Comprehensive Pain Management v. Blakely

The trial court erred in denying the defendants' motion to dismiss the plaintiff's medical malpractice suit with prejudice, since the plaintiff failed to file the requisite expert affidavit contemporaneously with the original complaint.

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Comprehensive Pain Management, Rajesh Patel, and Tamara Harris seek interlocutory review of the trial court’s order denying their motion to dismiss this medical malpractice action and allowing Barbara Blakely to amend the complaint she filed against them to add an expert affidavit omitted from the initial complaint. Because the trial court erred, we reverse. The relevant facts show that on September 17, 2010, Blakely filed a medical malpractice action against the appellants, alleging that their negligence in prescribing medication and failing to monitor her health resulted in damage to her liver. Although the complaint indicated that the affidavit of expert witness Tanya Jones was attached to the complaint, the affidavit was omitted. On October 14, 2010, the appellants pointed out in their answer the fact that no expert affidavit had been filed and simultaneously moved to dismiss the action based upon Blakely’s failure to comply with OCGA § 9-11-9.1. In response, Blakely filed a pleading requesting that the appellants’ motion to dismiss be denied and that she be permitted to amend the complaint; she attached to her response the affidavit —which was not notarized until October 18, 2010, after the complaint and answer had been filed. The trial court then issued an order denying the appellants’ motion and permitting the complaint to be amended with the affidavit.

“A motion to dismiss based upon the lack of an expert affidavit is a motion to dismiss for failure to state a claim under OCGA § 9-11-12 b 6. On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in her favor.”1

Comprehensive Pain Management v. Blakely

The trial court erred in denying the defendants' motion to dismiss the plaintiff's medical malpractice suit with prejudice, since the plaintiff failed to file the requisite expert affidavit contemporaneously with the original complaint.

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