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Woman Fails to File Expert Affidavit in Medical Malpractice Claim but Able To Proceed Regardless


Procedural rules can make a huge difference in any case. Even the strongest case can fail due to a failure to follow the rules. A recent case showed how even though the plaintiff failed to follow the rules, the case was able to proceed because the defendant failed to follow the rules as well.

Doctor's ToolsIn this case, a man’s family filed a medical malpractice lawsuit against the man’s treating doctor and medical provider, Mission Health of Georgia, after the man died. The family claimed the doctor and Mission Health were negligent in treating him. Mission Health responded to the complaint and stated the family failed to file an expert affidavit, as required under Georgia law. The doctor similarly argued the family failed to file the expert affidavit, and the doctor also filed a motion to dismiss the case due to that failure. The woman withdrew the complaint and refiled the claim about six months later.

In the new complaint, the family attached an expert affidavit as required. The doctor re-filed his motion to dismiss, based on the family’s original failure to file the expert affidavit. The court granted the motion to dismiss as to the doctor, due to the failure to attach the expert affidavit in the original complaint.

Mission Health also filed a motion to dismiss for the first time, on the same basis. However, the court denied Mission Health’s motion to dismiss. The court explained that Mission Health waived its objection to the family’s failure to file an expert affidavit originally because it did not file a motion to dismiss at the time. The Georgia Appeals Court agreed. The appeals court said that a motion to dismiss had to be filed in Mission Health’s first response to the complaint. Since Mission Health failed to file a motion to dismiss when it responded originally, it could no longer use the defense. Thus, even though the family failed to file the required affidavit originally, the case could proceed against Mission Health because it did not file a motion to dismiss in its first response.

Georgia’s Affidavit Requirement for Medical Malpractice Claims

Under Georgia law, in any medical malpractice claim, a plaintiff has to file an expert affidavit along with the complaint. The affidavit must be completed by a qualified expert who testifies that based on the facts alleged in the complaint, there was at least one negligent act or failure to act on the part of the doctor or health care provider. The affidavit requirement applies not only to cases against doctors but also to any professional malpractice claim, including against architects, land surveyors, lawyers, therapists, engineers, and veterinarians.

If a person fails to file the required affidavit or files a defective affidavit, the defendant can file a motion to have the claim dismissed. However, there are certain exceptions to the requirement. For example, if the statute of limitations is about to expire, the time in which an affidavit must be filed may be extended.

Have You Received Negligent Medical Care?

If you or a loved one has been injured by a doctor or medical professional, you may be entitled to compensation. Doctors who provide substandard care should not get away with placing your or your loved one’s health and livelihood in jeopardy. At McAleer Law, we have a team of attorneys that are knowledgeable in personal injury claims, and we are dedicated to providing our clients with passionate and zealous representation to seek the results they deserve. Contact McAleer Law today at 404-622-5337 or through our online form for a free consultation with one of our medical malpractice attorneys.

See More Posts:

Government’s Failure to Modify Roads to Prevent Hydroplaning Can Pose Increased Risk for Drivers, Georgia Injury Attorney Blog, November 8, 2016.

Taser Death Case Lands at the Supreme Court Prematurely, Georgia Injury Attorney Blog, August 1, 2016.

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