9-11-9.1. Affidavit to accompany charge of professional malpractice
(a) In any action for damages alleging professional malpractice against:
(1) A professional licensed by the State of Georgia and listed in subsection (g) of this Code section;
(2) A domestic or foreign partnership, corporation, professional corporation, business trust, general partnership, limited partnership, limited liability company, limited liability partnership, association, or any other legal entity alleged to be liable based upon the action or inaction of a professional licensed by the State of Georgia and listed in subsection (g) of this Code section; or
(3) Any 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 subsection (g) of this Code section, 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.
(b) The contemporaneous affidavit filing requirement pursuant to subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing the complaint and, because of time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, if the attorney for the plaintiff files with the complaint an affidavit in which the attorney swears or affirms that his or her law firm was not retained by the plaintiff more than 90 days prior to the expiration of the period of limitation on the plaintiff’s claim or claims, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court shall not extend such time for any reason without consent of all parties. If either affidavit is not filed within the periods specified in this Code section, or it is determined that the law firm of the attorney who filed the affidavit permitted in lieu of the contemporaneous filing of an expert affidavit or any attorney who appears on the pleadings was retained by the plaintiff more than 90 days prior to the expiration of the period of limitation, the complaint shall be dismissed for failure to state a claim.
(c) This Code section shall not be construed to extend any applicable period of limitation, except that if the affidavits are filed within the periods specified in this Code section, the filing of the affidavit of an expert after the expiration of the period of limitations shall be considered timely and shall provide no basis for a statute of limitations defense.
(d) If a complaint alleging professional malpractice is filed without the contemporaneous filing of an affidavit as permitted by subsection (b) of this Code section, the defendant shall not be required to file an answer to the complaint until 30 days after the filing of the affidavit of an expert, and no discovery shall take place until after the filing of the answer.
(e) 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. The trial court may, in the exercise of its discretion, extend the time for filing said amendment or response to the motion, or both, as it shall determine justice requires.
(f) 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.
(g) The professions to which this Code section shall apply are:
(2) Attorneys at law;
(4) Certified public accountants;
(6) Clinical social workers;
(9) Land surveyors;
(10) Marriage and family therapists;
(11) Medical doctors;
(13) Occupational therapists;
(15) Osteopathic physicians;
(17) Physical therapists;
(18) Physicians’ assistants;
(20) Professional counselors;
(21) Professional engineers;
(23) Radiological technicians;
(24) Respiratory therapists;
(25) Speech-language pathologists; or
HISTORY: Code 1981, § 9-11-9.1, enacted by Ga. L. 1987, p. 887, § 3; Ga. L. 1989, p. 419, § 3; Ga. L. 1997, p. 916, § 1; Ga. L. 2005, p. 1, § 3/SB 3; Ga. L. 2006, p. 72, § 9/SB 465; Ga. L. 2007, p. 216, § 1/HB 221.
DISCLAIMER – Some of these codes have been amended over the years, and they can be amended again by the legislature at any time. For some codes you use the version that existed at the time the malpractice occurred, but for others you use the version of the code that exists at the time you go to trial. We show you these codes for general education purposes, but you should always consult an experienced Georgia medical malpractice attorney before relying on these provisions.
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