07 LC 29
2736S/AP
House
Bill 221 (AS PASSED HOUSE AND SENATE)
By:
Representatives Heard of the
104th
and Willard of the
49th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 3 of Chapter 11 of Title 9 of the Official Code of Georgia
Annotated, relating to pleadings and motions, so as to change certain provisions
regarding when an affidavit is required to accompany an action for damages
alleging professional malpractice; to provide procedures for the filing of an
affidavit under certain circumstances; to provide for the timing of a
defendant´s answer under certain circumstances; to correct a
cross-reference; to provide for an effective date and applicability; to provide
for related matters; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
3 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, relating
to pleadings and motions, is amended by revising Code Section 9-11-9.1, relating
to the affidavit required to accompany charges of professional malpractice, as
follows:
"9-11-9.1.
(a)
In any action for damages alleging professional malpractice
against:
(1)
A
a
professional licensed by the State of Georgia and listed in subsection
(d)(g)
of this Code section;
(2)
A domestic or foreign partnership, corporation, professional corporation,
business trust, general partnership, limited partnership, limited liability
company, limited liability partnership, association, or any other legal entity
alleged to be liable based upon the action or inaction of a professional
licensed by the State of Georgia and listed in subsection (g) of this Code
section; or
against
any
(3)
Any licensed health care facility alleged
to be liable based upon the action or inaction of a health care professional
licensed by the State of Georgia and listed in subsection
(d)(g)
of this Code section,
the
plaintiff shall be required to file with the complaint an affidavit of an expert
competent to testify, which affidavit shall set forth specifically at least one
negligent act or omission claimed to exist and the factual basis for each such
claim.
(b)
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. The
trial court shall not extend such time for any reason without consent of all
parties. If either affidavit is not filed within the periods specified in this
Code section, or it is determined that the law firm of the attorney who filed
the affidavit permitted in lieu of the contemporaneous filing of an expert
affidavit or any attorney who appears on the pleadings was retained by the
plaintiff more than 90 days prior to the expiration of the period of limitation,
the complaint shall be dismissed for failure to state a claim.
(c)
This Code section shall not be construed to extend any applicable period of
limitation, except that if the affidavits are filed within the periods specified
in this Code section, the filing of the affidavit of an expert after the
expiration of the period of limitations shall be considered timely and shall
provide no basis for a statute of limitations defense.
(d)
If a complaint alleging professional malpractice is filed without the
contemporaneous filing of an affidavit as permitted by subsection (b) of this
Code section, the defendant shall not be required to file an answer to the
complaint until 30 days after the filing of the affidavit of an expert, and no
discovery shall take place until after the filing of the answer.
(b)(e)
If a plaintiff files an affidavit which is allegedly defective, and the
defendant to whom it pertains alleges, with specificity, by motion to dismiss
filed on or before the close of discovery, that said affidavit is defective, the
plaintiff´s complaint
is
shall
be subject to dismissal for failure to
state a claim, except that the plaintiff may cure the alleged defect by
amendment pursuant to Code Section 9-11-15 within 30 days of service of the
motion alleging that the affidavit is defective. The trial court may, in the
exercise of its discretion, extend the time for filing said amendment or
response to the motion, or both, as it shall determine justice
requires.
(c)(f)
If a plaintiff fails to file an affidavit as required by this Code section and
the defendant raises the failure to file such an affidavit by motion to dismiss
filed contemporaneously with its initial responsive pleading, such complaint
shall not be subject to the renewal provisions of Code Section 9-2-61 after the
expiration of the applicable period of limitation, unless a court determines
that the plaintiff had the requisite affidavit within the time required by this
Code section and the failure to file the affidavit was the result of a
mistake.
(d)(g)
The professions to which this Code section
applies
shall
apply are:
(1)
Architects;
(2)
Attorneys at law;
(3)
Audiologists;
(4)
Certified public accountants;
(5)
Chiropractors;
(6)
Clinical social workers;
(7)
Dentists;
(8)
Dietitians;
(9)
Land surveyors;
(10)
Marriage and family therapists;
(11)
Medical doctors;
(12)
Nurses;
(13)
Occupational therapists;
(14)
Optometrists;
(15)
Osteopathic physicians;
(16)
Pharmacists;
(17)
Physical therapists;
(18)
Physicians´ assistants;
(19)
Podiatrists;
(20)
Professional counselors;
(21)
Professional engineers;
(22)
Psychologists;
(23)
Radiological technicians;
(24)
Respiratory therapists;
(25)
Speech-language pathologists; or
(26)
Veterinarians."
SECTION
2.
Said
article is further amended by revising subsection (a) of Code Section 9-11-9.2,
relating to medical authorization forms and review of protected health
information, as follows:
"(a)
In any action for damages alleging medical malpractice against a professional
licensed by the State of Georgia and listed in subsection
(d)(g)
of Code Section 9-11-9.1, against a professional corporation or other legal
entity that provides health care services through a professional licensed by the
State of Georgia and listed in subsection
(d)(g)
of Code Section 9-11-9.1, or against any licensed health care facility alleged
to be liable based upon the action or inaction of a health care professional
licensed by the State of Georgia and listed in subsection
(d)(g)
of Code Section 9-11-9.1, contemporaneously with the filing of the complaint,
the plaintiff shall be required to file a medical authorization form. Failure
to provide this authorization shall subject the complaint to
dismissal."
SECTION
3.
This
Act shall become effective on July 1, 2007, and shall apply to any action filed
on or after July 1, 2007.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.