Appearing pro se, Peter Peck appeals the trial court’s dismissal of his medical malpractice action for failure to file a medical expert affidavit as required by OCGA § 9-11-9.1. Peck argues that the trial court erred in dismissing the complaint because he filed it pro se, because the statute was unconstitutionally applied to him, and because he filed his medical expert affidavit within 45 days of filing the complaint. We find no error and affirm. On November 7, 2007, Peck filed a pro se complaint against Dr. Andrew Bishop and his professional corporation “the defendants” alleging medical malpractice in connection with Peck’s left knee replacement surgery on November8, 2005. Although he had retained counsel in the matter in September 2006, Peck’s complaint attached neither a medical expert affidavit nor an affidavit from an attorney to the complaint. See OCGA § 9-11-9.1 a requiring medical expert’s affidavit to be filed with the complaint, b in the alternative, requiring an attorney’s affidavit affirming that the latter was not retained more than 90 days before the expiration of the limitation period and that a medical expert affidavit could not be prepared “because of time constraints”. Instead, Peck moved for an additional 45 days to file the required expert affidavit, which he filed on December 26 without obtaining a ruling on his motion for extension.
The defendants raised the defense of failure to comply with OCGA § 9-11-9.1 in their answer and moved to dismiss on that basis. The trial court granted the motion to dismiss on the ground that Peck was not permitted a 45-day extension because he did not file the medical expert affidavit and had retained an attorney more than 90 days before his request for an extension. Peck now appeals.
