Reese, Judge.Alisa Brady filed a medical malpractice action against Dr. Christian Cruz Pico and Georgia Surgicare, LLC (collectively, “the defendants”). The defendants moved to dismiss the complaint for failure to state a claim on the ground that Brady had retained an attorney more than 90 days prior to the expiration of the statute of limitation[1] and was subject to the contemporaneous affidavit filing requirement of OCGA § 9-11-9.1 (a). The trial court denied the motion to dismiss, and we granted the defendants’ petition for interlocutory review. For the reasons set forth, infra, we affirm. According to the complaint, filed on August 1, 2016, Brady suffered injuries resulting from a cervical node excision performed by Dr. Cruz Pico on August 1, 2014. Brady attached to the complaint the affidavit of her attorney, Christopher McClurg. McClurg testified that he had been “retained by [Brady] on July 29, 2016, for purposes of filing this instant suit[,]” that “ [t]he period of limitation [would] expire within ten days of the date of filing and, [that] because of such time constraints, an affidavit of an expert could not be prepared.”The defendants moved to dismiss on the ground that no expert affidavit was attached to the complaint, as required by OCGA § 9-11-9.1 (a), even though Brady had retained McClurg as her attorney long before July 29, 2016, as reflected on a medical authorization form provided to Dr. Cruz Pico to release Brady’s medical records. The defendants attached the document as an exhibit to the motion. The form, which appears to have been signed by Brady on December 16, 2014, directed Cruz Pico to release information to “Plaintiff Attorney,” identified as McClurg, and stated that the “[p]urpose of [the] disclosure” was “Litigation (this means I am a lawyer and I represent this person in a lawsuit)[.]“[2] Brady responded to the motion to dismiss and attached a “New Client Questionnaire,” also dated December 16, 2014, in which she acknowledged that “NO Attorney-Client relationship exist[ed] between [McClurg] or any other attorney . . . in this office until such time as a written Legal Services Contract is entered into by and between the attorney, his or her firm, and the undersigned, and all legal fees, deposits, and retainers are paid and other documents, files, and information [are] received in accordance with the Legal Services.” She also attached a “Legal Services Contract/Invoice,” dated July 29, 2016, that documented her retention of McClurg as her attorney for a “Med Mal” action.Brady amended her complaint on September 13, 2016, and attached an expert affidavit setting forth the defendants’ negligent acts or omissions that, in the expert’s opinion, resulted in Brady’s nerve injuries. After hearing oral argument on the defendants’ motion to dismiss, the court denied the motion. “A motion to dismiss based upon the lack of [an] expert affidavit is a motion to dismiss for failure to state a claim under OCGA § 91112 (b) (6).”[3]We review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor. And the pleadings to be construed include any exhibits attached to and incorporated into the complaint and the answer.[4]
