If a plaintiff files his/her first claim with a defective affidavit and dismisses it before Defendant has the opportunity to move for dismissal on the merits, then it appears that plaintiff cannot thereafter renew that exact claim under the renewal statute.
If a plaintiff files his/her first claim with a defective affidavit and dismisses it before Defendant has the opportunity to move for dismissal on the merits, then it appears that plaintiff cannot thereafter renew that exact claim under the renewal statute. This is due to the fact that an invalid original complaint cannot serve as the basis for a renewed complaint under O.C.G.A. § 9-2-61. The following cases illustrate this point.
v. , 255 Ga.App. 373; 566 S.E.2d 36 (2002), involved a patient and his wife who sued a doctor and the doctor's employer for medical malpractice related to cataract surgery. Upon filing the original complaint, plaintiffs invoked the provisions of O.C.G.A. 9-11-9.1(b) to allow them 45 extra days to obtain the required expert affidavit. However, before plaintiffs provided the requisite affidavit and before the defendants were required to respond, plaintiffs voluntarily dismissed the case without prejudice. Therefore, the original complaint never had a valid attached affidavit.
Plaintiffs then refiled the action under the provisions of the renewal statute (O.C.G.A. § 9-2-61) within the required six months asserting the same claim for medical malpractice. “Simultaneous with the filing of their answers, both defendants moved to dismiss the complaint on the grounds that the statute of limitation had run and that the renewal statute did not apply where the earlier action lacked the requisite affidavit.” at 373. The trial court agreed, finding that the plaintiffs “failure to attach an O.C.G.A. § 9-11-9.1 affidavit to the original complaint rendered that action invalid under O.C.G.A. § 9-11-9.1(e) as a basis for a renewal action.”
The appellate court agreed with the trial court and found for defendants based on the following rationale. “Plaintiffs failed to attach to their previous complaint (even by supplement) the affidavit required by O.C.G.A. § 9-11-9.1(a). Therefore, under O.C.G.A. § 9-11-9.1(e), that action is precluded from serving as a basis for a renewal action.” The court reiterated the only way such an improperly filed complaint shall avoid dismissal and be subject to the renewal provisions of O.C.G.A. § 9-2-61 is where the plaintiff had the affidavit within the requisite time required by the Code, but the failure to file the affidavit was purely the result of mistake.
This was not the case in . Plaintiffs in dismissed their original complaint without ever filing an appropriate affidavit. Furthermore, defendants never had the opportunity to move to dismiss the original action on that basis, because responsive pleadings were not due until the extended 45 day period had expired under O.C.G.A. 9-11-9.1(b). Plaintiffs dismissed within the 45 day time limitation. The proper affidavit was not executed until four months after the affidavit was to have been filed in the original action and almost six months after the statute of limitations had expired. Moreover, no excusable neglect or mistake was shown. Therefore, the appellate court affirmed the trial court and found, “[s]ince 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 O.C.G.A. § 9-2-61and therefore cannot serve as a basis for a renewal action, either against Carson or his employer.” Grier-Baxter v. Sibley, 247 Ga.App. 560, 545 S.E.2d 5 (2001);Lyberger v. Robinson, 207 Ga.App. 845, 429 S.E.2d 324 (1993); see also Trucano v. , 215 Ga.App. 153, 450 S.E.2d 216 (1994).
Rector v. O'Day et. al., 268 Ga.App. 864; 603 S.E.2d 337 (2004), is a similar case in which a patient filed suit against a defendant doctor and his office for medical malpractice related to an eye surgery. In Rector, the plaintiff filed his original complaint without the required affidavit pursuant to O.C.G.A. § 9-11-9.1. Defendants then moved for a dismissal in the case because it was procedurally improper. However, before the trial court could rule on the motion to dismiss, the plaintiffs voluntarily dismissed the case and refiled it under the renewal statute with a valid affidavit attached. The defendants then again moved for summary judgment or dismissal, arguing that the second complaint was barred because the statute of limitations had run, and that plaintiff “failed to comply with the requirements of O.C.G.A. § 9-11-9.1 with regard to filing the required expert affidavit.” Plaintiff, however, argued the affidavit was in the possession of the plaintiff at the time of filing the initial complaint, and that it was purely a mistake that such was not properly attached. In fact, it was conceded by both parties that plaintiff was in possession of the affidavit at the time of the original filing. Thus, plaintiff argued that he could take advantage of O.C.G.A. § 9-11-9.1(e) which allows for renewal, even where the original affidavit was not filed, if he could show that such failure to file was due to mistake.
The trial court did not agree with the plaintiff and dismissed the case. On appeal, the appellate court reversed based on the reading of O.C.G.A. § 9-11-9.1(e). At trial, it had been shown that the original affidavit was in plaintiff’s possession at the time of the original filing, but that due to mistake, it was not properly attached to the original complaint. As such, this situation fell within the exception in 9-11-9.1(e) and was still subject to the renewal provisions of O.C.G.A. 9-2-61.
In Rector, the appellate court seemingly based its decision solely on the fact that the plaintiff did have possession of a proper affidavit, yet she merely mistakenly forgot to attach it to the complaint. This situation alone falls neatly within the exception provided in O.C.G.A. § 9-11-9.1(e):
If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake. (Emphasis supplied).
The appellate court went on to compare this specific case with others where it has upheld dismissal for failing to have a proper affidavit with the original complaint. They compare Rector to saying, “[u]nlike the case before us, in Griffin v. Carson, 255 Ga.App. 373, 566 S.E.2d 36 (2002) the plaintiff did not have his expert affidavit available when he filed his first complaint, and therefore no excusable circumstance was shown.” at 375. They also contrast this situation to their dismissal of a dental malpractice case and a legal malpractice case where both times the plaintiff's expert affidavit filed with the renewed complaint was dated after the first complaint was filed. Grier-Baxter v. Sibley, supra, see also Lyberger v. Robinson, supra. This further affirms the Court’s view that dismissal is proper where a renewal is based upon a complaint originally filed with an invalid affidavit or no affidavit at all. It is only in these unique circumstances where absent-minded mistakes are involved that the court will allow plaintiffs to invoke the renewal provisions.
Thus, courts should find no difference in a substantively defective affidavit and a procedurally non-existent affidavit for purposes of meeting the requirements of O.C.G.A. § 9-11-9.1. In both situations, the plaintiff should not be afforded the renewal statute to save his/her original complaint from dismissal. It is an established principle that failure to attach a valid affidavit in a medical malpractice action renders the action ineligible for renewal under O.C.G.A. § 9-11-9.1(e).
Therefore, if there is a defective affidavit in a medical malpractice suit, then move to dismiss the first complaint based on an invalid affidavit. Such a factual situation meets squarely with and is controlled by and the case should be dismissed. However, if plaintiff can show the affidavit was not attached due innocent mistake, then renewal will be permitted.