10 LC
35 1597
Senate
Bill 318
By:
Senators Murphy of the 27th, Rogers of the 21st, Hill of the 32nd, Wiles of the
37th, Hill of the 4th and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 9 of the Official Code of Georgia Annotated, relating to civil
practice, so as to provide for an affidavit to accompany a complaint against
certain law enforcement professionals; to provide for related matters; to
provide an effective date; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
9 of the Official Code of Georgia Annotated, relating to civil practice, is
amended by revising Code Section 9-11-9.1, relating to affidavits to accompany a
charge of professional malpractice, as follows:
"9-11-9.1.
(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,
and
in any action for damages brought against a law enforcement professional who is
a certified peace officer employed by a law enforcement agency in this state
based upon the action or inaction of such certified professional acting within
the scope of his or her official duties,
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
or
intended 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 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
required to
have an affidavit pursuant to subsection (a) of this Code
section 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
peace officers;
(5)
Certified public accountants;
(5)(6)
Chiropractors;
(6)(7)
Clinical social workers;
(7)(8)
Dentists;
(8)(9)
Dietitians;
(9)(10)
Land surveyors;
(10)(11)
Marriage and family therapists;
(11)(12)
Medical doctors;
(12)(13)
Nurses;
(13)(14)
Occupational therapists;
(14)(15)
Optometrists;
(15)(16)
Osteopathic physicians;
(16)(17)
Pharmacists;
(17)(18)
Physical therapists;
(18)(19)
Physicians' assistants;
(19)(20)
Podiatrists;
(20)(21)
Professional counselors;
(21)(22)
Professional engineers;
(22)(23)
Psychologists;
(23)(24)
Radiological technicians;
(24)(25)
Respiratory therapists;
(25)(26)
Speech-language pathologists; or
(26)(27)
Veterinarians."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval and shall apply to all complaints filed on or
after such date.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.