Thomas v. Gastroenterology Assocs. of Gainesville PC

Plaintiff's medical malpractice action was improperly dismissed for failure to cure the defect in the professional affidavit, since the plaintiff's expert affidavit satisfied the requirements of O.C.G.A. § 9-11-9.1, even though the notary who attested the affidavit's commission had expired.

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This Court granted certiorari to the Court of Appeals in Thomas v. Gastroenterology Assoc. of Gainesville , 273 Ga. App. 618 616 SE2d 455 2005, to determine whether an expert’s affidavit can satisfy the requirements of OCGA § 9-11-9.1 when the commission of the notary who attested the affidavit had expired. The short answer is “yes.” The facts giving rise to this appeal are as follows: On December 15, 2003, plaintiff filed a medical malpractice suit against a physician, his practice group, and a hospital, alleging that her husband died as a result of defendants’ professional negligence. She attached the affidavit of Dr. Brian D. Clarke to the suit. Dr. Clarke executed the affidavit in Indiana on October 28, 2003. The affidavit was notarized by Marilyn Sikkink, a notary public. The notarization was accompanied by a notary stamp which read: “My Commission Expires: October 8, 2003.” On January 8, 2004, the physician and his practice group moved to dismiss the complaint, asserting that the expert’s affidavit was invalid. Five days later, on January 13, a motion to dismiss was filed by the hospital. In its motion, the hospital expressly argued that the affidavit was invalid because it was not “signed in the presence of a notary public authorized by law to so act because the commission had expired.”

Following the motion to dismiss, Ms. Sikkink initially reassured Dr. Clarke that she had completed her paperwork and that her commission had been extended for another five years. However, Ms. Sikkink subsequently learned that she was mistaken and that her commission had, in fact, expired.

Thomas v. Gastroenterology Assocs. of Gainesville PC

Plaintiff's medical malpractice action was improperly dismissed for failure to cure the defect in the professional affidavit, since the plaintiff's expert affidavit satisfied the requirements of O.C.G.A. § 9-11-9.1, even though the notary who attested the affidavit's commission had expired.

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