The trial court dismissed Mitchell Shawn Fales’ medical malpractice complaint for failure to file an expert affidavit in compliance with OCGA § 9-11-9.1. Fales appeals, admitting that his attorney’s secretary mistakenly filed the original complaint without an affidavit, but arguing that dismissal is improper because he filed an amended complaint with an affidavit. For reasons that follow, we affirm. The relevant facts are not in dispute. Fales filed a medical malpractice complaint on April 24, 2001, just before the expiration of the applicable statute of limitation. Pursuant to OCGA § 9-11-9.1 a, in any action for damages alleging professional malpractice. . .the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim. Fales did not file the required affidavit with his complaint. Instead, he timely filed the affidavit of his expert, Dr. Shelton, within the 45-day exception provided by OCGA § 9-11-9.1 b. Following the deposition of Dr. Shelton, however, Fales voluntarily dismissed the complaint.
On February 20, 2002, Fales filed a renewal action pursuant to OCGA § 9-2-61. He did not attach an affidavit. On March 22, 2002, Fales filed an amended complaint with the affidavit of a new expert, Dr. Newsome. The defendants subsequently filed their respective motions to dismiss based on Fales’ failure to comply with OCGA § 9-11-9.1. On June 21, 2002, Fales responded, admitting that his secretary had mistakenly filed the renewal complaint without Dr. Newsome’s affidavit. According to counsel, Dr. Newsome had signed the affidavit at the time the complaint was filed, but failed to have it notarized. Thus, Fales admitted that he did not have a “properly authorized affidavit” when he filed his complaint. Nevertheless, he argued that the complaint should not be dismissed because he filed an amended complaint with the affidavit prior to the defendants acknowledging service of the original complaint. Following a hearing, the trial court granted the defendants’ motions to dismiss.
