This is a medical malpractice action. Donald Waters, M.D., appeals from the Superior Court of Ware County’s denial of Waters’ motion to dismiss, which motion was premised upon Charles and Catherine Stewarts’ alleged failure to comply with the pleading requirements of OCGA § 9-11-9.1 b. Waters argues that the Stewarts failed to introduce any evidence to support their 9-11-9.1 claim that “an affidavit of an expert could not be prepared,” and thus, dismissal was required pursuant to our recent decision in Smith v. Morris, Manning & Martin “Smith” .1 Waters also argues that the complaint, unaccompanied by an expert affidavit, was filed eleven days from the running of the statute of limitation, and thus, the Stewarts could not avail themselves of the OCGA § 9-11-9.1 b 45-day extension applicable when a statute of limitation is to run “within ten days of the date of filing.”2 We granted Waters’ application for interlocutory appeal in order to address an issue he raises by brief regarding a perceived inconsistency between Smith and another recent opinion of this Court, Georgia Dermatology Clinic v. Nesmith “Nesmith”. 3 For the reasons that follow, we find that Nesmith and Smith are distinguishable on their facts, and thus, the law as applied to each was not inconsistent. We further find that the facts which controlled the outcome in Smith are not present in the instant case, and thus, Smith is not applicable herein. In addition, the record supports the conclusion that the Stewarts filed their original complaint within the ten-day computation period contemplated by OCGA § 9-11-9.1 b so as to make applicable the 45-day extension provided by that statute. Accordingly, we affirm the ruling of the court below.
1. Under OCGA § 9-11-9.1 a as it applies to this case, the rule is that a malpractice action filed against a doctor must be accompanied by an expert affidavit setting forth a factual basis for the law suit. OCGA § 9-11-9.1 b, however, provides an exception to this rule: The contemporaneous filing requirement of subsection a of this Code section shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.4 This is a pleading requirement.5 And in Georgia Dermatology Clinic v. Nesmith, supra, we recognized that this two-pronged pleading requirement is met by the use of the statutorily mandated language stated above. Thus, if a plaintiff pleads 1 that the statute of limitation will expire within ten days, and 2 that because of time constraints an expert affidavit could not be prepared, this is sufficient to trigger the 45-day extension to the contemporaneous filing requirement of OCGA § 9-11-9.1 a. After following the statute’s pleading requirements, the 45-day extension has been referred to as “automatic.”6 In Nesmith , we specifically rejected the idea that the legislatively mandated pleading requirement of OCGA § 9-11-9.1 b somehow carries with it an evidentiary burden:
