Schofill v. Phoebe Putney Health Sys. Inc.

O.C.G.A. § 9-11-9.1 e applies specifically to amended affidavits filed in response to a motion to dismiss based on defects in a previously filed affidavit, and gives the trial court discretion to extend the time for filing as justice requires, without a showing of excusable neglect as required by § 9-11-6 b.

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On October 22, 2010, Bernie Schofill filed a medical malpractice action against Phoebe Putney Health Systems, Inc., d/b/a Phoebe Convenient Care, seeking to recover for injuries he allegedly received when a nurse at the health facility negligently administered an intramuscular injection. Pursuant to OCGA § 9-11-9.1, Schofill also filed the affidavit of a registered nurse Jeinnie Avera, who opined, inter alia, that the nurse who administered the shot breached the standard of care “by going beyond the anatomical landmark range to safely administer the IM injection at the dorsogluteal site.” A few weeks later, Schofill filed an amendment to his complaint, attaching Avera’s curriculum vitae, which he said was inadvertently omitted when he filed the original complaint. Defendant answered and filed a motion to dismiss, contending that the affidavit Schofill filed with his complaint did not meet the requirements of OCGA § 9-11-9.1 or OCGA § 24-9-67.1 c, specifically that Avera lacked actual professional knowledge in rendering care under circumstances similar to those forming the basis of the malpractice action in this case. Schofill responded and raised various arguments, including that the filed affidavit and curriculum vitae were sufficient to satisfy the requirements of both 9-11-9.1 and 24-9-67.1.

Although we do not have a transcript of the hearing on the motion, it is undisputed that a hearing was held and that subsequent to that hearing, on May 2, 2011, Schofill filed an amended affidavit from Nurse Avera. On May 4, 2011, defendant filed a motion to exclude or strike the amended affidavit on the basis that it was not timely filed. Schofill filed a response on May 5, 2011, contending that, pursuant to OCGA § 9-11-9.1 e, the trial court had discretion to consider the amended affidavit even though it was filed more than 30 days after defendant’s motion to dismiss.

Schofill v. Phoebe Putney Health Sys. Inc.

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