Waters v. Stewart

587 S.E.2d 307, 263 Ga. App. 195, 2003 Fulton County D. Rep. 2862, 2003 Ga. App. LEXIS 1160
CourtCourt of Appeals of Georgia
DecidedSeptember 12, 2003
DocketA03A1447
StatusPublished
Cited by1 cases

This text of 587 S.E.2d 307 (Waters v. Stewart) 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
Waters v. Stewart, 587 S.E.2d 307, 263 Ga. App. 195, 2003 Fulton County D. Rep. 2862, 2003 Ga. App. LEXIS 1160 (Ga. Ct. App. 2003).

Opinion

Eldridge, Judge.

This is a medical malpractice action. Donald Waters, M.D., appeals from the Superior Court of Ware County’s denial of Waters’ motion to dismiss, which motion was premised upon Charles and Catherine Stewart’s alleged failure to comply with the pleading requirements of OCGA § 9-11-9.1 (b). Waters argues that the Stewarts failed to introduce any evidence to support their OCGA § 9-11-9.1 claim that “an affidavit [of an expert] could not be prepared,” and thus, dismissal was required pursuant to our recent decision in Smith v. Morris, Manning & Martin1 (“Smith”). Waters also argues that the complaint, unaccompanied by an expert affidavit, was filed eleven days from the running of the statute of limitation, and thus, the Stewarts could not avail themselves of the OCGA § 9-11-9.1 (b) 45-day extension applicable when a statute of limitation is to run “within ten days of the date of filing.”2

We granted Waters’ application for interlocutory appeal in order to address an issue he raises by brief regarding a perceived inconsistency between Smith and another recent opinion of this Court, Ga. Dermatology Clinic v. Nesmith3 (“Nesmith”). For the reasons that follow, we find that Nesmith and Smith are distinguishable on their facts, and thus, the law as applied to each was not inconsistent. We further find that the facts which controlled the outcome in Smith are not present in the instant case, and thus, Smith is not applicable herein. In addition, the record supports the conclusion that the Stewarts filed their original complaint within the ten-day computation period contemplated by OCGA § 9-11-9.1 (b) so as to make applicable the 45-day extension provided by that statute. Accordingly, we affirm the ruling of the court below.

1. Under OCGA § 9-11-9.1 (a) as it applies to this case, the rule is that a malpractice action filed against a doctor must be accompanied by an expert affidavit setting forth a factual basis for the lawsuit. OCGA § 9-11-9.1 (b), however, provides an exception to this rule:

The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the [196]*196period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.4

This is a pleading requirement.5 And in Nesmith, supra, we recognized that this two-prong pleading requirement is met by the use of the statutorily mandated language stated above. Thus, if a plaintiff pleads (1) that the statute of limitation will expire within ten days, and (2) that because of time constraints an expert affidavit could not be prepared, this is sufficient to trigger the 45-day extension to the contemporaneous filing requirement of OCGA § 9-11-9.1 (a). After following the statute’s pleading requirements, the 45-day extension has been referred to as “automatic.”6 In Nesmith, we specifically rejected the idea that the legislatively mandated pleading requirement of OCGA § 9-11-9.1 (b) somehow carries with it an evidentiary burden:

[Defendants] ask this Court to usurp the legislature’s prerogative and to rewrite the statutory pleading rules in subsection (b) of OCGA § 9-11-9.1 to impose two additional requirements: that a plaintiff must demonstrate that she acted in “good faith” to avail herself of the automatic extension and that a plaintiff must show that the inability to contemporaneously file an expert affidavit was not unjustifiable.7

In Nesmith, we refused to create such evidentiary burden out of whole cloth when OCGA § 9-11-9.1 (b), by its plain and unambiguous terms, speaks solely to procedural burdens. We affirmed the trial court’s denial of defendant’s motion to dismiss.

But the issue does not end here. Laws, procedural or substantive, do not exist in a vacuum. This Court is always vigilant about [197]*197ensuring that an exception does not mechanistically swallow a rule. As cogently recognized by then Chief Judge Beasley in her special concurrence in Works v. Aupont,8 if the pleading requirement of OCGA § 9-11-9.1 (b) is read completely without discernment, there would be an automatic 45-day extension whenever a statute of limitation expires within ten days of the filing of a malpractice complaint; in which case, there would be no need for the pleading requirements authorized by the statute. “We are compelled to attribute meaning to all parts of a statute.”9

Accordingly, in Smith, supra, this Court recognized that the two-prong pleading requirement of OCGA § 9-11-9.1 (b) should not “automatically” trigger the 45-day extension when the record on its face plainly contradicts the pleading that time constraints prevented the affidavit from being prepared for contemporaneous filing with the complaint:

In this case, the trial court’s determination that [the OCGA § 9-11-9.1 (b) pleading] was patently false and a sham pleading is amply supported by the record, which clearly shows that time constraints did not prevent the affidavit from being filed with the complaint.10

Our holding in Smith recognized that a pleading which appears obviously inaccurate from the face of the record cannot simply be ignored by the trial court, and that the “automatic” 45-day extension evoked by pleading in the form contemplated by OCGA § 9-11-9.1 (b) in no way circumvents a paramount duty to plead “consistent with truth,”11

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Related

Bell v. Phoebe Putney Health System, Inc.
614 S.E.2d 115 (Court of Appeals of Georgia, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
587 S.E.2d 307, 263 Ga. App. 195, 2003 Fulton County D. Rep. 2862, 2003 Ga. App. LEXIS 1160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waters-v-stewart-gactapp-2003.