Tuesday, May 14, 2013

If a plaintiff fails to file an affidavit and that failure is raised by motion to dismiss filed contemporaneously with the initial responsive pleadings, the complaint is subject to dismissal. If an affidavit is not filed with the complaint, a plaintiff may not dismiss the lawsuit and refile the case after the expiration of the statute of limitations and obtain the benefit of the renewal statute, unless the court makes a determination that the affidavit was available and not filed due to a mistake. The failure to attach the affidavit is generally not an amendable defect. If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice. Since the renewal privilege under OCGA 9-2-61 does not apply to cases decided on the merits, once a case is dismissed for the failure to attach an affidavit, it will not be subject to renewal. A mistake of law as to whether the affidavit should be filed may not be a mistake for purposes of this subsection, at least one case has held that an affidavit can be available if it is in existence and acquirable by the plaintiff, as opposed to being in the actual possession of the plaintiff. In 2005, the Gen. Assembly added an additional medical negligence filing requirement. As of February 16, 2005 all medical negligence complaint must include a contemporaneously filed medical authorization. The language of the new statute mirrors the language of OCGA 9-11-9.1 with respect to the types of matters that require authorization and also specifically encompasses actions against entities that base liability on the conduct of a medical professional. OCGA 9-11-9.2 is unenforceable. The Georgia Supreme Court held that the medical authorization provision fails to meet the requirements of the federal HIPPA provision, and hence it is unenforceable. Contact an Atlanta DUI lawyer if you are charged with a statute that is unconstitutional.

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