital establishes that the “staff” members are professionals under Gillis.

Section 9-11-9.1(a) requires the plaintiff's expert-affiant in a professional-malpractice action to know the defendant physician's applicable standard of care for at least one alleged negligent act or omission.

Chandler v. Koenig · filed 1992-03-19(a)

We hold that for an affiant to constitute "an expert competent to testify" under OCGA § 9-11-9.1 (a), the affiant's expertise must include knowledge of the standard of care applicable to the defendant-physician as to at least one of the matters on which the plaintiff's malpractice claim is based.

Section 9-11-9.1(a) permits a medical-malpractice affidavit from a physician to support a claim against a nurse when the physician is familiar with the applicable standard of care and the subject matter involves a common area of medical expertise.

Tye v. Wilson · filed 1993-03-16(a)

Therefore the expert's statement that he is "familiar with the standard of care acceptable to the medical profession generally," is sufficient to encompass the nursing profession. This court has consistently held that members of the medical profession are competent to render an opinion about the standard of care of other members of the medical profession as long as their opinion concerns a common area of expertise.

Section 9-11-9.1(a) does not make an attorney incompetent to submit an expert affidavit in a malpractice action merely because the attorney previously represented the plaintiff or had a financial interest in the litigation.

Findley v. Davis · filed 1991-12-04(a)

In their motion for summary judgment, appellees argued that the affidavit failed to meet the requirements of OCGA § 9-11-9.1 (a) because George Brown was not “an expert competent to testify” based on Brown’s previous representation of appellant in this matter and the fact that Brown had a financial interest in the outcome of this suit at the time he submitted his affidavit which he renounced immediately prior to the hearing on the motion for summary judgment. ... This unsupported contention is without merit as we have recognized in an action for malpractice that “[a]n attorney, as well as a physician, may make an affidavit as an expert in his own behalf. [Cits.]” ... Since these grounds were the only issues raised with respect to the sufficiency of the affidavit before the trial court and we have determined that neither has merit, we conclude that the trial court erred in finding the affidavit insufficient as a matter of law inasmuch as the trial court did not state any other basis for its decision.

Section 9-11-9.1 requires a professional-malpractice plaintiff to file an affidavit identifying at least one negligent act or omission and its factual basis, and an affidavit from a different professional school must show overlapping treatment methods sufficient to establish the affiant’s competency.

Hewett v. Kalish · filed 1993-10-05(a)

Absent evidence of overlapping expertise to establish Dr. Davis’ competency to testify in an area other than his specialty, the affidavit is thus insufficient to satisfy the pleading requirements of OCGA § 9-11-9.1.

Subsection (a) requires the professional-malpractice affidavit to be given by an expert competent to testify about the relevant standard of care, and an expert may be competent when the opinion concerns a common area of expertise.

Thurman v. Pruitt Corp. · filed 1994-03-16(a)

The question is whether this qualifies her as "competent to render an opinion about the standard of care of other members of the medical profession," which she may do so "long as [her] opinion concerns a common area of expertise." Tye v. Wilson, 208 Ga. App. 253, 254 (430 SE2d 129) (1993). Her opinion concerned the standard of care administered to the decedent by defendant nursing home through its nursing staff. Considering the nature of the challenged acts and omissions, the affiant is prima facie qualified according to her training and experience to give her opinion as an expert.

Section 9-11-9.1 imposes a pleading requirement rather than an evidentiary standard at the pleading stage, and subsection (e) does not bar a plaintiff from presenting competency evidence at a later 12 (d) hearing when an affidavit was filed with the complaint.

Hewett v. Kalish · filed 1994-04-25(e)

We find nothing in § 9-11-9.1 that precludes a resolution of competency pursuant to the foregoing procedures. ... Section 9-11-9.1 (e) thus does not preclude a plaintiff from presenting evidence of his or her expert’s competency at a 12 (d) hearing when that expert’s affidavit was initially filed with the complaint.

Section 9-11-9.1(a) requires a medical-malpractice affidavit to show that the affiant is competent to testify as an expert on the applicable standard of care.

Riggins v. Wyatt · filed 1994-12-05(a)

The affidavit required by OCGA § 9-11-9.1 to be filed with a malpractice complaint is insufficient if it fails to show the affiant is competent to testify as an expert in the case. [Cits.] ... Therefore, the trial court erred in considering Dr. Wright's affidavit as he was not competent to testify as an expert under OCGA § 9-11-9.1.

A malpractice complaint’s required expert affidavit is insufficient unless it shows that the affiant is competent to testify as an expert in the case.

Milligan v. Manno · filed 1990-09-11

The affidavit required by OCGA § 9-11-9.1 to be filed with a malpractice complaint is insufficient if it fails to show the affiant is competent to testify as an expert in the case.

For pleading purposes, a treating physician who prescribed specific treatment by another health professional is competent to make the affidavit and testify that failing to follow the explicit prescription breached that profession’s standard of care.

Lee v. VISITING NURSE HEALTH SYSTEM OF METROPOLITAN ATLANTA, INC. · filed 1996-10-23(a)

“A Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible, so long as such construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits. [Cit.]”

Section 9-11-9.1 requires the professional-malpractice expert affidavit to meet its statutory requirements, and it does not bar resolving the affidavit’s competency at a hearing.

Vito v. Paley · filed 2004-09-13(a)

The expert affidavit is subject to the requirements of OCGA § 9-11-9.1 and nothing in that Code section precludes a resolution of the competency of the affidavit pursuant to a hearing.

Section 9-11-9.1 does not require an expert physician who provides the malpractice affidavit to be licensed when executing it, so long as the affidavit sufficiently establishes the expert's expertise in the relevant area.

Tenet Healthcare Corp. v. Gilbert · filed 2006-02-15(a)

Accordingly, we similarly reject appellants’ attempt here to require that Longas be a licensed physician to give his OCGA§ 9-11-9.1 affidavit, where his affidavit sufficiently sets forth his expertise in the area at issue.

Section 9-11-9.1 requires a professional-malpractice plaintiff to file a competent expert affidavit, and at the pleading stage the affidavit is construed most favorably to the plaintiff with doubts resolved in the plaintiff’s favor.

Houston v. Phoebe Putney Memorial Hospital, Inc. · filed 2009-01-26

OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff. Pleading rules apply when addressing whether a plaintiffs action is subject to dismissal under OCGA § 9-11-12 (b) (6); for a complaint to be subject to dismissal for failure to state a claim, the affidavit must disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. A Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiffs favor, even if an unfavorable construction of the affidavit may be possible, so long as such construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits. This rule is to be applied to questions of affiant’s competence.

Section 9-11-9.1 requires a professional-malpractice complaint to be supported by an affidavit from an expert competent to testify, and an expert satisfying the applicable qualifications requirements is competent to provide that affidavit.

Emory-Adventist, Inc. v. Hunter · filed 2009-11-20(a), (e)

Based on the foregoing, we conclude that Dr. Thrasher was competent to give his affidavit under OCGA § 9-11-9.1 because the plain terms of the Qualifications Statute only impose a license requirement at the time of the alleged malpractice and Dr. Thrasher was authorized to practice in the area of specialty at issue for three of the last five years preceding the alleged malpractice. OCGA §§ 43-34-47 (b) (3); 24-9-67.1 (c) (2) (A). Thus, the trial court did not err in denying the Emory defendants’ motion to dismiss.

Section 9-11-9.1 requires a professional-negligence complaint to be supported by an expert affidavit; an affidavit from an expert who is not qualified under § 24-7-702 is insufficient and the action is subject to dismissal.

Brantley v. Dubois · filed 2014-03-21

It follows that the trial court abused its discretion when it found that the Dr. Swartz affidavit was sufficient under OCGA §§ 9-11-9.1 and 24-7-702 (c) and denied Appellants’ renewed motion to dismiss or, in the alternative, motion for summaryjudgment. Because the Duboises’OCGA § 9-11-9.1 expert did not meet the requirements of OCGA § 24-7-702 (c), the trial court erred in ruling that Dr. Swartz was qualified to give an opinion and also erred in denying the Appellants’ motion.

Section 9-11-9.1 requires a legal-malpractice plaintiff to file an affidavit from an expert competent to testify, but imposes no expert-qualification limitations beyond those required by OCGA § 24-7-702.

Mitchell v. Parian · filed 2020-06-12(a)

The text of OCGA § 9-11-9.1 makes clear that the statute requires only that an affiant in a professional malpractice action be “competent to testify” as to the opinion set forth in his or her affidavit. ... Thus, OCGA § 9-11-9.1 places no limitations on an expert’s qualifications beyond those found in OCGA § 24-7-702, and nothing in Georgia’s statutory scheme prohibits Rhein from giving the affidavit at issue in this case.

Section 9-11-9.1(a) does not make an expert’s Georgia residency or Bar membership at the time of the alleged negligence a test of competency to provide the required affidavit.

Morris v. Atlanta Legal Aid Society, Inc. · filed 1996-06-05(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.” The statute contains none of the requirements imposed by the trial court. Whether the expert resided in Georgia or was a licensed member of the Bar at the time of the alleged negligence is not indicative of competency.

Section 9-11-9.1(a) requires a malpractice affidavit to set forth the factual basis for at least one alleged negligent act or omission, but does not require attaching medical records if the affidavit itself states those facts.

Ulbrich v. Batts · filed 1992-10-08(a)

The affiant may review the medical records, take the relevant facts therein to be true, and restate those facts in the affidavit to provide the basis for the expert opinion. As long as the affidavit itself adequately sets forth the factual basis for at least one negligent act or omission of the defendant alleged in the complaint, it is not necessary that the medical records from which the stated facts were taken be attached to the affidavit.

Section 9-11-9.1 does not require medical records to be attached to an expert affidavit when the affidavit itself adequately states the factual basis for at least one alleged negligent act or omission.

Bryant v. Crider · filed 1993-07-16

“As long as the affidavit itself adequately sets forth the factual basis for at least one negligent act or omission of the defendant alleged in the complaint, it is not necessary that the medical records from which the stated facts were taken be attached to the affidavit.”

An expert affidavit may rely on facts taken from identified medical records without attaching those records to the affidavit.

Dozier v. Clayton County Hospital Authority · filed 1992-10-08(a)

The affidavit in this case, as in Gadd, supra, substantially meets the statutory requirements of OCGA § 9-11-9.1. ... To the contrary, the affiant may base his expert opinion upon an assumption that the factual allegations of the complaint are true [or upon an assumption that the factual allegations expressly recited in his affidavit and obtained from his attested personal examination of specifically identified medical documents, whether or not such documents are attached to his affidavit, likewise 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.

Section 9-11-9.1 requires an expert affidavit for a counterclaim alleging professional malpractice, including negligent performance of professional services or breach of contract for failing to perform professional services with the required professional care.

Jordan v. Lamberth, Bonapfel, Cifelli, Willson & Stokes, P.A. · filed 1992-11-05(a)

“OCGA § 9-11-9.1 [applies] to the assertion of a counterclaim by a defendant. OCGA § 9-11-9.1 (a) states that ‘[i]n any action for damages alleging professional malpractice,’ the plaintiff must file an expert’s affidavit with the complaint. ... Counterclaims, as well, are encompassed by the quoted definition of an ‘action’ and are similarly subject to the affidavit requirement. ... Therefore, Jordan’s assertion that OCGA § 9-11-9.1 does npt apply to counterclaims is without merit.”

Section 9-11-9.1 does not require an expert affidavit for a claim against an employee who is not a licensed professional.

Zephaniah v. Georgia Clinic, P.C. · filed 2019-06-11(g)

Zephaniah first argues that the trial court erred in granting Georgia Clinic’s motion to dismiss because the employee who injured her is not a licensed professional for whom an expert affidavit under OCGA § 9-11-9.1 is required. We agree.

Section 9-11-9.1 does not bar professional negligence actions against exterminators.

Brock v. Allen · filed 2002-06-26

The Brocks contend, and Allen concedes, that the trial court erred in holding that OCGA § 9-11-9.1 does not allow professional malpractice actions to be filed against exterminators. In fact, a professional negligence action can be maintained against an exterminator.

Subsection (g) limits the expert-affidavit requirement to the professions it lists, and a certified nursing assistant is not among those covered professionals.

Padgett v. Baxley & Appling County Hospital Authority · filed 2013-03-29(g)

A CNA is not one of the “professionals” for which OCGA § 9-11-9.1 requires an expert affidavit to avoid dismissal of a professional negligence action.

Section 9-11-9.1’s affidavit requirement applies to professional malpractice claims against engineering firms, including third-party complaints.

Southern Engineering Company v. Central Georgia Electric Membership Corporation · filed 1989-11-30(a)

Therefore, the statute is applicable to a defendant in the posture of Southern Engineering. ... We next consider whether the statute can be invoked, as here, by an engineering firm named as a party defendant, as distinguished from an individual so named. ... In the instant case, therefore, the statute was properly invoked.

Section 9-11-9.1(a) applies to engineering-malpractice claims requiring professional or expert testimony and requires an accompanying affidavit, while subsection (e) may apply retroactively subject to a manifest-unfairness exception.

Kneip v. Southern Engineering Co. · filed 1990-09-27(a), (e)

The requirements of OCGA § 9-11-9.1 (a) apply to the engineering profession. ... Under these facts, Central was required to attach to its complaint the appropriate affidavit under OCGA § 9-11-9.1 (a). ... Central’s claim, however, does not fall within this category of simple negligence cases. Its assertions of negligence could be established only by professional or expert testimony.

Under subsection (a), an affidavit supporting a medical-malpractice complaint may satisfy the pleading requirement under a lower evidentiary standard than an expert affidavit used to defeat summary judgment.

Sanders v. Ramo · filed 1992-02-13(a)

We note that while Dr. Dry’s affidavit had a lesser evidentiary standard to meet when used to fulfill the requirement of OCGA § 9-11-9.1 (a), see ... it became subject to the stringent evidentiary standards required of expert affidavits made in response to motions for summary judgment when appellee also relied upon it as her expert testimony to create genuine issues of material fact so as to rebut appellants’ affidavits. We will review the affidavit accordingly.

Section 9-11-9.1(a) requires a medical-malpractice complaint to include a competent expert affidavit identifying at least one negligent act or omission and its factual basis, and a challenge to that pleading requirement is properly made by a dismissal motion rather than summary judgment.

Williams v. Hajosy · filed 1993-10-05(a), (e)

The former mandates the filing of an affidavit with the complaint “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). ... “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.” ... Noncompliance with OCGA § 9-11-9.1 (a) is properly challenged in a defensive pleading seeking dismissal of the complaint for failure to state a claim. OCGA §§ 9-11-9.1 (e); 9-11-12 (b) (6). Summary judgment, which addresses the merits, is not the proper vehicle to challenge the pleading, of which the affidavit is a part.

Section 9-11-9.1 requires an affidavit supporting alleged medical-negligence acts, and dismissal for failure to comply is an adjudication on the merits that bars reasserting the same personal-injury claim.

Waldroup v. Greene County Hospital Authority · filed 1995-10-24

Third, the dismissal of Waldroup’s initial personal injury complaint for failure to comply with the affidavit requirement of § 9-11-9.1 was made by a court of competent jurisdiction. Moreover, that dismissal of the complaint asserting personal injury claims was an adjudication on the merits of those claims.

Section 9-11-9.1(a) requires a plaintiff in a civil action alleging negligent conduct by a physician to attach an affidavit identifying at least one negligent act or omission and the factual basis for that claim.

Brooks v. Barry · filed 1996-11-22(a)

Under OCGA § 9-11-9.1 (a), a plaintiff is required to attach an affidavit setting forth at least one negligent act or omission and the factual basis for each such claim in any civil action alleging a negligent act or omission on the part of a physician.

Section 9-11-9.1 requires a medical-malpractice affidavit to attribute at least one negligent act or omission to each defendant whose liability is claimed; a general statement of intent cannot cure the failure to do so.

Goins v. Tucker · filed 1997-07-03

However, reference to Georgia Baptist appears on the document only because the caption of the case precedes the affidavit. The body of the affidavit contains no reference to Georgia Baptist or its staff. ... The expression of intent in the twelfth paragraph cannot serve to remedy a failure to attribute any act of negligence to a party. The affidavit does not meet the requirements of the statute with regard to defendant Georgia Baptist, and this failure subjects Count 4 of the complaint to dismissal for failure to state a claim.

Section 9-11-9.1(a) requires a medical-malpractice complaint to be accompanied by a legally sufficient affidavit made under oath.

Harris v. EMORY HEALTHCARE, INC. · filed 2004-08-26(a)

Thus, Harris did not comply with the requirements of OCGA § 9-11-9.1 by attaching a legally sufficient affidavit to his complaint, and the trial court properly dismissed his complaint.

Section 9-11-9.1(a) requires a medical-malpractice affidavit to provide sufficient proof that a non physician expert has overlapping expertise with the defendant's profession and methods of treatment.

Nowak v. High · filed 1993-06-08(a)

Contrary to the trial court’s holding, we conclude that Whited’s affidavit was sufficient proof that the methods of treatment for the giving of phenergan injections by nurses and doctors are the same. ... Given the statutory definition of the practice of nursing, which encompasses the giving of injections; the averments of Whited’s affidavit; and Nowak’s allegations of negligence, we conclude that the affidavit was sufficient and the trial court’s dismissal of the complaint was improper.

Section 9-11-9.1 requires a medical malpractice claim to satisfy its specified filing requirements, and dismissal is proper when those requirements are not met.

Parker v. Brinson · filed 1993-06-10

To the extent this prison inmate’s “tort negligence and medical indifference” action (brought against the warden of the prison, the warden’s predecessor, two deputy wardens and the medical director) sets forth a medical malpractice claim, the trial court did not err in dismissing it (for failure to satisfy the requirements of OCGA § 9-11-9.1).

Section 9-11-9.1(b) permits a plaintiff to invoke an extension for filing the expert affidavit, and subsection (c) gives defendants against whom professional malpractice is alleged or implied 30 days after the affidavit is filed to answer; the extension does not apply to defendants facing only simple-negligence claims.

Department of Transportation v. Gilmore · filed 1993-07-06(b), (c)

The applicability of this holding is necessarily limited to those defendants against whom professional malpractice is alleged or implied. In an action involving multiple defendants alleging professional malpractice against some, but not all, the 30-day extension for filing an answer applies only to the malpractice defendants. Inasmuch as the requisite affidavit for malpractice claims has no bearing on purely simple negligence claims, a plaintiff’s invocation of OCGA § 9-11-9.1 (b) would not extend the deadline for answering the complaint for defendants against whom only simple negligence is alleged.

Subsection (e) requires a defendant to raise the plaintiff’s failure to file the required expert affidavit in its initial responsive pleading; an untimely amended answer cannot support dismissal.

Colston v. Fred's Pest Control, Inc. · filed 1993-09-01(e)

Inasmuch as Fred failed to assert the defense in its initial responsive pleading as required by OCGA § 9-11-9.1 (e), the trial court erred in granting Fred’s motion to dismiss.

Section 9-11-9.1 imposes an initial pleading requirement on a plaintiff in a professional-malpractice action.

Piscitelli v. Hospital Authority of Valdosta & Lowndes County · filed 2010-03-09

OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff.

Section 9-11-9.1(a) requires a plaintiff alleging professional negligence to file a competent expert affidavit specifically identifying at least one claimed negligent act or omission and its factual basis.

Lennen v. Department of Transportation · filed 1999-08-30(a)

OCGA § 9-11-9.1 (a) directs that, in any action alleging professional negligence, the plaintiff shall file an affidavit from a competent expert setting forth “specifically at least one negligent act or omission claimed to exist and the factual basis for such claim.”

Section 9-11-9.1 requires an expert affidavit only for actions alleging professional negligence, not for an invasion-of-privacy claim based on an intentional disclosure of confidential medical information.

Howell v. Shumans · filed 2006-09-06(a)

In this appeal, this court is once again called upon to decide whether the affidavit requirement in OCGA § 9-11-9.1 applies to the allegations made by the plaintiff in her complaint. Because we conclude that the complaint did not allege professional negligence, OCGA § 9-11-9.1 does not apply, and the trial court therefore erred in dismissing the complaint. ... We hold that the trial court erred in dismissing Howell’s complaint based upon her failure to append an OCGA § 9-11-9.1 affidavit to her complaint.

Under subsection (f), the renewal protection does not apply after the limitations period when the required affidavit was not filed, unless the plaintiff had the affidavit available before filing and the omission resulted from a mistake.

Brown v. Middle Georgia Hospital, Inc. · filed 1994-01-25(f)

We find no error in the trial court’s rejection of Brown’s contention that the failure to file the affidavit was an amendable defect within the meaning of the statute. There was no evidence that there was an affidavit in counsel’s possession at the time of the filing of the lawsuit. In fact, it appears that counsel did not have the affidavit in her possession, but had only a promise from the expert that she was sending the affidavit by mail. Brown’s argument that the first expert’s mother’s failure to timely mail the affidavit constituted a “mistake” which would permit an amendment stretches the meaning of “mistake” beyond the intention of the statute.

A dismissal under § 9-11-9.1 is for failure to state a claim, and the complaint cannot be renewed or amended unless a court determines that the affidavit was available but omitted because of mistake.

Hodo v. Basa · filed 1994-10-05(e), (f)

The Code section itself clearb states that a dismissal under OCGA § 9-11-9.1 is a dismissal for fail ure to state a claim, and the complaint cannot be renewed o amended without a judicial determination that the affidavit was avail able but not filed due to mistake. See OCGA § 9-11-9.1 (e), (f). ... The dismissal of Hodo’s first action was a fina adjudication on the merits.

Section 9-11-9.1(e) bars curing a missing contemporaneous expert affidavit by amendment under § 9-11-15, but it does not prohibit voluntarily dismissing the action and refiling it with the required affidavit.

Moritz v. Orkin Exterminating Co. · filed 1994-10-07(e)

Consequently, we decline to find any implied prohibition in OCGA § 9-11-9.1 (e) against the procedure at issue.

Section 9-11-9.1 makes failure to file the required expert affidavit a non-amendable defect that bars renewal under § 9-2-61, absent a mistake exception; the subsection (b) 45-day supplementation procedure does not displace subsection (f).

Trucano v. Rosenberg · filed 1994-05-04(b), (f)

Failure to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1 is a non-amendable defect foreclosing the use of OCGA § 9-2-61, unless the court determines that the affidavit was available prior to the filing of the complaint and that the failure to timely file it was the result of a mistake.

Subsection (f) bars renewal of a malpractice complaint after the limitations period expires when the required affidavit was not filed, unless the plaintiff had the requisite affidavit available before filing and the omission resulted from a mistake.

Gooden v. Georgia Baptist Hospital & Medical Center · filed 1991-01-31(f)

OCGA § 9-11-9.1 (f) states: “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 in 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 available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” ... We have already determined that the affidavits filed with the complaint are defective and should have been stricken. We therefore agree with the trial court’s determination that, considering the prior notice to appellants of the defects in the affidavits, the appellants did not have the requisite expert affidavit at the time of filing the renewed complaint. Further, there is no evidence in the record to indicate that the failure to file a satisfactory affidavit was the result of a mistake.

Under the pre-1997 version of § 9-11-9.1(e), a defendant does not waive the defense by omitting it from the initial responsive pleading when the filed document facially appears to be a valid expert affidavit; the defense may be raised in the first responsive pleading after discovery of facts showing that the affidavit is invalid.

Harris v. Murray · filed 1998-07-16(e)

The waiver holding in Seely is inapplicable to the present facts. Because Harris filed a document with the complaint which appeared on its face to be a valid expert affidavit in compliance with OCGA § 9-11-9.1, Murray initially had no reason to challenge the affidavit and, therefore, he had no duty under the statute to raise any § 9-11-9.1 defense in his initial responsive pleading to the complaint. When Murray subsequently deposed the expert, the expert testified that no formal oath was administered to him before he executed the affidavit. Upon making this discovery, Murray's first response was to file motions seeking dismissal or summary judgment on the complaint in which he raised the defense that Harris failed to file the required affidavit. Under these facts, there was no waiver of the § 9-11-9.1 defense.

Section 9-11-9.1(b) makes the plaintiff’s failure to file the required expert affidavit an affirmative defense that the defendant must properly assert for dismissal to be warranted.

Frieson v. South Fulton Medical Center · filed 2002-05-01(b)

With these words, the General Assembly has made a plaintiff’s failure to attach an expert affidavit to a medical malpractice complaint an affirmative defense. Such a defense must be properly asserted to be effective. Because South Fulton did not assert it, Frieson’s failure to file an expert affidavit does not warrant the dismissal of her complaint against South Fulton.

Section 9-11-9.1 does not permit a medical-malpractice plaintiff to cure failure to file the required expert affidavit by amending the complaint; dismissal for that failure is for failure to state a claim and is with prejudice.

Roberson v. Northrup · filed 2010-02-17

Because OCGA § 9-11-9.1 does not allow such amendments, and because dismissals for failure to attach such affidavits are dismissals for failure to state a claim and are therefore on the merits and with prejudice, her arguments fail.

Section 9-11-9.1(e) makes dismissal for failure to file the required affidavit a final adjudication on the merits, and subsections (e) and (f) bar renewal or amendment unless a court determines that the affidavit was available but omitted through mistake.

Greene County Hospital Authority v. Waldroup · filed 1994-10-26(e), (f)

A dismissal for failure to file an affidavit under OCGA § 9-11-9.1 is a final adjudication on the merits. That Code section itself provides: “if a plaintiff fails to file an affidavit as required by this Code section . . . such complaint is subject to dismissal for failure to state a claim.” OCGA § 9-11-9.1 (e). It cannot be renewed or amended without a judicial determination that the affidavit was available but not filed due to mistake. OCGA § 9-11-9.1 (e), (f).

Section 9-11-9.1(e) makes a complaint subject to dismissal for failure to state a claim when the plaintiff does not file the required expert affidavit with the complaint, and it is an exception to the Civil Practice Act’s general pleading liberality.

Redmond v. Shook · filed 1995-09-11(e)

OCGA § 9-11-9.1 (e) states that a complaint is subject to dismissal for failure to state a claim for relief if the plaintiff fails to file the requisite affidavit contemporaneously with the complaint. We have construed OCGA § 9-11-9.1 as establishing an exception to the general liberality of pleading permitted under the Civil Practice Act.

Section 9-11-9.1 requires dismissal with prejudice for failure to file the required expert affidavit, treating the dismissal as one for failure to state a claim.

Jordan, Jones & Goulding, Inc. v. Balfour Beatty Construction, Inc. · filed 2000-09-22(b), (d), and (e)

Construing the statute as a whole, we conclude that the legislature intended that dismissals for complete failure to file an affidavit would have the same effect as dismissals for failure to file a proper affidavit: each of these dismissals is for failure to state a claim. Not only is this construction consistent with common sense, it is consistent with the long line of decisions rendered by this Court holding that dismissal for failure to file an expert’s affidavit is with prejudice.

Section 9-11-9.1(e) bars a medical-malpractice complaint from serving as the basis for a renewal action after the limitation period expires when the required affidavit was not filed and the defendant timely raised that failure in a motion to dismiss, absent a qualifying mistake.

Griffin v. Carson · filed 2002-05-15(e)

Since plaintiffs failed to attach the required expert affidavit to the previous medical malpractice action, and since defendants raised the failure to file such affidavit in a motion to dismiss filed contemporaneously with their initial responsive pleadings, plaintiffs’ complaint was not subject to the renewal provisions of OCGA § 9-2-61 and therefore cannot serve as a basis for a renewal action, either against Carson or his employer.

Failure to file the required expert affidavit with the complaint does not make the complaint void from its inception.

Patterson v. Douglas Women's Center, PC · filed 1989-01-12

We do not construe the failure to file the required affidavit contemporaneously with the complaint as a failure that would render the complaint void ab initio.

Failure to file the required expert affidavit in a legal malpractice action warrants dismissal of the complaint with prejudice.

Stamps v. Johnson · filed 2000-05-10

In ABE, the plaintiff failed to file an expert affidavit as required by OCGA § 9-11-9.1, and this court held that dismissal of the complaint with prejudice was the appropriate consequence. In accord with ABE, we affirm the judgment of the trial court.

Under subsection (e), an expert affidavit is "available" if it exists and can be acquired by the plaintiff, even if the plaintiff does not physically possess it when filing.

Sisk v. Patel · filed 1995-03-31(e)

There can be no facsimile if there is no original. As an affidavit under OCGA § 9-11-9.1 must meet the more generous standards of a pleading requirement rather than those of an evidentiary requirement, Bowen v. Adams, 203 Ga.App. 123, 416 S.E.2d 102 (1992), it can be considered "available" within the meaning of OCGA § 9-11-9.1(e) when it is in existence and acquirable by plaintiff, even though not physically in the plaintiff's possession, as here.

Section 9-11-9.1 requires an expert affidavit only when a claim is based on a professional's failure to meet the standards of the profession; claims not requiring proof of that standard do not require the affidavit.

Bowling v. Foster · filed 2002-03-21

Not every claim which calls into question the conduct of one who happens to be a professional 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 requires an engineering expert affidavit for claims alleging violations of advisory or permissive engineering standards that require professional judgment, but not for a mandatory standard whose application requires no professional engineering judgment.

Department of Transportation v. Cushway · filed 2000-02-28

Because MUTCD standards in the advisory and permissive categories necessarily involve the exercise of professional engineering judgment in their application, the OCGA § 9-11-9.1 affidavit of an engineering expert must accompany the complaint alleging violations in those categories. ... A complaint charging the violation of a mandatory MUTCD standard does not need an expert affidavit if the application of the standard requires no professional engineering judgment.

Section 9-11-9.1 requires an expert affidavit when a complaint alleges professional malpractice, but not for simple negligence or claims based on nonprofessionals.

Upson County Hospital, Inc. v. Head · filed 2000-10-13(e)

However, even under this version, a 9.1 expert affidavit was required only when the plaintiff’s complaint alleged professional malpractice.

Section 9-11-9.1(a) requires an expert affidavit when the negligence issue in a professional-malpractice action is a medical question, rather than turning on the defendant's identity.

Atlanta Women's Health Group, P.C. v. Clemons · filed 2009-07-14(a)

[i]n deciding whether an expert affidavit is required for a particular case, the court must determine whether the case ... If the issue of negligence involved is a medical question, OCGA § 9-11-9.1 applies, and the plaintiff is required to attach an expert affidavit to his complaint.

Section 9-11-9.1(a) requires an expert affidavit for claims alleging professional negligence, but not for adequately pleaded claims based on a professional’s fraudulent or otherwise intentional acts.

ESTATE OF SHANNON v. Ahmed · filed 2010-06-10(a)

As we have often held, then, a motion to dismiss a complaint raising matters of professional malpractice may be granted only to the extent that it alleges merely negligent rather than fraudulent or otherwise intentional acts, and is thus defective for lack of a § 9-11-9.1 affidavit. ... Because plaintiffs were not required to support their adequately pled claims for fraud, battery, and conspiracy with a § 9-11-9.1 affidavit, the trial court erred when it granted the motion to dismiss them.

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 ordinary conduct outside those standards.

Boggs v. Bosley Medical Institute, Inc. · filed 1997-09-11

“Not every claim which calls into question the conduct of one who happens to be a [professional] 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(a) requires an expert affidavit for negligent bridge or guardrail design, but installation, repair, and maintenance claims require one only when they involve professional malpractice.

Adams v. Coweta County · filed 1993-03-01(a)

While the design of a bridge or guardrail must necessarily involve professional (engineering) services, the installation, repair and maintenance of those structures would not necessarily require the exercise of professional skill and judgment. Based on the pleadings, we cannot say that these claims involve professional malpractice, and that an expert’s affidavit was therefore required to establish these claims.

Section 9-11-9.1 does not require an affidavit when the complaint fails to allege that the defendant’s agent or employee was a doctor or other licensed health care provider.

Mountain Orthopedics & Sports Medicine, P.C. v. Williams · filed 2007-03-29(d)

Because Williams failed to allege that Lambros, Mountain’s agent or employee, was a doctor or other licensed health care provider, the affidavit requirement does not apply to the complaint as drafted.

Section 9-11-9.1 does not require an expert affidavit for an ordinary negligence claim based on reopening a hazardous crossing.

The Georgia Department of Transportation v. David Delor, as Parent of Alexander Delor · filed 2019-06-27(g)

But the plaintiffs do not allege that GDOT is liable for the actions or inactions of one of the categories listed or described in OCGA §§ 9-11-9.1 (g). ... Thus, no expert affidavit was required to be filed with the plaintiffs’ complaint.

An affidavit that satisfies § 9-11-9.1’s pleading requirements does not necessarily provide enough evidence to oppose summary judgment.

Turner v. Kitchings · filed 1991-06-04

However, an affidavit which satisfies the pleading requirements of OCGA § 9-11-9.1 will not necessarily satisfy the evidentiary requirements of OCGA § 9-11-56.

Section 9-11-9.1 requires an expert affidavit to show that professional-negligence allegations are not frivolous, but the affidavit does not establish a prima facie case or conclusively prove negligence.

Ewers v. Cooper · filed 1995-05-12

The expert affidavit filed pursuant to OCGA § 9-11-9.1 does not conclusively establish the existence of the encroachment any more than it conclusively establishes the negligence of the surveyors; rather, it merely serves to show that allegations that the 1984 survey was incorrect and that the surveyors were negligent are not frivolous.

On a motion to dismiss for failure to satisfy the professional-malpractice affidavit requirement, the court may consider only the affidavit's four corners; outside evidentiary matters are improper, and an insufficient affidavit cannot be cured by amendment.

Deal v. Handson · filed 1993-09-23(a)

On a motion to dismiss based upon the insufficiency of the affidavit under OCGA § 9-11-9.1, consideration of essential evidentiary matters not included in the affidavit is improper. ... Such a defect cannot be cured by amendment. ... Therefore, we limit our consideration to the four corners of the affidavit.

When it was unclear at filing that § 9-11-9.1 would apply, the court could not dismiss the professional-malpractice action with prejudice; it had to allow the plaintiff a reasonable opportunity to amend and file the expert affidavit.

Brown v. Evans J. Nichols, M.D., Kennestone Hospital, John Doe · filed 1993-12-07(a), (e)

If § 9-11-9.1 does apply in federal court, the district court still should not have dismissed Brown’s claims, but should have granted her leave to amend, because it was unclear when the action was filed that the requirement would apply.

An objection to a missing expert affidavit is waived unless the defendant asserts it by a separate motion to dismiss filed with its answer.

Dove v. Ty Cobb Healthcare Systems, Inc. · filed 2012-05-18(e)

As we have previously held, a plaintiff’s failure to file an expert affidavit, pursuant to OCGA § 9-11-9.1, is a defense that can be waived if a defendant does not assert such a defense by filing a separate motion to dismiss on that ground contemporaneously with its answer. ... Moreover, the fact that the parties argued during the hearing that Dove’s claims now lacked a supporting expert affidavit did not obviate the requirement that the nursing home assert such argument in its motion to dismiss.

An expert affidavit under § 9-11-9.1 is construed most favorably to the plaintiff, with doubts resolved in the plaintiff’s favor; it need only identify the defendant’s act or omission and factual basis, without magic words or an express reference to the standard of care.

Fidelity Enterprises, Inc. v. Beltran · filed 1994-07-15

“A Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible.”

A Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff, with doubts resolved in the plaintiff’s favor, so long as that construction does not undermine the statute’s purpose of reducing frivolous malpractice suits.

Gadd v. WILSON & COMPANY, ENGINEERS & ARCHITECTS · filed 1992-05-21(a)

A Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible.

Section 9-11-9.1(a) requires a malpractice plaintiff's expert affidavit to identify at least one claimed negligent act or omission and the factual basis for it, and a brief affidavit can satisfy that minimum requirement.

Crook v. Funk · filed 1994-06-23(a)

“While an unfavorable construction of the affidavit might be possible, construing it most favorably for plaintiffs and resolving all doubts in their favor, we find it met the minimum requirements of OCGA § 9-11-9.1 (a). Although the factual basis set forth in the affidavit was somewhat brief, it was sufficient to support at least one negligent act or omission as to each of the defendants.”

When a plaintiff invokes subsection (b)'s affidavit grace period and generally alleges negligence against all defendants, subsection (c) gives all defendants the corresponding extension of time to answer, regardless of whether they are professional engineers.

McGarr v. Gilmore · filed 1996-02-21(b), (c)

By invoking the grace period for the affidavit as provided by OCGA § 9-11-9.1 (b) and by relating that affidavit to all defendants by way of general allegations of negligence directed to all, Gilmore automatically activated the statute’s provision giving defendants the same period of time from the filing of the affidavit as they would have had from the service of the complaint if it had not been an affidavit case.

Section 9-11-9.1 requires the expert affidavit supporting a medical-malpractice complaint to be properly notarized; an affidavit sworn by telephone while the affiant is outside Georgia is invalid.

Schmidt v. Feldman · filed 1998-02-09

Pursuant to OCGA § 9-11-9.1, the plaintiffs attached to their complaint the expert affidavit of Frank Bongiorno, M.D. ... Therefore, we are bound to hold that the affidavit in this case was not properly notarized. “Inasmuch as a writing in the form of an affidavit has no force or validity in the absence of a valid jurat, the trial court did not err in ruling that [Bongiorno’s] expert affidavit was invalid.” (Citation omitted.)

An expert affidavit can satisfy § 9-11-9.1 when the attesting notary’s commission had expired.

Thomas v. Gastroenterology Associates of Gainesville, P.C. · filed 2006-07-06

This Court granted certiorari to the Court of Appeals in Thomas v. Gastroenterology Assoc. of Gainesville, 273 Ga. App. 618 (616 SE2d 455) (2005), to determine whether an expert’s affidavit can satisfy the requirements of OCGA§ 9-11-9.1 when the commission of the notary who attested the affidavit had expired. The short answer is “yes.”

Section 9-11-9.1(e) requires a medical-malpractice affidavit filed with the complaint to have a valid jurat, and a facsimile must be an exact copy of an original containing that jurat.

Allen v. Caldwell · filed 1996-03-11(e)

While a facsimile affidavit can satisfy the requirements of OCGA § 9-11-9.1, see Sisk v. Patel, 217 Ga.App. 156, 158, 456 S.E.2d 718 (1995), "[i]n the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with other evidence." (Punctuation omitted.) ... Therefore, the affidavit attached to the Allens' renewed complaint did not satisfy the requirements of OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires an expert affidavit for professional-malpractice claims but does not impose that pleading requirement on a strict-liability claim against a product manufacturer.

S K Hand Tool Corp. v. Lowman · filed 1996-12-03(a)

Because the purposes of and inquiries inherent in claims alleging professional negligence and those alleging strict liability differ substantially, the extra pleading requirement imposed on professional malpractice claims is not equally applicable to claims of strict liability.

Section 9-11-9.1(b) permits a plaintiff to amend the body of a medical-malpractice complaint under OCGA § 9-11-15 to allege the statutory basis for the extended time to file the expert affidavit, when the affidavit is filed within the extended period.

Glisson v. HOSPITAL AUTH. OF VALDOSTA · filed 1997-02-14(b)

Since the body of the appellant's complaint was properly amended under OCGA § 9-11-15 to include the language of OCGA § 9-11-9.1(b) and since appellant filed an expert's affidavit within the extended filing time within OCGA § 9-11-9.1(b), this Court finds that the trial court erred in dismissing appellant's amended complaint.

Section 9-11-9.1(b) permits a 45-day extension to file a medical affidavit only when the complaint is accompanied by the required attorney affidavit; without either affidavit, no extension is available and dismissal is proper.

Peck v. Bishop · filed 2008-10-20(b)

Here, Peck filed his complaint on November 7, 2007, but filed neither a medical affidavit nor an attorney affidavit at that time. Under the plain terms of OCGA § 9-11-9.1 (b), then, no extension to file a medical affidavit was permitted, and his complaint was properly dismissed.

Section 9-11-9.1 requires the plaintiff’s expert affidavit to be filed before summary judgment may be granted in the defendant’s favor.

Nobles v. Prevost · filed 1996-05-30

It follows that we must affirm the grant of defendant’s motions to dismiss and for summary judgment since the evidence of record fails to show that an expert affidavit as required by OCGA § 9-11-9.1 was filed prior to the grant of summary judgment in favor of defendant.

Section 9-11-9.1 requires an expert affidavit for professional-negligence malpractice claims, does not cover claims alleging intentional misconduct by a professional, and under the 1989 version failure to file during the subsection (b) extension did not automatically adjudicate the claim.

Labovitz v. Hopkinson · filed 1999-07-13(a), (b), (e)

In light of the limited coverage of § 9-11-9.1, we affirm the Court of Appeals’ decision that appellee’s claim that her attorneys committed intentional acts which caused her harm do not require a § 9-11-9.1 expert affidavit, and the trial court erred when it dismissed that portion of appellee’s complaint.

Section 9-11-9.1 applies to professional malpractice actions involving professions recognized by the statutes listed in the opinion.

Hewitt v. Walker · filed 1997-04-29

In construing OCGA § 9-11-9.1, dealing with actions for professional malpractice, our Supreme Court has held that the term “professional” is limited to those professions recognized in OCGA §§ 14-7-2 (2); 14-10-2 (2); 43-1-24, and Chapter 4 of Title 26. ... It is undisputed that Walker, as an unlicensed bookkeeper and tax return preparer, is not a professional under the Supreme Court’s analysis. See OCGA § 43-3-36 (b). Thus, Walker cannot be subject to an action for professional malpractice.

Section 9-11-9.1(a) requires an expert affidavit for professional-negligence claims against a governmental entity when liability is based on the professional skill and judgment of governmental agents or employees licensed in a profession listed in subsection (f).

Minnix v. Department of Transportation · filed 2000-02-28(a), (f)

Considering the old law, the perceived evil, and the legislative remedy, we conclude the 1997 amendment to OCGA § 9-11-9.1 did not change existing law with respect to claims of professional negligence against DOT. The affidavit requirement still applies to claims against a governmental entity when, in substance, liability is based on the exercise of professional skill and judgment by governmental agents or employees who are themselves licensed professionals as itemized in OCGA § 9-11-9.1(f).

Section 9-11-9.1 requires a plaintiff alleging professional negligence to file an expert affidavit with the complaint, but it does not require one for ordinary negligence.

Pomerantz v. Atlanta Dermatology & Surgery, P.A. · filed 2002-06-10

A plaintiff is required to file an expert affidavit with a complaint under OCGA § 9-11-9.1 for a claim of professional negligence but not for a claim of ordinary negligence. ... Pomerantz also argues that the person who removed his stitches may not have been a licensed health care professional and that therefore OCGA § 9-11-9.1 is not applicable. ... But, as we have held, the alleged negligent decision was a matter of professional judgment. Therefore, the complaint can be construed to allege that a professional either made the wrong decision or failed to direct nonprofessional members of the staff on how to handle Pomerantz. Furthermore, Pomerantz did not bring this issue to the attention of the trial court. Therefore we find no error.

Section 9-11-9.1's expert-affidavit requirement does not apply to claims alleging that a medical provider performed an administrative, routine act requiring no professional judgment or skill.

Clark v. Prison Health Services, Inc. · filed 2002-10-09

“Whether an action alleges professional malpractice or simple negligence depends on whether the professional’s alleged negligence required the exercise of professional judgment and skill.” (Citation and punctuation omitted.) ... “A professional negligence or malpractice action calls into question the conduct of the professional in his area of expertise. Administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence.” (Citations omitted.) ... Similarly, in this case, Clark alleges Jones was negligent in following jail policy to communicate the result of his medical and mental health assessment of Smith, an action which did not require the exercise of Jones’ professional judgment, knowledge, or skill. Taking all well-pleaded material allegations of Clark’s pleadings as true, as the trial court was required to do, “the allegations do not disclose with certainty that [Clark] would not be entitled to relief under a theory of simple negligence or that [she] could not possibly introduce evidence to support such a claim.” (Citations omitted.) Id. Consequently, the trial court erred in granting PHS’s motion to dismiss Clark’s negligence claim against PHS.

Section 9-11-9.1 requires a plaintiff alleging professional negligence to file a competent expert affidavit with the complaint, subject to the statute-of-limitations/time-constraint exception; ordinary negligence and intentional tort claims are outside the requirement.

MCG Health, Inc. v. Casey · filed 2004-07-26(a), (b)

As the statute of limitation would not have expired ten days after Casey filed his original complaint, the exception to OCGA § 9-11-9.1 (a) does not apply, and Casey was required to contemporaneously file an expert affidavit to support any claims for professional negligence alleged in his complaint.

Section 9-11-9.1(a) requires an expert affidavit in an action alleging professional negligence, but not when professional judgment and skill are not involved.

Nail v. State · filed 2009-11-13(a)

OCGA § 9-11-9.1 (a) requires that any action alleging professional [negligence] 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. Whether a complaint alleges ordinary negligence or professional [negligence] is a question of law for the court, regardless of how the plaintiff categorizes it.

Section 9-11-9.1(a) requires an expert affidavit for complaints alleging professional malpractice based on professional negligence, but not for fraud, intentional misconduct, or breach-of-fiduciary-duty claims.

Crosby v. Pittman · filed 2010-08-20(a)

OCGA § 9-11-9.1 (a) requires that any complaint 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.” As the Supreme Court of Georgia has recognized, however, this statute “by its very language, is applicable only to those professional malpractice actions alleging professional negligence.”

Section 9-11-9.1(a) requires a plaintiff asserting professional negligence to file a supporting expert affidavit with the complaint.

Wellstar Health System, Inc. v. Painter · filed 2007-11-29(a)

Because Painter’s unrebutted deposition testimony establishes that professional and not ordinary negligence forms the basis for his complaint, and because such a claim required the filing of a supporting expert affidavit pursuant to OCGA § 9-11-9.1 (a), which was absent in this case, the state court erred in denying Wellstar’s motion for summary judgment.

Section 9-11-9.1(a) requires a plaintiff alleging medical negligence to file an expert affidavit with the complaint identifying at least one negligent act or omission supporting each claim.

Kerr v. OB/GYN ASSOCIATES OF SAVANNAH · filed 2012-02-08(a)

Pursuant to OCGA § 9-11-9.1 (a), a plaintiff alleging medical negligence must file contemporaneously with the complaint an expert affidavit setting forth at least one negligent act or omission supporting each claim. The determination of whether a claim is one for medical negligence and therefore whether it requires expert support at filing is determined on the basis of whether the act or omission was made regarding a medical question.

Section 9-11-9.1(a) requires a plaintiff alleging medical negligence to file an expert affidavit with the complaint, but the requirement does not apply to ordinary-negligence claims.

Okelley v. Atlanta Heart Associates · filed 2012-05-04(a)

OCGA § 9-11-9.1 (a) requires a plaintiff alleging medical negligence to file contemporaneously with the complaint an expert affidavit setting forth at least one negligent act or omission supporting each claim. Kerr v. OB/GYN Assoc., __ Ga. App. __, __ (__ SE2d __) (Case No. A11A2390, decided Feb. 8, 2012). But the requirement does not apply to claims of ordinary negligence.

Section 9-11-9.1 requires a plaintiff asserting professional negligence to submit an expert affidavit supporting the claim.

Yan v. Herlis Associates, LLC · filed 2016-01-25

In the instant case, to the extent Yan’s Count 2 in her complaint may be construed to state a claim for professional negligence in failing to provide her nephew with assistance in walking, the trial court’s dismissal of that count must be upheld because of Yan’s failure to submit an expert affidavit as required by OCGA § 9-11-9.1.

Section 9-11-9.1 requires a professional-negligence plaintiff to file an expert affidavit identifying at least one negligent act or omission for each claim, and it applies to claims alleging negligent road design or construction by professional engineers; an affidavit is not required for ordinary-negligence claims.

PETREE v. GEORGIA DEPARTMENT OF TRANSPORTATION Et Al. · filed 2017-03-13(a), (g)(21)

Where a complaint seeks damages resulting from 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 in the factual basis for each such claim.” Among the professions to which this code section applies are professional engineers, OCGA § 9-11-9.1 (g) (21), and therefore the affidavit requirement of OCGA § 9-11-9.1 applies where a plaintiff is seeking damages resulting from the allegedly negligent design or construction of a road.

Section 9-11-9.1 requires a contemporaneous expert affidavit when a negligence claim is one of professional negligence.

HOLT v. GLENWOOD OPERATING COMPANY, LLC · filed 2024-02-08

To the extent appellants contend that Glenwood was negligent in the instructions given to the CNA and that she should have been told Mrs. Holt’s condition required two care givers for a bed bath, such contention would transform this case into one of professional negligence requiring the contemporaneous filing of an OCGA § 9-11-9.1 affidavit. See Upson Cty. Hosp., 246 Ga. App. at 389 (1) (where claim “goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice”); Holloway v. Northside Hosp., 230 Ga. App. 371, 371 (496 SE2d 510) (1998) (where the issue in a fall case involves the question of whether nurses exercised proper professional judgment in assessing the degree of support required by patient, the complaint sounds in professional negligence); Gen. Hosp. of Humana, Inc. v. Bentley, 184 Ga. App. 489, 491 (361 SE2d 718) (1987) (where patient’s medical condition is determinative factor as to the degree of supervision required, claim of negligent supervision sounds in professional negligence). Appellants did not file an affidavit with their complaint and have conceded that they are not pursuing a professional negligence claim. Therefore, we reject any contention that Glenwood was negligent with respect to the instructions it gave its CNA.

Section 9-11-9.1(a) requires a professional-negligence claim against a covered pharmacist or licensed health-care facility to include an expert affidavit specifically identifying at least one negligent act or omission and its factual basis.

McGhee v. Publix Super Markets, Inc. · filed 2024-02-28(a)

Pursuant to OCGA § 9-11-9.1 (a), a claim alleging professional negligence against a “professional licensed by the State of Georgia and listed in subsection (g) of this Code section; [or] [a]ny licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subjection (g) of this Code Section,” must file an expert affidavit with this complaint. See OCGA § 9-11-9.1 (g) (16) (OCGA § 9-11-9.1’s expert affidavit requirements apply to pharmacists). This affidavit must be by “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.” Failure to comply with the affidavit requirement subjects a malpractice claim to dismissal. ... However, “not every suit which calls into question the conduct of one who happens to be a medical professional is a [professional] malpractice action. We look to the substance of a claim in deciding whether OCGA § 9-11-9.1 (a) applies.” ... Further, Count Three of the complaint alleges that Publix negligently created a “business model” for dispensing medications prescribed by medical professionals that enabled her to ingest a prescription drug to which (unbeknownst to Publix) she was allergic, causing her to sustain injury. Regardless of its focus on a Publix “business model,” McGhee’s theory of negligence directly implicates Publix’s exercise of professional skill, expertise and judgment in operating a pharmacy. ... Based upon the above, the trial court did not err by concluding that McGhee was required to comply with the expert affidavit requirements of OCGA § 9-11-9.1 (a) and dismissing the claims against Publix for her failure to provide an adequate expert affidavit regarding the standards of care applicable to pharmacies and pharmacists.

Subsection (a) requires a contemporaneously filed expert affidavit only for professional-malpractice claims against professionals listed in subsection (g); a medical assistant is not among those listed professionals.

JOSEPH GRIFFIN v. THE EMORY CLINIC INC. · filed 2024-05-21(a), (g)

OCGA § 9-11-9.1 (a) requires the contemporaneous filing of an expert affidavit only in professional malpractice claims asserted against certain professionals, and “medical assistant” does not fall into any of the categories of professionals enumerated within the Code section.