Sisk v. Patel

456 S.E.2d 718, 217 Ga. App. 156
CourtCourt of Appeals of Georgia
DecidedMarch 31, 1995
DocketA94A1929
StatusPublished
Cited by18 cases

This text of 456 S.E.2d 718 (Sisk v. Patel) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sisk v. Patel, 456 S.E.2d 718, 217 Ga. App. 156 (Ga. Ct. App. 1995).

Opinions

Johnson, Judge.

On June 7,1991, an x-ray of Sisk’s chest was taken at a Veteran’s Administration medical facility. Physician Patel interpreted it as [157]*157showing no abnormalities. Later examination of Sisk’s chest revealed a mass that proved to be a squamous cell lesion; review of the June 7, 1991 x-ray suggested the mass was visible at that time.

Sisk filed a claim under the Federal Tort Claims Act, attaching an affidavit from Dr. Scheer as required. Uncertain over Patel’s employment status, Sisk also sued him in superior court, alleging medical malpractice. Recognizing the need for an expert affidavit asserting malpractice to comply with OCGA § 9-11-9.1, Sisk requested Dr. Scheer to execute and supply another affidavit, identical in wording to the first.

The superior court complaint was filed on June 7, 1993, exactly two years after the x-ray in question. At that time, Sisk did not have an affidavit from Dr. Scheer in hand, but he had a facsimile copy of one and Dr. Scheer’s assurance that the original would be forwarded. Rather than allege in his complaint that an affidavit “could not be prepared” under OCGA § 9-11-9.1 (b), which would have resulted in an automatic 45-day extension to file the affidavit,1 Sisk filed his complaint with the facsimile of the affidavit, stating the necessary affidavit was attached. When Dr. Scheer’s affidavit arrived at the office of Sisk’s counsel the next day, it was not filed with the court but placed in a file in counsel’s office.

Patel responded and contended that the complaint failed to comply with OCGA § 9-11-9.1. On March 21, 1994, Patel moved to dismiss for failure to state a claim, OCGA § 9-11-12 (b) (6), based upon the failure to submit an expert’s affidavit. See OCGA § 9-11-9.1 (e). On March 28, without a response from Sisk being filed, the court granted dismissal, noting that the original affidavit had not been filed and that the record was devoid of any suggestion that its absence was due to a mistake. See OCGA § 9-11-9.1 (e). On April 1, 1994, Sisk moved to set aside-the dismissal and included the affidavit of Sisk’s counsel setting forth the reasons the original affidavit was not filed and including the original. The brief in support of the motion included a request that Sisk be permitted to amend his complaint to include the original affidavit. The motion was denied. The court noted that Sisk had not availed himself of the benefits of the procedure set forth in OCGA § 9-11-9.1 (b), designed to protect plaintiffs with difficulties such as his, nor had he moved the court for a determination under OCGA § 9-11-9.1 (e) that the affidavit was available when the complaint was filed and its absence was due to mistake.

Sisk filed his notice of appeal contending that there are two issues to be determined: whether the facsimile of the affidavit satisfies [158]*158the requirements of OCGA § 9-11-9.1, and if not, whether amendment should be permitted when the affidavit existed at the time of submission, as shown by the existence of a facsimile, even though the original was not in the plaintiff’s possession.

The Supreme Court has held that “since § 9-11-9.1 establishes an ‘ “exception to the general liberality of pleading permitted under (the Civil Practice Act, OCGA § 9-11-1 et seq.)” [cit.],’ [cit.], 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 § 9-11-9.1 ‘to reduce the number of frivolous malpractice suits being filed,’ [cit.].” Gadd v. Wilson & Co., Engineers &c., 262 Ga. 234, 235 (416 SE2d 285) (1992). There is no question that the purpose of OCGA § 9-11-9.1 is satisfied by the facsimile affidavit Sisk submitted; it is evidence that an expert deems the action to have factual merit, and Patel has made no challenge to the genuineness of the affidavit. “When viewed from this perspective, no question of frivolity could arise from absence of [an original].” Gadd, supra at 235. As the purpose of OCGA § 9-11-9.1 is not offended by the facts of this case, we are required by Gadd to construe the section liberally.

Sisk argues that the existence of a facsimile of the affidavit establishes its existence and shows it is “available,” within the meaning and purpose of the statute. We agree. There can be no facsimile if there is no original. As an affidavit under OCGA § 9-11-9.1 must meet the more generous standards of a pleading requirement rather than those of an evidentiary requirement, Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992), it can be considered “available” within the meaning of OCGA § 9-11-9.1 (e) when it is in existence and acquirable by plaintiff, even though not physically in the plaintiff’s possession, as here.

The Supreme Court recently declined to require letter-perfect compliance with procedural requirements in a medical malpractice case. In Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994), uncertified copies of office and hospital records were attached to an affidavit submitted by plaintiffs’ expert in response to a motion for summary judgment. The Court held that this defect was cured when the defendant doctor acknowledged the authenticity of the records at his deposition, which was subsequently filed with the challenged documents included as exhibits. “Under the[se] circumstances, those records should not be ignored for lack of certification. [Cit.] It is the policy of this Court whenever possible to seek ‘substantial justice and judicial economy rather than strict compliance with procedural technicalities.’ [Cit.]” Paulin, supra at 605.

We recognize that the affidavit at issue in Paulin was submitted in connection with a motion for summary judgment, and held to a stricter standard, than to satisfy the requirements of OCGA § 9-11-[159]*1599.1. “Unlike OCGA § 9-11-56

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Sisk v. Patel
456 S.E.2d 718 (Court of Appeals of Georgia, 1995)

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Bluebook (online)
456 S.E.2d 718, 217 Ga. App. 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sisk-v-patel-gactapp-1995.