Bell v. Figueredo
| Decision Date | 07 July 1989 |
| Docket Number | No. 46738,46738 |
| Parties | BELL, et al. v. FIGUEREDO, et al. |
| Court | Georgia Supreme Court |
Jeffrey M. Smith, J. Randolph Evans, Arnall, Golden & Gregory, Austin E. Catts, Robert H. Benfield, Jr., Remler, Catts & Koski, Atlanta, for Naomi Jeanette Bell, et al.
Daryll Love, John A. Gilleland, Robert P. Monyak, Love & Willingham, Atlanta, for Jorge V. Figueredo, et al.
In December of 1984, appellants, the Bells, sued appellees, Figueredo and Parkway Surgery Associates, P.C., for medical malpractice. In response to appellees' summary judgment motion, the Bells submitted expert affidavits and the trial court denied appellees' motion. The Bells later voluntarily dismissed without prejudice.
On July 1, 1987, after the case was voluntarily dismissed, OCGA § 9-11-9.1 became effective. On September 4, 1987, the Bells reinstituted their complaint against appellees for medical malpractice, but failed to file the supporting expert affidavit as OCGA § 9-11-9.1 requires. In response to appellees' motion to dismiss, the Bells attached the expert affidavits from the previous trial. The trial court granted the appellees' motion, holding that the renewal statute, OCGA § 9-2- 61, did not exempt the Bells from the filing requirements of OCGA § 9-11-9.1. The trial court also declined to take judicial notice of the affidavits filed in the original case.
On January 23, 1989, the Court of Appeals affirmed in Bell v. Figueredo, 190 Ga.App. 163, 378 S.E.2d 475 (1989). The Court of Appeals held that the renewal statute places a renewed action on the same footing with the original action only as concerns the statute of limitations. 190 Ga.App. at 164, 378 S.E.2d 475. Thus, the Court of Appeals held that the trial court properly concluded that the affidavit required by OCGA § 9-11-9.1 must be filed in this renewal action. The Court of Appeals also held that because the Bells never attempted to amend their complaint to add the affidavit, the Court could not review whether the defect was amendable. 190 Ga.App. at 165, 378 S.E.2d 475.
On April 6, 1989 we decided St. Joseph's Hospital v. Nease, 259 Ga. 153, 377 S.E.2d 847 (1989), in which we held that a plaintiff's failure to attach a supporting affidavit to a complaint in a professional malpractice action is an amendable defect under Rule 15(a) of the Civil Practice Act when the plaintiff has obtained the affidavit before filing but simply neglected to file it with the complaint.
On April 7, 1989 we granted the Bells' petition for writ of certiorari to consider whether this case is controlled by Nease, supra. We hold that it is.
Under Nease the Bells could amend their complaint because they had obtained the required affidavit before filing suit. The appellees contend that the Bells never did amend their complaint. The Bells argue that the affidavits they attached in response to the appellees' motion to dismiss in the present case did in effect amend their complaint and thus they complied with OCGA § 9-11-9.1 and Rule 15(a) as construed in Nease.
We agree. There is no question that the appellees in this case, like the defendants in Nease, were protected from a frivolous lawsuit because the Bells had the required affidavit before filing. The Bells attached the affidavit in response to the appellees' motion to dismiss the present case. The response was filed at a time during the litigation when the right to amend without leave existed under OCGA § 9-11-15(a). The Bells simply failed to call that attachment an "amendment."
It is well-established that there is " 'no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name.' " Frost v. Frost, 235 Ga. 672, 221 S.E.2d 567 (1975). In the present case the affidavit functioned as an amendment to the complaint even though it was called by another name. We hold that under the circumstances of this case the Bells cured their defective complaint by filing an affidavit in response to the appellees' motion to...
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Glisson v. Hospital Authority of Valdosta & Lowndes County
... ... Joseph's Hosp. v. Nease, 259 Ga. 153, 154(1), 377 S.E.2d 847 (1989). See also Bell v. Figueredo, 259 Ga. 321, 381 S.E.2d 29 (1989); Patterson v. Douglas Women's Center, P.C., 258 Ga. 803, 374 S.E.2d 737 (1989); Glaser v. Meck, 258 ... ...
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Bonner v. Peterson
... ... This argument, however, directly contravenes the Supreme Court of Georgia holding in Bell v. Figueredo. 11 In Bell, plaintiffs had filed a proper renewal of a medical malpractice action, but neglected to file with their complaint the ... ...
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Fisher v. Gala: O.c.g.a. § 9-11-9.1(e) Keeping Malpractice Claims Afloat
...Bill 276, Reg. Sess., 1997 Ga. Laws 916 (codified at O.C.G.A. § 9-11-9.1).43. ADAMS, supra note 4, at § 5:2; see also Bell v. Figueredo, 259 Ga. 321, 322, 381 S.E.2d 29, 30 (1989); Ga. S. Bill 276, supra note 42. The 1997 amendments also maintained that a plaintiff is not required to prove ......