Medical malpractice cases in Georgia, including those alleging that negligent medical care caused a death, are subject to a special pleading rule that does not apply to ordinary lawsuits. A plaintiff generally must file an expert affidavit along with the complaint. This guide explains what that requirement is, where it comes from, and how it works.
The Source of the Requirement
The expert affidavit requirement is found in O.C.G.A. Section 9-11-9.1, a section of Georgia’s Civil Practice Act. It applies to actions for damages alleging professional malpractice. For medical malpractice claims, including a wrongful death claim based on alleged medical negligence, the statute requires that the complaint be accompanied by an affidavit from a qualified expert.
The purpose of the rule is to require, at the outset of a malpractice case, a sworn statement from a competent expert indicating that there is a professional basis for the claim.
What the Affidavit Must Contain
Under O.C.G.A. Section 9-11-9.1, the affidavit must be executed by an expert who is competent to testify, and it must set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.
In practice, a properly prepared affidavit identifies the expert and the basis for the expert’s competence, identifies at least one specific way in which the defendant is alleged to have departed from the applicable standard of care, and states the factual basis supporting that opinion. The affidavit does not need to lay out every theory in the case, but it must specifically describe at least one claimed negligent act or omission.
Who Can Serve as the Expert
The affidavit must come from an expert who is competent to testify in the case. Georgia law on the competency of expert witnesses in professional malpractice actions, found in O.C.G.A. Section 24-7-702, sets out qualification standards for experts who testify about the standard of care.
For an expert opining on a physician’s care, those standards generally require that the expert have actual professional knowledge and experience in the relevant area, gained through active practice or teaching during a specified portion of the years preceding the events at issue. Georgia law has been interpreted to require, in many medical contexts, that the expert have been actively practicing or teaching in the relevant field during at least three of the last five years before the alleged negligence. The expert’s qualifications must match the kind of care and the kind of practitioner at issue in the case.
The Limited Grace Period Exception
O.C.G.A. Section 9-11-9.1 includes a narrow exception to the rule that the affidavit must be filed at the same time as the complaint. This exception addresses the situation where the statute of limitations is about to expire.
Under the statute, the contemporaneous filing requirement does not apply if the limitations period will expire, or there is a good faith basis to believe it will expire, within ten days of filing the complaint, and time constraints prevented preparation of the affidavit. In that situation, if the plaintiff’s attorney files an affidavit stating that the law firm was not retained more than ninety days before the limitations period expired, the plaintiff is given forty-five days after filing the complaint to supplement the pleadings with the expert affidavit.
This exception is limited and specific. Outside of that narrow circumstance, the expert affidavit is expected to accompany the complaint.
Consequences of Not Complying
The affidavit requirement is treated as a substantive pleading requirement in Georgia malpractice litigation. When a complaint subject to O.C.G.A. Section 9-11-9.1 is filed without the required affidavit, and no recognized exception applies, the defendant may challenge the complaint, and the lack of a compliant affidavit can lead to dismissal. Georgia courts have generated a considerable body of decisions addressing when the requirement applies, what counts as a sufficient affidavit, and how defects can or cannot be cured. Because of this, the application of the rule in any particular case can be detailed and fact specific.
How It Fits With the Wrongful Death Claim
A wrongful death claim based on medical negligence is, at its core, a professional malpractice claim, so the expert affidavit requirement applies to it. The affidavit speaks to the alleged negligent medical act or omission. The wrongful death framework, found in O.C.G.A. Section 51-4-1 and following, governs who may bring the claim and what may be recovered, while O.C.G.A. Section 9-11-9.1 governs the pleading step of attaching expert support. The two requirements operate together: the malpractice element must be supported by an expert affidavit, and the wrongful death statutes determine the surrounding rights and recovery.
Summary
In Georgia, a medical malpractice wrongful death case generally must be filed with an expert affidavit under O.C.G.A. Section 9-11-9.1. The affidavit must come from an expert competent to testify and must specifically identify at least one negligent act or omission and its factual basis. A narrow grace period exists when the limitations period is about to expire, allowing a short extension to supplement the affidavit. Failure to comply with the requirement, where no exception applies, can result in dismissal of the complaint.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.