Trial Practice and Procedure - C. Frederick Overby and Jason Crawford

• Publication year: 1995

Trial Practice and Procedureby C. Frederick Overby^* and Jason Crawford^**

I. Introduction

Developments in the law interpreting and applying the Official Code of Georgia Annotated ("O.C.G.A.") section 9-11-9.1, the professional negligence affidavit pleading requirement, and Georgia's various statutes of ultimate repose overshadowed the usual decisions concerning personal jurisdiction, service of process, and venue. This review will analyze the developments in these areas of trial practice and procedure in Georgia for the survey period. Also, the authors will discuss new developments concerning Georgia's renewal and dismissal statutes, res judicata, and discovery.

II. O.C.G.A. section 9-11-9.1

The Georgia appellate courts have been inconsistent in their interpretation and application of O.C.G.A. section 9-11-9.1, the malpractice affidavit pleading requirement, since the statute's enactment in 1987.

The statute sets out the proper form and content of an expert's affidavit, which must be attached to any complaint alleging professional negligence in order for the complaint to state a claim.¹ Failure to follow the requirements of this statute will result in dismissal of the claim with prejudice.²

During this survey period, the courts clouded the waters significantly. In a confusing and often contradictory series of cases, the appellate courts addressed the sufficiency of the form and content of a malpractice affidavit, as well as the applicability of the affidavit requirement. After another year of addressing varied factual scenarios and inability to reach a workable solution under the statute as written and many times amended, the court of appeals, in one holding, seemingly retreated to the general and liberal pleading requirements of the Georgia Civil Practice Act.³ Whether this holding marks a fundamental change in the interpretation and application of this statute or an isolated aberration is unclear.

A. Affidavits Made Pursuant to O.C.GA. section 9-11-9.1

Should the Court Liberally Construe the Statute, Not Liberally Construe the Statute, or Does it Matter? Striking examples of the confusion surrounding O.C.G.A. section 9-11-9.1 can be found by examining two cases decided within four months of each other, Sisk v. Patel⁴ and Raskin v. Wallace.⁵ Both cases address how a court should decide a motion to dismiss based upon a plaintiff's failure to follow the precise affidavit form requirements of the statute.

Both cases initially cite the seminal case of Gadd v. Wilson & Co., Engineers & Architects.⁶ In Gadd, the Supreme Court of Georgia held that

since Sec. 9-11-9.1 establishes an "exception to the general liberality of pleading permitted under [the Civil Practice Act]," it should be construed in a manner consistent with the liberality of the Civil Practice Act where such construction does not detract from the purpose of Sec. 9-11-9.1 "to reduce the number of frivolous malpractice suits being filed."⁷

At this point, however, the cases depart in inexplicably divergent directions, one heeding the directive of Gadd, the other ignoring it altogether. Raskin was a psychiatric malpractice case filed by an inmate incarcerated for murdering his wife. The inmate, James Raskin, sued his treating psychiatrist for allegedly failing to hospitalize Raskin after he threatened his wife's life. Along with the complaint, in attempt to comply with O.C.G.A. section 9-11-9.1, Raskin filed his own affidavit, referencing an uncertified copy of certain portions of the criminal trial transcript in which Raskin was convicted for the murder of his wife. The referenced portions of transcript contained the trial testimony of a board certified psychiatrist, Dr. Harold Clifford Morgan, who opined that Raskin's physician, Dr. Wallace, should have hospitalized Raskin after Raskin threatened his wife's life.⁸

In its analysis, the court of appeals first conceded that the Georgia Supreme Court in Gadd held that O.C.G.A. section 9-11-9.1 should be liberally construed so long as such a construction does not detract from the purpose of deterring frivolous suits.⁹ The court next conceded that it had previously allowed, in Hospital Authority of Fulton County v. McDaniel,¹⁰ in lieu of an affidavit,¹¹ an expert's deposition from an original action to be incorporated into the complaint in a renewed action because such an allowance "complied with the spirit, if not the letter, of O.C.G.A. Sec. 9-11-9.1."¹²

The court next conceded that Raskin's affidavit demonstrated attempted compliance.¹³ The court even conceded that

given Dr. Morgan's [trial] testimony that Raskin's doctor should have immediately hospitalized him when he made the death threats against his wife and warned Mrs. Raskin as well as the fact that Dr. Morgan gave the factual basis for this opinion, it is likely that Raskin's complaint against Wallace is not frivolous.¹⁴

At this point, one would expect the court to hold that Raskin's complaint stated a claim in keeping with the liberal construction of pleadings under the Civil Practice Act. But this was not the case.

Notwithstanding the fact that Raskin's complaint appeared meritorious and that his pleadings under Gadd ought to be liberally construed, the court focused upon the technical wording of the statute.¹⁵ The court held that because O.C.G.A. section 9-11-9.1 requires an affidavit of an "expert competent to testify," and the affidavit the plaintiff filed (his own) was not such an affidavit, the complaint was properly dismissed.¹⁶

The court never explained why it focused on the technical aspect of the statutory language "expert competent to testify," when the claim was admittedly not frivolous, yet be so liberal and accepting of compliance with merely the spirit of the statute with respect to the term affidavit in McDaniel.¹⁷ It is impossible to explain this distinction. Dr. Morgan was, in fact, an expert competent to testify.¹⁸ It seems the court of appeals dismissed the claim because the affidavit was not that of Dr. Morgan. If this were true, cases like McDaniel would appear to be indistinguishable. The court likewise never addressed the obvious question: How would a plaintiff in Raskin's position, with a claim that at least appeared meritorious on its face, go about asserting it?

Four months later, the court of appeals decided Sisk, a malpractice action wherein the plaintiff filed a facsimile copy of his expert's affidavit with his complaint. The defendant moved to dismiss arguing that Sisk's facsimile copy of his expert's affidavit was not an affidavit as required by the statute. The trial court agreed and dismissed Sisk's complaint.¹⁹

Reversing the trial court, the court of appeals again first turned to Gadd.²⁰ If the claim appeared to be non-frivolous, the pleadings would be liberally construed.²¹ Since the facsimile copy demonstrated, and the defendant did not dispute, that an expert deemed the action to have factual merit, "no question of frivolity" existed.²² The court was thus free to liberally construe the statute.²³

In connection with that liberal construction, the court noted that an affidavit is subject to stricter evidentiary requirements at the summary judgment stage than at the pleading stage.²⁴ An affidavit that would be insufficient at the summary judgment stage could be sufficient at the pleading stage "when justice so requires."²⁵

As if for good measure, the court disavowed its recent holding in Brown v. Middle Georgia Hospital,²⁶

which would require application of the [Renewal Statute] in those instances in which a facsimile was filed, rendering the filing of a facsimile an amendable defect. Under [the Renewal Statute] the original affidavit would have had to have been in the physical possession of counsel at the time of filing, and the facsimile filed as a result of a mistake.²⁷

According to the court,

the better approach should be to allow the filing of a facsimile of a properly executed affidavit with a complaint in a professional malpractice action so as to avoid the running of the statute of limitation. Then the original should be allowed to be filed as a supplemental pleading, without requiring the action to be "renewed."²⁸

It seems that at least as far as the court of appeals is concerned, the term "affidavit" is to be more liberally construed than the phrase "expert competent to testify."²⁹ As illogical as it seems, had Mr. Raskin simply filed no affidavit at all and merely attached the pertinent copies of Dr. Morgan's trial transcript, under McDaniel³⁰ and Sisk, these materials would have constituted as much of an affidavit as the deposition in McDaniel and the facsimile in Sisk. Conversely, if the plaintiffs in McDaniel and Sisk had filed their own personal affidavits incorporating the deposition and the facsimile, according to the rationale in Raskin, those cases would have been properly dismissed. Obviously, such hairsplitting is illogical if in both cases the court was truly liberally construing the statute so as to do justice.

When is an Expert "Competent to Testify"? It is well established that a malpractice affidavit must be that of an expert competent to testify³¹ and that the court of appeals may not be as willing to liberally construe that language.³² What if your expert is a teacher and not a practitioner? According to the court of appeals, the plaintiff should secure another expert.³³ In Riggins v. Wyatt³⁴ the court of appeals held that a professor who is not licensed to practice and who does not practice within his area of expertise is incompetent to testify against a practitioner.³⁵ Accordingly, an affidavit from such a professor, regardless of his credentials reflecting extensive education and training, is not sufficient to satisfy O.C.G.A. section 9-11-9.1.³⁶

Content: To Incorporate or not to Incorporate, that is the Question? Once a practitioner has obtained the opinion of an expert competent to testify, as is required before suit is filed, the issue arises as to how much...