Ga. Code Ann. § 9-11-9.1

Section 9-11-9.1(d) permits a trial court, in its discretion, to extend the time for amending a defective affidavit and to consider an untimely filed affidavit.

Kropp v. Roberts · filed 2000-10-24(d)

Trial courts may consider affidavits which are not filed or served within the time limits contemplated by the statutes, and it is not necessary to note the exercise of discretion on the record. ... OCGA § 9-11-9.1 (d) expressly allows the trial court, in its discretion, to extend the time for filing amendments to defective affidavits. ... the trial court was nevertheless authorized to consider an untimely filed affidavit.

Section 9-11-9.1(e) gives the trial court discretion to extend the time for filing an amended or supplemental affidavit responding to alleged defects, including when the filing is late, without requiring a prior showing of excusable neglect.

Schofill v. Phoebe Putney Health Systems · filed 2012-05-09(e)

But based on the foregoing, the trial court erred by finding that, in the absence of a showing of excusable neglect, it had no discretion to allow Schofill to file his late-filed amended affidavit, and therefore we must vacate and remand this case so as to allow the court an opportunity to determine whether it should exercise its discretion “as it shall determine justice requires” to consider Schofill’s amended affidavit.

Section 9-11-9.1 requires an expert affidavit within 45 days of a malpractice complaint when the statutory exception applies, and failure to timely file it generally bars renewal under § 9-2-61 unless the affidavit was already available and the omission was a mistake.

Grier-Baxter v. Sibley · filed 2001-01-16(b), (e)

[fiailure 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.

Section 9-11-9.1's affidavit requirement does not apply to acts committed by a person who is not recognized as a professional under Georgia law.

Pattman v. Mann · filed 2010-11-17

The affidavit requirement does not apply to any acts committed by Mamites, who is not recognized as a “professional” under Georgia law.

Section 9-11-9.1(b) permits a 45-day grace period for filing an expert affidavit when the specified imminent-limitations facts are alleged, but a challenged allegation must be supported by some evidence.

Smith v. Morris, Manning & Martin, LLP · filed 2002-03-06(b)

We adopt Judge Beasley’s conclusion that a trial court has both the authority and the duty to look behind an OCGA § 9-11-9.1 (b) allegation when it is challenged to ensure that it is supported by some evidence.

Former subsection (b) gives a plaintiff 45 days to file the required expert affidavit when the complaint is filed within ten days of the limitations period’s expiration, and that protection applies when retroactive elimination of the grace period would be unconstitutional.

ROCKDALE HEALTH SYSTEMS, INC. v. Holder · filed 2006-07-06(b)

Since the 45-day grace period under former OCGA § 9-11-9.1 (b) here is constitutionally required, Holder is entitled to the benefit of its provisions in this case.

Section 9-11-9.1(b) gives a plaintiff 45 days to file the required expert affidavit when the complaint was filed within 10 days of the limitation period’s expiration and the attorney timely files the required affidavit explaining the late retention.

SISKA v. MCNEIL, Et Al. · filed 2018-06-20(b)

Under OCGA § 9-11-9.1 (b), however, a plaintiff has a 45-day grace period in which to file an expert affidavit if (1) the complaint is filed within 10 days of the expiration of the statute of limitation; and (2) the plaintiff’s attorney files an affidavit stating that an expert affidavit was not filed contemporaneously with the complaint because the plaintiff retained the attorney fewer than 90 days prior to the expiration of the limitation period.

When a malpractice plaintiff invokes the 45-day grace period for filing an expert affidavit, the provision is unavailable if the plaintiff’s law firm or appearing attorney was retained more than 90 days before the limitations period expired, even if counsel believed in good faith that expiration was imminent, and the complaint must be dismissed if no timely affidavit is filed.

AUTUMN LEGGAT v. NAVICENT HEALTH, INC. · filed 2023-10-02(b)

Notably, the statute’s 90-day provision contains no exception for a good faith belief that the statute of limitation was about to expire. ... But because more than 90 days remained in the limitation period, the plaintiffs were not entitled to rely on the safe harbor provision, and the trial court was required to dismiss the complaint under the plain language of the statute. ... Even assuming that counsel believed in good faith that the statute of limitation was about to expire, any such belief was wrong, and OCGA § 9-11-9.1 (b)’s 90-day provision required the trial court to dismiss their complaint.

When an expert affidavit is filed after the complaint, a defendant must object to a defect in its first subsequent pleading and within a reasonable time after the affidavit is filed.

Tucker v. Thomas C. Talley, M.D., P.C. · filed 2004-06-14(d)

As Talley and LLC could not object in their initial responsive pleadings, the objection should have been made in Talley’s and LLC’s first subsequent pleading and within a reasonable period of time after the affidavit was filed.

Subsection (b) permits a defendant to raise the failure-to-file-an-expert-aff affidavit defense in its initial responsive pleading rather than in a separate contemporaneous motion; timing, not form, controls.

Winfrey v. Total Health Clinic Corp. · filed 2002-06-04(b)

Winfrey argues that we should find that Total Health and Richter waived their right to raise this defense because they moved to dismiss her claims for failure to file an expert affidavit in their initial response, rather than in a separate motion filed contemporaneously therewith. While OCGA § 9-11-9.1 (b) authorizes the filing of a separate motion, it does not preclude its inclusion in the initial response. The critical requirement is the timing of defendants raising this defense, not the form in which it is raised.

Section 9-11-9.1 requires an expert affidavit supporting a malpractice claim, but the affidavit need not establish a prima facie case; an expert opinion showing that the claim is not frivolous is sufficient for a preliminary subject-matter-jurisdiction ruling.

Department of Transportation v. Dupree · filed 2002-07-24

While an OCGA § 9-11-9.1 affidavit does not require the plaintiff to prove a prima facie case, if the expert opinion is sufficient to demonstrate that the malpractice case is not frivolous, then it should also be sufficient for a preliminary ruling to satisfy subject matter jurisdiction.

Section 9-11-9.1 does not require an expert affidavit for claims based on simple negligence or physician battery when the alleged conduct does not involve professional judgment and skill.

Sood v. Smeigh · filed 2003-02-06

Where professional skill and judgment are not involved in a mechanical act of reassembly of a prosthetic patella, an affidavit under OCGA § 9-11-9.1 is not required.

Section 9-11-9.1 requires an expert affidavit for a claim that a nurse negligently administered medication because that claim alleges professional negligence.

Grady General Hospital v. King · filed 2007-10-26(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 b asis for each such claim.” ... Therefore, we view a nurse’s administration of medication as within the scope of nursing duties involving professional skill and judgment.

Section 9-11-9.1 requires an expert affidavit for professional-malpractice claims alleging professional negligence, but it does not bar amendments to the complaint and does not require an affidavit for claims based on intentional conduct.

Smith v. Morris, Manning & Martin, LLP · filed 2003-11-06(b), (d), and (e)

Although the legislature revised the statute in 1997, the current version still does not prohibit amendments to the pleadings in the complaint. ... Finally, noncompliance with the affidavit requirement does not result in an automatic dismissal of the complaint; the complaint is simply “subject to dismissal for failure to state a claim.” ... Nothing in OCGA § 9-11-9.1 or § 9-11-15 prohibits such amendment. Accordingly, the trial court properly ruled these amendments valid. ... And, under Georgia law, the affidavit requirement in OCGA § 9-11-9.1 “is applicable only to those professional malpractice actions alleging professional negligence.” ... Claims based on a professional’s alleged intentional conduct do not require an expert affidavit.

The statute requires an expert affidavit for professional-malpractice claims alleging negligence, but not for claims grounded in intentional conduct.

Shuler v. Hicks, Massey & Gardner, LLP · filed 2006-06-27(a)

Shuler’s fraud claim is grounded in intentional conduct and therefore it did not need to be accompanied by an expert affidavit.

Section 9-11-9.1 requires a plaintiff asserting professional malpractice against a covered profession, including an attorney, to file an expert affidavit with the complaint, and failure to do so permits dismissal.

Fortson v. Freeman · filed 2011-12-08(a), (g)(2)

Subsection (g) lists the professions to which OCGA § 9-11-9.1 applies, and includes attorneys at law. See OCGA § 9-11-9.1 (g) (2). When the plaintiff fails to file the required expert affidavit in support of his legal malpractice allegation, the complaint is subject to dismissal for failure to state a claim. ... Although Fortson’s complaint purports to state various causes of action, the substance of his allegations raise only claims of professional negligence against Freeman and ATC. Consequently, Fortson was required to comply with the provisions of OCGA § 9-11-9.1, and his failure to do so authorized the dismissal of his complaint.

Section 9-11-9.1 requires an expert affidavit for professional malpractice claims, but not for claims alleging intentional misconduct such as fraudulent billing.

Williams v. Murrell · filed 2019-02-22(a)

Construed liberally in Williams’s favor, the aforementioned two counts of her amended complaint alleged intentional misconduct in the form of fraudulent billing for medical services never provided. Consequently, Williams was not required to file an OCGA § 9-11-9.1 expert affidavit to support those fraud claims.

Section 9-11-9.1 (a) requires a plaintiff alleging medical malpractice to file an expert affidavit with the complaint, but imposes no such requirement on an ordinary-negligence claim.

FERGUSON v. KENNESTONE HOSPITAL, INC. · filed 2024-03-05(a)

OCGA § 9-11-9.1 (a) requires that a plaintiff alleging a medical malpractice claim must file an expert affidavit with their complaint, setting forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” However, no such requirement exists for an ordinary negligence claim.

Section 9-11-9.1 requires dismissal of a breach of contract claim involving professional judgment when no expert affidavit is attached, but does not require dismissal of an ordinary breach of contract claim.

Nash v. Studdard · filed 2008-11-25

The appropriate course in such a case is to grant the motion to dismiss to the extent the complaint asserts a breach of contract claim involving the exercise of professional judgment, and to deny the motion to dismiss to the extent the complaint asserts a claim for ordinary breach of contract.

Section 9-11-9.1(a), as amended in 1997, does not require an expert affidavit for a professional negligence claim against an employer based on its employee’s conduct unless the employer is a licensed health care facility.

Minnix v. Department of Transportation · filed 2000-08-31(a)

In Minnix v. Dept. of Transp., 272 Ga. 566 (533 SE2d 75) (2000), the Supreme Court reversed the judgment of this Court, holding that where a professional negligence action is filed against an employer based upon the action or inaction of its agent or employee, the expert affidavit requirement of OCGA § 9-11-9.1 (a), as amended in 1997, does not apply to employers other than licensed health care facilities. Accordingly, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the superior court ... is reversed.

Section 9-11-9.1(a) requires an expert affidavit for a professional-malpractice claim against a licensed health care facility whose liability is based on a listed licensed health care professional’s action or inaction, but not against an employer such as the DOT that is not a licensed health care facility.

Minnix v. Department of Transportation · filed 2000-07-05(a)

We hold that the plain and unequivocal language of OCGA § 9-11-9.1 (a), as amended, evinces the General Assembly’s intent that the expert affidavit requirement in a professional malpractice case apply only to an employer that is a licensed health care facility in a suit where that employer’s liability is premised on the action or inaction of a licensed health care professional listed in OCGA § 9-11-9.1 (f).

Section 9-11-9.1 requires an expert affidavit in a suit against a licensed health care facility only when the facility's alleged liability is based on the action or inaction of a health care professional; it does not apply to a hospital-negligence claim based on supplying defective equipment.

Ambrose v. Saint Joseph's Hospital of Atlanta, Inc. · filed 2014-01-16(a)(3)

In a suit against a licensed health care facility, such as this one, OCGA § 9-11-9.1 requires the plaintiff to file an expert affidavit only when the facility’s alleged liability is based on the action or inaction of a health care professional. OCGA § 9-11-9.1 (a) (3). Insofar as Ambrose’s complaint alleges negligence against the hospital for supplying defective equipment for use in treating its patients, the case is not one against a professional or one involving professional malpractice. Lamb, supra, 262 Ga. at 72 (2). Therefore, OCGA § 9-11-9.1 is inapplicable and no affidavit is required. Id. Accordingly, we reverse the grant of the hospital’s motion to dismiss.

When subsection (b) applies, neither the plaintiff nor counsel must file an additional affidavit stating that an expert affidavit could not be prepared for contemporaneous filing with the original complaint.

Georgia Dermatology Clinic, P.A. v. Nesmith · filed 2002-03-06(b)

Accordingly, we also find when OCGA § 9-11-9.1 (b) applies, neither plaintiffs nor their counsel in such actions need to file an additional affidavit to aver, as here, that an expert affidavit could not be prepared for contemporaneous filing with the original complaint.

Section 9-11-9.1 requires a plaintiff alleging negligent professional services to file an expert’s affidavit even if the plaintiff was not the professional’s client.

Jordan, Jones & Goulding v. Wilson · filed 1990-09-27

Accordingly, any plaintiff, regardless of privity, who brings suit against a professional and seeks to recover for the alleged negligent performance of professional services is required by OCGA § 9-11-9.1 to file an expert’s affidavit setting forth at least one specific negligent act or omission and the factual basis for such a claim.

Section 9-11-9.1 requires an expert affidavit as an initial pleading requirement in a professional malpractice claim; the requirement does not govern summary judgment.

Thompson v. Ezor · filed 2000-10-02(a)

In no sense is the pleading requirement of section 9-11-9.1 intended to facilitate the just and efficient resolution of motions for summary judgment.

The pronounced results exception to expert testimony does not excuse the expert affidavit required by § 9-11-9.1(a).

ZARATE-MARTINEZ v. ECHEMENDIA · filed 2015-05-20(a)

But Zarate-Martinez has failed to cite to any case holding that the statutory requirement for an expert affidavit in OCGA § 9-11-9.1 (a) is obviated in such a case, and we decline to so hold here.

Section 9-11-9.1(e) permits renewal of a malpractice complaint when an available expert affidavit was mistakenly omitted from the first filing.

Rector v. O'Day · filed 2004-08-02(e)

The defendants argue that Rector should have amended his complaint before dismissing it, contending that his failure to do so made the first action void and incapable of renewal. This argument ignores the legislative amendment to OCGA § 9-11-9.1 (e) deleting that portion of the statute allowing a plaintiff to amend a malpractice complaint to include an omitted expert affidavit in certain cases, and providing explicitly that a complaint filed without an expert affidavit can be renewed if the affidavit was available when the first complaint was filed but not attached as the result of a mistake.

Section 9-11-9.1(f) bars renewal of a professional malpractice complaint after the limitations period when the required expert affidavit was omitted and the defendant raised the omission in its first responsive pleading, unless the plaintiff had the affidavit before filing and omitted it by mistake.

Austin v. Greenberg Farrow Architects · filed 1991-10-09(f)

OCGA § 9-11-9.1 was amended, effective July 1, 1989 (after the date appellants filed their initial complaint), to add paragraph (f) which provides that a professional malpractice complaint shall not be subject to renewal after the expiration of the statute of limitation if the expert affidavit was not filed with the complaint and if the defendant raises such failure in its initial responsive pleading “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.”

A professional malpractice complaint filed without the required affidavit is voidable, and a renewed suit filed with the affidavit can cure that defect.

Orkin Exterminating Co. v. Carder · filed 1994-09-07

As in Hobbs, the Carders’ first suit was not void but merely voidable, and their renewal suit was free of the defect complained of by Orkin.

A professional malpractice complaint filed without the required expert affidavit may be renewed if the limitation period has not expired when the renewal complaint is filed.

Witherspoon v. Aranas · filed 2002-03-29(e)

If the statute of limitation has not expired at the time the renewal complaint is filed, however, a plaintiff’s renewal action will not be barred based on a previous failure to comply with the affidavit requirements of OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires a malpractice expert to know the standard of care applicable to the defendant professional for at least one matter underlying the claim.

McDowell v. Pernell Brown · filed 2004-12-08(a)

For a witness to “constitute an ‘expert competent to testify,’” his realm of expertise must encompass “knowledge of the standard of care applicable to the defendant-professional as to at least one of the matters on which the plaintiff’s malpractice claim is based.” Lee v. Visiting Nurse Health Sys. of Metro. Atlanta, 477 S.E.2d 445, 447 (Ga. App. 1996) (citing Ga. Code Ann. § 9-11-9.1(a)). ... In accordance with Georgia law, we find the experts competent to render opinions as to the applicable standard of care for Wexford’s nurses.

(e) requires a medical-malpractice affiant to satisfy the expert-qualification requirements of OCGA § 24-9-67.1, and failure to provide a proper affidavit results in dismissal.

Spacht v. Troyer · filed 2007-11-30(e)

OCGA § 9-11-9.1(e) requires an affiant to meet the requirements of OCGA § 24-9-67.1. The penalty for failure to supply a proper affidavit per OCGA § 9-11-9.1 is dismissal.

When a defendant specifically alleges that a professional-negligence affidavit is defective in a timely motion to dismiss, the plaintiff has 30 days from service of that motion to cure the defect by amendment; a later resubmission is untimely.

Goodin v. GWINNETT HEALTH SYSTEM, INC. · filed 2005-04-12(d)

Thus, Goodin’s “resubmission of expert’s affidavit” on March 31, 2004, was outside the 30-day cure period set forth in OCGA § 9-11-9.1 (d) and was, therefore, untimely.

In a professional malpractice action, the plaintiff must attach an expert affidavit identifying the negligent act, and if the defendant specifically challenges a defect, the plaintiff may avoid dismissal only by curing it with an amendment within 30 days after service of the motion to dismiss.

Cogland v. Hospital Authority of City of Bainbridge · filed 2008-01-25(c)

[Wjhen a plaintiff files a professional malpractice action, she must attach the affidavit of an expert setting out the act of negligence underlying her claim. OCGA § 9-11-9.1. If she fails to do so, and the defendant moves to dismiss, alleging with specificity that the affidavit is defective, the complaint is subject to dismissal unless the plaintiff cures the alleged defect by filing an amendment within 30 days of service of the motion to dismiss. OCGA § 9-11-9.1 (c).

Section 9-11-9.1(e) gives a medical-malpractice plaintiff whose filing lacks the required expert affidavit thirty days to cure the defect.

Mansfield v. United States · filed 2020-03-06(e)

However, the statute also contains a “safe harbor” provision. See O.C.G.A. 9-11-9.1(e) (permitting noncompliant plaintiffs thirty days to cure). Application of that provision is also consistent with the Eleventh Circuit’s mandate to permit pro se plaintiffs at least one opportunity to amend defective pleadings. See Jenkins v. Walker, 620 F. App’x 709, 711 (11th Cir. 2015) (“[W]hen a more carefully drafted complaint might state a claim, a district court should give a pro se plaintiff at least one chance to amend the complaint before the court dismisses the action.” (citation omitted)). Accordingly, Mansfield is DIRECTED to file an Amended Complaint within thirty days from the date of this Order which attaches an affidavit complying with the requirements of O.C.G.A. § 9-11-9.1.

Section 9-11-9.1(e) permits dismissal for an affidavit defect only when the plaintiff fails within 30 days to cure the defect specifically alleged in the defendant’s motion to dismiss.

Ndlovu v. Pham · filed 2012-02-24(e)

About this, OCGA § 9-11-9.1 (e) is perfectly clear, and it says that dismissal is warranted if the plaintiff fails within 30 days to cure “the alleged defect,” meaning the defect that is “allege[d], with specificity, by motion to dismiss.”

Section 9-11-9.1(g) treats nurses and physical therapists as separate professions; a nurse’s affidavit does not qualify to support a professional malpractice claim against a physical therapist.

Ball v. Jones · filed 2009-11-30(g)

Given that OCGA § 9-11-9.1 (g) explicitly categorizes nurses and physical therapists as practicing separate professions, and because an expert must meet the conditions of OCGA § 24-9-67.1 in order to provide an OCGA § 9-11-9.1 affidavit, ... the trial court erred in concluding that Huey was qualified to provide an expert affidavit regarding the standard of care required of Ball.

Section 9-11-9.1 requires a medical-malpractice plaintiff to support the complaint with an affidavit from an expert who meets the applicable qualification requirements, and failure to supply a proper affidavit requires dismissal.

Akers v. Elsey · filed 2008-11-04

Under OCGA § 24-9-67.1 (e), “[a]n affiant must meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1.” The penalty for failure to supply a proper affidavit is dismissal. ... Because the Akerses’ OCGA § 9-11-9.1 experts did not meet the requirements of OCGA § 24-9-67.1, the trial court did not err in ruling that the experts were not qualified to give an opinion and in granting the motion to dismiss.

Section 9-11-9.1(a) requires a professional-malpractice plaintiff to attach an expert affidavit, but the expert need not practice the defendant’s specialty when the expert has knowledge and experience relevant to the alleged acts or omissions.

ALLISON JOY RUSSELL v. KANTAMNENI · filed 2022-05-19(a)

Having reviewed the allegations of the complaint, Dr. Putterman’s affidavits, and the trial court’s conclusions with regard to whether Dr. Putterman’s affidavit could be used to satisfy the requirements of OCGA § 9-11-9.1, we conclude that it abused is discretion by concluding the affidavit was insufficient and granting defendants’ motion to dismiss. Dr. Putterman was not required to practice as a psychiatrist or have specialized knowledge of the standard of care of psychiatrists to satisfy the requirements of OCGA§ 9-11-9.1 and OCGA § 24-2-702 (c) (2) (C).

A defendant can prevent renewal of a complaint lacking the required expert affidavit after the limitations period only by filing a motion to dismiss contemporaneously with its initial responsive pleading.

Chandler v. OPENSIDED MRI OF ATLANTA, LLC · filed 2009-07-15(f)

In short, the addition of language to OCGA § 9-11-9.1(f) requiring a "motion to dismiss filed contemporaneously with [the defendant's] initial responsive pleading" was a deliberate legislative act modifying the requirement from what it had been, which was that the defendant merely had to raise the defense in its "initial responsive pleading."

Section 9-11-9.1(c) requires a defendant seeking to prevent renewal of an action under OCGA § 9-2-61 to file a motion to dismiss at the same time as the initial responsive pleading; merely raising the affidavit issue as a defense in the answer is insufficient.

OPENSIDED MRI OF ATLANTA, LLC v. Chandler · filed 2010-06-28(c)

On its face, this statute requires a motion to dismiss to be filed in addition to the first responsive pleading to foreclose the possibility of renewal under OCGA § 9-2-61. ... Thus, in order to bar appellees from filing a renewal action, OCGA § 9-11-9.1 (c) required appellants to file a motion to dismiss at the same time they filed their answer to the original complaint. Only raising the matter as a defense in the answer was insufficient to preclude appellees from renewing their action pursuant to OCGA § 9-2-61.

Subsection (f) requires a defendant seeking to bar renewal of a professional-malpractice action to raise the missing expert-affidavit issue by a motion to dismiss filed with its initial responsive pleading; merely asserting the defect as an answer defense, or relying on another defendant’s motion without joining it, is insufficient.

MISSION HEALTH OF GEORGIA, LLC Et Al. v. BAGNUOLO · filed 2016-10-20(f)

On its face, this statute requires a motion to dismiss to be filed in addition to the first responsive pleading to foreclose the possibility of renewal under OCGA § 9–2–61. ... However, not only did the appellants fail to file a motion to dismiss the original complaint as required by OCGA § 9-11-91 (f), they also did not join in Frinks’s motion to dismiss the original complaint.

Subsection (e) permits a plaintiff to amend a timely filed expert affidavit to cure a defect, and the right to amend is not tied to expiration of the statute of limitations.

Bonner v. Peterson · filed 2009-12-08(e)

In short, despite Dr. Sheehan’s arguments to the contrary, a plaintiffs right to amend an expert affidavit pursuant to OCGA § 9-11-9.1 (e) is in no way tied to the statute of limitation. Furthermore, we decline to make a malpractice plaintiffs right to amend under OCGA § 9-11-9.1 (e) contingent upon a defendant’s decision, deliberate or otherwise, to delay challenging the sufficiency of an expert affidavit until after the expiration of the limitation period. The purpose of OCGA § 9-11-9.1 is to guard against frivolous lawsuits, not to serve as a tactical tool for defense counsel.

Section 9-11-9.1(e) gives the trial court discretion, rather than requiring dismissal, when a plaintiff fails to amend a defective expert affidavit within 30 days; it does not bar voluntary dismissal and refiling.

George Westley WENTZ Et Al. v. EMORY HEALTHCARE, INC. Et Al. · filed 2018-09-17(e)

Unlike the strict requirements of OCGA § 9-11-11.1, the operative statute here is OCGA § 9-11-9.1 (e), which does not mandate dismissal of a complaint with defective, non-amended expert affidavits. Rather, the relevant statute merely provides the trial court with discretion to dismiss the complaint for failure to state a claim should a plaintiff fail to amend the expert affidavit within the proscribed time. The statute does not bar a plaintiff from voluntarily dismissing and refiling their complaint.

Subsection (e) allows a plaintiff to cure a defective medical-malpractice expert affidavit by amendment, including by substituting a new competent affidavit, when the statutory gatekeeping purpose is still satisfied.

Fisher v. Gala · filed 2014-02-06(e)

Furthermore, we are mindful that, although OCGA § 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it nevertheless must be construed in a manner consistent with the liberality of the Act, so long as such a construction does not detract from the gatekeeping function of OCGA § 9-11-9.1’s pleading requirement, which is to reduce the number of frivolous malpractice suits.

Section 9-11-9.1 applies to professional-negligence claims against professional engineers who are licensed by the State of Georgia.

Goolsby v. Gain Technologies, Inc. · filed 2010-01-21(a)(1)

While we acknowledge O.C.G.A. § 9-11-9.1 properly may be applied to the engineering profession, see Adams v. Coweta County, 430 S.E.2d 599, 601 (Ga. Ct. App. 1993), the 1997 amendments to § 9-11-9.1 narrowed the section’s application to specific groups of professionals officially licensed by the State of Georgia. Minnix v. Dept. of Transp., 533 S.E.2d 75, 78-79 (Ga. 2000). Section 9-11-9.1 currently applies to “[p]rofessional engineers” that are “licensed by the State of Georgia.” O.C.G.A. § 9-11-9.1(a)(1), (g)(21); accord Dockens v. Runkle Consulting, Inc., 648 S.E.2d 80, 82 (Ga. Ct. App. 2007) (applying O.C.G.A. § 9-11-9.1 to claim against “licensed professional engineer”). Gain and the individual Defendants all reside in Michigan. Goolsby does not allege, and the Defendants do not state in their filings in the district court or on appeal, that any of the Defendants are professional engineers licensed by the State of Georgia such that § 9-11-9.1 would apply in this case.

Section 9-11-9.1 requires an expert affidavit to be filed with a professional-malpractice complaint and does not permit the plaintiff to cure its omission by amending the complaint.

Comprehensive Pain Management v. Blakely · filed 2011-11-18(a), (b), (e), and (f)

Although under OCGA § 9-11-9.1 (f) a plaintiff may voluntarily dismiss the claim before the trial court rules and then potentially refile if the omission of the affidavit was a mistake, nothing in the relevant portions of the statute permits a party to add the requisite affidavit by amendment.

Section 9-11-9.1(a) requires a plaintiff in a professional-malpractice action to file with the complaint an affidavit from a competent expert identifying at least one alleged negligent act or omission and its factual basis.

Zarate-Martinez v. Echemendia · filed 2016-07-05(a)

As an initial matter, because the record reveals that Zarate-Martinez never submitted an affidavit from Dr. Ward in support of her medical malpractice complaint as required by OCGA § 9-11-9.1 (a), we need not address the question whether he would have been qualified to submit such an affidavit in support of the complaint. See OCGA § 9-11-9.1 (a) (“[T]he 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”).

Subsection (e) allows a plaintiff to cure a defective malpractice affidavit by amendment and gives the trial court discretion to extend the filing time as justice requires, including consideration of an untimely amended affidavit.

Schofill v. Phoebe Putney Health Systems, Inc. · filed 2012-05-09(e)

Further, OCGA § 9-11-9.1 (e) applies specifically to responses or amended affidavits filed in response to a motion to dismiss based on defects in a previously filed affidavit, such as in the case at hand, while OCGA § 9-11-6 (b) is a general statute providing for extensions of time “[w]hen by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time. . . .” ... Further, this Court has previously determined that OCGA § 9-11-9.1 (e) “expressly allows the trial court, in its discretion, to extend the time for filing amendments to defective affidavits [,]” Kropp v. Roberts, 246 Ga. App. 497, 499 (540 SE2d 680) (2000) and grants the trial court the authority to consider an “untimely’ filed amended or supplemental affidavit. ... In this case, the trial court refused to accept the amended affidavit because it “was not accompanied by a motion alleging excusable neglect [per OCGA § 9-11-6 (b)].” But based on the foregoing, the trial court erred by finding that, in the absence of a showing of excusable neglect, it had no discretion to allow Schofill to file his late-filed amended affidavit. Therefore, we must vacate and remand this case so as to allow the court an opportunity to determine whether it should exercise its discretion “as it shall determine justice requires” to consider Schofill’s amended affidavit.

Section 9-11-9.1(a)(3) requires an affidavit supporting a professional-negligence claim to identify at least one alleged negligent act or omission and the factual basis for that claim.

Graham v. Wellstar Health System, Inc. · filed 2016-07-14(a)(3)

These affidavits set 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) (3), and thus the trial court should not have granted summary judgment for the defendants on the professional negligence claims asserted against Wellstar and the administrator Howell.

An expert affidavit filed under § 9-11-9.1 need not rest on the expert’s personal knowledge.

Hutchinson v. Divorce & Custody Law Center of Arline Kerman & Associates, P. C. · filed 1994-10-06

An expert affidavit filed with a complaint pursuant to OCGA § 9-11-9.1 need not be based upon the affiant’s actual personal knowledge.

Section 9-11-9.1(a)(3) requires a medical-malpractice expert affidavit to specify at least one negligent act or omission and its factual basis, while subsection (e) permits a plaintiff to cure a specifically alleged defective affidavit by amendment within 30 days of the motion to dismiss.

OLLER Et Al. v. ROCKDALE HOSPITAL, LLC Et Al. · filed 2017-08-14(a)(3), (e)

All that is required of an expert affidavit is that it “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) (3). Furthermore, OCGA § 9-11-9.1 (e) provides, in pertinent part: If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff’s complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective. (Emphasis supplied). It is well-settled that the purpose of OCGA § 9-11-9.1 is to avoid frivolous lawsuits, and that allowing a plaintiff to amend an expert affidavit does not frustrate this purpose.

Section 9-11-9.1 requires an expert affidavit to plead at least one negligent act or omission and its factual basis, but it does not require the affiant to specifically opine that the act was gross negligence.

Graham v. Anthony Reynolds as Personal Representative of the Estate of Lakeither Marie Thomas · filed 2017-10-23(a)(3)

“OCGA § 9-11-9.1 imposes a pleading requirement, not an evidentiary requirement. ... To satisfy OCGA § 9-11-9.1, an expert affidavit must set forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” ... We are not persuaded by Graham’s argument that, under OCGA § 51-1-29.5, the plaintiffs were required to submit an affidavit asserting that Graham’s acts and omissions constituted gross negligence. First, such a ruling would conflict with the plain language of OCGA § 9-11-9.1, which merely requires an affidavit setting forth an act of negligence, OCGA § 9-11-9.1 (a) (3), and “does not require that specific language be employed.” ... Per force OCGA § 9-11-9.1 does not require an affiant to specifically opine that the act constituted gross negligence, even if the plaintiff will have to prove gross negligence to prevail on summary judgment or at trial.”

Section 9-11-9.1 requires a malpractice expert affidavit to identify at least one negligent act or omission and its factual basis, and permits amendment to cure or align a defective affidavit.

Angus v. Trabue · filed 2019-03-21

An OCGA § 9-11-9.1 expert affidavit must simply specify at least one negligent act or omission and the factual basis for the claim, and it may be amended to track the language of the complaint. ... Thus, pretermitting whether the defendants waived any right to object thereto, Dr. Lichter’s affidavit complied with OCGA § 9-11-9.1.

Section 9-11-9.1(a) requires an expert affidavit to identify at least one negligent act or omission and its factual basis; the affidavit need not list every alleged act and does not limit the claims to those it lists.

Stone v. Radiology Services, P.A. · filed 1992-12-04(a)

Although the expert affidavit attached to appellants’ complaint set forth only the alleged negligent acts of appellees in 1985, that affidavit does not restrict appellants’ claims to that specific time. Plaintiffs need not set forth an exhaustive list of the alleged negligent acts to comply with OCGA § 9-11-9.1 (a), which 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.” (Emphasis supplied.)

Section 9-11-9.1(a) requires a medical-malpractice expert affidavit to identify at least one specific negligent act or omission and its factual basis, while subsection (e) requires a dismissal motion to identify the affidavit defect with specificity before dismissal is available.

Cantrell v. Au Medical Center, Inc. · filed 2020-12-28(a), (e)

“The statute quite clearly, we think, 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.’” ... “To comply with OCGA § 9-11-9.1, an expert affidavit must include at least one specific negligent act or omission giving rise to a malpractice claim and the factual basis for such claim.”

Section 9-11-9.1(b) permits a plaintiff facing expiration of the limitations period within ten days to file an attorney affidavit and obtain 45 days to supplement the complaint with an expert affidavit, unless the attorney was retained more than 90 days before the limitations period expired; retention is assessed by the scope and purpose of the representation.

CRUZ PICO Et Al. v. BRADY. · filed 2018-05-23(b)

In a professional malpractice action, a plaintiff generally must file an expert affidavit with the complaint. ... Under the circumstances presented here, we find no error in the trial court’s determination that Brady did not retain McClurg as her counsel until July 29, 2016. The new client questionnaire and medical authorization form indicate that Brady and McClurg expressly limited the scope and objectives of the initial representation to obtaining Brady’s medical records from Dr. Cruz Pico. ... Consequently, the trial court properly concluded that Brady did not “retain” counsel more than 90 days prior to the expiration of the period of limitation. ... [B]ecause OCGA § 9-11-9.1 constitutes an exception to the general liberality of pleading allowed under the Civil Practice Act, it is to be construed in a manner consistent with the liberality of the Act so long as such a construction does not detract from the purpose of OCGA § 9-11-9.1, which is to reduce the filing of frivolous malpractice suits.

Section 9-11-9.1 (b) permits a plaintiff to use its 45-day safe harbor to file a late expert affidavit in a timely renewal action when the new action is filed by a different law firm, even if a former attorney filed the dismissed original complaint and that complaint is attached as an exhibit.

JOSEPH v. CINDY STAR BUTTON · filed 2025-05-19(b)

Applying these statutory construction principles, we conclude that Hill is not an “attorney who appears on the pleadings” in the renewal action as contemplated by OCGA § 9-11-9.1 (b). ... We do not find that OCGA § 9-11-9.1 (b)’s use of the phrase “any attorney who appears on the pleadings” includes an instance where a former attorney has signed a prior, dismissed complaint that is attached as an exhibit in a renewal action filed by a different law firm.

Section 9-11-9.1 allows a plaintiff who filed a purported but defective affidavit to cure it by amendment or substitution; subsection (e)'s bar on amendment applies when the plaintiff completely fails to file an affidavit.

Phoebe Putney Memorial Hospital v. Skipper · filed 1998-12-02(e)

The prohibition against cure by amendment which is set forth in O.C.G.A. § 9-11-9.1(e) does not pertain because plaintiff did file a purported affidavit, albeit a defective one. In the words of that section, plaintiff did not fail "to file an affidavit ... contemporaneously with [her] complaint." As stated by the Supreme Court, "subsection (e) is only designed to preclude amendment under § 9-11-15 when the plaintiff completely fails to file an affidavit." [8] Thus the exception to that prohibition, contained in that section, need not be considered as an avenue for plaintiff to escape dismissal of her suit.

Subsection (e) permits a plaintiff to cure a defective malpractice affidavit by amending the complaint with a competent expert affidavit within 30 days of the dismissal motion.

Gala v. Fisher · filed 2015-03-27(e)

Accordingly, the Court of Appeals did not err in holding that Fisher’s amendment to his complaint was permissible under OCGA § 9-11-9.1 (e), and that the ruling of the trial court should be reversed.