Garland Fisher, as Temporary Administrator of the Estate and surviving spouse of Jo Ann Fisher, filed this wrongful death and survival action based on medical malpractice against Coffee Regional Medical Center, Inc., Cheng H. Lin, M. D., Frederick G. Panico, M. D., George F. Egolf, CRNA and Douglas Woman’s Clinic, P. C. on March 17, 2003. Fisher did not attach an expert affidavit to his complaint as required by OCGA § 9-11-9.1 a, but he did invoke the provisions of OCGA § 9-11-9.1 b, which automatically allows an additional 45 days to file an expert affidavit when the statute of limitations will expire, or a good faith belief exists that it will expire, within ten days of the filing of the complaint. Defendants answered, and moved to dismiss the complaint for failure to comply with OCGA § 9-11-9.1. On April 23, 2003, Fisher amended his complaint to attach his expert affidavit. Fisher also filed a response to defendants’ motions to dismiss, arguing that his affidavit was timely under OCGA § 9-11-9.1 b, and alternatively, that the trial court had the discretion to allow the affidavit to be filed under the provisions of OCGA § 9-11-9.1 e. Fisher further noted the March, 2003 complaint was in fact a renewal action to an earlier case that had been dismissed without prejudice on September 13, 2002, and that the affidavit filed on April 23, 2003, was essentially the same as the affidavit and amended affidavit that had been filed with the original complaint.
The trial court granted defendants’ motions to dismiss, and dismissed Fisher’s complaint with prejudice. The court found that the limitations period had expired on the wrongful death claim on May 4, 2000, two years after the decedent’s death, and that the limitations period had expired on the survival action on May 1, 2002, two years after Fisher was appointed the temporary administrator of the estate. Thus, the trial court found that “the renewal Complaint was not filed within ten days of the expiration of the statue of limitations for either of Fisher’s claims. Because the limitations periods had clearly expired, there was not a good faith basis for Fisher to believe the limitations period would expire within 10 days. Therefore, Fisher could not invoke the 45 day extension of OCGA § 9-11-9.1 b, . . .” Fisher appeals.
