This is a case that many with the Georgia Bar have been watching as the Georgia Supreme Court has ruled unanimously to affirm the Georgia Court of Appeals’ ruling that states that if the Plaintiff’s Medical Expert Affidavit filed with the Plaintiff’s original complaint in a Medical Malpractice Case is found defective, and the Defendant files a Motion to Dismiss the Complaint based on said defect, that the Plaintiff could, if filed within thirty (30) days of being served with said Motion, cure the defect by filing an Amended Complaint with an Affidavit of a new Expert. This ruling serves to further define a rule of law in Georgia that has been in place since the 1980’s as well as set new standards for both Plaintiffs and Defendants in Medical Malpractice Cases in Georgia.
This ruling comes from a case that originated in Fulton County, Georgia, Superior Court, whereby the Plaintiff filed a Medical Malpractice Complaint with the required Expert Affidavit Attached thereto. The Defendant subsequently filed a Motion to Dismiss the Complaint stating that said Affidavit was defective. The Plaintiff then filed an Amended Complaint with a new Affidavit from a new expert, not a new Affidavit from the same expert as the original Affidavit.
The Defendant filed a Motion with the Court to Dismiss the Plaintiff’s claim for violating the rule that a Plaintiff’s Complaint in a Medical Malpractice Case must be filed with the Affidavit of a Medical Expert. The Honorable Kimberly Esmond Adams of the Superior Court agreed with the Defendant and dismissed the Plaintiff’s Complaint. The case is Gala v. Fisher, No. S14G0919.
The Plaintiff Appealed the case to the Georgia Court of Appeals and the three (3) Justice Panel of said Court consisting of the Honorable Elizabeth Barnes, the Honorable John Ellington, and the Chief Judge Herbert Phipps, disagreed with the Superior Court and reinstated the Plaintiff’s lawsuit. The case made its way to the Georgia Supreme Court whereby the Georgia Supreme Court unanimously agreed with the Court of Appeals, and, as further stated by the Honorable Presiding Justice P. Harris Hines that, “Nothing in our reading of the statute detracts from that purpose,” wrote Hines. “[The plaintiff] has exercised his right to amend his complaint as a matter of course under O.C.G.A. § 9-11-15(a), and produced an affidavit of an expert who opines that professional malpractice occurred.”
This case shows that the law that has been on the books in Georgia for a number of years, and further tightened by tort reform in Georgia, to prevent the filing of frivolous lawsuits by Plaintiff’s in Medical Malpractice Cases, requiring a Plaintiff to file with the Plaintiff’s Complaint an Affidavit of an Expert, is a law that still prevents frivolous lawsuits as the law originally intended. The law does not, however, prevent the Plaintiff from correcting said Affidavit if the Affidavit is the reason that the Defendant is trying to have the Plaintiff’s claim dismissed.
This ruling serves two (2) purposes: 1.) It gives the Plaintiff some latitude from having to rely solely on the medical expert presented in the original affidavit to survive the dismissal of the Plaintiff’s claim; and 2.) It prevents the Defendant’s from automatically filing a motion to dismiss the Plaintiff’s complaint based on the Affidavit. Nobody knows for sure how many cases will be impacted by this ruling but the ruling is timely for some Plaintiff’s that have cases pending courts’ ruling on such motions.
At Julie A. Rice, Attorney at Law, & Affiliates we are experts at representing clients in Medical Malpractice Claims. Our Medical Malpractice Lawyers understand all the intricate details of such cases including the requirements of the law as it currently exists in reference to Plaintiff’s Affidavits and the law as it applies in light of the Court’s recent ruling.
We offer a Free Legal Consultation of your Medical Malpractice Case and we encourage you to contact us to discuss your case by any or all of the following means: By phone at 770-865-8654, or (813) 363-6664; by email at juliericelaw@outlook.com; by the Contact Form on our Website; or by the Contact Form on this blog.
We look forward to hearing from you soon and discussing the details of your case.