2022 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-9.1. Affidavit to Accompany Charge of Professional Malpractice

1. 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.

2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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;
   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.

History. Code 1981, § 9-11-9.1 , enacted by Ga. L. 1987, p. 887, § 3; Ga. L. 1989, p. 419, § 3; Ga. L. 1997, p. 916, § 1; Ga. L. 2005, p. 1, § 3/SB 3; Ga. L. 2006, p. 72, § 9/SB 465; Ga. L. 2007, p. 216, § 1/HB 221.

Code Commission notes.

Pursuant to Code Section 28-9-5, in 2002, “Dietitians” was substituted for “Dieticians” in paragraph (f)(7) (now paragraph (g)(8)).

Editor’s notes.

Ga. L. 1997, p. 916, § 2, not codified by the General Assembly, provides that the amendment to this Code section applies to actions filed on or after July 1, 1997.

Ga. L. 2005, p. 1, § 1/SB 3, not codified by the General Assembly, provides that: “The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act.”

Ga. L. 2007, p. 216, § 3/HB 221, not codified by the General Assembly, provides: “This Act shall become effective on July 1, 2007, and shall apply to any action filed on or after July 1, 2007.”

Law reviews.

For annual survey of tort law, see 41 Mercer L. Rev. 355 (1989).

For annual survey on law of torts, see 42 Mercer L. Rev. 431 (1990).

For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990).

For annual survey on law of torts, see 43 Mercer L. Rev. 395 (1991).

For article, “The Application of § 9-11-9.1 to Malpractice Actions in Federal Court,” see 28 Ga. St. B.J. 212 (1992).

For annual survey on legal ethics, see 44 Mercer L. Rev. 281 (1992).

For annual survey of law of torts, see 44 Mercer L. Rev. 375 (1992).

For annual survey article on the law of torts, see 45 Mercer L. Rev. 403 (1993).

For article, “Georgia’s Professional Malpractice Affidavit Requirement,” see 31 Ga. L. Rev. 1031 (1997).

For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 4 (1997).

For annual survey article discussing legal ethics, see 51 Mercer L. Rev. 353 (1999).

For annual survey article on legal ethics, see 52 Mercer L. Rev. 323 (2000).

For article, “Construction Law,” see 53 Mercer L. Rev. 173 (2001).

For article, “Trial Practice and Procedure,” see 53 Mercer L. Rev. 475 (2001).

For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003).

For annual survey article on legal ethics, see 56 Mercer L. Rev. 315 (2004).

For annual survey of trial practice and procedure, see 56 Mercer L. Rev. 433 (2004).

For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005).

For article, “Georgia’s New Expert Witness Rule: Daubert and More,” see 11 Ga. St. B.J. 16 (2005).

For annual survey of construction law, see 57 Mercer L. Rev. 79 (2005).

For annual survey of legal ethics decisions, see 57 Mercer L. Rev. 273 (2005).

For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005).

For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006).

For survey article on evidence law, see 59 Mercer L. Rev. 157 (2007).

For survey article on legal ethics, see 59 Mercer L. Rev. 253 (2007).

For survey article on law of torts, see 59 Mercer L. Rev. 397 (2007).

For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007).

For survey article on evidence law, see 60 Mercer L. Rev. 135 (2008).

For annual survey on evidence, see 61 Mercer L. Rev. 135 (2009).

For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009).

For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010).

For annual survey on real property, see 66 Mercer L. Rev. 151 (2014).

For article, “Fisher v. Gala: O.C.G.A. § 9-11-9.1(e) Keeping Malpractice Claims Afloat,” see 66 Mercer L. Rev. 817 (2015).

For annual survey of tort laws, see 67 Mercer L. Rev. 237 (2015).

For annual survey on construction law, see 69 Mercer L. Rev. 63 (2017).

For article with annual survey on construction law, see 73 Mercer L. Rev. 59 (2021).

For note, “Hewitt v. Kalish: Qualifying as an ‘Expert Competent to Testify’ Under O.C.G.A. Section 9-11-9.1,” see 46 Mercer L. Rev. 1537 (1995).

For note, “Forty-Eight States are Probably Not Wrong: An Argument for Modernizing Georgia’s Legal Malpractice Statute of Limitations,” see 33 Ga. St. U.L. Rev. 805 (2017).

For comment, “Brown v. Nichols: The Eleventh Circuit Refuses to Play the Erie Game with Georgia’s Expert Affidavit Requirement,” see 29 Ga. L. Rev. 291 (1994).

For comment, “Where Do We Go From Here? The Future of Caps on Noneconomic Medical Malpractice Damages in Georgia,” see 28 Ga. St. U.L. Rev. 1341 (2012).