Emory Clinic v. Wyatt, A91A0700

• Decision Date: 25 June 1991
• Docket Number: No. A91A0700,A91A0700
• Citation: 407 S.E.2d 135,200 Ga.App. 184
• Parties: EMORY CLINIC et al. v. WYATT.
• Court: Georgia Court of Appeals

Page 135

407 S.E.2d 135

200 Ga.App. 184

EMORY CLINIC et al. v. WYATT.

No. A91A0700.

Court of Appeals of Georgia.

June 25, 1991.

Allen & Ballard, Hunter S. Allen, Jr., Dennis A. Elisco, Amy L. Teets, Atlanta, for appellants.

Doffermyre, Shields & Canfield, Robert E. Shields, Leslie J. Bryan, Atlanta, for appellee.

CARLEY, Judge.

No expert affidavit was attached to the complaint whereby appellee-plaintiff initiated the instant medical malpractice action against appellant-defendants. However, appellee's complaint did invoke the applicability of OCGA § 9-11-9.1(b) by alleging that the statute of limitations would run within ten days and that, due to time constraints, the requisite expert affidavit could not be prepared. On the 45th day after filing her complaint, appellee moved for an extension of time to file an expert affidavit. Before the hearing on this motion, appellants moved to dismiss for appellee's failure to comply with the pleading requirements of OCGA § 9-11-9.1. Some months later, the trial court conducted a hearing on both motions and granted appellee a seven-day extension of time and denied appellants' motion to dismiss. The trial court certified its order for immediate review and appellants applied to this court for an interlocutory appeal. The instant appeal results from the grant of appellants' application.

1. Appellants contend that appellee was not even entitled to the initial 45-day extension provided in OCGA § 9-11-9.1(b). However, the allegations of appellee's complaint complied with the applicable provisions of OCGA § 9-11-9.1(b) and those allegations have not been shown to be untrue. Accordingly, a 45-day extension of time within which to file an expert affidavit was automatic. "In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit." (Emphasis supplied.) OCGA § 9-11-9.1(b).

2. Although appellee moved for an extension of time within the initial 45-day period, appellants urge that appellee's motion should have been denied because she failed to secure an actual ruling from the trial court within the initial 45-day period.

Nothing in OCGA § 9-11-9.1(b) specifically provides that either the motion for an extension of time or the order thereon must necessarily be filed before the initial 45-day period has expired. "[B]y its terms[, OCGA § 9-11-9.1(b) ] does not distinguish between motions made within or made without the 45-day extension period. It merely provides that 'on motion, after hearing and for good cause' the filing period may be extended for whatever length of time the trial court determines justice requires." Brake v. Mintz, 193 Ga.App. 662, 664, 388 S.E.2d 715 (1989).

If, however, there is any applicable time limit, it would be that which is established by the general provisions of OCGA § 9-11-6(b). In the instant case, there was compliance with OCGA § 9-11-6(b)(1), which provides, in relevant part, that, if a request for an extension of time "is made before the expiration of the period originally prescribed," the trial court "may [grant the request] at any time...." This statute clearly contemplates that the request for an extension of time can be made prior to the expiration of the originally prescribed time-period and that such a request can be granted subsequent thereto. Accordingly, assuming without deciding that the time limit established by OCGA § 9-11-6(b) is applicable to a motion and order made pursuant to OCGA § 9-11-9.1(b), the motion and order in the instant case were not untimely.

3. OCGA § 9-11-9.1(b) provides that "[t]he trial court may, on motion, after hearing and for good cause extend such time [to file an expert affidavit] as it shall determine justice requires." (Emphasis supplied.) Broad discretion is vested in the trial court to determine whether "good cause" exists and what constitutes "good cause." Brake v. Mintz, supra at 665, 388 S.E.2d 715. Appellants urge that the trial court abused its broad discretion in the instant case.

The trial court granted appellee's motion based upon the following: On the 42nd day of the initial 45-day period, appellee's expert potential affiant, who resided out-of-state, received a copy of the affidavit for her review and execution. Upon seeing that the affidavit was captioned for submission in the instant case, the potential affiant informed appellee's counsel that she had a conflict of interest and could not provide an affidavit for use in an action brought against appellants. Although declining to allow appellee to use the affidavit to satisfy the pleading requirements of OCGA § 9-11-9.1, the potential affiant nevertheless signed the affidavit to signify her agreement with its substance and returned it to appellee's counsel. Appellee's counsel had attempted to secure the affidavit of another expert before the expiration of the initial 45-day period, but he had not succeeded in doing so.

" 'We will not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion. [Cits.] ... Where the trial court hears evidence, considers briefs and arguments and thereafter in the exercise of its discretion renders a judgment on a motion, in the absence of legal error, the sole question for determination is whether there is any evidence to authorize and support that exercise of discretion.' [Cit.]" Archie v. Scott, 190 Ga.App. 145, 147(3), 378 S.E.2d 182 (1989). Appellee's counsel was clearly attempting to satisfy the pleading requirements of OCGA § 9-11-9.1, because he secured an expert affidavit which would have...