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Medical Malpractice Affidavits in Georgia

by on June 22, 2011

In reading a case from the Georgia Court of Appeals, we’re reminded of the difficulties of bringing medical malpractice lawsuits in Georgia.  See Roberson v. Northrup et al., A10A0693 (GA. App. Feb 17, 2010).   In Georgia, when filing a lawsuit for medical malpractice, the injury victim (or “plaintiff”) is required to contemporaneously file an affidavit from an expert asserting that the defendant doctor(s) committed malpractice.  OCGA Sec. 9–11-9.1.  This normally means getting a doctor (the expert) to swear under oath that the other doctor messed up.  The rationale for the affidavit is to reduce frivolous claims by requiring a fellow doctor to support the injured party’s claims.

In Roberson, the injury victim sued the hospital, an anesthesiologist, and two nurses for medical malpractice.  The plaintiff  obtained a valid medical malpractice affidavit before filing the lawsuit and made reference to the affidavit in the lawsuit.  But, due to a clerical error, the affidavit was not physically attached to the lawsuit.  Seizing upon this honest mistake, the doctors asked the court to dismiss the lawsuit.  Although the Georgia Court of Appeals never doubted that the affidavit had been drafted and executed prior to the lawsuit or that its exclusion was due to an honest mistake, the court nonetheless found that this filing error was so significant that it dismissed plaintiff’s lawsuit with prejudice, meaning the lawsuit could not be refiled.  This ended the injury victim’s lawsuit before it began.

There are two important lessons to be learned:  First, properly filing a medical malpractice affidavit is critical in bringing a successful medical malpractice lawsuit. Second, in the current environment of “tort reform,” in which misinformation is being relentlessly spread to the public, folks injured due to the negligence of others have to work twice as hard and be twice as smart in order to obtain reasonable and fair recoveries.

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