Does the Grace Period for Filing an Expert Affidavit Apply in Medical Malpractice and Wrongful Death Cases When There’s Confusion over the Rules?

In a medical malpractice and wrongful death action, a girl’s parents, as administrators of the their daughter’s estate, appealed from the grant of summary judgment to the defendant doctors and hospital. They raised several challenges to the trial court’s application of O.C.G.A. § 9-11-9.1, the statute requiring expert affidavits in these cases.


The plaintiffs’ claims for medical malpractice and wrongful death arose from the treatment of their minor daughter at the hospital and her subsequent death. Before this suit began, pursuant to O.C.G.A. § 38-3-62 and citing the public health emergency presented by the COVID-19 pandemic, Supreme Court of Georgia Chief Justice Harold Melton issued an order declaring a statewide judicial emergency. This declaration suspended, tolled, extended, and otherwise granted relief from any deadlines or time schedules in civil and criminal cases. The order was set to expire on April 13, 2020 but was extended several times. The Chief Justice subsequently issued an order reimposing deadlines on litigants effective July 14, 2020.

The plaintiffs filed their initial complaint against the hospital on March 28, 2021, but they didn’t file an expert affidavit. The plaintiffs filed an amended complaint adding one of the physicians as a defendant — again without an expert affidavit — on April 2, 2021. They finally filed an expert affidavit on May 11, 2021.

The defendants moved for summary judgment, arguing that the plaintiffs failed to comply with the requirements of O.C.G.A. § 9-11-9.1(b). The trial court granted the motion, concluding that the plaintiffs retained their counsel more than 90 days before the applicable statute of limitation expired; and as a result, their failure to include an expert affidavit with their initial complaint mandated its dismissal under O.C.G.A. § 9-11-9.1(b).

On appeal, the plaintiffs argued that the trial court erred in finding that they failed to comply with § 9-11-9.1 because they reasonably believed that the two-year statute of limitation on their claims was set to expire less than 10 days after they retained counsel, and, as a result, they weren’t required to file an expert affidavit with their complaint and instead had an additional 45 days to do so under the statute.

The Court of Appeals Disagrees

Senior Judge C. Andrew Fuller stated in his opinion that a review of the trial court’s ruling involves the construction of O.C.G.A. § 9-11-9.1. Where a complaint seeks damages for professional negligence, O.C.G.A. § 9-11-9.1(a) requires the plaintiff “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.” Subsection (b) of the statute, however, provides an exception to that requirement:

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. … 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.

Judge Fuller emphasized that the statute’s 90-day provision doesn’t have an exception for a good faith belief that the statute of limitation was about to expire.

When Did the Statute of Limitations Run?

O.C.G.A. § 9-3-71(a) provides that the statute of limitation for medical malpractice claims, including those for wrongful death, is two years from “the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” Consequently, the two-year period in which to file suit began to run was no earlier than March 30 and 31, 2019 for the plaintiffs’ malpractice claims, and on April 14, 2019 for their wrongful death claims. And when the Chief Justice suspended filing deadlines on March 14, 2020, at least a year and 16-17 days remained in which to file the malpractice claims, and a year and 31 days remained in which to file the wrongful death claims. Those deadlines remained tolled until the limitation periods resumed running when the Chief Justice reimposed the deadlines on July 14, 2020.

As a result, the statute of limitation for the plaintiffs’ malpractice claims expired no earlier than July 30 and 31, 2021 (a year and 16-17 days later), and the limitation period for their wrongful death claims expired on August 14, 2021 (a year and 31 days later).

The plaintiffs retained their counsel no later than March 27, 2021. At that time, the statute of limitation on their claims was set to expire no earlier than 125-126 days later on their malpractice claims, and approximately two weeks thereafter on their wrongful death claims. Nevertheless, plaintiffs’ counsel filed an affidavit with their March 28, 2021 complaint purporting to rely on the O.C.G.A. § 9-11-9.1(b) safe harbor provision as a basis for filing a late expert affidavit on the ground that the statute of limitation was set to expire on March 29, 2021. However, since more than 90 days remained in the limitation period, Judge Fuller held that the plaintiffs weren’t entitled to rely on the safe harbor provision, and the trial court was required to dismiss the complaint under the plain language of the statute.

But the plaintiffs asserted that it was unclear whether the Chief Justice’s suspension of filing deadlines “move[d] the date of the statute of limitations” or “merely grant[ed] relief from the deadline.” As a result, they argued, they “reasonably relied on the plain language” of O.C.G.A. § 9-3-71 to conclude that the limitation periods expired between the end of March and April 14, 2021. And they further contended that the trial court improperly ignored plaintiffs’ counsel’s “good faith belief” that the statute of limitation was about to expire and instead dismissed their complaint by applying O.C.G.A. § 9-11-9.1(b)’s 90-day provision “in a vacuum.”

Even assuming that counsel believed in good faith that the statute of limitation was about to expire, Judge Fuller said any such belief was wrong, and O.C.G.A. § 9-11-9.1(b)’s 90-day provision required the trial court to dismiss their complaint. In that regard, the Chief Justice’s March 14, 2020 order provided as follows:

Pursuant to O.C.G.A. § 38-3-62, during the period of this Order, the undersigned hereby suspends, tolls, extends, and otherwise grants relief from any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including, but not limited to any: (1) statute of limitation…

That language clearly tolled the running of the statute of limitation in this case, the judge said. This conclusion was further supported by a separate document providing guidance specific to statutes of limitation issued by the Supreme Court of Georgia three weeks later:

Simply put, the tolling of a statute of limitation suspends the running of the period of limitation, but it does not reset the period of limitation. If the period of limitation for a particular cause of action commenced prior to March 14, 2020 — that is, if the “clock” had started to run before the entry of the Chief Justice’s [March 14] order — the running of the period of limitation was suspended on March 14, and the running of the period will resume when the tolling provision of the March 14 declaration has expired or is otherwise terminated.

Finally, the Chief Justice’s July 10, 2020 order provided:

[T]his order hereby reimposes all deadlines and other time schedules and filing requirements (referred to collectively herein as “deadlines”) that are imposed on litigants by statutes, rules, regulations, or court orders in civil and criminal cases and administrative actions and that have been suspended, tolled, extended, or otherwise relieved by the March 14, 2020 Order Declaring Statewide Judicial Emergency, as extended, on the following schedule and with the following exceptions and conditions:

(10) The 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run, shall be excluded from the calculation of that statute of limitation.

Read together, Judge Fuller concluded that these provisions left no doubt that the statute of limitation in this case expired no earlier than July 30, 2021— more than 90 days after the March 28, 2021 initial complaint was filed.

As a result, the plaintiffs weren’t entitled to rely on the § 9-11-9.1(b) 45-day grace period for filing an expert affidavit. And any “good faith” that counsel may have had to the contrary didn’t relieve the plaintiffs from the mandatory requirement of § 9-11-9.1(b) that the complaint be dismissed if, as here, plaintiffs’ counsel was retained more than 90 days before the statute of limitation expired, and no expert affidavit was filed with the complaint.

Therefore, the Court of Appeals rejected the plaintiffs’ claim that the trial court erroneously dismissed their complaint under O.C.G.A. § 9-11-9.1(b). The judgment was affirmed. Leggat v. Navicent Health, Inc., 2023 Ga. App. LEXIS 448 (Ga. App. October 2, 2023).

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