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Procter v. Gwinnett Pulmonary Group PC

OCGA § 9-11-9.1 a does not require the contemporaneous filing of an expert affidavit in professional malpractice claims asserted against technicians.

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Sharon R. Procter appeals from the trial court’s dismissal of her medical malpractice and negligence claims filed against Gwinnett Pulmonary Group, P.C. & Associates, Dr. Sarah J. Hayat, and Shelly Hilliard “the Defendants” on the ground that Procter failed to timely file an expert affidavit pursuant to OCGA § 9-11-9.1. For the reasons that follow, we affirm in part and reverse in part. Procter filed a pro se complaint against the Defendants, contending that on January 8, 2008, the Defendants violated the standard of care when Hilliard administered to Procter a drug via a bronchonebulizer, which caused Procter to lose her voice. After filing her complaint on January 8, 2010, Procter filed a motion for extension to file an expert affidavit pursuant to OCGA § 9-11-9.1, which affidavit Procter later filed on February 8, 2010. The Defendants answered and moved to dismiss Procter’s claims on the basis that she had failed to file contemporaneously with her complaint the expert affidavit.

Procter, now represented by counsel, appeals the trial court’s dismissal of her claims. “A motion to dismiss should only be granted if the allegations of the complaint, when construed in the light most favorable to the plaintiff with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.”1

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