Plaintiff Permitted to Amend Medical Malpractice Complaint after Failing to Attach Expert Affidavit

Following the procedural rules is important in any claim, but this is particularly the case in a Georgia medical malpractice claim, as failing to follow the procedural requirements can result in dismissal of a claim right from the start. Understanding the exceptions is just as important, as one recent case showed.In that case, a woman filed a medical malpractice claim against a doctor and his practice. The defendants argued the case should be dismissed because the woman failed to file an expert affidavit with the complaint, and the defendants claimed she also failed to retain an attorney more than 90 days before the expiration of the statute of limitations.

The plaintiff had alleged she was injured during a cervical node excision performed on August 1, 2014. The plaintiff filed the medical malpractice claim on August 1, 2016. She did not file an expert affidavit, but attached the affidavit of her attorney who testified that the woman had retained him on July 29, 2016. He testified that because the statute of limitations would expire within ten days of the filing, an expert affidavit could not be prepared in time. The woman amended her complaint on September 13, 2016, attaching the expert affidavit as required.

Expert Affidavits in Medical Malpractice Claims

Under OCGA § 9-11-9.1(a), a plaintiff generally is required to file an expert affidavit with the complaint in a professional malpractice claim. However, under OCGA § 9-11-9.1(b), an affidavit does not need to be filed at the same time if the statute of limitations will expire within ten days of the filing of the complaint and an expert report could not be prepared in time. In these cases, if the plaintiff’s attorney files an affidavit swearing that the attorney was not retained more than 90 days before the expiration of the statute of limitations, the plaintiff has 45 days after filing the complaint to file the expert affidavit. However, if the attorney was retained more than 90 days before the expiration of the statute of limitations, the case will be dismissed under the rule.

The Facts of the Case

The defendants claimed that the woman had retained her attorney before July 29, 2016 because her attorney had signed a medical authorization form for the woman on December 16, 2014. The form directed her doctor to release her medical information to her attorney, and identified him by name. The form also stated that the purpose of the disclosure was litigation which “mean[t] [the attorney was] a lawyer and [] represent[ed] [her] in a lawsuit.” However, the woman signed a “New Client Questionnaire” on December 16, 2014, in which she acknowledged that no attorney-client relationship existed between her and the attorney until a legal contract was signed between them and until all the necessary legal fees were received. She and the attorney signed a legal services contract on July 29, 2016.

The Court’s Holding

The court explained that the medical authorization form and new client questionnaire limited the scope of representation to obtaining the woman’s medical records, and the woman did not retain the attorney until July 2016 when she and her attorney signed the representation agreement. Therefore, the plaintiff was permitted to file her amended complaint with the attached affidavit.

Contact an Atlanta Medical Malpractice Attorney

If you or a loved one has been injured by a doctor or other medical professional, you may be entitled to compensation. Doctors who provide substandard care should not get away with placing you or your loved one’s health and livelihood in jeopardy. McAleer Law has a team of dedicated injury attorneys who focus their practice on representing victims of Georgia medical malpractice. We are committed to providing our clients with passionate and zealous representation, and have been compassionately and skillfully assisting our clients for over a decade. Contact us at 404-622-5337 or online to set up a free consultation.

See More Posts:

Georgia Court Determines Pharmacy Error Plaintiff’s Evidence Insufficient to Establish Medical Malpractice Claim, Georgia Injury Attorney Blog, December 28, 2017.

Georgia Court Discusses How Fraud Can Extend the Statute of Limitations in Recent Medical Malpractice Case, Georgia Injury Attorney Blog, May 9, 2018.

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