Pleading Limitation for Med Mal actions?

($ Amount)

OCGA 9-11-8(a)(2)(B): In actions for med mal in which a cliam for unliquidated damages is made for a sum >$10,000, the demand for judgment shall state that the pleader "demands judgment in excess of $10,000"

No further monetary amount shall be stated. 

When is the action pending/court has jurisdiction over ∆?

Hilton v. Maddox, Bishop, Hayton Frame & Trim Contrators: 

The court doesnt have jurisdiction until service of process has been perfected. 

π must exercise due diligence in serving the complaint once it is filed. 

Trial court may dismiss if delay in service occurred due to laches on the part of the π.

π has the burden of proving that he acted in a reasonable and diligent manner to perfect service quickly. 

How is venue determined?

May it be changed? Why?

Venue will be determined as of date of filing, as long as service is subsequently perfected upon the ∆ within a reasonable time period. (Franek v. Ray)

Yes. Forum non conveniens & vanishing venue rules.

OCGA 9-10-31(d), 9-10-31.1

Yes. π has a right under Art. IV, Sec. II, Para. IV of the GA Constitution to have a case against joint tortfeasors tried in any county where a ∆ resides. 

EHCA Cartersville, Inc. v. Turner: GA Sup. Ct. struck down OCGA 9-10-31(c) which had stated that is a claim was filed in a county other than where the tortious act occurred, a ∆ residing in the county where the tort was committed could require a change in venue to that ∆s county. 

If the resident ∆ is dismissed from a case, any remaining ∆ may require transfer of the case to that ∆s county. 

This option is available at any time, including once the judge or jury has handed down a verdict. 

OCGA 9-10-31(d) 

In all tort cases, a ∆ can request a change of venue on the grounds of inconvenience. 

The judge shall exercise his discretion, weighing factors including the πs traditional right to choose from among legally appropriate venues, the local interest in the case, and evidentiary and administrative ease based on closeness to evidence, witnesses, and parties. 

OCGA 9-10-31.1 & EHCA Cartersville, Inc. v. Turner. 

Is an affidavit required to file a complaint based on professional malpractice? 

What must an affidavit contain? 

Yes. An affidavit can be amended after the SoL has run to specify that the allegations included a ∆ who was names in the suit but not identified in the original affidavit.

OCGA 9-11-9.1

The purpose is to guard against frivolous lawsuits, not to serve as a tactical tool for ∆ counsel.

Bonner v. Peterson

An affidavit is required if the case involves a "medical question". 

Shirley v. Hosp. Auth. of Valdosta/Lowndes County

Yes. Suits against an organization for a servant's professional negligence must include filing affidavits. OCGA 9-11-9.1(a)(2)-(3). 

For example, a filing affidavit is required to sue a hospital if the claim is that an empee or agent breached the std of care, such as by failing to obtain consent for anesthesia or failing to document properly the medications given to the patient. 

Upson County Hosp. v. Head

False. 

Where a servant's professional negligence is not the bases for suing the hospital, no filing affidavit is needed. 

False. 

Claims against nurses for giving the wrong medication pursuant to a doctor's order requires an affidavit. A nurse is expected to use professional judgment to assess a patient's mental status to determine whether the patient's representations about his treatment are correct, to determine whether the order as written was proper, and to call the physician's attention to any question that arises. 

Grady Gen. Hosp. v. King

No. As an intentional tort, battery often does not require an affidavit.

Estate of Shannon v. Ahmed

Where battery is alleged for a touching after consent to the medical procedure is withdrawn, a filing affidavit may nonetheless be required. Revocation of consent requires (1) clear revocation and (2) safety in stopping the treatment. The second requirement can include professional judgment--the weighing of alternatives. 

King v. Dodge County Hosp. Auth. 

True. OCGA 9-11-9.1 is inapplicable to claim for breach of fiduciary duty. 

Where atty took advantage of client's confidential info regarding her emotional and mental condition to convince her to have an adulterous affair with him, failure to file an affidavit was fatal to malpractice claim but not to breach of fiduciary duty claim. 

Tante v. Herring. 

False. 

A filing affidavit need not comply with the evidentiary standards for an affidavit used for a motion for summary judgment.

Howard v. City of Columbus

False. 

A transcript of expert's prior testomony did  not satisfy the requirement of OCGA 9-11-9.1

Raskin v. Wallace

Do referenced medical records need to be attached to the affidavit?

No. 

While a medical malpractice affidavit need not attach the referenced medical records, the materials relied upon by the expert must be identified to survive summary judgment. 

Conley v. Children's Healthcare of Atlanta

What are the requirements for the grace period for filing requirements?

Under what circumstances may the grace period be granted? 

When is the ∆s answer due? 

If a case is filed w/i 10 days of the expirations of the SoL and alleges that b/c of time constraints, an expert affidavit couldn't be obtained, the π can have 45 days from the date of filing to amend w/ an affidavit. 

The filing atty must swear/affirm that his firm was hired w/i 90 days preceeding the SoL expiration.

The claim will be dismissed with prejudice if the affidavit is not added or if any of the filing attorney's or their firms were in fact retained more than 90 days before the expiration.

The ∆s answer is due w/i 30 days of the filing of the affidavit, at which time discovery shall commence. 

OCGA 9-11-9.1(b)(d)

Yes. Filing a motion to dismiss which attacks the affidavit as defective gives the π 30 days from the date of the ∆s motion to dismiss in which to cure the affidavit

OCGA 9-11-9.1(e)

A motion to dismiss for failure to state a claim is a proper vehicle to challenge the sufficiency of filing affidavit in a malpractice action. 

Hewitt v. Kalish

False. 

Expert's affidavit invalid where oath was administered by the notary public over telephone. 

Redmond v. Shook. 

T or F: 

(1) An improper jurat does not render an affidavit invalid.

(2) If a notary public's commission has expired, the affidavit is automatically invalid. 

(1) False. Failure to have a proper jurat renders affidavit invalid--Harvey v. Kidney Center

(2) False. If the notary public's commission had expired, the affidavit may still be valid--Thomas v. Gastroenterology Assoc. of Gainesville. 

(1) A complaint may be dismissed with prejudice for failing to file an affidavit. --Williams v. Alvista Healthcare Center

(2)A lawsuit without an affidavit is voidable but not automatically void--Chandler v. Opensided MRI of Atlanta LLC

Where the ∆ pleads an affirmative defense of failure to attach affidavit, yet does not file a motion to dismiss, a π may voluntarily dismiss and then re-file with an affidavit. 

Opensided MRI of Atlanta LLC v. Chandler

A MTD challenging an allegedly defective affidavit may be raised at any point up to the close of discovery. 

However, a MTD for failure to file an affidavit should be filed w/ the answer. 

OCGA 9-11-9.1(e)

False. 

A generic MTD, not tailored to the particular case, may not be considered a  motion to dismiss at all. 

Piscitelli v. Hosp. Auth. of Valdosta

Trial court may consider an expert affidavit clarifying a discrepency between the date of the signature and the date of the oath administered by the notary public. 

Kropp v. Roberts

Yes. 

While it is not good practice to file a facisimilie affidavit, it will satisfy OCGA 9-11-9.1 if the original is filed later, for the facisimilie is proof that there was an affidavit at the time of filing--Sisk v. Patel

Note: The statutory language supporting this opinion has been changed somewhat and is now §9-11-9.1(f)

No.

HIPPA, a federal law which protects patients' privacy interest in their medical info, preempts OCGA 9-11-9.2, which stated that to file a med mal case, the π must file at the outset a medical authorization allowing ∆ counsel access to the πs medical information & permitting ∆ counsel to speak with πs treating physicians

Allen v. Wright & Northlake Medical Center v. Queen