Memorial Hosp. of Adel v. Dunn

The trial court did not abuse discretion in granting plaintiffs' request for a 45-day extension to file their expert affidavit where their treating physician had assured their counsel that he would provide an affidavit until a few days before the filing deadline.

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On June 22, 2000, plaintiffs Alison and Randy Dunn filed medical malpractice and loss of consortium actions against defendants Memorial Hospital of Adel, Inc., A. J. Stone, CRNA and Rodney D. Tyson, M. D. hereinafter defendants alleging that Alison Dunn was injured by the improper placement of equipment used in the administration of anesthesia during surgery performed at Memorial Hospital on June 22, 1998. Plaintiffs did not file an expert affidavit with their complaint as required by OCGA § 9-11-9.1, but instead invoked the provisions of subsection b of that code section. Under that section, a plaintiff who files a professional negligence action within ten days of the running of the statute of limitation has an additional 45 days to file the required affidavit.

Plaintiffs did not file the affidavit within 45 days, but instead, several days before the expiration of the 45 days on August 4, 2000, filed a request for an additional 45 days to file the affidavit. In their motion for extension, plaintiffs stated they had been unable to procure the affidavit because Alison Dunn’s treating physician had notified plaintiffs on August 2, 2000 that he was no longer willing to execute the expert affidavit. On August 28, 2000, defendants filed a response to plaintiffs’ motion for extension of time, opposing plaintiffs request for an additional 45 days to procure an expert’s affidavit, but agreeing to give plaintiffs an additional 30 days. Plaintiffs, however, did not file their affidavit until October 6, 2000. On October 11, 2000 defendants filed a supplemental brief contending that the time should not be extended to allow the filing of the affidavit on October 6. Following a hearing, the trial court found that good cause existed and justice required extending the time for filing the affidavit until October 6, 2000, but certified its order for immediate review. This court granted defendants’ applications for interlocutory appeal, and we have consolidated their appeals for review.

Memorial Hosp. of Adel v. Dunn

The trial court did not abuse discretion in granting plaintiffs' request for a 45-day extension to file their expert affidavit where their treating physician had assured their counsel that he would provide an affidavit until a few days before the filing deadline.

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