Appellant-plaintiff Mark E. Knutsen brought the instant medical malpractice action personally, as next of kin to his wife, the decedent Karen Vargo Knutsen, and as parent and natural guardian of Grace Karen Valentine Knutsen, the sole surviving child of the decedent, seeking damages for personal injuries and lost consortium. The appellee-defendants, Atlanta Women’s Specialists Obstetrics and Gynecology Susan S. Glander,1 Maury L. Fradkin, Yvette M. Smith, Carol A. Gourley, Ellen Martin, Tiffany Postell, Jaunita Hathaway, Yolanda Rozier, Northside Hospital L. Spiller, W. Rovee, Tonya Hughes and Northside Anesthesiology Consultants, LLC Richard Scott Ballard and Eric Tucker timely answered and moved to dismiss. Knutsen appeals from the final judgment of the Fulton County Superior Court dismissing his wrongful death action, contending that he satisfied the exception to the contemporaneous filing requirement in OCGA § 9-11-9.1 b, his original complaint, as amended, as filed within ten days of the running of the two-year medical malpractice statute of limitation under OCGA § 9-3-71 a.2 The record shows that the superior court granted the motions to dismiss upon “considering the entire record , including the pleadings and arguments of counsel.” Emphasis supplied. In effect, therefore, the superior court’s grant of appellee’s motions to dismiss was a grant of summary judgment. Gordon v. Southeastern Fidelity Ins. Co. , 182 Ga. App. 790 357 SE2d 146 1987. Finding a jury question remaining as to whether Knutsen’s complaint, as filed without an expert’s affidavit attached, satisfied the exception to the contemporaneous filing requirement of OCGA § 9-11-9.1 b, we reverse. To prevail on summary judgment, the appellees must show that there is no evidence sufficient to create a jury issue on at least one essential element of Knutsen’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of Knutsen’s claim, “that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991; D. N. Garner Co., Inc. v. Georgia Palm Beach Aluminum Window Corp. , 233 Ga. App. 252, 253 504 SE2d 70 1998. On appeal from a trial court’s grant of summary judgment, we conduct a de novo review of the record and construe the evidence and all reasonable inferences in favor of the nonmoving party. Maddox v. Southern Engineering Co. , 231 Ga. App. 802, 803 500 SE2d 591 1998; Lane v. Spragg , 224 Ga. App. 606 481 SE2d 592 1997.
Pertinently, the record reveals that Knutsen filed his original complaint and first amended complaint less an expert’s affidavit on September 17, 2002, averring, among other things, that time constraints foreclosed obtaining an expert’s affidavit and that his wife died at Northside Hospital in Atlanta on September 29, 2000, of an untimely treated urinary tract infection —this during a pregnancy which caused her waters to break prematurely, requiring that the couple’s child be delivered by caesarean section. On October 17, 2002, the appellees filed their answers and moved to dismiss for failure to state a claim on which relief can be granted, asserting that dismissal of Knutsen’s complaint was required because the complaint was filed twelve days before the expiration of the statute of limitation upon the two-year anniversary of Mrs. Knutsen’s death, September 29, 2002, and that this filing date did not comply with the exception to the contemporaneous filing requirement of OCGA § 9-11-9.1 b. Without further amending his complaint for this purpose, Knutsen filed his response to the motions to dismiss on November 15, 2002, for the first time asserting that his wife “actually died on September 27, 2000 and not on September 29, 2000 as a matter of Georgia law and as a matter of medical fact.” Knutsen attached to his response the supplemental affidavit to such effect of the medical expert whose initial affidavit, filed on October 18, 2002, in support of his complaint, expressed the view that death occurred on September 29, 2000 and included a hospital record and an autopsy report showing that the decedent was pronounced dead on such date. The superior court heard the appellees motions to dismiss on April 7, 2003, two days later entering the order complained-of thereon. Four days before the hearing, Knutsen filed the affidavit of a doctor of osteopathy in further support of his response to appellee’s motions to dismiss. Such expert also opined that the decedent died on September 27, 2000, rather than September 29, 2000. Held: Under OCGA § 9-11-9.1 a, an expert’s affidavit must be filed with any complaint alleging professional malpractice. This contemporaneous filing requirement is not applicable, and a plaintiff has an automatic right to file the affidavit within 45 days of filing the complaint, however, in the following circumstances: 1 when the limitation period will expire within ten days of the date of filing the complaint; and 2 when the plaintiff alleges that because of the time constraints an expert affidavit could not be prepared. OCGA § 9-11-9.1 b. Sullivan v. Fredericks , 251 Ga. App. 790, 791 554 SE2d 809 2001. A complaint is subject to dismissal for failure to state a claim when the plaintiff fails to file an expert affidavit as required. OCGA § 9-11-9.1 e. A dismissal for failure to state a claim is a dismissal on the merits with prejudice. Dillingham v. Doctor’s Clinic , 236 Ga. 302 223 SE2d 625 1976.
