By: Dana Maine and Michael Eshman
In the recent case of Fisher v. Gala, 754 S.E.2d 160 (2014) the Georgia Court of Appeals overturned the dismissal of a medical malpractice action that was dismissed based on the deficiency of the expert affidavit that was filed with the complaint. The affidavit filed with the complaint came from a general practitioner who critiqued the care of neurosurgeons. The general practitioner was not competent under Georgia law to testify regarding the standard of care applicable to neurosurgeons, and the affidavit was, therefore, deficient. The defendants moved to dismiss the case on that basis.
When faced with a motion to dismiss for a deficient expert affidavit, Georgia's expert affidavit statute provides that "the plaintiff may cure the alleged defect by amendment... within 30 days of service of the motion..." O.C.G.A § 9-11-9.1(e). In this case, the plaintiff attempted to cure the defect by submitting a new affidavit from a new expert. The trial court rejected that attempt to cure and dismissed the action. The Georgia Court of Appeals reversed the dismissal, noting a "broad right of curing an allegedly defective affidavit by amendment," and concluding that the plaintiff was allowed to cure the defect by submitting an entirely new affidavit from a new expert.
The 30 day cure provision within the Georgia expert affidavit statute and this case are important to be mindful of when considering a motion to dismiss on the basis of a deficient expert affidavit. While it is still good practice to file such a motion where appropriate, it is important to be mindful of a plaintiff's broad right to cure the defect and avoid dismissal.