Cynthia Bardo sued Jonathan L. Liss, M.D. in a complaint which alleged that, as a result of Dr. Liss’s professional and ordinary negligence, she suffered injuries when she fell from an examination table in Dr. Liss’s medical office. The suit also named Dr. Liss’s professional corporation, Jonathan L. Liss, M.D., P.C. Liss P.C., as a defendant, and included a loss of consortium claim against the defendants by Bardo’s husband. Dr. Liss and Liss P.C. filed a motion to dismiss the complaint on the basis that the Bardos failed to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1. The trial court granted the motion and dismissed the complaint and the Bardos appeal. For the following reasons, we affirm the trial court’s dismissal of the complaint. It is undisputed that, when the Bardos filed their complaint against Dr. Liss and Liss P.C., they failed to file the expert affidavit required by OCGA § 9-11-9.1 in actions seeking damages for professional negligence. Contemporaneously with their initial responsive pleading, Dr. Liss and Liss P.C. filed a motion to dismiss the complaint on the basis that the Bardos failed to file the required affidavit with the complaint. The brief in support of the motion noted that the complaint characterized the alleged negligence as both professional and ordinary negligence and sought dismissal of the entire complaint on the basis that the complaint stated a claim for professional negligence; that the required expert affidavit was not filed with the complaint; and that the failure to file the affidavit cannot be cured by amendment. In response, the Bardos argued only that they had the required expert affidavit in their possession when the original complaint was filed; that they mistakenly failed to file it with the original complaint; and that they cured the failure by filing the required expert affidavit with an amendment to the complaint. The trial court entered an order granting the motion which reads in its entirety: “Defendants’s Motion to Dismiss is hereby Granted.”
1. The Bardos contend their complaint stated claims based on ordinary negligence and that the trial court erred by dismissing the ordinary negligence claims.
