In the Supreme Court of Georgia



                                            Decided: March 27, 2015


                  S14G0919. GALA et al. v. FISHER et al.


      HINES, Presiding Justice.

      This Court granted a writ of certiorari to the Court of Appeals in Fisher

v. Gala, 325 Ga. App. 800 (754 SE2d 160) (2014), to determine if that Court

properly held that, in a professional malpractice action, when a plaintiff files a

complaint accompanied by an affidavit from a person not competent to testify

as an expert in the action, OCGA § 9-11-9.1 (e) permits the plaintiff to cure this

defect by filing an amended complaint with the affidavit of a second, competent

expert. Finding that the Court of Appeals was correct in holding that the

pleading could be so amended, we affirm that Court’s judgment.

      After he received treatment for a back injury, Dorian Fisher and his wife

(collectively “Fisher”) sued Vishal C. Gala, M.D., Regis Haid, Jr., M.D., and

Atlanta Brain and Spine Care, P.C. (collectively “the neurosurgeons”).       The

opinion of the Court of Appeals sets forth the following facts of the litigation.
Fisher[‘s complaint] claimed that he sought treatment after he
sustained a back injury in March 2010. After diagnostic testing,
Fisher’s initial treating physicians diagnosed a possible intradural
spinal cord tumor. Fisher sought a second opinion with Dr. Gala,
who also diagnosed an intradural spinal cord tumor, specifically, a
schwannoma. Dr. Gala recommended a laminectomy at the L5–S1
level of Fisher's spine and removal of the suspected schwannoma.
Dr. Gala and Dr. Haid performed the surgery on July 13, 2010.
According to Fisher, the surgery revealed no schwannoma at
L5–S1, although the neurosurgeons found a bundle of clumping
nerve roots consistent with arachnoiditis, and they then explored the
S1– S2–S3 level. Still finding no schwannoma, the neurosurgeons
explored the dura and, finding no lesion, patched the dura and
ended the surgery. In his claim for medical malpractice, Fisher
alleged that the neurosurgeons were negligent in diagnosing him
with a schwannoma rather than arachnoiditis, that they performed
unnecessary and suboptimal neurosurgical procedures (lumbar
laminectomy, durotomy, and intradural exploration), and that, as a
result of their negligence, he suffered serious complications and
permanent disabilities.

With his initial complaint, Fisher filed the affidavit of James Rogan,
M.D., who opined that the neurosurgeons violated the standard of
care in failing to provide a proper diagnosis of Fisher's condition
and in performing an unnecessary and suboptimal surgery which
revealed no intradural tumor and which caused post-surgical
complications and permanent disabilities. With regard to the basis
of his knowledge in performing the procedures, diagnosing the
conditions, or rendering the treatments at issue, Dr. Rogan averred
that he is board-certified by the American Board of Family Practice,
that at least 80 percent of his general practice is devoted to the care
of disabled patients and those with neurological disabilities, and
that he is familiar with and has personal knowledge of the standard

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      of skill exercised by physicians generally under the same conditions
      and like surrounding circumstances as those presented by Fisher.

      On August 9, 2012, the neurosurgeons filed a motion to dismiss,
      challenging Dr. Rogan’s competency to testify concerning the
      neurosurgical care at issue. Fisher filed his amended complaint,
      with the affidavit of Michael Dogali, M.D., on September 7, 2012.
      Dr. Dogali opined that, during the July 13, 2010 surgery, the
      neurosurgeons were negligent in failing to protect the nerves of the
      cauda equina sufficiently and that, as a result, irreversible nerve
      injuries occurred during the surgery. Dr. Dogali’s affidavit showed
      that he was a board-certified neurosurgeon and that, at the time of
      the neurosurgeons’ alleged negligence, he had been regularly
      engaged in the active practice of neurosurgery for at least three of
      the preceding five years, including performing lumbar intradural
      surgical procedures and otherwise providing the type of care at
      issue.

      The trial court granted the neurosurgeons’ motion to dismiss, ruling that

Fisher did not show that Dr. Rogan was competent to testify as to the

professional malpractice alleged, and that this pleading defect was not cured by

the filing of the amended complaint with the accompanying affidavit of Dr.

Dogali, as such was filed after the expiration of the statute of limitations. The

Court of Appeals reversed, holding that the new affidavit was authorized under

OCGA § 9-11-9.1 (e). Fisher, supra. Further facts can be found in the opinion

of the Court of Appeals. Id.

      Fisher’s complaint alleged medical malpractice, and OCGA § 9-11-9.1

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(a)1 states that in such a case, there must be filed “with the complaint an


     1
         OCGA § 9-11-9.1 reads:

     (a) In any action for damages alleging professional malpractice against:

              (1) A professional licensed by the State of Georgia and listed in
              subsection (g) of this Code section;
              (2) A domestic or foreign partnership, corporation, professional
              corporation, business trust, general partnership, limited partnership,
              limited liability company, limited liability partnership, association, or
              any other legal entity alleged to be liable based upon the action or
              inaction of a professional licensed by the State of Georgia and listed
              in subsection (g) of this Code section; or
              (3) Any licensed health care facility alleged to be liable based upon
              the action or inaction of a health care professional licensed by the
              State of Georgia and listed in subsection (g) of this Code section,

     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.

     (b) The contemporaneous affidavit filing requirement pursuant to 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 the complaint and, because of time
     constraints, the plaintiff has alleged that an affidavit of an expert could not be
     prepared. In such cases, if the attorney for the plaintiff files with the complaint an
     affidavit in which the attorney swears or affirms that his or her law firm was not
     retained by the plaintiff more than 90 days prior to the expiration of the period of
     limitation on the plaintiff's claim or claims, the plaintiff shall have 45 days after the
     filing of the complaint to supplement the pleadings with the affidavit. The trial court
     shall not extend such time for any reason without consent of all parties. If either
     affidavit is not filed within the periods specified in this Code section, or it is
     determined that the law firm of the attorney who filed the affidavit permitted in lieu
     of the contemporaneous filing of an expert affidavit or any attorney who appears on
     the pleadings was retained by the plaintiff more than 90 days prior to the expiration
     of the period of limitation, the complaint shall be dismissed for failure to state a
     claim.

     (c) This Code section shall not be construed to extend any applicable period of
     limitation, except that if the affidavits are filed within the periods specified in this

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Code section, the filing of the affidavit of an expert after the expiration of the period
of limitations shall be considered timely and shall provide no basis for a statute of
limitations defense.

(d) If a complaint alleging professional malpractice is filed without the
contemporaneous filing of an affidavit as permitted by subsection (b) of this Code
section, the defendant shall not be required to file an answer to the complaint until
30 days after the filing of the affidavit of an expert, and no discovery shall take place
until after the filing of the answer.

(e) If a plaintiff files an affidavit which is allegedly defective, and the defendant to
whom it pertains alleges, with specificity, by motion to dismiss filed on or before the
close of discovery, that said affidavit is defective, the plaintiff's complaint shall be
subject to dismissal for failure to state a claim, except that the plaintiff may cure the
alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of
service of the motion alleging that the affidavit is defective. The trial court may, in
the exercise of its discretion, extend the time for filing said amendment or response
to the motion, or both, as it shall determine justice requires.

(f) If a plaintiff fails to file an affidavit as required by this Code section and the
defendant raises the failure to file such an affidavit by motion to dismiss filed
contemporaneously with its initial responsive pleading, such complaint shall not be
subject to the renewal provisions of Code Section 9-2-61 after the expiration of the
applicable period of limitation, unless a court determines that the plaintiff had the
requisite affidavit within the time required by this Code section and the failure to file
the affidavit was the result of a mistake.

(g) The professions to which this Code section shall apply are:
       (1) Architects;
       (2) Attorneys at law;
       (3) Audiologists;
       (4) Certified public accountants;
       (5) Chiropractors;
       (6) Clinical social workers;
       (7) Dentists;
       (8) Dietitians;
       (9) Land surveyors;
       (10) Marriage and family therapists;
       (11) Medical doctors;
       (12) Nurses;
       (13) Occupational therapists;
       (14) Optometrists;

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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.” And, it is uncontroverted that Dr. Rogan’s affidavit

did not demonstrate that he was competent to testify as to the neurosurgical care

at issue in the malpractice claim. See Fisher, supra at 802-803 (fn. 3 & 4).

      Nonetheless, Fisher asserts that this situation falls under OCGA § 9-11-9.1

(e), which provides:

      If a plaintiff files an affidavit which is allegedly defective, and the
      defendant to whom it pertains alleges, with specificity, by motion
      to dismiss filed on or before the close of discovery, that said
      affidavit is defective, the plaintiff's complaint shall be subject to
      dismissal for failure to state a claim, except that the plaintiff may
      cure the alleged defect by amendment pursuant to Code Section
      9-11-15 within 30 days of service of the motion alleging that the
      affidavit is defective.

OCGA § 9-11-9.1 (e) (Emphasis supplied.) Thus, Fisher argues, as the affidavit

            (15) Osteopathic physicians;
            (16) Pharmacists;
            (17) Physical therapists;
            (18) Physicians' assistants;
            (19) Podiatrists;
            (20) Professional counselors;
            (21) Professional engineers;
            (22) Psychologists;
            (23) Radiological technicians;
            (24) Respiratory therapists;
            (25) Speech-language pathologists; or
            (26) Veterinarians.

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of Dr. Dogali and the amended complaint were filed within 30 days of the

neurosurgeons’ motion to dismiss, the amendment cured the alleged defect in

Dr. Rogan’s affidavit.

      The Court of Appeals correctly held that OCGA § 9-11-9.1 (e) operates

in this manner. Although the neurosurgeons contend that the only amendment

that can satisfy OCGA § 9-11-9.1 (e) is an amendment to the original affidavit,

made by the same affiant whose affidavit originally accompanied the complaint,

there is no such provision in either OCGA § 9-11-9.1 (e) or OCGA § 9-11-152,

      2
          OCGA § 9-11-15 reads:

      (a) Amendments. A party may amend his pleading as a matter of course and without
      leave of court at any time before the entry of a pretrial order. Thereafter the party may
      amend his pleading only by leave of court or by written consent of the adverse party.
      Leave shall be freely given when justice so requires. A party may plead or move in
      response to an amended pleading and, when required by an order of the court, shall
      plead within 15 days after service of the amended pleading, unless the court
      otherwise orders.

      (b) Amendments to conform to the evidence. When issues not raised by the pleadings
      are tried by express or implied consent of the parties, they shall be treated in all
      respects as if they had been raised in the pleadings. Such amendment of the pleadings
      as may be necessary to cause them to conform to the evidence and to raise these
      issues may be made upon motion of any party at any time, even after judgment; but
      failure so to amend does not affect the result of the trial of these issues. If evidence
      is objected to at the trial on the ground that it is not within the issues made by the
      pleadings, the court may allow the pleadings to be amended and shall do so freely
      when the presentation of the merits of the action will be subserved thereby and the
      objecting party fails to satisfy the court that the admission of the evidence would
      prejudice him in maintaining his action or defense upon the merits. The court may
      grant a continuance to enable the objecting party to meet the evidence.


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to which OCGA § 9-11-9.1 (e) refers. As this Court has previously noted, the

cure provision now found in OCGA § 9-11-9.1 (e) contains “no express

limitation on the nature of the alleged defect subject to remedy.” Porquez v.

Washington, 268 Ga. 649, 652 (fn. 3) (492 SE2d 665) (1997). And, not only do

the relevant Code sections not contain the restriction that the neurosurgeons

wish to be imposed,

     [b]ecause OCGA § 9-11-9.1 constitutes an exception to the general
     liberality of pleading allowed under the Civil Practice Act, it is to
     be construed in a manner consistent with the liberality of the Act so
     long as such a construction does not detract from the purpose of
     [OCGA] § 9-11-9.1, which is to reduce the filing of frivolous
     malpractice suits. [Cit.]


     (c) Relation back of amendments. Whenever the claim or defense asserted in the
     amended pleading arises out of the conduct, transaction, or occurrence set forth or
     attempted to be set forth in the original pleading, the amendment relates back to the
     date of the original pleading. An amendment changing the party against whom a
     claim is asserted relates back to the date of the original pleadings if the foregoing
     provisions are satisfied, and if within the period provided by law for commencing the
     action against him the party to be brought in by amendment (1) has received such
     notice of the institution of the action that he will not be prejudiced in maintaining his
     defense on the merits, and (2) knew or should have known that, but for a mistake
     concerning the identity of the proper party, the action would have been brought
     against him.

     (d) Supplemental pleadings. Upon motion of a party the court may, upon reasonable
     notice and upon such terms as are just, permit him to serve a supplemental pleading
     setting forth transactions or occurrences or events which have happened since the
     date of the pleading sought to be supplemented. Permission may be granted even
     though the original pleading is defective in its statement of a claim for relief or
     defense. If the court deems it advisable that the adverse party plead to the
     supplemental pleading, it shall so order, specifying the time therefor.

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Id. at 652 (1). And nothing in our reading of the statute detracts from that

purpose; Fisher has exercised his right to amend his complaint as a matter of

course under OCGA § 9-11-15 (a), and produced an affidavit of an expert who

opines that professional malpractice occurred. Accordingly, the Court of

Appeals did not err in holding that Fisher’s amendment to his complaint was

permissible under OCGA § 9-11-9.1 (e), and that the ruling of the trial court

should be reversed.

     Judgment affirmed. All the Justices concur.




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