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Georgia Court Permits Plaintiffs to Add Defendant and Amend Expert Affidavit Beyond Statute of Limitations


In Georgia medical malpractice cases, plaintiffs must carefully follow all of the relevant procedural requirements or risk having their case dismissed. In a recent case, a court had to consider whether the plaintiffs properly named the defendants and amended their expert affidavit after the statute of limitations had passed.

Chest X-RayIn that case, the patient was admitted to a medical center in May 2011. Three days after she was admitted, she was found unresponsive due to a hypoglycemic event. She was discharged for hospice care with a severe brain injury and died the following month. In May 2013, the executor of the woman and her husband’s estate filed a claim against various defendants, including the hospital and the attending doctors, along with an expert affidavit. The plaintiffs then withdrew the lawsuit and properly filed a renewal complaint in March 2014. In this complaint, they added a medical group as a defendant. The affidavit filed with the renewal complaint did not specifically mention the medical group by name. The plaintiffs then filed a third affidavit, which included specific acts of negligence allegedly committed by the medical group. The plaintiffs finally filed another affidavit, stating that the expert’s opinion regarding negligence extended to the medical group’s employees and physicians who treated the patient.

The medical group filed a motion for partial summary judgment, arguing that the plaintiffs’ claims should be dismissed as untimely. They contended that the claims against the medical group employees or physicians, apart from two doctors specifically alleged in the complaint, were filed after the statute of limitations had expired.

However, a Georgia court of appeals held that the plaintiffs did not have to specifically name each physician for which the medical group was responsible in the renewal complaint. In the renewal complaint, the plaintiffs claimed that the medical group was liable for the negligence of the “physicians that attended [to the patient]” and that “the treating physicians [were] actual and/or ostensible agents or otherwise servants and/or employees of” the medical group. Since the plaintiffs claimed that the “treating physicians” were liable in the renewal complaint, even though they were not specifically named, the medical group had sufficient notice of the claim against it.

In addition, the court determined that the expert affidavit that was later amended did not itself assert new claims after the expiration of the statute of limitations. Therefore, the court denied the summary judgment motion, allowing the case to continue.

Requirements in Georgia Medical Malpractice Claims

In Georgia, a plaintiff is required in a pleading to include a “short and plain statement of the claims showing that the pleader is entitled to relief.” O.C.G.A. 9-11-8(a)(2)(A). A plaintiff may also amend pleadings under certain circumstances.

In addition, Georgia medical malpractice plaintiffs must provide 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 is at least one negligent act or failure to act on the part of the doctor or health care provider. The expert affidavit is required only to “set forth specifically at least one negligent act or omission claimed to exist and the factual basis for such claim.” O.C.G.A. 9-11-9.1(a)(3). A plaintiff may also cure a defective affidavit under certain circumstances. The purpose of the expert affidavit requirement under O.C.G.A 9-11-9.1 is to avoid frivolous lawsuits.

Contact a Georgia Medical Malpractice Attorney

If you or a loved one has been injured by a doctor or another medical professional, you may be entitled to compensation. Medical errors can take an emotional and physical toll on the patient as well as their family. At McAleer Law, we have a team of attorneys who are dedicated to handling personal injury claims, and we have been compassionately and skillfully assisting our clients for over 10 years in Atlanta and the surrounding areas. Call us at 404-622-5337 or contact us through our online form for a free consultation with one of our medical malpractice attorneys.

See More Posts:

Georgia Appellate Court Affirms Summary Judgment in Favor of Defendant in Recent Car Accident Case, Georgia Injury Attorney Blog, July 5, 2017.

Appellate Court Finds Student “Assumed the Risk” of Drowning in Recent Georgia Wrongful Death Case, Georgia Injury Attorney Blog, August 22, 2017.

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