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OCGA § 9-11-9.1 Doesn’t Require Contemporaneous Filing of an Expert Affidavit In Claims Against Technicians

by on November 28, 2011

As we’ve noted, to file a medical malpractice action, one must generally attach an expert affidavit to the complaint. This is a mandatory requirement in Georgia in accordance with O.C.G.A. § 9-11-9.1. The expert affidavit has to specifically state that the doctor or medical professional (defendants) committed medical malpractice by providing medical care in a manner below the standard of care. The person who signs the affidavit must be in the precise profession and subspecialty as the defendants. In other words, if an orthopedic physician is the defendant, then only an orthopedic physician can draft the affidavit. Also, the signer of the affidavit must have been in practice for three of the past five years.

When the medical provider is a technician, rather than a medical doctor, the rules change somewhat with regard to expert affidavits. In a recent appeal decision — Procter v. Gwinnett Pulmonary Group PC, A11A0972 (11/10/2011) — the Georgia Court of Appeals partially reversed the dismissal of Sharon R. Procter’s medical malpractice and negligence claims against Gwinnett Pulmonary Group, P.C. & Associates, Dr. Sarah J. Hayat, and Shelly Hilliard, finding that the trial court erred in dismissing Procter’s claims against Hilliard for failure to file an expert affidavit with her complaint pursuant to OCGA § 9-11-9.1, because Hilliard, a technician, was not a licensed professional for whom an affidavit was required. The trial court correctly dismissed Procter’s claims against Hayat for failure to file an expert affidavit with her complaint, because, contrary to Procter’s contention, the 45-day extension pursuant to OCGA § 9-11-9.1 does not apply to pro se litigants.

We handle medical malpractice claims every day and keep up daily with the latest changes in the law. Please give us a call at 404-835-8080 for a free consultation. An attorney will meet with you at your convenience and carefully explain to you all your options for moving forward with your case.

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