Roberson v. Northrup
| Decision Date | 17 February 2010 |
| Docket Number | No. A10A0693.,A10A0693. |
| Citation | 691 S.E.2d 547 |
| Parties | ROBERSON v. NORTHRUP et al. |
| Court | Georgia Court of Appeals |
691 S.E.2d 547
ROBERSON
v.
NORTHRUP et al.
No. A10A0693.
Court of Appeals of Georgia.
February 17, 2010.
Derek J. White, Pooler, for appellant.
Brennan & Wasden, Wiley A. Wasden III, Sally H. Perkins, Bouhan, Williams & Levy, Leslie B. Horne, Carlton E. Joyce, Savannah, for appellees.
BLACKBURN, Presiding Judge.
In this medical malpractice action, Beatrice Roberson appeals the dismissal with prejudice of her claims against Candler Hospital, two of its nurses (Lynette Daly and Ann Melvin), and anaesthesiologist Thomas Northrup and his professional association (Anesthesia Associates of Savannah), which dismissal took place after the applicable statute of limitations had run. Although Roberson mistakenly failed to attach to her complaint the required OCGA § 9-11-9.1 affidavits referenced in the complaint and in her possession at the time of filing, she maintains that the trial court should have allowed her to amend the complaint to attach the affidavits or at least should have only dismissed the complaint as "without prejudice" so that she could refile under the renewal statute (OCGA § 9-2-61(a)). Because OCGA § 9-11-9.1 does not allow such amendments, and because dismissals for failure to attach such affidavits are dismissals for failure to state a claim and are therefore on the merits and with prejudice, her arguments fail. Accordingly, we affirm.
"In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff. We review the trial court's ruling de
In April 2009, she sued the hospital, the nurses, the anaesthesiologist, and the anaesthesiologist's professional association for medical malpractice, alleging that she was attaching the required OCGA § 9-11-9.1 affidavits to her complaint. However, neither the complaint filed with the court nor the complaints served on the defendants had any such attachments.
Simultaneously with the filing of their answers on May 26, 2009, all defendants moved to dismiss the complaint for failure to attach the required affidavits. Rather than dismissing and refiling to cure the matter as provided under OCGA § 9-11-9.1(f), Roberson's counsel simply opposed the motions to dismiss, attaching the missing affidavits (which were dated before the filing of the complaint) and filing his own affidavit that he thought he had attached the OCGA § 9-11-9.1 affidavits to the complaint. Four months later, the trial court dismissed the complaint with prejudice, citing Bardo v. Liss.3 Roberson appeals this order.
Bardo is controlling. In that case, the medical malpractice plaintiffs also had the affidavit required by OCGA § 9-11-9.1 in hand but failed to file it with their complaint. Supra, 273 Ga.App. at 103-104, 614 S.E.2d 101. When the defendants moved to dismiss simultaneously with the filing of their answer, the plaintiffs failed to voluntarily dismiss the action but merely opposed the motion to dismiss, claiming mistake and filing the missing affidavit with the court. Id. The court granted the motion to dismiss without specifying whether it was with or without prejudice. Id. at 104, 614 S.E.2d 101. We affirmed, holding that the dismissal necessarily was with prejudice because it was for failure to state a claim, and that because the plaintiffs had failed to voluntarily dismiss their action prior to the trial court's having ruled on the motion, they could not seek to renew under OCGA §...
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