Phoebe Putney Memorial Hosp. v. Skipper, A97A0804

• Decision Date: 16 April 1997
• Docket Number: No. A97A0804,A97A0804
• Citation: 487 S.E.2d 1,226 Ga.App. 585
• Parties: , 97 FCDR 1851 PHOEBE PUTNEY MEMORIAL HOSPITAL v. SKIPPER.
• Court: Georgia Court of Appeals

Page 1

487 S.E.2d 1

226 Ga.App. 585, 97 FCDR 1851

PHOEBE PUTNEY MEMORIAL HOSPITAL v. SKIPPER.

No. A97A0804.

Court of Appeals of Georgia.

April 16, 1997.

Reconsideration Denied May 29, 1997.

Langley & Lee, C. Richard Langley, Carl G. Fulp III, Albany, for appellant.

Farkas & Ledford, Leonard Farkas, Thomas G. Ledford, Albany, Diane L. Perry, Tifton, David E. Perry, Albany, for appellee.

SMITH, Judge.

We granted the application for interlocutory appeal filed by Phoebe Putney Memorial Hospital ("the hospital") to consider whether Inez Skipper filed a valid professional malpractice affidavit within the applicable statute of limitation. We conclude that Skipper's original affidavit was invalid and that her amended affidavit did not satisfy the requirements of OCGA § 9-11-9.1. We therefore reverse the trial court's denial of the hospital's motion to dismiss.

The facts relative to the issue are not in dispute. Skipper filed a medical malpractice action against the hospital on May 10, 1995. She alleged that the statute of limitation would expire within ten days of the filing, that because of time constraints, an expert affidavit could not be prepared prior to filing, and that an affidavit would be filed within 45 days. See OCGA § 9-11-9.1(b). On June 12, 1995, a document purporting to be an affidavit sworn to by William I. Capps, M.D. was filed. The hospital answered, raising as a defense the failure to comply with OCGA § 9-11-9.1. Although the affidavit is notarized, it is not disputed that Capps did not sign it in the presence of a notary public. After learning from Dr. Capps during his deposition that he did not sign the affidavit in a notary's presence, the hospital filed a motion to dismiss for failure to file a valid affidavit. In response, Skipper did not seek an extension of time for filing a supplemental affidavit, nor did the court grant one sua sponte. Instead, she filed an amended affidavit on July 24, 1996; it purportedly was signed by Dr. Capps in the presence of a notary public. The trial court denied the motion to dismiss without explanation.

The original affidavit was invalid. "In the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with other evidence.... In order to make an affidavit there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath." (Citations and punctuation omitted.) Harvey v. Kidney Center of Central Ga., 213 Ga.App. 319, 320, 444 S.E.2d 590 (1994).

Although the hospital raised as a defense the failure to comply with the affidavit requirement, Skipper argues that the "paramount question" is whether the hospital waived the particular defect in the original "affidavit" by not raising it in its initial pleading. This argument blatantly ignores the fact that her counsel submitted a facially proper document to the court and to the hospital, knowing that it would not be deemed properly executed were the truth known. It was held out to be a sworn statement of the doctor, given under oath and subscribed in the presence of a notary and thus meeting the requirements of an affidavit. See, e.g., Harvey, supra...