If you are considering a malpractice lawsuit in Atlanta, Georgia requires more than a complaint to start the case. Our Atlanta medical malpractice lawyer can obtain your records, arrange a review by a qualified physician, and prepare the sworn statement the law requires before filing. Moriarty Medical Malpractice Lawyers prepared this guide to explain Georgia’s affidavit of merit and the qualified medical witness who signs it.
What an Affidavit of Merit Is
An affidavit of merit is a sworn statement from a qualified medical witness that supports a malpractice claim. Under O.C.G.A. § 9-11-9.1, the affidavit must identify at least one negligent act or omission and the factual basis for each claim. It is filed with the complaint. In practice, it is a qualified physician’s opinion, given under oath, that the care fell below the standard of care in at least one specific way.
The affidavit does not have to prove the entire case. It shows that a qualified medical professional has reviewed the facts and identified a specific departure from accepted practice. The full proof of breach, causation, and damages comes later in the case.
Why Georgia Requires It at Filing
Georgia added the requirement in 1987. A Georgia Law Review article describes its purpose as protecting professionals from groundless malpractice litigation. Requiring a qualified medical opinion at the start is meant to screen out claims that have no medical support before the parties spend time and money on litigation.
For patients, the practical effect is that a claim needs a physician’s review before the lawsuit is filed. That review takes time, which is one reason Georgia’s filing deadlines leave less room than many families expect.
Which Claims Require an Affidavit
The statute applies to claims against licensed professionals it lists, including medical doctors, osteopathic physicians, nurses, physicians’ assistants, dentists, and pharmacists. Because pharmacists are covered, claims involving medication errors at a pharmacy also require an affidavit. The requirement also covers a professional corporation or other business entity alleged to be liable for a listed professional’s conduct.
It applies to licensed health care facilities as well when the facility is alleged to be liable for the conduct of a listed professional. Hospital negligence claims based on the conduct of nurses or other listed professionals fall into this category.
Who Can Sign the Affidavit
The person who signs the affidavit must meet the same qualifications as a witness testifying at trial. O.C.G.A. § 24-7-702 sets those qualifications. At the time of the alleged negligence, the witness must have been licensed and must have practiced or taught in the relevant area for at least three of the last five years. The witness generally must also be a member of the same profession as the provider whose care is at issue. A physician who supervised or taught nurses or physician assistants during that period may address their standard of care.
Because of the same-profession rule, a case involving several providers may need more than one qualified witness. A birth injury claim involving an obstetrician and labor nurses is one example where the care of different professionals is at issue. Our guide to the medical standard of care explains how these witnesses evaluate the care.
The Filing Deadline and the 45-Day Exception
The general rule is that the affidavit must be filed at the same time as the complaint. The statute allows one narrow exception:
- The deadline is about to expire. The filing period must be set to expire within 10 days of filing, and the complaint must allege that time constraints prevented preparing the affidavit.
- The law firm was retained late. The plaintiff’s attorney must file a sworn statement that the firm was not retained more than 90 days before the deadline.
When both conditions are met, the plaintiff has 45 days after filing the complaint to file the affidavit. The court may not extend that period without the consent of all parties. If the affidavit is not filed in time, or if the firm was retained more than 90 days before the deadline, the complaint is dismissed.
What Happens If the Affidavit Is Missing or Defective
The consequences depend on the problem:
- A defective affidavit. If a defendant challenges the affidavit as defective by motion before discovery closes, the plaintiff may correct it by amendment within 30 days of the motion. The court may extend that time.
- No affidavit at all. If no affidavit was filed and the defendant raises the issue in a motion filed with its first response, the case generally cannot be refiled under Georgia’s renewal statute once the filing period has expired. A narrow exception applies when the plaintiff had the affidavit in time and failed to file it by mistake.
In practical terms, a missing affidavit can end a claim permanently. That is why our attorneys obtain the qualified physician’s review before filing medical malpractice lawsuits. Our guide to filing in Atlanta courts explains what else the filing process involves.
Talk With Our Attorneys About Your Claim
Continue any medical care you need and follow the advice of a treating physician about your health. This guide explains general legal rules, and the requirements in your case depend on its facts.
Moriarty Medical Malpractice Lawyers represents patients and families in Atlanta and nearby communities, including Forest Park. Contact us to schedule a free consultation and have our attorneys review your records.
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