In Georgia, a complaint seeking damages for professional malpractice under OCGA§ 9-11-9.1(a) requires the plaintiff “to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent actor omission claimed to exist and the factual basis for each such claim.” ”Failure to attach the required affidavit subjects the complaint to dismissal with prejudice for failure to state a claim.”
Nonetheless, the Georgia law provides a safe harbor provision: “The contemporaneous affidavit filing requirement pursuant to subsection (a) of this Code section shall not apply to any case in which the period 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 the complaint and, because of time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, if the attorney for the plaintiff files with the complaint an affidavit in which the attorney swears or affirms that his or her law firm was not retained by the plaintiff more than 90 days prior to the expiration of the period of limitation on the plaintiff’s claim or claims, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.” OCGA§ 9-11-9.1(b).
In a medical malpractice case that the Court of Appeals of Georgia decided on May 19, 2025, the issue was whether the safe harbor provision in OCGA§ 9-11-9.1(b) applies when an original complaint includes an expert affidavit but a renewed complaint, filed prior to the expiration of the statute of limitation by a different attorney and law firm hired less than 90 days before expiration of the statute of limitation, adds defendants not included in the original complaint or expert affidavit.
The Georgia appellate court stated: “It is undisputed that Hill [plaintiff’s former lawyer who filed the original complaint] did not file a notice of appearance in the renewal action in this case. It is also clear that, contrary to the defendants’ arguments, Hill did not file “a signed pleading in a pending action.” (Emphasis supplied.) USCR4.2. The original complaint signed by Hill and filed in the prior action is merely an exhibit attached to the complaint in this pending renewal action … we do not find that OCGA§ 9-11-9.1(b)’s use of the phrase “any attorney who appears on the pleadings” includes an instance where a former attorney has signed a prior, dismissed complaint that is attached as an exhibit in a renewal action filed by a different law firm … The fact that a renewal action is a new action, and the procedural requirements in such action must be met anew, buttresses our conclusion that Hill’s hiring and filing of pleadings in the original complaint does not foreclose the Buttons’ use of the safe harbor provision in this renewal action filed by Taylor.”
The Georgia appellate court concluded: “In summary, the Buttons’ renewed complaint properly stated the requirements of the safe harbor provision in OCGA§ 9-11-9.1(b), and their timely filing of the amended renewal complaint, attaching an expert affidavit opining that Joseph committed professional malpractice, complies with the statutory language and legislative intent of OCGA§ 9-11-9.1. The trial court did not err in denying Joseph’s and SRMC’s motions to dismiss.”
Source Joseph v. Button, A25A0517.
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